The Failure of the Defence of Necessity as a Mechanism of Legal Change on Assisted Dying in the Common Law World
The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams, Dennis Baker and Jeremy Horder, eds., Cambridge University Press, 2012, pp.274-295
16 Pages Posted: 29 Jul 2015 Last revised: 26 Oct 2015
Date Written: 2012
Glanville Williams’ proposal to use the common law defence of necessity in cases of euthanasia has not been taken up. Williams saw the best chance for his proposal in cases where the doctor is faced with ‘the over¬whelming necessity of relieving unbearable suffering in the last extremity, where the patient consents to what is done and where in any event no span of useful life is left to him.’ But if the defence of necessity is used as the route to legalisation of euthanasia, successfully limiting its availability to patients who request it or to patients who suffer from a terminal illness is unlikely.
Using a conflict of duties approach, following the Dutch model, the defence could be limited to doctors acting within the medical domain. In relation to the ‘medical exception’, Williams argued that ‘[c]ontrols exercised by the medical profession itself should be accepted as sufficient.’ A similar approach has been taken by the Dutch courts, in relation to the defence of necessity, in accepting that the boundaries of the duty to prevent suffering are determined by the existence of medical consensus.
Keywords: defence of necessity, necessity, euthanasia, assisted suicide, medical law
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