What is the test for obtaining express consent in a medical malpractice case?

Prince Edward Island, Canada


The following excerpt is from MacKinnon v. MacKinnon & ors., 2000 PESCTD 97 (CanLII):

Our Court of Appeal observed in Hosie v. Fawthrop et al (1978), 1978 CanLII 3321 (PE SCAD), 16 Nfld. & P.E.I.R. 181 (P.E.I.S.C.A.D.), judgment of C.R. McQuaid J. at p. 229, that there is generally little difficulty where the consent can be found to be express. The circumstances of this case make it an exception to that general rule. The primary question in this case is whether there was express consent. This question was the focus of testimony and submissions throughout six days of trial.

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