What is the legal test for whether consent to a procedure has been withdrawn?
Alberta, Canada
The following excerpt is from Keller v. Penkoske, 2004 ABCA 4 (CanLII):
Whether or not consent to a procedure has been withdrawn will always be a question of fact as stated in Ciarlariello v. Schacter, 1993 CanLII 138 (SCC), [1993] 2 S.C.R. 119 at p. 134: Whether or not there has been a withdrawal of consent will always be a question of fact. The words used by a patient may be ambiguous. Even if they are apparently clear, the circumstances under which they were spoken may render them ambiguous. On some occasions, the doctors conducting the process may reasonably take the words spoken by the patient to be an expression of pain rather than a withdrawal of consent. Obviously, these are questions of fact which will have to be resolved by the trial judge.
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