- Published on
R (on the Application of N) v Dr M(2002): Where the doctrine of
necessity is relied on to administer non-consensual treatment to
detained patients, that treatment must be ‘shown convincingly’ to be
medically necessary
Facts
The patient refused consent to depot (slow release, prolonged action) anti-psychotic
medication. Medical opinion was divided on the diagnosis of psychosis, the need for
treatment and her capacity to consent. The court accepted that she was incompetent
to consent and held that, despite the split opinion, it would be in her best interests to
receive the treatment. N appealed.
Decision
The Court of Appeal held that, where a breach of Article 3 of the HRA 1998 was
alleged, the appropriate test was that set out in Herczegfalvy v Austria (1992). This
meant that the Bolam test, while necessary, was an insufficient test and the ‘court
cannot permit the forcible administering of medical treatment unless it is shown
convincingly to be medically necessary’.
Comment
In Herczegfalvy, the European Court of Human Rights held that: ‘as a general rule, a
method which is a therapeutic necessity cannot be regarded as inhuman or degrading.
The court must nevertheless satisfy itself that the medical necessity has been
convincingly shown to exist.’ Dyson LJ held that this was a single question, influenced
by a number of factors, including: certainty of diagnosis; seriousness of disorder; risk
to others; treatability of the disorder; and the adverse consequences of treatment. See116 Briefcase on Medical Law
also R (on the Application of Wilkinson) v Broadmoor Special Hospital Authority(2002),
in which the Court of Appeal held that to justify forcible treatment as a medical
necessity under Article 3 of the HRA 1998 it must provide a ‘substantial benefit’.
necessity is relied on to administer non-consensual treatment to
detained patients, that treatment must be ‘shown convincingly’ to be
medically necessary
Facts
The patient refused consent to depot (slow release, prolonged action) anti-psychotic
medication. Medical opinion was divided on the diagnosis of psychosis, the need for
treatment and her capacity to consent. The court accepted that she was incompetent
to consent and held that, despite the split opinion, it would be in her best interests to
receive the treatment. N appealed.
Decision
The Court of Appeal held that, where a breach of Article 3 of the HRA 1998 was
alleged, the appropriate test was that set out in Herczegfalvy v Austria (1992). This
meant that the Bolam test, while necessary, was an insufficient test and the ‘court
cannot permit the forcible administering of medical treatment unless it is shown
convincingly to be medically necessary’.
Comment
In Herczegfalvy, the European Court of Human Rights held that: ‘as a general rule, a
method which is a therapeutic necessity cannot be regarded as inhuman or degrading.
The court must nevertheless satisfy itself that the medical necessity has been
convincingly shown to exist.’ Dyson LJ held that this was a single question, influenced
by a number of factors, including: certainty of diagnosis; seriousness of disorder; risk
to others; treatability of the disorder; and the adverse consequences of treatment. See116 Briefcase on Medical Law
also R (on the Application of Wilkinson) v Broadmoor Special Hospital Authority(2002),
in which the Court of Appeal held that to justify forcible treatment as a medical
necessity under Article 3 of the HRA 1998 it must provide a ‘substantial benefit’.
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