Trajectory of necessity defence Necessity before Re A (children) -> "best interests" necessity (mainly in medical contexts) · Re F -> a mentally incompetent woman could be sterilised in her own "best interests", notwithstanding that she was unable to give valid consent to the procedure · Bournewood -> learning disabled person detained for compulsory treatment even though his adoptive family were anxious to bring him home · This same principle also justified operations which were in the "best interests" of competent but unconscious adults injured in an accident · St George's Healthcare v S -> vindicated right of a pregnant woman to refuse a caesarean operation, notwithstanding the operation was required to preserve the life of the mother and unborn child · Focus was on victim's own best interests o Simon Gardner -> termed it a "rights-based" doctrine of necessity o Useful way to distinguish from the utilitarian doctrine of necessity, which holds that V's rights may be overridden for the sake of the interests of others, if to do so would lead to a gain in utility o Before Re A (Children) a defence of necessity had to be presented as a plea that the harm done was in the "best interests" of V Bourne Facts: · Girl pregnant in consequence of rape · D, a doctor, performed an abortion on the girl Ratio: · Defence of "best interests" necessity was available to D, if D procured the miscarriage of the girl in good faith for the purpose of preserving her life Re F Facts: · Court order allowing the sterilisation of a 36-year-old mentally handicapped woman · By reason of her mental incapacity, the woman was disabled from giving her consent to the operation Ratio · Under common law, doctors were able to operate on adults unable to consent to or to refuse treatment by reason of emergency or mental disability if the treatment was in the patient's "best interests" · In the absence of any Parliamentary response to the problem judges can and should accept responsibility to recognise the need and to adapt the common law to meet it o If such a development did not meet with public approval it would always be open to Parliament to reverse or alter it by statute · This has potentially wider application in the criminal law, e.g. one might rugby tackle to the ground someone who was apparently unaware that he was about to
walk in front of a moving lorry · Difference between "best interests" necessity and duress by circumstance o In the former, there is no requirement for an emergency and there need not be a serious threat of death or serious harm Decision of Re A (Children) -> "utilitarian" defence of necessity established · Necessity as a defence to murder was precluded in the famous case of Dudley and Stephens o Killed and consumed youngest and weakest member of their party o But for the act, D and his companions would probably have died prior to