Abstract As the concept of informed consent to treatment has evolved, so has that of treatment without consent. Although the common law permits treatment without the patient’s explicit agreement in certain circumstances where they are incapacitated in keeping with the doctrine of necessity, the situation has become increasingly complex although statute based law has now made this more straightforward with the incapax. The framework to allow this to happen is considered and the manner in which the courts have been involved in such a scenario is described.