In a recent case a doctor was charged with supplying cannabis for therapeutic purposes to her patient.

The case is the first to raise the question of whether doctors should be able to prescribe cannabis if it has a therapeutic value in cases such as glaucoma, MS, cancer and now a severe medical disorder of a different kind.

Dr Biezanek, a respected and well-known doctor, was charged with two offences of supplying a class B controlled drug, namely cannabis, two further offences of attempting to supply the same drug and a charge of being in possession with intent to supply the same drug.

The recipient or intended recipient in each of the five cases was her daughter, Lucy.At no time either at interview or the subsequent trial did Dr Biezanek challenge any of these facts.

She accepted that she had supplied or attempted to supply her daughter and the drugs found in her possession on arrest, she freely admitted, were for the benefit of her daughter.

She subsequently appeared at Liverpool Crown Court when, after a trial lasting several days, she was acquitted.

Although Dr Biezanek did not contest the facts that supported t he prosecution, she said from the outset that Lucy was suffering from a severe medical disorder, which effectively forced Dr Biezanek to supply her over a period of time with the cannabis.

Effectively she was saying that it was a matter of necessity or more particularly, a defence of duress of circumstances.

It was therefore appropriate to consider whether such a defence existed, the extent to which it could be presented, and whether or not the facts of this particular case were such that warranted the defence of duress of circumstances being put forward.In the case of R v Dudley and Stephens [1884] 14 QBD 273, where the crew ate the cabin boy because they had run out of food, it was held that necessity was not a defence in murder although it left open the defence in respect of other charges.

More recently, the defence was presented in an attempted murder case (Gotts [1992] 2 AC 412) when it was held that, as in murder, the defence could not run in attempted murder.However, there is sufficient case law to indicate that in other cases the defence can be run.

In Conway [1988] 3 All ER 1025, it was clearly stated that duress of circumstances can be a defence to a charge of reckless driving.

Woolf LJ stated: 'We conclude that necessity can only be a defence to a charge where the facts establish duress of circumstances as in Willer where the defendant was forced by circumstances to drive as he did to avoid death or serious bodily harm to himself or some other person.' The principle was reinforced that the defence is available only if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death and/or serious injury.In Martin [1989] 1 All ER 652 Simon Brown J stated: 'English law does in extreme circumstances recognise a defence of necessity...duress, pressure on the defendant's will from the wrongful threats or violence of another.

Equally it can arise from other objective dangers threatening the defendant or others.

Arising thus it is called duress of circumstances.' The defendant, however, has to be acting reasonably and proportionately in order to avoid a threat of serious injury.The principle was further considered in Graham [1982] 1 All ER 801.

Again in Howe [1987] 1 All ER 771, Lord Hailsham stated: 'The threat of such a degree of violence that a person of reasonable firmness with the characteristics and in the situation of the defendant could not have been expected to resist.' The principle runs into the concept of justification and in Smith and Hogan's Criminal Law (sixth edition) examples are given of pulling down a house to prevent a fire spreading or a prisoner escaping a burning jail or the crew of a sinking ship jettisoning its cargo.

Any of these would be good examples of where the defence does exist, provided the principles above are made out.Lynch v DPP [1975] 1 All ER 913 produced some interesting observations by the judges such as: 'So great as to overbear the ordinary power of human resistance should be accepted as a justification for acts that otherwise would be criminal...

Ceased to be an independent actor for a reason that he would have no independent will of his own.'There are a number of US cases which support the view that duress of circumstances can be extended to medical matters with particular reference to the instant case.

In State v Warshow Supreme Court of Vermont (1979) 410A 2nd 1000 on a charge of unlawful trespass by protesters at a nuclear plant, it was succinctly held that the defence was good if:-- there was an emergency;-- the act was so imminent and compelling as to raise reasonable expectation of harm;-- there was no reasonable opportunity to avoid the injury;-- the injury impending was of sufficient seriousness to outmeasure the criminal wrong.In Linder v US (1925) 268 US 5 45 Supreme Court SCT 446 it was stated that a physician, who in good faith dispensed small quantities of morphine or cocaine to an addict, probably commits no offence.

Here there was no conscious desire to violate the law, no case to suspect that a recipient intended to sell or otherwise dispose of the drugs but only to take them for medicinal purposes.

The court had to be careful as to what constituted bona fide medical practice and that depended in turn upon the evidence and attending circumstances.However, it was made clear in US v Warren 453 Federal 2nd 738 that the statutory exemption of doctors from the prohibition against selling or disposing of amphetamines, so long as they are acting in the ordinary and authorised course of the business or profession, does not authorise them to go into the retail dangerous drugs business.Again in US v Webb 249 US 96 39 SCT 217 it was held that a physician's order for morphine issued to a habitual user, not in the course of professional treatment for a cure, but to keep him comfortable by maintaining his customary use, was not a physician's prescription, ie there must be a cure not simply a need to keep him comfortable.

The principle is therefore clearly stated in both English and US judgments that the defence does exist but the circumstances clearly must be reasonable; it must not be a charter for doctors to supply controlled drugs.There is medical authority to support the fact that cannabis has been supplied in chemotherapy, glaucoma and MS cases.

Should the list be expanded to other severe medical disorders? In the matter of 'Marijuana re-scheduling petition' (6 September 1988) it was clearly stated: 'High potential for abuse and that abuse of marijuana plant may lead to severe psychological and physical dependence.' However, in chemotherapy treatment 'it had therapeutic value in reducing the adverse affects of some chemotherapy treatments...it is clear beyond any question that many people find marijuana to have an accepted medical use in treatment in the USA in effecting relief for cancer patients.'In Hayes v Brown (1963) 133 SE 2nd 102 it was stated: 'This record shows a great many physicians and others to have accepted marijuana as having a medical use in the treatment of cancer patients' emesis.' The report continues by confirming that there is accepted medicinal use of cannabis for nausea and vomiting resulting from chemotherapy treatments in some cancer patients.

There is certainly evidence in one case of a Mr Randall who responded favourably in glaucoma treatment.

In MS 'it has a currently accepted medical use in treatment in the US for spasticity resulting from MS and other causes'.

The report goes on to say that it would be unreasonable, arbitrary and capricious to find otherwise.

Some doctors in the USA accept marijuana as helpful in touch treatment for some patients and that the same is true with respect to hyperparathyroidism.In the case of Dr Biezanek, the daughter's exact disorder is unknown following the case judge's order that the information should not be revealed in the daughter's interests.

The disorder is known to be of a very severe nature.

A consultant psychiatrist who specialises in drug-related cases gave evidence for the defence having examined Lucy, read her case notes and having had a wealth of experi ence in cannabis-taking patients.

He was able to support Dr Biezanek's view that this was a genuine case of a severe medical disorder which was life threatening and therefore fell within the principles enunciated above by the decided case law.

It took the jury only 50 minutes to come to its verdict and acquit Dr Biezanek on all five charges.The circumstances of this case are unusual in the extreme and are unlikely to repeat themselves.

As the case was a Crown Court decision, and because the defendant was acquitted, it is certainly not a precedent in the legal sense.

Perhaps it was a sympathy verdict but it is difficult to say because we do not know how the jury approached the evidence.Some people argue that this decision shows that cannabis ought to be legalised so that effectively a case such as this would never have been brought.

I would like to see doctors being able to prescribe in given circumstances.

Those doctors would have to be specially licensed and would have to have a background clearly tested out by the authorities to such a degree that it would be reasonable to give them a licence.

Such licensing has obvious dangers.

Will all addicts be attracted to such a doctor? Will the doctor be compromised by the pressure that he or she might be under and abuse the trust that the state has given him or her?