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The cautions of our commentators are all well taken, and we are grateful for them.
When we say that physicians should respect the wishes of their patients for medical treatment, even if that would make them complicit in torture being inflicted on their patients, Henry Shue reminds us that that assumes that the patients undergoing torture retain minimally adequate decision-making capacity. Insofar as the torture aims at, and succeeds in, producing ‘regression to an infantile state’, patients who are victims of such torture would likely fail standard tests of that.
True though that observation may be, it leaves us with no solution to our initial problem. Were we to assume that the victim does not have decision-making capacity, and reject his request for treatment on that basis, we would victimise him further by abandoning him to his fate leaving him with no alternatives and no support whatsoever.
Furthermore, in regimes of psychologically sophisticated torture of the sort Shue discusses, there may be an even stronger reason for a physician to comply with a victim-patient's request for her to treat him. For a physician to refuse a would-be patient's request for treatment, on grounds he lacks adequate decision-making capacity, might further reinforce the infantilising message of the torturers. If so, that would amount to complicity in his torture, insofar as it furthers the wrong done by perpetrators.
In the absence of victim's consent, doctors typically use criteria like family's advice, patient's best interest or heuristics identifying what most patients would prefer in similar situations. None of these options is available to doctors caring for torture survivors during the course of their torture, however. The first is obviously not. The second is not because the physician cannot be altogether sure what is in her victim-patient's best interests, given that treating him will …
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