1 Faculty of Law, University of Otago, Dunedin, New Zealand
It is often said that, when the law authorises treatment without consent – such as under mental health legislation – clinicians must use the ‘least restrictive alternative’, or the ‘least drastic’ intervention. This could be considered an ethical principle, intended to reduce limits on patients’ autonomy. It is also a general principle of human rights law, designed to reduce restrictions on patients’ rights.
But what does the concept mean, in difficult cases? Less restrictive compared to what? How are the other alternatives to be identified, to which an intervention is compared? Will purely speculative alternatives suffice?
Moreover, what roles does the concept play in healthcare law? Does it go to fundamental questions of authority, so an intervention is deemed unlawful if the clinician does not take the least restrictive approach? Or is it merely one factor to take into account in the exercise of discretion? What of liability? Is it professional negligence not to use the least drastic approach?
This paper tries to unpack the meaning and functions of this ubiquitous concept, analysing judicial reasoning in leading cases in which the concept is employed.
John Dawson’s principal research field is mental health law, with a particular focus on the civil commitment process and use of community treatment orders. He has studied these matters in NZ, Australia, Canada, and the UK, and has an LLD for publications in the field. Recent publications include Dawson and Gledhill (eds) NZ’s Mental Health Act in Practice (VUP, 2013) and several chapters of Skegg and Paterson (eds) Health Law in NZ (Thomson Reuters, 2015). He also teaches jurisprudence and constitutional law.