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In ‘Second Thoughts about Who’s First: The Medical Triage of Violent Perpetrators and Their Victims’ (in this issue), Gold and Strous challenge the ‘worst-first’ principle of medical triage—the principle that priority should be assigned exclusively on the basis of medical need. They argue that it is not justified when both terrorists and their victims have suffered life-threatening injuries and require immediate medical attention (‘terror-triage’ situations). In such situations, they claim, victims have priority. Gold and Strous do not limit their critique of the worst-first principle to terror-triage situations. Nevertheless, they consider such situations a paradigm case of justified exceptions to the worst-first principle, and terror-triage situations are the focus of much of their article as well as this commentary.
Gold and Strous' critique of the worst-first principle is based on what they refer to as three ‘dimensions’ of justice: retributive, distributive and corrective justice. Each, they claim, supports giving lower priority to perpetrators.
Retributive justice: From the perspective of retributive justice, people who commit unjustified acts of extreme violence, such as terrorism, undoubtedly deserve some type of punishment. However, it can be questioned whether a delay in life-saving medical care is an appropriate form of punishment. The authors provide no justification for their claim that ‘from a retributive point of view, it is justified to withhold the privilege of “blind medical triage” from terrorists as a quasi-punitive countermeasure due to their inferior moral status’ (p. 4). Even if it is conceded that ‘the sanction of downgrading their priority directly parallels the gravity and nature of their wrongdoing’, it does not follow that it is a justified response to their wrongdoing. A similar claim might be made about withholding medical care from terrorists. However, Gold and Strous reject this response. They maintain that although ‘a “rudimentary decent minimum” of rights, such as the right to medical treatment, should be granted to terrorists on humanitarian grounds, the right of priority of medical treatment is not among these basic rights’ (p. 4). However, they do not offer any justification for this claim. It is also worth noting that on-the-scene ‘quasi-punitive’ decisions would not provide any due process protections.
Distributive justice: Gold and Strous define distributive justice as ‘an allocation of resources in accordance with the relative merit of each participant’ (p. 4). They do not provide a general criterion of ‘merit’. Instead, they limit their discussion of merit to a comparison of terrorists and victims: ‘Given the nature and purpose of terror, it can be argued that each of the injured victims has a greater merit than that of the terrorist’ (p. 4). Granted, it can be argued that each of the injured victims has a greater merit than that of the terrorist, but the following is all they offer to support this claim. Whereas the terrorist is said to be ‘the only injured participant that intentionally and directly targeted and waged aggression against the society from which he now claims medical resources’, the terrorist's victims ‘did not demonstrate a negative attitude towards the society’ (p. 4). To be sure, terrorists engage in an extreme form of antisocial behaviour, and there is a substantial difference in the terrorists’ and victims' attitudes toward society. As a result, it can be said, for example, that terrorists have lesser merit than victims in relation to compensation for their injuries. However, it can be questioned whether their antisocial behaviour and attitudes are appropriate bases for assigning lesser merit in relation to life-saving medical care. Gold and Strous provide no argument for the appropriateness of these criteria of relative merit in medical triage situations; nor do they offer a compelling reason for basing allocation decisions in medical triage situations on relative merit rather than relative medical need.
Corrective justice: Gold and Strous provide the following definition of corrective justice: ‘Corrective (or rectificatory) justice relates to situations in which A has gained X by making B lose X, or A inflicted injury and B has received it’ (p. 4). They claim: ‘In a “head-to-head” comparison between the terrorist and each of the victims, corrective justice consideration leads to the conclusion that priority should be given to the victims since the terrorist has a duty to restore the health he “took” from the victims, but not vice versa’ (p. 5). Gold and Strous concede that monetary compensation is the norm, but they offer the following example to support assigning priority in medical triage situations on the basis of corrective justice: ‘if A caused B's liver damage, and both A and B require a liver transplant, then corrective justice would require that A be prioritized to receive a liver donation from C before B’ (p. 5). To be sure, B has a justified corrective justice based claim against A for compensation, but it can be questioned whether this includes a justified claim of medical priority relative to A. In other words, it can be questioned whether B can justifiably claim that A compensates B adequately only if A agrees to assign priority to B. There might be other acceptable means for A to compensate B (eg, by paying B's medical costs, compensating for lost income, providing financial support for B's family, paying for B's funeral and burial expenses, and so forth). Accordingly, absent an argument that B has a justifiable corrective justice based claim against A to receive the liver before A, Gold and Strous fail to demonstrate that when injured persons and persons who unjustifiably caused their injuries are in need of immediate medical attention, corrective justice can require assignment of priority to victims.
I have identified several claims for which Gold and Strous fail to offer arguments. They may anticipate this criticism when they attempt to shift the burden of proof to those who reject their position: ‘A convincing specific argument that is tailored to the terror-triage dilemma is required, in order to justify the application of the worst-first approach in such situations. Otherwise, the “no exceptions” approach is conventional dogmatism’ (p. 6). This attempt to shift the burden of proof may be an effective rhetorical device, but it is no substitute for philosophical argument.
Suppose, however, we agree that considerations of justice support abandoning the worst-first principle in terror-triage situations. It still can be questioned whether it is appropriate for physicians to act as agents of justice. Is it appropriate for physicians to act as judges and juries or enforcers of retributive or corrective justice? Is it appropriate for physicians to make the assessments of ‘merit’ that are said to be required by distributive justice?
Finally, there are epistemic questions as well. For example, in the immediate aftermath of an assault or explosion that has caused numerous serious injuries, can first responders know whether or not it was an act of terrorism? Even if there is no doubt that the incident is an act of terrorism, will it be possible for physicians to know who is a terrorist and who is a victim? Gold and Strous claim to offer an example that does not give rise to such epistemic concerns. But, it is unlikely that real-world situations will announce themselves with such clarity and lack of ambiguity. As Marcia Baron1 and David Luban,2 among others, have maintained in relation to the use of ticking bomb scenarios to justify torture, an appeal to such unambiguous hypotheticals might mask the epistemic hurdles associated with actual situations and thereby inadvertently sanction morally unjustified decisions and actions.
Competing interests None declared.
Provenance and peer review Commissioned; internally peer reviewed.