Davis and Radio New Zealand Ltd - 2019-061 (16 December 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Peter Davis
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
The Authority has upheld one aspect of a complaint that an interview with Sir Andrew Dillon, the CEO of the UK’s National Institute for Health and Care Excellence (NICE) breached the accuracy standard. The Authority found that listeners were invited by the item to draw negative comparisons between the role and functions of NICE and of PHARMAC in the New Zealand context, which was misleading through the omission of relevant contextual information about the two agencies. The Authority did not uphold the complaint under the balance standard, as inviting a comparison of the two agencies did not amount to a discussion of a controversial issue to which the balance standard applied. The Authority also did not find any breach of the fairness standard on the grounds PHARMAC is a high-profile, public-facing agency which is frequently subject to scrutiny and criticism and it was not necessary to give PHARMAC an opportunity to comment in this case. Additionally, Sir Andrew made some moderating remarks which reduced the potential for unfairness.
Not Upheld: Balance, Fairness
 Guyon Espiner interviewed the CEO of the United Kingdom (UK)’s National Institute for Health and Care Excellence (NICE), Sir Andrew Dillon, about NICE’s methods and approach to approving drugs for purchase. The item was introduced as follows:
Tonight, a tale of two countries and two drug-buying agencies. One is ranked number three in the OECD in terms of access to medicines. The other, New Zealand’s very own PHARMAC, is ranked near the bottom – something that’s sparked intense pressure in recent times from patients with everything from cancer to rare disorders, who say they’re missing out and the system has to change. So how does the third-ranked country – the UK – run its agency, the National Institute for Health and Care Excellence or ‘NICE’?
For starters, NICE releases almost all of its assessment data, including board minutes. PHARMAC does not. NICE approves more than 80 percent of the applications to fund new medicines. PHARMAC approves fewer than a quarter. But perhaps the greatest difference is speed. While more than a hundred medicines sit on PHARMAC’s waiting list – some for five years or even 10 years – NICE has no waiting list at all.
The chief executive of NICE, Sir Andrew Dillon, is visiting New Zealand and he sat down for his only interview here with Guyon Espiner. He told him that three months after a drug company applies for funding, NICE aims to make its decision.
 The item was broadcast on RNZ’s Checkpoint programme on 1 July 2019 on RNZ National. As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.
 Peter Davis submitted the broadcast breached the accuracy, balance and fairness standards of the Radio Code of Broadcasting Practice. In summary, we understand his main concerns to be that:
- In a number of respects, the broadcast was misleading in the way it invited listeners to draw a comparison between NICE and PHARMAC, when in fact they operate differently and within different mandates.
- The broadcast omitted relevant information about PHARMAC which resulted in listeners being left with a misleading, negative impression of PHARMAC.
- For similar reasons, the criticism of PHARMAC throughout the interview, without further contextual information or an alternative perspective, was unbalanced and unfair.
The relevant standards
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The purpose of this standard is to protect the public from being significantly misinformed.1
 The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.2
 Our consideration of this complaint starts with consideration of the right to freedom of expression and the important role it plays in a liberal democratic society. The right to freedom of expression includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 Many of Mr Davis’ submissions reflect his own personal views about how the interview was conducted, and this would not normally be subject to standards. However, we acknowledge his concerns about harms that may arise from the dissemination of misleading information – in this case relating to public perceptions of, and trust in, PHARMAC as a high-profile, public-facing agency. The importance of freedom of expression is such that, at times, the exercise of it may result in programmes that listeners do not agree with. The Authority’s role is to achieve a sensible balance between protection from harm and the broadcaster’s right to exercise its editorial freedom, recognising that the sharing of different perspectives contributes to our community’s social, cultural and intellectual growth.
 With these principles in mind, the members of the Authority considered each of the standards raised in the complaint, and for the reasons expressed below we reached the view that the programme’s comparison of NICE and PHARMAC was misleading by omitting relevant contextual information.
 Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’3 Programmes may be misleading by omission.4 The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.5
 The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.6 In addition, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.7
The parties’ submissions
 The main issues of accuracy raised in the complaint are that:
- The interview drew a false comparison between NICE and PHARMAC by omitting relevant information about PHARMAC, primarily the point noted in RNZ’s own submissions that ‘PHARMAC has a budget within which it has to work and negotiates directly with drug companies. These features are not characteristic of NICE, which has a largely advisory role and can leave tough calls of budget priorities and price negotiation to others.’
- ‘The listener/viewer is constantly invited to draw the inference that somehow PHARMAC is deficient on almost every quality for which the interviewee was invited to comment on his organisation (i.e. NICE).’
- Referring to NICE as a ‘drug-buying agency’ is ‘a fundamental inaccuracy’ as it is an advisory body rather than a funding body.
- Questioning and comparing the transparency of decision-making by NICE and PHARMAC was misleading as PHARMAC is unable to reveal commercially sensitive information, and the programme did not mention that PHARMAC’s minutes on the evaluation of medicines are publicly available.
- ‘Identifying the use of QALYs [Quality-adjusted life years] seemed suggestive that this was some kind of brilliant scheme that NICE had going for it – and PHARMAC failed to. In fact, both NICE and PHARMAC use these standard methodologies’ (and PHARMAC also uses DALYs (disability-adjusted life years), which is a similar concept).
- Regarding timeliness, as already noted NICE does not have to manage a budget, so it is easier to approve more drugs more quickly than PHARMAC.
 The broadcaster did not agree that the broadcast breached the accuracy standard. It said for ‘the man on the street’ it was reasonable to describe NICE as a ‘drug-buying agency’ taking into account the detail later provided in the interview about NICE’s functions, and it would not have misled the audience as to NICE’s role. The broadcaster considered the rest of the complaint to be unclear as to how the identified aspects of the item were inaccurate, although it submitted in response to the complaint referral that:
The gist of the complaint appears to be that the complainant claims it is inaccurate to contrast PHARMAC and NICE because the agencies employ different methods. Using this logic it would be impossible to compare New Zealand’s performance in any number of public services given different countries have different ways of doing things.
PHARMAC and NICE were described as drug-buying agencies in the introduction to this piece. PHARMAC buys drugs in New Zealand, whereas NICE in the United Kingdom advises what drugs to buy and these drugs must be bought within a target time. This was explained within the item and in the end is of no consequence to the listener’s understanding of what Sir Andrew was saying.
 In listening to the broadcast item, we agreed with the complainant that this piece invited listeners to draw comparisons between PHARMAC and NICE, both in the introduction and throughout the interview in a way that suggested that the entities were directly comparable when they are not. We consider that the main issue with this broadcast was the misleading manner in which a comparison was made of NICE and PHARMAC. The item ought to have been clearer as to the differences between the entities.
 In addition to the item’s introduction (see paragraph ), the interviewer made numerous comments inviting listeners to compare PHARMAC’s performance with NICE, including:
- ‘We find within our system, in PHARMAC, that the agency says, “well, we’re waiting for more evidence”, and the particular drug might sit there for a number of years. That may allow more clinical data to appear, but there may also be a cost to patients who want to use the drug.’
- ‘…And that gives the United Kingdom far greater access to cancer drugs than we see in New Zealand, doesn’t it?’
- ‘We [NICE and PHARMAC] can’t both be right, can we? You’re either wasting money on drugs that don’t provide enough benefit, or we’re rationing drugs that work.’ (referring to drugs which are funded in the UK, but not in New Zealand)
 While on their face the references to PHARMAC in the item may be factually accurate, they did not put PHARMAC’s position in context. Having considered all of the information before us, from both the parties’ submissions and other publicly available sources,8 we have reached the view that there was relevant contextual information that ought to have been included which would have altered listeners’ perception of the comparison between NICE and PHARMAC or enabled listeners to understand the differences between the two entities and make their assessment of the entities on the basis of more complete information. By omitting relevant information to put PHARMAC’s role and performance in context, we found that the item had the potential to mislead listeners.
 As noted by the broadcaster in its submissions, ‘PHARMAC buys drugs in New Zealand, whereas NICE in the United Kingdom advises what drugs to buy and these drugs must be bought within a target time.’ In this sense PHARMAC operates within budget constraints, which is an important feature of its role and functions. On the other hand, we understand NICE is an advisory body which provides guidance and recommendations to the health sector in the UK. It provides ‘technology appraisals’, which are in essence recommendations on the use of new and existing medicines and treatments within the National Health Service (NHS). The NHS is then legally obliged to fund medicines and treatments recommended by NICE.9
 We do not agree with the broadcaster that this core difference between the agencies was made clear in the item (although, in relation to funding cancer drugs specifically, Mr Espiner referred to NICE being ‘able to dip into this fund, in an experimental way [once a drug is approved as safe and that it works to some degree], and then there’s a greater level of obligation on the drug companies to comply with your terms’; ‘but there’s not the level of clinical data to determine their long-term efficacy’). Nor do we think it was accurate to describe NICE as a ‘drug-buying agency’. Additionally, regarding the comparison of the level of transparency of the two agencies’ decision-making, we note that PHARMAC does publish evaluative information about medicines and some Board minutes which are easily accessible to the public online.10 It also uses QALYs as an evaluation method, despite the interview implying this is not the case.
 We therefore consider it is justified in this case to limit the broadcaster’s right to freedom of expression by upholding this aspect of the complaint under the accuracy standard. We agree with the complainant that there was value in comparing the two agencies, so long as it was done fairly and with accurate contextual background provided about both entities for listeners. Without that background there was the potential to cause harm by misleading listeners into drawing unduly negative conclusions about PHARMAC’s performance and transparency, as compared to NICE.
 The complainant raised some additional points which he considered to be inaccurate or misleading, as follows:
- The discussion of the conduct of NICE in relation to cancer drugs omitted evidence about the ‘limited meaningful clinical benefit’ of cancer drugs, and did not cover how the Cancer Drugs Fund fits in with NICE.
- The programme did not mention the role PHARMAC plays in keeping the health budget manageable.
- The programme mentioned the role of Medicines NZ in bringing Sir Andrew to New Zealand, but did not mention ‘that the equivalent body in Australia produced the index that put NZ at the bottom of an OECD league table’. This disclosure was important as ‘[t]he listener/viewer would be alerted to the potential for a conflict of interest… [with Sir Andrew] seemingly corroborating – indirectly and largely unconsciously – the narrative that Medicines NZ wants to portray of PHARMAC as a poor performer.’
 In our view these points reflect information that the complainant would have preferred to be included, rather than being material to listeners’ understanding of the item as a whole. We do not think the omission of the above points contributed to the misleading impression created and therefore we do not uphold these parts of the accuracy complaint.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.11
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.12 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.13
The parties’ submissions
 In his complaint, Mr Davis submitted:
- Criticism of PHARMAC is clearly a controversial issue of public importance.
- The interview was ‘a carefully choreographed exchange designed to produce an outcome adverse to PHARMAC’.
- ‘It started by providing a false equivalence of the two organisations as drug-buying agencies.’
- ‘[It] proceeded to show up PHARMAC at almost every turn – whether it was drug approval rates, failures to fund key drugs, transparency and timeliness of decision-making and approvals, and so on.’
- ‘These flaws in PHARMAC’s performance were either stated explicitly by the interviewer or left as an unspoken comparison.’
- A balanced interview would have made the distinctions between the agencies clear, asked where NICE could improve, provided greater information about the Cancer Drugs Fund and refrained from ‘dissing PHARMAC at almost every turn’.
 The broadcaster responded:
- It is not entirely clear what the ‘controversial issue of public importance’ was that was claimed to have been discussed in this broadcast.
- ‘The thrust of the interview was primarily to find out more about the policy and operation of the NICE agency in the UK and references were also made to the PHARMAC operation in New Zealand during the interview.’
- As the period of current interest in the overall PHARMAC funding model has been open for some time and will continue to be open into the future, and PHARMAC is ‘in the news on a number of occasions and RNZ reports on PHARMAC frequently’, there was no need for a PHARMAC point of view to be included in the interview.
- It was clearly signalled to the audience that the programme was an interview with Sir Andrew Dillon, so it was clear that only a particular aspect of an overall debate was considered in the programme.
- ‘Sir Andrew deferred on a couple of occasions about commenting on PHARMAC's operations in New Zealand indicating that he did not have enough detailed knowledge to provide those comments so that the item did not in effect amount to a “discussion” as envisaged by the balance standard.’
 We have carefully considered in this case whether, by inviting listeners to consider PHARMAC’s performance as compared with an overseas agency, this broadcast met the criteria for triggering the balance standard.
 Collectively, we reached the view that it did not meet the criteria. Alluding to a range of criticisms which are frequently lodged at PHARMAC, in the context of an interview with a senior executive of NICE, was not in our view a ‘discussion of a controversial issue of public importance’ as envisaged by the standard. The item was framed as a comparison of two agencies, rather than purporting to consider two sides of a debate. We do not consider that the balance standard applied. Concerns raised about the nature of the information presented and omitted, and whether audiences would be misled in the absence of accurate background information about the differences between the two agencies, are best dealt with under the accuracy standard.
 Therefore we do not uphold the complaint under the balance standard.
 The complainant did not make any additional specific submissions in relation to fairness, other than submitting it was ‘poor journalistic practice to lead Sir Andrew down this track of a false comparison with NZ, and then expecting him to say he would rather live in the UK health care system. This showed a predetermination to the entire interview.’
 RNZ said the complainant’s fairness submissions ‘lack particularity’ as to why and how the fairness standard was breached. Nevertheless the broadcaster rejected any suggestion that the interview should have contained input from PHARMAC as ‘it is difficult to see what harm was caused to PHARMAC as a result of this interview and PHARMAC itself has not complained to RNZ in this regard.’
 A consideration of what is fair depends on the nature of the programme (eg, news and current affairs, factual, dramatic, comedic or satirical). It also depends on the nature of the person or organisation alleged to have been treated unfairly. It is well established in the Authority’s decisions that the threshold for finding unfairness to a layperson unfamiliar with dealing with the media will be much lower than for a government entity or a public-facing agency that is used to being the subject of robust scrutiny and regular media coverage.14
 Clearly PHARMAC falls in this latter category. While in general the fairness standard requires that any person or organisation who may be adversely affected by a broadcast be given a fair and reasonable opportunity to comment, it is commonplace for public-facing agencies to be criticised without it giving rise to an expectation of participation in each and every broadcast.
 Notwithstanding our finding that relevant information was omitted about PHARMAC’s role, which had the potential to mislead listeners, we do not consider the references to PHARMAC during this item were at a level which resulted in the agency being treated unfairly or necessitated an opportunity to comment in response. In making this finding we took into account that most of the item was concerned with the way NICE operates, rather than claiming to investigate the PHARMAC model or criticisms levelled at PHARMAC in depth. Additionally, we noted that Sir Andrew did give some measured remarks which responded to, and countered, some of the criticisms of PHARMAC put forward by the interviewer, which reduced their impact and the potential to cause unfairness. For example, in response to Mr Espiner’s statements that certain drugs are funded in the UK but not funded in New Zealand, and ‘we can’t both be right, can we?’, Sir Andrew commented:
- ‘I don’t know enough about the details of the arrangements in New Zealand – obviously I’m aware of PHARMAC, I’m broadly aware of how PHARMAC operates, but I’ve not done a detailed comparing contrast on the extent to which the current arrangements here enable access.’
- ‘And indeed there’ll be drugs that are funded in other European countries, for example, that aren’t funded – or aren’t immediately funded – in the UK. So everywhere is different, everywhere faces this challenge of wanting to maximise access to innovative new treatments to patients, by having to balance that against funds that are available and the need to fairly access those funds across everything that we all expect our health systems to do for us.’
- ‘Yeah, but every country in the world is a bit different in terms of both the choices it makes and the ways it goes about making those choices. No two countries are really identical in that respect. And those choices are a function of the resources that are available, the priorities that the country has for its health system, the choices it makes on how to make funds available across different kinds of programmes. And so it’s inevitable that those differences are going to emerge.’
 Accordingly we do not uphold the complaint under the fairness standard.
For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of Checkpoint on 1 July 2019 breached Standard 9 of the Radio Code of Broadcasting Practice.
 We have considered whether we should make orders in this case. We do not intend to do so on this occasion. Taking into account that the broadcast was generally focussed on NICE, and that we have only found a breach of one standard raised in the complaint, we consider that publication of this decision is sufficient to publicly notify the breach of the accuracy standard, and to censure the broadcaster. The decision also provides guidance on the application of the accuracy standard and the level of care that is required to ensure organisations featured in broadcasts are not misrepresented, and highlights that the omission of information can have the effect of misleading audiences.
 In these circumstances we do not consider any further order against the broadcaster is necessary to respond to the breach in this case.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 December 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Peter Davis’s complaint to RNZ – 5 July 2019
2 RNZ’s decision – 2 August 2019
3 Mr Davis’s referral to the BSA – 13 August 2019
4 RNZ’s final comments – 10 September 2019
5 Mr Davis’s final comments – 19 September 2019
1 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
2 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
3 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
4 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
5 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
6 Guideline 9b
7 Guideline 9a
8 For example PHARMAC’s website, https://www.pharmac.govt.nz and the NICE website, https://www.nice.org.uk/about. The Authority also had regard to information outlining the parameters of the OECD index referred to in the introduction to the interview: https://medicinesaustralia.com.au/wp-content/uploads/sites/52/2018/10/MA_Compare-final.pdf
9 See https://www.nice.org.uk/About/What-we-do/Our-Programmes/NICE-guidance/NICE-technology-appraisal-guidance
10 For example, PTAC Minutes and Board Minutes from March 2019 onwards are available on PHARMAC’s website: https://www.pharmac.govt.nz/about/advice/ptac/; https://www.pharmac.govt.nz/about/accountability-documents/information/pharmac-board-minutes/
11 Guideline 8a
12 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
13 As above
14 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21