Legal briefing: Healthcare ethics committees

This issue's "Legal Briefing" column covers recent legal developments involving institutional healthcare ethics committees. This topic has been the subject of recent articles in JCE. Healthcare ethics committees have also recently been the subject of significant public policy attention. Disturbingly, Bobby Schindler and others have described ethics committees as "death panels." But most of the recent attention has been positive. Over the past several months, legislatures and courts have expanded the use of ethics committees and clarified their roles concerning both end-of-life treatment and other issues. These developments are usefully grouped into the following eight categories: 1. Existence and availability. 2. Membership and composition. 3. Operating procedures. 4. Advisory roles. 5. Decision-making and gate-keeping roles. 6. Confidentiality. 7. Immunity. 8. Litigation and court cases.     

Legal briefing: organ donation and allocation

This issue's "Legal Briefing" column covers legal developments pertaining to organ donation and allocation. This topic has been the subject of recent articles in JCE. Organ donation and allocation have also recently been the subjects of significant public policy attention. In the past several months, legislatures and regulatory agencies across the United States and across the world have changed, or considered changing, the methods for procuring and distributing human organs for transplantation. Currently, in the U.S., more than 100,000 persons are waiting for organ transplantation. In China, more than 1.5 million people are waiting. Given the chronic shortage of available organs (especially kidneys and livers) relative to demand, the primary focus of most legal developments has been on increasing the rate of donation. These and related developments are usefully divided into the following 12 topical categories: 1. Revised Uniform Anatomical Gift Act. 2. Presumed Consent and Opt-Out. 3. Mandated Choice. 4. Donation after Cardiac Death. 5. Payment and Compensation. 6. Donation by Prisoners. 7. Donor Registries. 8. Public Education. 9. Other Procurement Initiatives. 10. Lawsuits and Liability. 11. Trafficking and Tourism. 12. Allocation and Distribution.     

Legal briefing: Crisis standards of care and legal protections during disasters and emergencies

This article outlines current safe harbors in the law for healthcare practitioners who work in a disaster setting. It reviews available legal protection in crisis situations with respect to the Emergency Medical Treatment and Labor Act (EMTALA), criminal liability, and licensure.     

Legal briefing: The unbefriended: making healthcare decisions for patients without surrogates (Part 1)

This issue's "Legal Briefing" column covers recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the "single greatest category of problems" encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia. Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. "Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform". Most providers are "muddling through on an ad hoc basis". Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two define the problem of medical decision making for the unbefriended. The remaining 12 categories describe different solutions to the problem. The first six of these solutions are discussed in this article (Part 1). The last eight solutions will be covered in the Summer 2012 issue of JCE (Part 2). 1. Who are the unbefriended? 2. Risks and problems of the unbefriended. 3. Prevention: advance care planning, diligent searching, and careful capacity assessment. 4. Decision-making mechanisms and standards. 5. Emergency exception to informed consent. 6. Expanded default surrogate lists: close friends. 7. Private guardians. 8. Volunteer guardians. 9. Public guardians. 10. Temporary and emergency guardians. 11. Attending physicians. 12. Other clinicians, individuals, and entities. 13. Institutional committees. 14. External committees.     

Legal briefing: The unbefriended: making healthcare decisions for patients without surrogates (Part 2)

This issue's "Legal Briefing" column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the "single greatest category of problems" encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia. Unfortunately, most U.S.jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. "Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform." Most providers are "muddling through on an ad hoc basis." Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended.The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue (Part 2). 1. Who are the unbefriended? 2. Risks and problems of the unbefriended. 3. Prevention: advance care planning, diligent searching, and careful capacity assessment. 4. Decision-making mechanisms and standards. 5. Emergency exception to informed consent. 6. Expanded default surrogate lists: close friends. 7. Private guardians. 8. Volunteer guardians. 9. Public guardians. 10. Temporary and emergency guardians. 11. Attending physicians. 12. Other clinicians, individuals, and entities. 13. Institutional committees. 14. External committees.     

Resistance is futile: The unwitting insertion of analogical inferences in memory

Analogical inferences can modify people’s understanding, but can this occur even when the inferences are unpalatable? We report two experiments suggesting that this is the case. Participants read a source passage on the role and status of gay people in society. Half then read an analogy describing the historical persecution of left-handers. On a subsequent recognition test, the participants who read the analogy were more likely than the control participants to misrecognize analogical inferences as statements explicitly presented, but the two groups did not differ in recognition rates for other kinds of statements. A priori explicit attitudes toward gays did not moderate these findings, although the participants with more positive attitudes toward gays saw the analogy to left-handers as more sound. Our findings demonstrate that analogical inferences can be seamlessly integrated into mental representations of the target domain even when those inferences are unpalatable; in short, resistance to analogy is futile.     

When resistance is futile: consequences of failed counterarguing for attitude certainty

This research tests the notion that attitudes after a failed attempt to counterargue may be stronger than attitudes after undirected thinking. Specifically, failed counterarguing may be accompanied by unique metacognitions that serve to strengthen the attitude. The present research examines this issue by giving participants a very strong message and instructing them to counterargue or simply think about the message. Across several experiments, attitudes were as favorable when individuals were trying to counterargue as when they were simply thinking, indicating that counterarguing failed to instill any extra resistance. However, attitudes were held with greater certainty following failed counterarguing compared with following undirected thinking. Furthermore, attitudes following failed counterarguing were more predictive of subsequent behavioral intentions. The metacognitions that follow failed counterarguing are addressed.     

Surrogate consent to non-beneficial research: erring on the right side when substituted judgments may be inaccurate

Part of the standard protection of decisionally incapacitated research subjects is a prohibition against enrolling them unless surrogate decision makers authorize it. A common view is that surrogates primarily ought to make their decisions based on what the decisionally incapacitated subject would have wanted regarding research participation. However, empirical studies indicate that surrogate predictions about such preferences are not very accurate. The focus of this article is the significance of surrogate accuracy in the context of research that is not expected to benefit the research subject. We identify three morally relevant asymmetries between being enrolled and not being enrolled in such non-beneficial research, and conclude that when there is a non-negligible probability that surrogates’ predictions are wrong, it will generally be better to err on the side of not authorizing enrollment.     

Capacity to consent to or refuse treatment and/or research: theoretical considerations

This article discusses theoretical dimensions of competency to consent to or refuse treatment and/or research. We will consider a number of issues. Our first subject is the nature of assessments of competency-their empirical, normative, and conceptual aspects. We then discuss how we should divide up the components of capacity-understanding, appreciation, reasoning, and evidencing a choice; how we should understand these different components; and whether all are indeed necessary. We discuss where to draw the line between capacity and incapacity on each of the four elements of capacity. We ask whether we should have a variable competency standard, either in general or in different contexts (e.g. treatment versus research). Finally we consider the role of mental illness in competency assessments.     

A psychodynamic perspective of workplace bullying: containment, boundaries and a futile search for recognition

This paper presents a psychodynamic perspective of workplace bullying. It focuses on two related psychoanalytical concepts, containment and boundaries. The life cycle theory of bullying builds on these concepts and describes in-depth the evolving relationship between a bully and a victim. The search for recognition by the bully and victim proves to be a futile one. Recommendations are made for therapeutic change.     

Legal Guardianship for the Elderly:

The Volunteer Guardianship Program of Lutheran Ministries of Florida serves as a guardian of last resort for adults who have been adjudicated incompetent by the court and for whom no other guardian is available. The need for such a ministry is especially great in Florida's Suncoast Area where a great many people are over age 75 and separated from family support systems. While Florida statutes make no provisions for public guardianship, Florida law does allow nonprofit corporations to be appointed guardian of person and/or property. Under this statute, Lutheran Ministries of Florida serves as the court appointed guardian for incompetent persons. It uses a teamwork approach involving professional staff and trained volunteers to assure that the needs of the ward are met.     

Counseling Minors: Ethical and Legal Issues

This article discusses the ethical and legal dilemmas facing counselors who work with minors in the school system. From an ethical perspective, minors should be able to expect confidentiality; however, parents and guardians have certain legal rights that limit the rights of minors. The author uses a hypothetical case to address these concerns and offers intervention strategies used for empowering minor clients in counseling.     

Legal realisms: on law and politics

The focus of this work is the issue of whether, and to what extent, the nature of the law is affected by politics, has been taken up by the American and Scandinavian legal realists. By the very fact of their being products of␣the socio-political conditions of the most recent century, the American and Scandinavian legal realisms are the movements that have most explicitly and systematically brought to the surface one particular characteristic phenomenon of contemporary Western legal systems: the existence of two basic forces simultaneously attracting and repelling, affecting the law in its relations with the political world.I would like to deeply thank Brian Bix, Laura Carlson, Roger Cotterrell and Jori Munukka for their many helpful comments on earlier drafts of this article. Any errors remaining are my own.