Research involving critically ill persons highlights challenging questions surrounding third party authorization. The ethical and legal viability in research involving persons who do not have the capacity to consent to participation is not universally accepted, and inconsistent standards are reflected in research ethics guidelines, law and practice. In order to ensure that research participants who are considered incapable of consenting to research are appropriately protected, and that minimal risk research on illnesses affecting those who are unable to consent is enabled, clear and justifiable parameters must be created and, where they are already established, they must be made more transparent.