In 1962, the Journal of law and Contemporary Problems devoted its entire winter issue to aging. The remarkable thing about that issue was that it had only one article that dealt with legal questions—and that with tax treatment of the elderly. The remainder of the issue contained articles dealing with the demographic and sociological characteristics of the elderly, currently held views and theories of aging and human development, and some special concerns from other disciplines like geriatric psychiatry.

In less than a generation, old age and the law has evolved into a field of study of consuming interest to legal scholars, practitioners, sociologists, and consumers. The Chicago-Kent Law Library established a special catalog of the law and aging in 1983. By 1987 (the year in which the last entries were made for the collection), the catalog had grown to over 500 pages. Earlier (1982) the Southern Culifornia Law Review published a similar catalog which was updated in 1984 and 1987.

This conference comes together at a critical time for law, ethics, and medicine. The issues which come under attention are of the greatest variety, complexity, sensitivity, and urgency.

The topics span the whole of human life. They begin at a point before human life has commenced. The revolutionary developments of biology as they affect conception and the use and limits of reproductive and genetic techniques arrest our thoughts in section VI of this special issue of Law, Medicine & Health Care. The rationing of health care as it is made available to patients and the community is the focus of attention in section III. The subject of medical malpractice and the litigation which attends it where the patient or the family claim that things have gone wrong are considered in section II.

The new challenge of AIDS is discussed with its many faceted problems: medical, legal, and ethical. It is difficult now to remember the world before AIDS.

Three years ago, I was invited by the Hastings Center to prepare a position paper asserting that patients had the right to be protected against exposure to HIV in health care settings. Believing, rather naively I fear, that I was being asked to defend the rights of patients, I happily accepted. My paper examined such areas as the patient's right to be informed if her surgeon was HIV-infected, along with the prevailing professional duty of health care providers to protect patients from avoidable harms.

When I arrived at the debate forum, I looked up to see my friends—humane public health officials, civil libertarians, and AIDS activists—on the other side of the table. It dawned on me that the debate was not about patients’ rights at all, but about restricting the employment rights of HIV-infected health care professionals. Still, I argued at that time, and have continued to assert in the Centers for Disease Control review process, that HIV-infected health care professionals ought to refrain from the practice of seriously invasive procedures.

Physicians frequently are asked to assess whether a patient has the capacity to make informed decisions about his or her medical care. Such assessments may be difficult and controversial. There are few explicit legal standards for judging competency to make medical decisions. Furthermore, clinical practices for evaluating decision-making capacity are problematic. The following case illustrates some of these problems.

Mrs. C., a 74 year old widow with congestive heart failure, angina pectoris, and mild dementia, has been admitted to the hospital for shortness of breath and chest pain. In the past three years she has suffered two heart attacks. During the past two months, her symptoms have worsened despite several medications, including maximally tolerated doses of diltiazem, furosemide and enalapril. She now develops shortness of breath and chest pain when walking one block. Because there are no other medical treatments for her condition, her physician recommends angioplasty or bypass surgery in order to ameliorate her symptoms.

In July 1990, the federal Centers for Disease Control (CDC) reported the first case of possible transmission of the Human Immunodeficiency Virus (HIV) to a patient from an HIV-infected health care worker. The transmission may have occurred during an invasive dental procedure performed on her by a dentist who had AIDS, and in January 1991, the CDC reported possible HIV transmission during dental procedures to two other patients of the same dentist. Further, the recent revelation that a respected surgeon at a major medical center performed many surgical procedures while infected with HIV created substantial public concern. These cases call into question the prudence of allowing infected workers to continue performing medical and dental procedures that involve some risk, however slight, of transmitting HIV infection to patients. Whether HIV-infected workers should be excluded from practice of their profession because of a remote risk to patients relates directly to levels of tolerable risk in health care delivery and in social policy.

Last July 26, amidst much fanfare, President Bush signed the Americans with Disabilities Act of 1990 (the “ADA”). The Act, which President Bush aptly called “the world's first comprehensive declaration of equality for people with disabilities,” breaks new ground. Seeking to ensure the dignity and legal equality of an estimated 43 million disabled Americans, the Act is both broad and visionary. Regulating areas as diverse as transportation, employment, communications, health care and public accommodations, it suggests a new understanding on the part of Congress about the nature of discrimination. It also both answers and raises numerous questions about the role of law in the face of disease and disability.

The ADA is modeled upon many prior laws, most especially the Rehabilitation Act of 1973. Included in the Rehabilitation Act are several provisions ancestral to the ADA. Secs. 501 and 503 of the Rehabilitation Act place affirmative obligations on the federal government and its contractors to employ the disab1ed.

Major changes are occurring in health law and ethics. Not only are new questions being asked, but new answers are being given, sometimes by new participants. The ferment of the field was very evident during London ‘89, the Second International Conference on Health Law and Ethics, as I hope readers can discern from the essays in this journal. Traditional issues remain, but new themes—such as the place of community welfare alongside values like promoting patient autonomy and serving justice—have emerged with great urgency because of the AIDS epidemic and the constraints on health care spending. Economists and health care planners are looking beyond technical responses and participating more actively in bioethical debates, even as the field seems to be of greater interest to Europeans, Japanese, and people from developing countries, who include a larger number of government officials than is true in most settings in the United States.

Major changes are occurring in health law and ethics. Not only are new questions being asked, but new answers are being given, sometimes by new participants. The ferment of the field was very evident during London ‘89, the Second International Conference on Health Law and Ethics, as I hope readers can discern from the essays in this journal. Traditional issues remain, but new themes—such as the place of community welfare alongside values like promoting patient autonomy and serving justice—have emerged with great urgency because of the AIDS epidemic and the constraints on health care spending. Economists and health care planners are looking beyond technical responses and participating more actively in bioethical debates, even as the field seems to be of greater interest to Europeans, Japanese, and people from developing countries, who include a larger number of government officials than is true in most settings in the United States.

In the United States we prize our freedom as individuals to make our own decisions, however unwise they might seem to others. This devotion to the principle of autonomy (from the Greek “autos” meaning self and “nomos” meaning rule) is obvious in our legal system as well as in a variety of social rules and customs that govern our daily lives.

Difficulties arise, however, when we lose, either temporarily or permanently, the capacity to make our own decisions. Ideally we would have planned ahead for possible incapacity in order to retain control over the future course of our lives. Unfortunately the ideal situation rarely exists. Most of us avoid anticipating the possibility of our own incapacity, and by implication, loss of control. Until recently attention has not been paid to developing and supplying accessible and understandable information about advance directives that could assist us in such planning. And most of us still prefer (or at least resort to) informal, often uninformed, family decision-making arrangements.

In recent years, there has been a slow but dramatic change in society's attitudes toward persons with disabilities—an evolution away from traditional paternalistic approaches which foster dependency, toward policies focused on maximizing the potential for autonomy and independence among individuals of limited capacity. This change is clearly reflected in efforts across the country to revise state guardianship statutes. This article analyzes significant trends in these reform efforts, and highlights important practice implications for physicians and attorneys whose practices include serving persons who are limited in their capacity to make informed decisions.

Medical advances in new reproductive technologies continue to raise complex legal and ethical issues. Last October, a California Superior Court judge issued his opinion on the first contested case in this country involving gestational surrogacy. Upholding the surrogacy contract as valid and declaring that the genetic parents had exclusive custody and parental rights, Judge Richard Parslow observed:

I contend that we must put part of the genie back into the bottle. Gestational surrogacy is not an acceptable option for the extension of in vitro fertilization (IVF). This is not a reaction to the facts of the California case, but rather a recognition that the medicalization of surrogacy as a reproductive technology attempts to legitimize a practice that professionals should not support.

Three periods can be distinguished in the brief history of global AIDS: silence, discovery and mobilization. The first period, starting in the mid-l970s, was the time of the “silent pandemic,” during which HIV spread — unnoticed—to at least five continents. During this period, when the virus was unrecognized, HIV could have — but did not — spread even more widely.

The description of AIDS in 1981 ended the silence and initiated the second period in the history of global AIDS — a period of discovery which culminated symbolically at the first International Conference on AIDS in June 1985 (Atlanta, USA). During this period, the modes of transmission were defined, the virus was discovered, and the capacity to detect anti-viral antibodies led to the discovery of large numbers of infected persons and to awareness of the long latency between infection and manifest disease.

On June 25, 1990 the U.S. Supreme Court ruled for the first time in a right to refuse medical treatment case. The court's holding (by a majority of five of the nine justices) was essentially as follows: The right to liberty, which is explicitly mentioned in the Constitution, encompasses a person's decision to reject life-sustaining treatment; competent people are entitled to reject life-support and states are therefore prohibited from preventing people from making that choice. States may, however, regulate the exercise of the right, to ensure that the decision to stop treatment is indeed what the patient would have wanted. Asking for “clear and convincing evidence” of an incompetent patient's wishes (which means a demonstration that the person herself deliberately and thoughtfully made the decision in advance, or perhaps formally appointed someone else to make that decision for her) is a legitimate form of regulation by the state: It furthers the quest for what the person would have wanted and protects incompetent individuals from decisions made by others which might be influenced by the others’ interest instead of being based solely on what the individual would have wanted.

The subject of screening stands at the intersection of medicine and public health and the law. Medicine is concerned about the care of the individual patient; public health focuses on maintaining and improving the health of entire populations. The law is concerned with the balance of rights and responsibilities, protecting society from errant individuals and protecting the individual from undue constraints of society.

In looking specifically at the questions of screening or testing for the Human Immunodeficiency Virus (HIV) it is useful to consider the meaning of the words “tests” and “screening” because many different terms are applied to these concepts — diagnostic testing, case finding, screening, surveillance, and so on. In all cases, medical tests have a common purpose: to provide information that sheds light on the probability that the disease of interest actually is present in the patient being tested.

The home setting presents particular problems in assessing a client/patient's ability to refuse suggested medical care. Home is familiar; it is associated with relaxation and not with the mobilization required to combar anxiety, uncertainty, illness and pain. In the home family members may be overly involved or controlling. Especially in the situation of elderly siblings with long combined histories, there may be shared peculiarities or even shared personaliry disorders which complicate an individual's choice of care. The home, because it is familiar, may maximize patient orientation but may also support denial of illness; the patient/client may reason “If I'm home, I'm really not ill.” In contrast, hospitals and long-term care facilities are intimidating and infantilizing institutions that tend to undercut personal resolve and challenge denial.

The increasing life expectancy and increasing proportion of the population over the age of 65 in most developing countries are both unprecedented demographic phenomena. In the United States, life expectancy has increased more in the last century than in all previous recorded history. Even in the last 20 years, there have continued to he unexpected and largely unexplainable declines in mortality rates leading to increasing numbers of people living beyond even the ages of 85, 90 or 100. It is not surprising, then, that there is a great interest in studies of aging among researchers in social science and policy studies. Further, since aging is generally associated with an increased risk of medical illness and declining function, research has been stimulated in many different health-related areas, such as clinical disease, basic molecular causes of aging, and health services research.