Report No. 196

His lordship concluded:

"In my judgment, essentially what is being done is to omit to feed or to ventilate; the removal of the nasogastric tube or the switching off of a ventilator are merely incidents of that omission. (See Glanville Williams, Textbook of Criminal Law, p. 282; Skegg, p. 169 et seq)".

Any treatment given by a doctor to a patient which is invasive (i.e. involves any interference with the physical integrity of the patient) is unlawful unless done with the consent of the patient; it constitutes the crime of battery and the tort of trespass to the person. In the case of a charge of murder by omission to do an act and the act of omission could only be done with the consent of patient, refusal by the patient, will be a valid defence for a doctor.

"The doctor cannot owe to the patient any duty to maintain his life where that life can only be sustained by intrusive medical care to which the patient will not consent."

In the case of minors, the Court, exercising the Crown's right as parens patriae under the wardship jurisdiction, can consent on the child's behalf. Until 1960 (in UK), the Court had the same parens patriae jurisdiction over adults who were mentally incompetent. But by the joint effect of the Mental Health Act, 1959 and the revocation of the warrant under the Sign Manual under which the jurisdiction of the Crown as parens patriae over those of unsound mind was conferred on the Courts, the Courts ceased to have any parens patriae jurisdiction over the person of a mentally incompetent adult, being left only with the statutory jurisdiction over his property (as opposed to his person) conferred by the Act of 1954.