Law Weblog

There is no defence of medical necessity

Sunday 3 July 2005 at 7:11 pm | In News | Post Comment

Quayle and others and AG Ref (No 2 of 2004) [2005] CA
[Defences – medical necessity (duress of circumstances) – not available for medicinal use of cannabis – judicial law-making – principle not policy]
DD (six conjoined cases) smoked cannabis to relieve pain, another D imported cannabis for the benefit of others who used it for medicinal purposes or to ease the passage to death. There was no medical dispute as to its painkilling properties in some cases.

Held: There is no common law defence of “medical necessity”, nor do the various statutes provide for a defence. Doctors are not permitted to prescribe cannabis except for certain trials, it would not be appropriate therefore for individuals to make cannabis available for themselves or others.

For the purpose of the defence of necessity (duress of circumstances), there is a requirement of threat of serious injury, which would not include suicide by the defendant.

Lord Justice Mance delivering the judgment of the court stated that the judgment was based on established principles and not policy; he quoted from McLoughlin v O’Brien [1983] “…If principle leads to results which are thought to be socially unacceptable, Parliament can legislate to draw a line or map out a new path.”

Guilty

Comment: This case was apparently referred to the Court of Appeal by the highest level within the CPS.
Cannabis trials are only available for multiple sclerosis (MS) sufferers, which did not apply to any of the defendants.
It is possible that juries will still acquit in some cases even though no such defence exists; if raised the ‘defence’ should not be allowed to go to the jury.
The case is expected to go to the House of Lords.
Whole case here