The Waxing & Waning of Informed Consent: Medical Assistance in Dying and the Question of Advance Requests

This paper traces the impact of the principle of informed consent on Canadian legal developments in the area of advance directives, medical assistance in dying (MAID), and (where the two converge) advance requests in the context of MAID. I show how recognition of the principle of informed consent has not only served to justify developments in the law facilitating advance directives; it has also played an important role in justifying the legalization, under specific circumstances, of MAID. The paradigmatic case of informed consent is where a clearly competent, fully informed adult effectively communicates with their physician, contemporaneously to the administration of treatment. Deviation from these conditions raises questions about how to apply the principle. I examine the claim that the ascendance of the informed consent principle has eclipsed other principles while obscuring the role that the professional judgment of physicians plays in the provision of medical treatment. I analyse this claim in relation to conflicts over prolongation of so-called futile treatment and access to MAID. I then argue why the capacity requirement, barring advance requests for MAID, is justified