How has consent been interpreted in medical malpractice cases?

In sum, the trial judge applied the correct law on the issue of consent. He looked at the surrounding circumstances as he found them to be. Included in that assessment is the fact that the alleged “consent” arose when a medical doctor was presented with a patient in police custody and asked by the police to conduct what was, on the face of it, a non-medically necessary search of the body of the patient that involved a series of progressively more invasive procedures. In such circumstances, it is incumbent on the doctor to inquire of the patient, in private, whether the patient is consenting to the invasive bodily searches of his or her own free will. As explained by Sopinka J. in Norberg v. Wynrib at 304: Certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent. However, the question of consent in relation to a battery claim is ultimately a factual one that must be determined on the basis of all the circumstances of a particular case.