Media Conference, Dr Kerryn Phelps, Dr Trevor Mudge, Professor Margaret Somerville, Dr Philip Nitschke, Professor David Currow

QUESTION: Doctor, does the passage of the second motion basically undermine the AMA's position of 1997, which says that doctors should not be involved in interventions that have as their primary goal the ending of a person's life? What is the difference between primary and secondary intent when you are talking about ending a person's life?

DR MUDGE: It is a matter of intent. That has been part of the confusion that has always surrounded this emotive and very difficult debate. It has been argued that intent should not be the most important thing — and I ask Professor Somerville to comment on this — but in fact the law deals with intent every day. Where death occurs as a secondary consequence of an intent to do something else - to relieve pain, say - then doctors need to be supported in not having contravened either the law or their ethical responsibility to patients. It is where the primary intent is to take the life of a patient that patients and society need the full protection of the existing law.

PROF. SOMERVILLE: That is a very good legal answer. The actual name of the legal doctrine that establishes this is called the doctrine of double effect. It says that, providing you have a primary intent to pursue a legitimate aim - relieving pain and suffering is not just a legitimate aim; it is actually an obligation of a physician - and that the means you use are reasonable to do that, then even if that treatment could have a secondary effect of shortening life, that does not mean you cannot give the treatment legally. You can give the treatment. Indeed, I argue that there is a legal obligation to offer patients adequate pain relief treatment and that a breach of that is medical malpractice. In fact, there has been cases in the United States where families of people who died in pain have been awarded very substantial damages for failure to relieve pain. There is increasing recognition of this. We have that very important obligation. But what you cannot do is have doctors acting primarily to kill the patient, not kill the pain. There is a difference between intervening to try to kill the pain and intervening where the primary aim is saying, 'I will kill this patient in order to kill their pain.'

QUESTION: What is your reaction to this?

DR NITSCHKE: I think an opportunity was lost here today, and it is unfortunate. But you have to see it in reference and compare it with the results the last time the issue was brought forward in the AMA. There is obviously a change, a shift. There is a closer vote towards a neutral position. It was, however, an opportunity for the Australian Medical Association to become more in tune with and relevant to the Australian community, the community that is making their views increasingly well known. They have missed the chance. It is the pity they have missed the chance, but I should, and do, congratulate them for putting it on the agenda.

QUESTION: …It falls short. Doesn't it. What is your view?

PROF. SOMERVILLE: Yes. there is an ambiguity in the language of that motion that will have to be resolved.

QUESTION: What is the other way to interpret it?

PROF. SOMERVILLE: The other way to interpret it in accordance with the patient's wishes is to say 'with the informed consent of the patient', and that is completely consistent with the current position. But if it means that the patient's wishes may extend to anything that the patient wants, including a lethal injection, there is a problem. We have to read that second motion within the context of the current law, and that second motion clarifies the current law as it stands. You can give pain relief treatment, even if it could risk shortening life, if it is necessary for easing pain. Again, I live in Canada and follow the American situation quite closely. The Americans have actually in a lot of their states passed statutes to say that doctors who provide adequate pain relief treatment will not be prosecuted for doing that. But those statutes are no way intended to legalise euthanasia.

QUESTION: How does this second motion resolution square with the law in the states?

PROF. SOMERVILLE: It is consistent. The only one where it would be not consistent is Oregon, which has -

QUESTION: What about in Australia?

PROF. SOMERVILLE: It is consistent with the common law, which is basically the criminal law of Australia, although in some states it is in statutory form.

DR PHELPS: I want to make two points. The first is that these are motions recommending action for the federal council. They are not the final wording. They are recommendations. We will be asking, and have been offered, the expertise of Professor Somerville in the final drafting of the wording of these motions to ensure that they are legally correct and that the precise wording is exactly what we intend for those motions to mean. The second point I would like to make is this: this has not been a lost opportunity at all. It has been a fine use of an opportunity for the national conference, representing the medical profession of Australia, to discuss a very difficult ethical question. In affording a position, which may not be in agreement with every Australian, we have been able to reach a very reasonable consensus position. I think it moves us a little further on to clarifying our position, particularly on secondary intent. It also reaffirms our opposition to voluntary euthanasia by quite a resounding majority. It was important that those points were made.

QUESTION: Was there a separate vote on the motion?

DR PHELPS: Yes.

QUESTION: There was?

DR PHELPS: There was a vote against adopting a neutral stance, which was affirming our current position.

QUESTION: Do you think that changes the AMA's position on euthanasia, or does it reaffirm it in other words?

DR CURROW: It reaffirms our existing views. There was no sense of change in the mood or on the floor of the conference this morning.

DR PHELPS: One important point made was one I would like Professor Somerville to respond to. The medical profession has the earned trust of the Australian people. To earn the patient's trust and to earn the trust of the Australian community, our primary goal must be to relieve pain and suffering. I would like Professor Somerville to respond to that.

PROF. SOMERVILLE: Our situation has moved from named trust, a patronising form of trust which essentially says, 'Trust me because I know what is best for you and I will make the decisions about what you should have.' That trust was very dominant in the medical profession in the physician and patient relationship even up to 30 years ago. We have shifted now to what is called earned trust, which says, 'Trust me because I will show that you can trust me.' One of the arguments against euthanasia is that for the public as a whole to have trust in the medical profession and trust in each of their physicians, they have to know that they are not going to be killed by a physician.

One thing that has been very apparent in the media, as far as I see, is some of the abuses of euthanasia that are occurring, for instance, in the Netherlands. I do not understand why that evidence is not put before the Australian public. For instance, in 1998, 1,200 people in the Netherlands were given lethal injections who did not know they were being given lethal injections. Approximately 110 to 120 of those people were competent. When the physicians were interviewed and asked whether they got consent, because it is a requirement for euthanasia in the Netherlands, a lot of the physician said they took the patient's consent to full pain relief treatment as consent to euthanasia. They are the sorts of things that we know about. We have to get the facts on what has happened with what you could call the trial runs, which I personally think are unfortunate, that are occurring of euthanasia and to look at this realistically. It is very important to society that patients can trust their physicians.

QUESTION: That is a separate argument from the argument that people who are dying and have the right to die. The medical profession has put a different argument. Is that the way you put it?

PROF. SOMERVILLE: I would not say a right to die. People have a right to refuse treatment. That comes from the right to inviolability - not to be touched. But if you have a right to die, you then have to have a correlate of duty to kill the person. Do we really want to set that up in our society?

QUESTION: The slippery slope persuaded by that argument.

PROF. SOMERVILLE: It can be. The bottom line is that I believe it is inherently wrong to kill somebody else, particularly the people who most carry the value of respect for life in a secular society, the medical profession, because they have more access to killing, if we give it to them, than anybody else has, especially if we are going to change our law, which is the other defender of respect for life. In a secular society, we have opened up that possibility of the waning of the respect for life that we need. In fact, it is more dangerous in a secular society than it is in a religious one because you do not have the final backstop of religion.

QUESTION: Dr Nitschke, what is your knowledge of the case of Sandy Williamson? Are you involved in that matter, and what can you tell us about it?

DR NITSCHKE: I am involved in the matter. She is a patient of mine in Melbourne. Her story will be made public. She is dying of motor neurone disease. It impacts on the body in a very specific way. With the disease, people lose their ability to use their arms. In my practice I see a disproportionate number of these patients. The majority of them or all of them have access to lethal drugs because doctors have felt sympathetic for them because of their situation and have provided them with lethal drugs. She has to take them while she can still use her arms. As soon as she stops being able to use her arms, she loses the opportunity to kill herself. Friends cannot hold the glass to her lips. The absence of decent legislation makes the person die earlier. People who have motor neurone disease are trapped in their bodies. It takes me back to the idea of earned respect. While this medical profession keeps on reaffirming its position, it is a lost opportunity because the public in general will move away and have increasingly less respect for an organisation which is not listening to the views of the community. That is my view. Clearly it is not the view of the AMA

DR PHELPS: I believe a lot of people in the community are confused about the difference between palliative care and voluntary euthanasia. One thing that this conference has done, which is a very important resolution, is to reaffirm the importance of good quality, well-resourced palliative care. The most recent federal budget recognised palliative care for the first time. I think it is an indication that we are starting to think more towards appropriate relief of pain and suffering. If people know that they are going to be looked after when they are having pain and when they are suffering, they will feel more confident. I do not think that we will hear the demand for euthanasia provided that we have sufficient palliative care resources in the community.

QUESTION: Dr Mudge, what is your response to the case that Dr Nitschke talks about with regard to her motor neurone disease?

DR MUDGE: Motor neurone disease represents a particularly difficult set of end-of-life decisions. Phillip is right that people with motor neurone disease lose the capacity to commit suicide. But death is not the answer to difficult medical conditions. There are lots of things that can be done to ease the suffering of people with terminal motor neurone disease just as there are things that can be done to ease the suffering of people with other terminal illnesses or other diseases without killing them. Can I say something else about the way I believe the media is very one-sided in this area. Compassion is always considered to reside on the side of the pro-euthanasia movement. They are the only ones who have compassion for patients, it is said. Whereas we who are opposing euthanasia are doing it, really, on the grounds of compassion for society as a whole and for patients and families. When you advocate for euthanasia, which is taking life without a balancing saving of other lives, such as exists for just war, self-defence, et cetera, really you are doing it because you have compassion for society as a whole. Paradoxically, to say that individual autonomy demands that patients have a right to be killed, that reduces their autonomy. Suddenly, other people start to look at their quality of life and to evaluate it and say, 'Maybe it is not so good'. That is a reduction in your own personal autonomy. I do not think, just as I said yesterday, that neither side on this argument should use the death of Nancy Crick as a pawn in the argument. I would also say that neither side should take the high moral ground on having compassion.

QUESTION: Mr Nitschke , you look frustrated. Do you believe that the AMA is too conservative and slow off the mark… how Australia will it impact on the way this is dealt with in the future?

DR NITSCHKE: I looked after who? I did not hear the first part of the question.

QUESTION: You must be frustrated.

DR NITSCHKE: I am very frustrated. I am very reassured and welcome the opportunity to come here. For the last four years, there last been attempts to deregister me. And it is very good to be invited here to speak about the issue which has really caused a split between me and the AMA. I welcome the initiative. I think the argument has been productive. Look at the shift in the position to a neutral position. It is a very reassuring position that the association is moving towards a position better in tune with the public. Last time this was voted on in Hobart five years ago, it was overwhelmingly turned down. It is a very positive sign. Unfortunately, when I talk about a missed opportunity, this is what I would like to see. I welcome this result as a demonstration that the association, the AMA, is moving towards a position which is a little more comfortable with the wishes of the community out there as I perceive them. I am thrilled to be here. I welcome it. I greatly appreciate the opportunity.

QUESTION: You give two impressions of that vote. You are saying that it moves it to a more neutral position. The AMA is saying it is not. What is it?

DR MUDGE: There is no difficulty at all.

DR PHELPS: Motion one, which was related to support of palliative care initiatives, was passed by a vote of 103 to 11. Motion 2, which related to secondary intent, was passed by 65 to 48. Motion 3 regarding taking a neutral stance on euthanasia, was lost by a margin of 34 to 79.

PROF. SOMERVILLE: I want to add one comment to Dr Nitschke about this being what the community thinks. We have to be very careful not simply to have a knee-jerk reaction that this is what the community thinks. Some recent survey work, again in North America, showed that when people were asked the soft-edged question about what did they think about euthanasia, they did not understand what it really meant. There was a majority who agreed to it. But consistently when it has been put to the vote, with the exception of the state of Oregon, the vote has been lost. There have been 16 initiatives in the United States to affirm that they do not want voluntary euthanasia. Legislation has been passed in 16 states saying, 'We will not have this'. We have to be very careful about saying this is what the public wants. Moreover, when the public were given the explanation of the abuses that had occurred, depending on the words you use, a more neutral way, failure to comply with the regulations in the Netherlands, the majority of the public changed their mind on whether it should be allowed.

QUESTION: What is you answer to the slippery slope argument. You seem very confident that for an individual it is appropriate. But in mass a setting, how can you so assure that —

DR NITSCHKE: We cannot. This is the question. My answer is that the situation we have now is unacceptable and intolerable. What happens now is a very unjust and inequitable situation. Those people with contacts do well. If you have a mate who is a vet or a doctor, you do not have trouble getting access to drugs. It is like abortion 25 years ago; people with money could get access to a safe termination of pregnancy. We have a very unacceptable status quo. Do we want to change it? Will there be consequences? There is the slippery slope. My argument is that we have to change the situation because it is unacceptable. It is all right for doctors. They do well. They do not have any initiative to change it because they are served well by the current system. The people who come to my clinics are never doctors' husbands or wives, never vets' husbands or wives. They have access to drugs. The people who come to me are not enfranchised or empowered by the law. Move it and change it and maybe there will be some adverse consequences, a so-called slippery slope. Let us watch it closely and not sit on our hands. Make some changes and observe. Let us watch the social experiment. If it shows no adverse consequences, as happened in abortion, let us make those changes. Let us not do nothing.

DR PHELPS: I have to challenge some assumptions that have been made here. Doctors are more likely to have access to quality palliative care. I think we need to make the distinction here between the argument that is being made by Dr Nitschke about doctors' husbands and wives do not come to his clinic, because we are talking about an approach which still has inadequate palliative resources.

DR NITSCHKE: We are talking about killing the poor and treating the rich.

DR CURROW: Today's vote for anything else was a resounding vote for improving palliative care. We, as a compassionate nation, need to invest in that. When Dr Nitschke talks about equity and access, we need to ask, equity and access for whom? For the disenfranchised, those already feeling vulnerable, for the groups of people around the world that somebody else has referred to who are having their life taken without their consent. That is not being addressed and it is simply unacceptable to say, 'Let us start yet another social experiment and watch the outcomes.' There are people who are vulnerable and threatened by the spectre of euthanasia. Let us ask the right people at the time. If you ask people toward the end of life, as happened in Oregon, you find that less than one per cent of people actually want to take up the option. So let's put it in a perspective where we talk about equity and access in terms of uptake rates and balance that with the very real problem of people having their lives taken without their express consent.

QUESTION: I have a question. It is about the motion in terms of doctors giving more drugs to increase pain relief. There is no argument about the secondary consequence of that. The doctors know that patients eventually die some time later and sit behind that and solve their conscience.

DR MUDGE: I think quite the reverse. The reason why many of the surveys of doctors show that many people have 'participated in euthanasia' is that so many doctors have been in that position where their primary intent has been to relieve pain and suffering but the secondary effect has been death. The doctors themselves are so guilty about that secondary intent and so confused by the confusion that surrounds this debate that they think that that is taking part in euthanasia. It is not. It is taking part in high-quality, ethical medical care. That is a very important point. One of the responsibilities that we have as a medical profession is to educate the public so that they better understand the real issues. The confusion that surrounds this topic goes away. In part, that is our responsibility. But I have to say to you here that in part it is your responsibility. It is important that you, as the fourth estate, take up that challenge of educating the public on both sides of this very difficult and emotive debate. Please, try to go for the longer bits, the more difficult bits that you cannot get, as Professor Somerville has said today, in 10-second sound bites but which are very important. They are based on fact and evidence and they are important arguments for the public to hear.

QUESTION: Secondary effect or secondary consequence…

DR MUDGE: That secondary effect.

PROF. SOMERVILLE: No. It is primary intent.

DR MUDGE: You see how hard the language is? How difficult its? That is how difficult it is to get right. That is part of today's debate that we all learned.

PROF. SOMERVILLE: It is primary intent and the secondary consequence could be. The other thing — this is not my field; perhaps David could speak to it — is it is not very frequent that pain relief treatment shortens life for treatment at the end of life like that. There are studies that show that proper pain relief treatment prolongs the life of dying people because they are not using all their emotional and physical resources to try to deal with the pain.

QUESTION: That is quite an important point. The doctor will give an additional dose of morphine or whatever. Do you agree with what Dr Somerville said?

DR MUDGE: I am an obstetrician. My experience is at the other end. I am sure you can ask the experts.

QUESTION: Double dose of morphine. It does not happen very often. Does it prolong or shorten life?

DR CURROW: We need to be really clear about medications like morphine. Morphine is an excellent analgesic. If you are on doses of morphine, it is extremely difficult to misuse that medication in terms of relieving pain. There is a lot of fear in the patients for whom I provide care that they go to shorten life. That is not the case from the literature both here in Australia and around the world. There is a great deal of misinformation that says that morphine will shorten life. It is an excellent way of relieving some symptoms, some sorts of pain, some sorts of shortness of breath. But that is all it does. As Professor Somerville has quite rightly pointed out, the doctrine of double effect is almost an irrelevance in this discussion.

QUESTION: But the very wording of this resolution 2 seems to be talking about the primary intention being with patients. By doing that, you might also be shortening life.

DR CURROW : That is an outside possibility that may occur. But resolution 2 — I ask Dr Phelps to comment — needs to be taken in view of the first resolution, which was before these twin resolutions were considered.

DR PHELPS: Indeed. That was a strong argument for well-resourced palliative care. We are out of time. Thank you all very much for your attention and thank you all for your attendance at the conference.

ENDS

CONTACT: John Flannery (02) 6270 5477 / (0419) 494 761