What is the test for "advance consent" in medical malpractice cases?

Hernandez 's "advance consent" scenario implicates a situation, likely quite rare, where a person consents in advance to being sexually violated while unconscious. This situation still would be a battery. Whether the consent of the victim can render a touching not "harmful or offensive" for purposes of battery depends on the nature of the touching and is defined by law. "[C]onsent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling. [Citation.] It is also the rule that the apparent consent of a person without legal capacity to give consent, such a child or insane person, is ineffective." ( People v. Samuels (1967) 250 Cal.App.2d 501, 513, 58 Cal.Rptr. 439.)

Advance consent can render medical treatment not a battery, but this is only as defined by law. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240, 104 Cal.Rptr. 505, 502 P.2d 1.) Battery occurs when a patient has not given informed consent to a medical procedure that occurs while the patient is under anesthetic. In contrast, however, under California law, advance consent to rape does not constitute valid legal consent, because such an advance decision eliminates the victim's ability to withdraw from the sexual activity while it occurs. ( Dancy, supra , 102 Cal.App.4th at pp. 36-37, 124 Cal.Rptr.2d 898 ; see People v. Smith (2010) 191 Cal.App.4th 199, 208, 120 Cal.Rptr.3d 52 [holding sexual battery is committed when victim "is unable to resist because of unconsciousness or intoxication"].)