In their work on the MacArthur Treatment Competence Study, Paul Appelbaum, Thomas Grisso, and their colleagues warn that their "experimental measures" of decisional capacity "should not be interpreted as though they provide determinations of legal incompetence to consent to treatment." The authors of this article do not believe that Appelbaum et al.'s admonition is strong enough, and they identify and analyze the serious generic, inherent problems connected with any attempt to construct a universally acceptable version of a capacimeter. They suggest that the continuing search for the elusive "Holy Grail" test of capacity proceed with great caution (if at all), and they conclude by urging that investigators and scholars devote their energies toward the development and dissemination of appropriate clinical practice parameters.In the United States 1 at the end of the 20th century, medical decision making is predicated on the legal doctrine, 2 as well as the ethical principle, 3 of informed consent. The informed consent doctrine, in turn, is based on the assumption of a decision-making process that is voluntary, that is informed by an adequate disclosure of information to the patient or surrogate decision maker, and that involves an ultimate decision maker who has adequate cognitive and emotional capacity 4 to

The conduct of biomedical research involving the participation of human beings implicates a variety of ethical concerns pertaining to such values as dignity, bodily integrity, autonomy, and privacy. These ethical concerns have been translated into a complex regulatory apparatus in the USA, containing specific legal provisions concerning such matters as participant safety, informed consent, and confidentiality. A topic of particular interest for pathologists is the handling of human tissue specimens that may be used for present, or stored for future, research purposes. This article examines the ethical and legal ramifications of obtaining and storing tissue samples for research purposes, with special attention to the issues of informed consent and confidentiality.

Although the use of physical restraint has declined in nursing homes, the practice remains widespread in hospitals. The use of physical restraint in hospitals was reviewed to identify the current clinical, legal, and ethical issues and the implications for policy and further research. Clinicians use physical restraints to prevent patient falls, to forestall disruption of therapy, or to control disruptive behavior, but they vary in how they determine to institute these restraints. The evidence to support the reasons for their determinations is not compelling. Fear of litigation remains a powerful motivator. The ethical dilemma of autonomy versus beneficence has not been resolved satisfactorily for patients in this setting. The lack of large-scale studies in any of these areas makes it difficult for policy makers to determine whether it is necessary to address hospital physical restraint practices through additional regulation.

Shared decision making about placement and medical interventions can be empowering to the older person involved, relieve burdens on the older person and family members, and facilitate better surrogate decision making later. Potential dangers of the shared process include coercion, conflicts of interest, and disagreements between family members. New legal concepts, similar to those governing property, could help our legal system better accommodate the realities of shared decision making.

Landmark federal legislation and several other social and clinical forces have induced nursing homes to reduce their use of physical or mechanical restraints on their residents during the past decade. Attention is being paid to the overuse of restraining devices and methods in acute care hospitals, including critical care units, and the need to develop strategies for their reduction or elimination. One of the most serious barriers to accomplishing this objective is anxiety on the part of health professionals and administrators about potential legal liability for patient injury. This article discusses the potential legal implications of physical restraint reduction in hospitals, with special emphasis on the critical care context. It places risks in realistic perspective, ultimately arguing that developing suitable alternatives to restraint use in most cases best serves the legal--as well as the clinical, ethical, and financial--interests of all concerned parties.

Background and Rationale: ICU clinicians regularly care for patients who lack capacity, an applicable advance directive, and an available surrogate decision-maker. Although there is no consensus on terminology, we refer to these patients as "unrepresented." There is considerable controversy about how to make treatment decisions for these patients, and there is significant variability in both law and clinical practice. Purpose and Objectives: This multisociety statement provides clinicians and hospital administrators with recommendations for decision-making on behalf of unrepresented patients in the critical care setting. Methods: An interprofessional, multidisciplinary expert committee developed this policy statement by using an iterative consensus process with a diverse working group representing critical care medicine, palliative care, pediatric medicine, nursing, social work, gerontology, geriatrics, patient advocacy, bioethics, philosophy, elder law, and health law. Main Results: The committee designed its policy recommendations to promote five ethical goals: 1) to protect highly vulnerable patients, 2) to demonstrate respect for persons, 3) to provide appropriate medical care, 4) to safeguard against unacceptable discrimination, and 5) to avoid undue influence of competing obligations and conflicting interests. These recommendations also are intended to strike an appropriate balance between excessive and insufficient procedural safeguards. The committee makes the following recommendations: 1) institutions should offer advance care planning to prevent patients at high risk for becoming unrepresented from meeting this definition; 2) institutions should implement strategies to determine whether seemingly unrepresented patients are actually unrepresented, including careful capacity assessments and diligent searches for potential surrogates; 3) institutions should manage decision-making for unrepresented patients using input from a diverse interprofessional, multidisciplinary committee rather than ad hoc by treating clinicians; 4) institutions should use all available information on the patient's preferences and values to guide treatment decisions; 5) institutions should manage decision-making for unrepresented patients using a fair process that comports with procedural due process; 6) institutions should employ this fair process even when state law authorizes procedures with less oversight. Conclusions: This multisociety statement provides guidance for clinicians and hospital administrators on medical decision-making for unrepresented patients in the critical care setting.

States are seeking to offset escalating Medicaid long-term care expenditures through a variety of policy mechanisms, including stimulating individual purchase of long-term care insurance. Findings suggest that economic incentives such as lowering premiums will be necessary but not sufficient to attract appropriate candidates. Attention to behavioral and psychosocial factors is essential to designing incentives that are responsive to concerns and preferences of potential purchasers.

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