Three meanings of capacity; or,why the federal government is most likely to lead on insurance access issues

This essay considers on what health policy issues the federal government is best able to lead. Positive leadership requires knowledge, power, and will. The federal government has different supplies of each for different aspects of quality of, cost of, and access to health care. Here I review technical capacity to attain desired ends, define the institutional strengths and weaknesses of the federal government, and outline current dynamics of the national political process. This analysis suggests both prospects for and some characteristics of successful policy. The federal government is more likely to lead on insurance than on other health policy issues because its supply of relevant knowledge and power is relatively high on insurance issues and the political barriers are lower than conventional wisdom suggests. But that leadership could take the form of either the expanding or contracting of access to insurance.     

Health care financing among the elderly: who really pays the bills?

This paper investigates the issue of who pays the health care bills of the elderly by considering the types of subsidized health insurance protection enjoyed by the noninstitutionalized elderly and the way that increased Medicare cost-sharing efforts in the 1980s are affecting those without additional health insurance subsidies. In making this examination we estimate the out-of-pocket health care expenditures of the elderly either directly or as nonsubsidized medigap premiums by income level, taking into account four types of health insurance subsidies received by elderly persons: Medicare, Medicaid, Veterans Administration health care, and subsidized health insurance from either current or former employers. We find that increased cost sharing is likely to fall most heavily on those elderly least likely to afford it: the poor and near-poor elderly who have only Medicare as a health insurance subsidy, particularly those who are older and sicker and who use Medicare services more heavily. These persons are caught between well-intentioned federal cost-cutting efforts and the often confusing panoply of health insurance programs for the aged, and they will bear an inequitably large portion of any future Medicare cost-sharing initiatives.     

Perceptions of nursing home workers, police chiefs, and college students regarding crime against the elderly: An exploratory study

The growing elderly population means that crime will play a larger role in future quality of life issues. Even so, few criminal justice endeavors have examined how different actors perceive various aspects of elderly victimization. This paper examines the way four distinct groups—nursing home directors, nursing home employees, police chiefs, and university students—perceive crime against the elderly. Results show nursing home professionals perceive aspects of elderly victimization differently than do police chiefs and college students. Implications are provided.     

An Intertribal Business Court

Few Indian reservations have any semblance of a private sector. Consequently, poverty and unemployment are major problems in much of Indian country. While there are many reasons why private enterprise is scarce in Indian country, one of the foremost reasons is businesses do not trust tribal courts. Businesses' distrust of tribal courts is not unique as outsiders often fear bias in foreign tribunals. Similarly, businesses are often concerned about a court's capacity to adjudicate complex disputes. Federal diversity jurisdiction was developed to allay fear of bias, and many states have developed business courts to address questions about court capacity. Tribes can overcome these issues by creating an intertribal business court (IBC). Tribes will be free to sculpt the IBC as they see fit. However, the IBC's intertribal nature will help reduce fears of bias, and an IBC's focus on business disputes will answer doubts about court capacity. An IBC will also make tribal law more accessible, further increasing confidence in this new tribunal. As businesses gain greater confidence in tribal legal institutions through the IBC, they will be more likely to operate in Indian country. Accordingly, the IBC could help to transform tribal economies.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 1 (New South Wales)

This is the first article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in New South Wales. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in New South Wales.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 2 (Queensland)

This is the second article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Queensland, including the parens patriae jurisdiction of the Supreme Court. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance health directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Queensland.     

Caregiving Responsibilities and Child Spanking

This study examines whether mothers who are also caregivers of elderly or dependent family members are more likely to resort to physical discipline than other mothers. Using data from the National Survey of Families and Households, we found that caregivers are more likely to spank their children than noncaregivers; however, among those who spank, caregivers are somewhat less prone to frequent spankings than noncaregivers. The data further suggest that it is primarily care for adults outside the household that is related to use and frequency of spankings.     

The aged and the dangerousness criterion in involuntary civil commitment

Using data from official court records and observations in court hearings throughout one state with a typical reform statute, this study investigates the elderly against whom petitions are brought for involuntary civil commitment. In relation to their proportion in the population, the aged are only slightly more likely than younger persons to become respondents in commitment proceedings; but they are over three times more likely to remain involuntarily hospitalized and to be subjected to recommitment proceedings. Once brought into the process, they are more likely than younger respondents to be committed and are more likely to be successively recommitted. In analyzing court testimony, focus is on evidence of dangerousness since involuntary commitment is limited to the mentally ill who are dangerous. Almost half of the young old initial respondents with formal hearings have no testimony alleging dangerous behavior and more than half of the old old have no such testimony. The alleged dangerous acts of the aged tend to be unintentional harm rather than assault.     

Criminal victimization of the elderly: An overview

This paper reviews existing literature and examines three questions : a) the nature and extent of criminal victimization of the elderly, b) the impact of crime on the lives of the elderly, and c) suggested crime prevention measures. One finds that contrary to popular opinion the elderly are less frequently criminally victimized than persons in younger age groups. The 1966 NORC survey, 1972 Denver Victimization Survey, and the 1973 LEAA Survey, all show that the elderly in comparison to younger age groups are victimized less frequently for most personal crimes. However, there is variability in regard to who among the elderly are more likely to be victimized. In profile the elderly at highest “risk” are single females who are socially isolated, have physical or mental impairments, incomes below $3000 per year, and live in or near high crime areas. Despite the fact that the elderly are less frequently victimized than others their “fear of crime” is greater, and has been increasing since 1965, than other age groups. Many factors are important in fueling their fear. Some of the more important concerns are the elderly’s physical and emotional vulnerability, especially in high crime areas, and their isolation (both socially and self-imposed) from others within a community. There are, however, efforts being made to further protect the elderly against crimes and to reduce their fear. Several examples of existing programs established in an effort to ameliorate the problems are specified. Also, suggestions, based on research findings, are made which could further deter crimes against the elderly and lessen the insidious fear of crime that exists.     

Victim age and capital sentencing outcomes in North Carolina (1977–2009)

Age is prominent among theories of criminology and victimology. It is less conspicuous in punishment theory, despite its emphasis in retributive theory and lawmaking. The present study evaluated competing ‘years of life lost’ and ‘vulnerable victim’ hypotheses to examine the influence of victim age in capital sentencing decisions. Using case file data on the population of capital murder trials in the State of North Carolina (1977–2009), our findings produce mixed results. Our quantitative analyses suggest that death sentences are significantly less likely in direct proportion to victim age. Killers of elderly victims are less likely to receive the death penalty; conversely, the odds of a death sentences are slightly greater for killers of child victims. Supplementary qualitative analyses suggest that while many child and elderly victims were not per se ‘vulnerable,’ a substantial subset of each clearly were treated as such. We discuss implications for vulnerable victim research and the role of quasi-legal factors in case outcomes.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 3 (Victoria)

This is the final article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Victoria. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training that medical professionals receive on issues such as refusal of treatment certificates and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Victoria. The article also draws together themes from the series as a whole, including conclusions about the need for more and better medical education and about law reform generally.     

我国老年监护制度的立法突破及相关问题

In the backwash of the world adult guardianship system reform, China has amended the Law on the Protection of the Rights and Interests of the Elderly and set up Article 26 which provides the guardianship by conduct and the designated guardianship for the elderly, which has made the breakthrough of the reform in the legislation of adult guardianship system and replenished the types of the persons under guardianship. Thus has established a new system for guardianship by conduct and expanded the applicative scope of the designated guardianship. It has also expanded the regulatory scope of the liability of guardian stipulated by Article 32 of the Tort Law of P.R.C and the scope of persons without civil procedure competency. So it is of great value both in legislation and society. As the provisions are still simple, some related issues will be caused by the legislation of the elderly guardianship system. For instance, the guardianship by conduct for the elderly has been set up without providing the procedure of making agreement, the necessary supervision system, and the registration system for it. Besides, measures and standards to determine whether an elderly has completely or partially lost his/her civil competency have not been established. Meanwhile, the guardianship by conduct should be expanded to all kinds of adult guardianship. And a comprehensive supervision system for guardianship has not been established neither. All of these issues need supplementary regulations to make proper adjustment.     

Political Orientation and Ideological Inconsistencies: (Dis)comfort with Value Tradeoffs

People are often inconsistent in the way they apply their values to their political beliefs (e.g., citing the value of life in opposing capital punishment while simultaneously supporting abortion rights). How do people confront such inconsistencies? Liberals were more likely to say that issues that could draw on several competing values were complex issues that required value tradeoffs, whereas conservatives were more likely to deny the comparability of the issues. We argue that this difference is rooted in the distinct ways that liberals and conservatives represent political issues. Additional evidence suggested that conservatives’ higher need for closure leads them to represent issues in terms of salient, accessible values. Although this may lead conservatives’ attitudes to be more situationally malleable under some circumstances, such shifts do serve to protect an absolutist approach to one’s moral values and help conservatives to deny the comparability of potentially inconsistent positions.     

The methodological struggles of racial profiling research: a causal question that automobile stop data has yet to answer

Automobile stop research finds that citizen race influences officer decision-making. Researchers, however, report methodological issues inhibiting them from drawing causal inferences about the existence of racial profiling. The purpose of this study is to deconstruct this field of inquiry through a causal lens to inform the next generation of scholarship. Through an analysis of automobile stop data, temporal ordering issues are exposed. Relating to association, most studies find that racial minorities are more likely to be searched, however, spuriousness issues continue to plague racial profiling studies as researchers rarely estimate departmental, passenger, vehicle, and temporal variables. To confront these issues, researchers are encouraged to engage in primary data collection and explore recent statistical innovations in their analytical strategies.     

Bridging the Gender Gap In Bill Sponsorship

Under what circumstances do men sponsor issues that are traditionally regarded as salient primarily to women? By examining the sponsorship of legislation in the upper and lower chambers of 15 state legislatures in 2001, we explored the conditions under which men are likely to focus attention on policy areas involving women's issues and children's issues. We found little effect of institutional context (such as party control of the legislature or diversity within the legislature) on the sponsorship behavior of either men or women. Personal characteristics such as race, education, age, and family circumstances are associated with sponsorship by men, but not by women. Committee service is also strongly associated with sponsorship behavior, particularly for men. Differences in sponsorship are relatively marked in the sponsorship of legislation that focuses on reproduction or other health issues particularly relevant to women. We conclude that the boundaries of the set of issues traditionally defined as “women's issues” may be changing over time and that it is important to recognize that the influences on the sponsorship of women's issues can be different for men than they are for women.     

Review of the significance of various low force fractures in the elderly

The elderly are more prone to sustain fractures with low force injury because they have an increased incidence of falls, and because their bones are often more fragile secondary to osteoporosis and other conditions. Cases with fracture are routinely reported to medical examiner and coroner offices because fracture reflects traumatic injury. If a fracture is judged to be a significant factor in a person's death, then the manner of death must reflect how the injury was sustained, which is "accidental" in most of these cases. Often times the best information on the significance of a fracture is obtained from the deceased's physician, nurse, family, or close acquaintance. However, this valuable clinical information is not always available. When this is the situation, it would be helpful to know generally what fractures are likely to be associated with increased mortality, and for how long any excess mortality might be expected to persist. With this in mind, a search of the literature was performed to clarify clinically which fractures in the elderly population were associated with excess mortality and the duration that any excess mortality tended to persist.     

Sleeping accidents in the elderly

Two cases of dangerous sleeping environments in the elderly are reported to demonstrate similarities and differences of these "sleeping accidents" to similar episodes that occur in infants and children. CASE REPORTS: An 87-year-old wheelchair-bound man with a history of dementia was found in his nursing home room hanging off the side of the bed from a vertical metal bar, and an 87-year-old woman with epilepsy, ischemic heart disease, and insulin-dependent diabetes mellitus was found in hospital wedged between an inflatable mattress and the bars of her bed. These cases demonstrate that, as in the very young, relatively poor coordination and strength in the elderly often with limited comprehension and ability to deal with dangerous environments may predispose to sleeping accidents. Significant underlying organic disease may, however, make determination of the precise lethal mechanisms difficult. Modification of beds should only be undertaken when safety issues have been carefully evaluated.     

Silent suicide in the elderly

The suicide rate in the United States rises consistently with age. Silent suicide is defined as the intention, often masked, to kill oneself by nonviolent means through self-starvation or noncompliance with essential medical treatment. Silent suicide frequently goes unrecognized because of undiagnosed depression and the interjection of the personal belief systems of health-care providers and family members. Elderly individuals committing silent suicide are often thought to be making rational end of life decisions. However, the elderly committing silent suicide must be distinguished from terminally ill patients who refuse further treatment in order not to prolong the act of dying. The clinical/legal issues surrounding silent suicide will be discussed.     

Elder abuse and neglect: challenges and directions for legal reform

The last two decades have heralded an increased community and professional awareness of the phenomenon of elder abuse and the challenges it poses to the enjoyment of the human rights of some older people. The contemporary Australian legal system provides many of the components of a framework required to assist in the promotion of the rights of the elderly and in the prevention and remedy of elder abuse. This framework acts in concert with health and community services dedicated to the advancement of health and wellbeing into old age. In the future, the acknowledgment and adoption of international legal principles which are directed to the needs of the elderly, the reform of existing domestic legislation and the development of new elder-specific statutes may all impact upon the incidence and consequences of elder abuse. To date, no Australian jurisdiction has adopted a legislative regime targeted specifically at the issues confronting older Australians who may be vulnerable to abuse and neglect. This column looks at some of the options for legal reform in this area.     

Legislative and educational alternatives to a judicial remedy for the transfer trauma dilemma

Transfer trauma is alleged to be an increase in morbidity and mortality in institutionally relocated chronically ill elderly. Efforts by the legal profession to persuade courts that transfer trauma should be a legally recognized phenomenon invoking judicial protections against transfer (the "transfer trauma argument") have been unproductive. In O'Bannon v. Town Court Nursing Center, Inc., the United States Supreme Court denied standing to elderly persons claiming a property interest in remaining in alleged substandard facilities. The Court rejected the argument that the possibility of transfer trauma constituted a deprivation of life or liberty that would have required due process protections of notice and hearing. Despite the Court's preclusion of transfer trauma litigation in a constitutional context and the general unwillingness of lower courts to recognize the phenomenon, attorneys continue to burden the judicial system with frivolous transfer trauma arguments. The unfruitful pursuit of a judicial remedy for the ethical and social problems that arise with relocation of the elderly continues, in part, because of a misguided belief that this distressing social phenomenon is best remedied by the courts. Judicial unwillingness to recognize the transfer trauma argument, however, does not preclude legislative consideration of the humanitarian issues concerning the institutional relocation of elderly persons. This Article examines gerontological research in order to understand the judicial rejection of the transfer trauma argument and argues in support of legislative and educational solutions for the ethical and social problems attending transfer.