BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

An item broadcast on Holmes on TV One on 10 March 1998 shortly after 7.00 pm

focussed on a haemophiliac Christchurch toddler who had suffered severe brain

haemorrhages and was brain damaged. Doctors had advised his mother that further

treatment of the child would be difficult and was not considered clinically advisable.

The treating clinician did not wish to be interviewed by the programme-makers. A

video and a statement was instead provided by the complainant to the programme-

makers. Canterbury Health complained to Television New Zealand Limited, the

broadcaster, that neither was used in the item, and that the programme's failure to use

them, or to include essential points raised in them, resulted in the programme being

unbalanced, unfair and inaccurate.

TVNZ responded that it was ethically wrong, and it would risk its reputation and

integrity, to use material over which its editorial staff had no control. It denied that

the programme was inaccurate, unfair or unbalanced. The complainant had been given

the opportunity to have its spokesperson comment on the matters raised in the item,

it noted, and that would have provided the balance it sought.

Dissatisfied with TVNZ's response, Canterbury Health Ltd referred its complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, a majority of the Authority upholds the complaint that the

programme breached standard G6 of the Television Code of Broadcasting Practice.

The Authority declines to uphold any other aspects of the complaint.

Decision

The members of the Authority have watched a tape of the item complained about, and

have read the correspondence (which is summarised in the Appendix). In addition, the

members of the Authority have read a written transcript provided by the broadcaster

and have watched a video tape supplied by the complainant. On this occasion, the

Authority determines the complaint without a formal hearing.

The case of a haemophiliac Christchurch toddler who had suffered several severe brain

haemorrhages and consequent brain damage was the subject of an item broadcast on

Holmes on TV One between 7.00–7.30 pm on 10 March 1998. The item reported that

the child's parents had been informed by doctors at Canterbury Health that further

treatment for the child would be difficult and, because the quality of the child's life

was poor, it would be ethically wrong to treat him.

The Complaint

Canterbury Health Limited complained to Television New Zealand Limited, the

broadcaster, that the item was in breach of s.4(1)(d) of the Broadcasting Act 1989 and

of standards G1, G4, G14, G19 and G20 of the Television Code of Broadcasting

Practice. It noted that the programme's makers had approached the child's clinician

for an interview, which he had declined, based on recommendations from his

professional advisors. Noting its policy of being available to the media, the health

provider advised that, in an attempt to reach a compromise, its management had

arranged for the clinician to provide a statement in written, audio and video form to

media. Holmes was then advised of the availability of the video for its use. Shortly

after, the programme's Christchurch reporter advised that the material was not

acceptable unless the programme had free access to the doctor. The material was

supplied approximately one week before the broadcast of the item.

Complaining that there were no technical reasons why extracts of the video or written

statement could not have been used, Canterbury Health noted that no extracts from it

were used. This in itself, it claimed, demonstrated lack of balance. Canterbury Health

also complained that the summary of the information by the presenter (Paul Holmes)

in the item was unbalanced. The summary, it wrote, was placed between comments

mocking of Canterbury Health's behaviour, which had further aggravated the situation.

The health provider contended that the item showed a lack of accuracy, balance and

fairness in its report that a local MP was "fighting" for the child, when the broadcaster

had Canterbury Health's statement in its possession, stating that its doctors were

already reviewing the child's treatment options.

Further, Canterbury Health argued, the presenter's statement that "Canterbury Health

went a bit bizarre" was inaccurate and unfair, as was its implication that it was the

idea of the health provider's communications manager to submit the video tape. It had

not been her idea, the complainant wrote.

The health provider complained that other comments by the presenter including - that

providing video statements was "not the grammar of current affairs" - were unfair and

demonstrated a lack of balance.

TVNZ considered the complaint in the context of s.4(1)(d) of the Broadcasting Act

1989 and standards G1, G4, G14, G19 and G20 of the Television Code of

Broadcasting Practice. Section 4(1)(d) provides:

(1)  Every broadcaster is responsible for maintaining in its programmes and

their presentation, standards which are consistent with -

(d)   The principle that when controversial issues of public

importance are discussed, reasonable efforts are made, or

reasonable opportunities are given, to present significant points

of view either in the same programme or in other programmes

within the period of current interest;

The first two standards require broadcasters:

G1   To be truthful and accurate on points of fact.

G4   To deal justly and fairly with any person taking part or referred to in

       any programme.

The other three standards provide:

G14   News must be presented accurately, objectively and impartially.

G19   Care must be taken in the editing of programme material to ensure that

        the extracts used are a true reflection and not a distortion of the original

        event or the overall views expressed.

G20  No set formula can be advanced for the allocation of time to interested

        parties on controversial public issues. Broadcasters should aim to

        present all significant sides in as fair a way as possible, and this can be

       done only by judging every case on its merits.

TVNZ acknowledged that there was no technical reason for its failure to use the video

tape, however it stressed that there was a strong ethical reason. That was that the

broadcaster risked its reputation and integrity as soon as it accepted from a party in a

controversial matter a video tape interview over which its editorial staff had no

control. TVNZ, it wrote, must be independent, and that could only happen if it was

left free to ask questions, and follow-up questions, of those who provided

information, in matters of clear public interest.

Canterbury Health's position was referred to in the item, TVNZ argued, in the

introduction to the item and in the script references to the child's doctor seeking other

professional advice. The child's medical history was outlined fairly, it continued.

The health provider was not mocked, it asserted, but the item had reflected the

broadcaster's astonishment at being asked to accept a pre-recorded tape in a

controversial matter. Any perceived lack of balance could have been remedied had

Canterbury Health allowed an appropriate member of staff to be interviewed for the

item, it wrote. TVNZ declined to uphold any breach of s.4(1)(d) or standard G20 as

it had sought an interview with the health provider and that, it maintained, complied

with the G20 requirement. It also declined to find a breach of standards G1, G4, G14

or G19 as it contended the child's story was accurately told.

In a final comment, Canterbury Health briefly advised the reasons why further

treatment of the child had been deemed inappropriate by his clinicians. It reiterated

its earlier comments that there was no reason why TVNZ could not have used extracts

from the material supplied to it by Canterbury Health. The health provider

emphasised that TVNZ had seven days between receiving the material and the

broadcast of the item, in which to seek clarification or further discussion about the

tape and the material contained in it. It concluded that in choosing not to pursue the

information further, but to represent what Canterbury Health had done as "bizarre",

TVNZ was unfair, unbalanced and inaccurate in its presentation of the item.

TVNZ responded that where accountability was an issue, it would not accept a

"corporate" video as a response to a matter. Referring to the time which elapsed

between its receipt of the material in issue and its completion of the item for

broadcast, TVNZ stated that for the ethical reasons it had already raised, it:

...had no intention of using the tape so further debate became redundant.

...[Where] issues of accountability arise, TVNZ will not use material from this

source or any other, now or in the future. This is a non-negotiable editorial

policy.

In reply, Canterbury Health noted that TVNZ did not explain why the provision of a

statement in video form was different from that in print or audio form when extracts

in the latter form were routinely used by all media. The broadcaster was under no

obligation to use the material provided in its entirety, it wrote, but could have used

extracts. The real issue however, it continued, was the broadcaster's obligation to

comply with the requirements of the Broadcasting Code. Failing to use any of the

material provided, or to summarise the points made in it fairly, breached the code,

Canterbury Health argued. TVNZ's statement that it had no intention of using the

tape and that was non-negotiable editorial policy, it wrote, did not obviate its

statutory obligation to comply with the Broadcasting Code. TVNZ had the material

in its possession for a week before the item screened, and did not in that time seek to

clarify any points raised in it or ask further questions to verify the contents,

Canterbury Health contended, adding that its failure to do so resulted in the breaches

of the code.

The broadcaster replied that its decision not to use the material provided did not

automatically mean that it failed in its statutory obligation to broadcast a balanced

item. In its view, the complainant's response to its requests to interview the treating

clinician was neither reasonable nor proper.

The Authority's Findings

In its consideration of the complaint, the Authority notes that the first issue is

whether the programme lacked balance because:

• the video supplied by Canterbury Health was ignored in its entirety; and
  
  
• because of the way in which the written material provided by the complainant was summarised and broadcast.

In its complaint, Canterbury Health referred to s.4(1)(d) of the Broadcasting Act

which is set out above. In the context of this complaint, the Authority considers that

the provisions of that section, and the essence of the issue, are encapsulated in

standard G6 of the Television Code of Broadcasting Practice, which requires

broadcasters:

G6   To show balance, impartiality and fairness in dealing with political

       matters, current affairs and all questions of a controversial nature.

On the issue raised, TVNZ contends:

• that it was under no obligation to incorporate the video tape in its

broadcast. It claimed that its news reputation and integrity was at stake.

•  that it did refer to the written material provided by Canterbury Health in

the statements read by the presenter on the programme, and did so in a

way which ensured that the programme was balanced.

The Authority is divided in its conclusion on this complaint. For reasons which will

become clear, a majority concludes that the programme lacked balance and was unfair.

The minority disagrees.

The Authority observes immediately that decisions about whether material provided

by an interviewee is used and about the format of the resulting item, for the

programme, are entirely matters for the broadcaster. In this instance, the Authority

concludes that TNVZ's refusal to broadcast the video tape either in part or in whole,

or to read the statement provided verbatim, do not in themselves constitute any

breach of broadcasting standards. However, the right to determine format and content

may be fettered to some degree by the necessity to provide balance and/or fairness in a

programme.

Here, the broadcaster asserted that it could not be expected to rely on material

prepared by the interviewee, and that to do so could have implications for its own

integrity and veracity. Furthermore, TVNZ claimed that without access to the

treating clinician or an authoritative spokesperson, it was unable to test the medical

reasons on which the complainant relied in justifying the decisions which had been

taken.

There is force in those observations, the Authority acknowledges, and it notes at the

outset that the step taken by the complainant, to provide its own filmed response to

the request for an interview, was unusual. But the complainant maintained that there

were particular reasons for its clinician's reluctance to appear on the programme.

As the majority sees it, the difficulty for TVNZ was that there was material on the

tape provided and in the statement supplied which provided quite a different point of

view to that contended for on the programme. The implication arising from the

interview on the programme with the child's mother was that further treatment would

save the child's life, but that the clinicians had decided to withhold any further

treatment. There was a strong impression given that this decision had been taken for

financial reasons and without due consideration to the child's right to life. The

implication was that the decision was final and irreversible.

On its video tape, Canterbury Health's clinician explained the reasons for its

reluctance to subject this child to immunotolerising therapy. He contended that the

decision had been taken because the treatment was too risky and too painful for the

child, that the clinicians had taken the opinion of others elsewhere and that, in any

event, they were prepared to further review the case.

Whatever view TVNZ took of this material and the manner in which it had been

supplied, it seems clear to the majority that it must have been aware that the material

provided a substantially different perspective to that presented on the programme.

At the very least, in the majority's view, this placed an onus on TVNZ to clarify

matters with the health provider before proceeding with the programme on a basis

which essentially contended that the decision not to engage in future treatment of the

child was a fait accompli.

The majority of the Authority concludes that the implications to be drawn from the

programme were that the child was not receiving any treatment, that a final decision

had been made and, in particular, that there was a need to now fight for treatment for

the child. That was in marked contrast to the contents of the video material provided

to TVNZ by the complainant which made it clear, amongst other things, that hospital

clinicians were arranging for further assessments of the child to review future

treatment options. This material was in the broadcaster's possession well before the

item was broadcast and within sufficient time to have enabled TVNZ, if it had chosen

to do so, to make a further approach to the complainant to clarify any remaining

matters on which it might have held doubt. This it chose not to do. While the

broadcaster did not have to use the material which had been provided to it, it still had

an obligation to provide balance in the item. A majority of the Authority therefore

considers that the material supplied by the complainant should have put the

broadcaster on notice that there was another side to this story which it was obliged, in

fairness, to present.

The majority acknowledges the potential for difficulties where parties refuse to be

interviewed but instead insist on providing film material prepared by themselves.

That may, as happened in the present case, lead to comment on the unusual nature of

such a response, and no doubt viewers will have to reach their own conclusions on

any issues of credibility which that might give rise to. Here, the subject matter was an

emotive one and, in the majority's view, it was imperative that the broadcaster

present both perspectives fairly. That was particularly so where again, as here, the

broadcaster had an opportunity to raise the issues a second time with the complainant

before the programme was broadcast.

In the event, the programme was broadcast without that other side being properly

put. A majority of the Authority reaches this conclusion notwithstanding the content

of the closing comments which were made by the item's presenter. It is not satisfied

that the relatively brief summary of the complainant's position adequately explained

the reasons for its stance, or indeed the decisions which had been taken, given the

material which was available to TVNZ and in its possession. The majority of the

Authority does not accept that the broadcaster was entitled to accept that it had

received a refusal to co-operate from the health provider, and it considers that TVNZ

had an obligation to re-approach the complainant, explaining its position and the likely

consequence for Canterbury Health, if it persisted in its stance.

The majority therefore holds that the programme breached standard G6.

In view of that finding, the majority proposes to subsume standard G4 in its

comments on standard G6. It also considers the complaint under standard G1 is more

appropriately considered, in this instance, under standard G6. The majority

concludes that its comments on standard G6 also encompass the complaint under

standard G14. The programme does raise issues of editing and the majority has

considered those under standard G6. Finally, the majority of the Authority also

decides that the issues raised under standard G20 can be subsumed under standard G6

in this instance.

The above matters deal with what the majority regards as the gravamen of the

complaint. The remaining issues raised by Canterbury Health were peripheral to its

essential claim of lack of balance, and unfairness, and on these, the Authority is

unanimous in its view. It regards the presenter's statement that Canterbury Health

"went a bit bizarre" as a strongly-expressed but not necessarily unfair comment, given

its context and the unusual and perhaps calculated nature of its response. The item's

reference to Canterbury Health's communications manager was, in the Authority's

view, marginally unfair, as the decision to offer the videotape was not made or

advocated by her. But that was not sufficient to breach the standard. Next, the

presenter's statement that "you could have written that on a piece of paper and sent

it to us, I suppose" and his statement that providing video statements was "not the

grammar of current affairs" need to be considered in their context in the programme

and in the context of the type of reporting for which the programme has become

known. Neither, in the Authority's view, constitute other than matters of general

comment which were fair in their context.

A minority of the Authority declines to uphold the standard G6 aspect of the

complaint. It believes that the broadcaster was compromised in its ability to obtain

responses to specific issues raised during the item by Canterbury Health's refusal to

allow direct questioning of the staff responsible for the child's case. Nevertheless, the

minority believes the broadcaster achieved the balance and fairness required. The item

was introduced with an acknowledgement from the presenter that this was a difficult

and painful issue for the medical professionals involved. Further, the minority

believes that the reporter played a "devil's advocate" role during the interview with

the child's mother and raised Canterbury Health's view that it might be kinder and

more humane to cease medical interference. The item also disclosed that the treating

clinician had consulted with four other doctors – all of whom shared his opinion. In

addition, the material provided by the complainant was paraphrased with the

presenter's statement that the treatment "was too risky and painful" for the child and

no matter how little it cost, the doctor and others believed that it was wrong to

proceed.

The minority shares the broadcaster's concern about the acceptability of a pre-

recorded video statement in this case and acknowledges that full exploration of the

issues raised by the mother and the spokesperson from the Haemophiliac Society

required direct access to Canterbury Health's spokesperson.

The minority therefore does not uphold a breach of standards G4, G6, or G14. It

agrees with the majority that standards G19 and G20 are more appropriately

considered in the context of standard G6.

The complainant has asserted that the broadcaster's failure to include reference to

Canterbury Health's offer to the family of the option of bringing in another, external

opinion to review the child's case constituted an inaccuracy and therefore breached

standard G1.

This offer appeared at the end of the video footage which was delivered, according to

the broadcaster, after editing of the item was completed. It was also after TVNZ had

made it clear that it would not accept video footage or material submitted without free

access to the doctor. The broadcaster believed the reference to further external medical

opinion was ambiguous, it wrote, as it came as part of a response that covered the

'maintenance' treatment that the child was receiving, including nutritional support and

pain control.

The minority accepts that the child's mother was clearly of the view that Canterbury

Health had reached a firm conclusion about immune therapy treatment for her child.

In the taped interview, it notes, the clinician stated that he believed that irrespective of

the cost, it would not be ethically correct to proceed, and that was also the view of at

least four other haematologists from outside Christchurch. Therefore the minority

believes the omission of a reference to this late stage offer to seek another opinion did

not transgress the accuracy standard.

In the minority's view, the meaning and veracity of the supplied statement would

have required further probing of the clinician treating the child. The minority believes

the health provider's insistence that the "doctor involved did not wish to make any

statements whatsoever" firmly closed the door on that opportunity. It declines to

uphold a breach of standard G1.

For the reasons set forth above, a majority of the Authority upholds the

complaint that the broadcast by Television New Zealand Limited of the

Canterbury Health item on Holmes commencing at 7.00 pm on 10 March 1998

was in breach of standard G6 of the Television Code of Broadcasting Practice.

It declines to uphold other aspects of the complaint.

Having upheld a complaint, the Authority may make an order under s.13(1) and award

costs under s.16(4) of the Broadcasting Act 1989.

The Authority decides that an order would be inappropriate on this occasion because

the complaint arose from an unusual set of circumstances. A predicament had been

created which, in the Authority's view, was caused by a mutual mishandling of the

issue and the action which flowed from it. Both parties could have better managed the

matter, the Authority concludes.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
10 September 1998

Appendix

Canterbury Health Limited's Complaint to Television New Zealand Ltd – 12

March 1998

Canterbury Health Limited of Christchurch complained to TVNZ about an item which

was broadcast on the Holmes programme on TV One on 10 March 1998 commencing

at 7.00 pm. The item focussed on a haemophiliac toddler who had suffered severe

brain haemorrhages and was brain damaged. His parents had been advised by doctors

that it would be ethically wrong to treat the child, because further treatment would be

difficult and the child's quality of life was poor.

The complainant advised that the clinician primarily treating the child had been

approached to provide an interview for the programme. He initially refused, it wrote,

because he had some concerns about the interview. Later, Canterbury Health advised,

he agreed to provide a statement in video, audio and written form to news media.

That format was not acceptable to the programme-makers at TVNZ unless they had

free access to the doctor, however. After Canterbury Health sent a fax to the

programme-makers, advising that the video tape and a written statement would be

supplied, nothing further was heard from them before the programme was screened, it

wrote.

Noting that TVNZ used none of the video or written statement, Canterbury Health

wrote that the programme summarised the information with the following statement

from the presenter:

..."well, anyhow, on the tape the doctor made the point that the treatment

was too risky and painful for J... and no matter how little it cost, he believes it

is wrong to proceed".

There were no technical reasons why extracts from the video or statement could not

have been used, the complainant contended. That failure, it wrote, showed a

significant lack of balance. The situation was further aggravated by placing the

presenter's statement between comments which were mocking of Canterbury Health's

behaviour. A further demonstration of the broadcaster's lack of balance was shown, it

stressed, by the vast majority of other media balancing the story by using extracts

from the video or statement.

The programme also stated that an MP had written to the hospital "fighting for a

review" of the child's case, Canterbury Health wrote. In its view, that showed a lack

of accuracy, balance and fairness to doctors and management of the complainant as the

programme had in its possession Canterbury Health's statement that clinicians were

arranging further assessment of the child to review his treatment options.

In the presenter's statement that "Canterbury Health went a bit bizarre", and in

implying that its communications manager devised the idea of submitting the video

tape, the programme was inaccurate and unfair, it wrote. Doctors and management,

the complainant advised, decided to provide comment in video form to TVNZ.

The complainant claimed that the presenter's statement that "you could have written

that on a bit of paper and sent it to us, I suppose" was both factually incorrect and

unbalanced, as a written transcript was provided to TVNZ, which it ignored.

Referring to the broadcaster's statement that "providing video statements is 'not the

grammar of current affairs'", Canterbury Health responded:

The reality of course is that print media use press statements all the time, and

radio used some of the tape extracts provided. Additionally, TVNZ news

have in the past used video and interview "grabs" provided by Canterbury

Health...It was accepted that...it was appropriate to do this in order to

protect the privacy of the patient and staff members.

It continued that the programme-makers should have appreciated that the child's

doctor was put in a difficult position. The complainant wrote that the doctor:

...is used to being an advocate for children and naturally is distressed at the

decision he felt ethically bound to make. [He] did not wish to make any

statements whatsoever, as he did not feel confident that he would get the

opportunity to explain why he had reached this conclusion. He is a doctor,

not a public person, and has received very little previous media attention.

Ignoring the content of the information provided to it, as the programme apparently

did, was unfair and demonstrated a lack of balance, Canterbury Health claimed.

TVNZ's Response to the Formal Complaint – 30 March 1998

TVNZ considered the complaint under s. 4(1)(d) of the Broadcasting Act 1989, and

standards G1, G4, G14, G19 and G20 of the Television Code of Broadcasting

Practice, as nominated by the complainant.

While acknowledging that there was no technical reason why TVNZ should not have

used the video provided by Canterbury Health, the broadcaster emphasised that there

was a strong ethical reason. That, it wrote, was that:

...TVNZ risks its reputation and integrity as soon as it accepts from a party

in a controversial matter a videotape interview over which TVNZ's editorial

staff have had no control. Even if the questions asked were exactly those that

a reporter on the programme would have asked, the appearance that

TVNZ...is simply accepting the work of "spin doctors" can be very damaging.

We must be seen to be independent.... We can only be independent if left free

to ask those who provide information the questions, and follow-up questions,

which are clearly matters of public interest.

TVNZ denied that Canterbury Health's position was represented in the item by only

a one-line comment. It referred to the studio introduction, to script references, to the

outline of the child's medical history which had been given, and to comments made

by the child's mother, and the reporter, in the broadcast. The broadcaster also denied

that the complainant was mocked in the broadcast. Rather, it noted, the item reflected

TVNZ's astonishment at being asked to accept a pre-recorded tape on a matter of

controversy. The perceived lack of balance in the story, TVNZ continued, could have

been remedied had Canterbury Health acceded to the programme-maker's request and

allowed a member of its staff to be interviewed.

Referring to the complaint about the programme's reference to the MP's involvement

in the case, and its failure to refer to the complainant's intended review of the child,

TVNZ commented:

The programme indicated correctly that a local MP had asked for a review. It

also indicated through the interview with J...'s mother that the little boy was

improving and that the family "would like the doctors to see J... now".

It is clear from the interview that the family was under the impression that it

had reached the end of the line. Why would they choose to publicise their

son's plight if they thought there was any real chance of more medical

treatment? This is precisely the sort of area that a reporter, given the

opportunity to speak to [the doctor], would have wished to clarify.

In reply to the complainant's criticism of the presenter's statement that "Canterbury

Health went a bit bizarre", TVNZ wrote that it was not out of place in view of the

complainant's unprecedented stance in this matter. It also denied that the presenter's

comments were "mocking" and that the programme implied that the idea of the video

tape was that of the complainant's communications manager. Being referred to as

Canterbury Health's spokesperson was not being unfair to her, TVNZ wrote.

The broadcaster denied that the complainant's written transcript was ignored, as

Canterbury Health claimed. Its essence was made clear in the item and in the studio

piece that followed, it wrote.

In its response, TVNZ challenged the complainant's characterisation of the treating

clinician as someone na•ve in the art of responding to television questions. It wrote

that the doctor had previously appeared on television, and had been interviewed

before by the same reporter. It continued:
           

...if Canterbury Health had judged it unsuitable for [the doctor] to appear, it

was quite within its rights to offer an alternative more confident in media

relations.

Appreciating that the privacy of patients must be respected and that it might be

appropriate to use material supplied by a responsible health authority on unusual

occasions, TVNZ wrote (in relation to its refusal to use the material supplied by the

complainant) that:

The case is altogether different when a news media outlet is quite properly

seeking accountability as it was on this occasion.

It disagreed with Canterbury Health's statement that the print media used press

statements "all the time". It wrote that:

...we do not accept that any reputable news media outlet would use a press

statement without independently verifying it.

In suggesting that it should use the video and statement provided by the complainant,

TVNZ claimed, Canterbury Health was denying the news media its duty and role to

check facts, seek more information and – where necessary – to challenge information

where there was an element of accountability present.

TVNZ reiterated that it did not ignore the information which had been provided by

the complainant.

Contending that s.4(1)(d) of the Broadcasting Act and standard G20 were

complementary, TVNZ concluded that there had not been a breach of those balance

requirements, even if standard G6 had also been cited. By seeking an interview with

the complainant, the broadcaster alleged, it had complied with the "fair presentation"

requirement in G20.

TVNZ maintained that the item presented the position of the medical experts

accurately. It also presented the day's discussions with the complainant, and

accurately indicated the ethical problems raised by the complainant proceeding with

its own video, it wrote. Thus, the item did not breach G1, it noted.

Finally, the broadcaster contended that the item did not breach standards G4, G14 or

G19. It accurately reflected the plight of the child, his mother, the clinicians, and the

programme-makers, it concluded.

Canterbury Health's Referral to the Broadcasting Standards Authority – 20 April 1998

Dissatisfied with TVNZ's response, Canterbury Health Limited referred its complaint

to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act

1989.

TVNZ's Comments to the Authority – 23 April 1998

In its response, the broadcaster wrote that:

As Canterbury Health has not, at this stage, offered any reasons for its

dissatisfaction, TVNZ has no further comment to make.

Canterbury Health's Final Comment – 12 June 1998

In its comment, the complainant described the medical treatment required by the child,

the subject of the broadcast. As a haemophiliac, he was treated with Factor VIII

bypassing agents when acute bleeds occurred. Further treatment, consisting of

relatively low doses of Factor VIII given prophylactically several times a week, was

available to prevent further bleeding, Canterbury Health wrote. However, because the

child had high responding inhibitors, he needed first to be given immunotolerising

therapy which involved very high doses of Factor VIII given daily by a venous

catheter, it continued. The child's clinicians had decided – after consultation with

clinicians in other centres – that the latter treatment would be inappropriate.

Canterbury Health stated that the clinicians were concerned that the immunotolerance

therapy would be painful for the child, difficult for his parents to administer, and

could have resulted in an infection with serious implications.

Canterbury Health disputed TVNZ's argument that it could not have used the

material provided by the health authority because of the risks to the broadcaster's

integrity. It noted that newspapers used extracts from press statements, and visual

media including TVNZ routinely screened statements from parties in a dispute. Here,

it argued, TVNZ had been free to edit the press statement which it had issued in a

visual form. Further, it stressed, TVNZ had on occasion accepted video tape recorded

by Canterbury Health.

The complainant questioned TVNZ's astonishment "that it was asked to accept a

pre-recorded tape". It wrote :

It was clearly explained by our communications with TVNZ representatives

that the doctor involved had received advice from his medical defence advisors

(outside of Canterbury Health) not to be interviewed. Canterbury Health has

a very open policy in relation to media issues and [it] preferred that the doctor

front on the issue. We cannot and would not however force our doctors to

appear on the screen. [A] compromise was suggested whereby the doctor

would provide comments on video tape which media outlets could use. This

was not the suggestion of Canterbury Health Limited's Communication

Manager. This was not the usual method we operate, but the unusual

circumstances which made it appropriate were explained to TVNZ.

Additionally, it claimed, TVNZ had the transcript and tape for a week before the

broadcast and did not seek any further clarification or discussion about the tape.

At the time of the screening, Canterbury Health wrote, TVNZ was aware that the

health provider had agreed to a review by clinicians outside Canterbury Health but it

did not disclose that in the programme. TVNZ could have clarified that issue, and the

issue about why the child's family chose to publicise his plight, in the week before the

broadcast, the complainant continued.

TVNZ's implication that its Communication Manager was its "voice" was denied by

Canterbury Health which wrote that her role was to facilitate interviews within its

organisation. The implication made by the broadcaster was unfair, it contended.

Canterbury Health explained that the treating clinician had reason to expect that he

would be subjected to an intimidating interview had he appeared in the programme.

Neither he nor his fellow paediatric clinicians was willing to be interviewed, it wrote.

It could not and would not compel any of its clinicians to front television interviews,

the health provider continued.

Referring to TVNZ's claim that it had no editorial control or input into follow-up

questions, Canterbury Health pointed out that TVNZ had the ability to edit the video

and written statement provided. Further, it wrote, additional written or oral questions

could have been put in the week before the broadcast. In providing the material in the

form that it did, Canterbury Health was not denying the programme its press freedom

but, it wrote, providing the material to TVNZ notwithstanding the reservations and

objections of its clinicians. The health provider wrote that:

TVNZ made it clear that they were unhappy when they received the video and

written statement. TVNZ then chose not to seek further information, nor to

challenge this information further, but rather represented what Canterbury

Health had attempted to do as bizarre. In doing so it was unfair to Canterbury

Health.

In concluding by claiming that the programme was unbalanced, Canterbury Health

noted that TVNZ chose not to use the medical response to the child's story, and

devoted far less time to the child's medical condition than to its claim that the health

provider went "a bit bizarre". Further, it wrote:           

TVNZ claims that the presenter actually reflected the day's discussions with

Canterbury Health. In fact there were no discussions between Canterbury

Health and TVNZ in the week between TVNZ receiving our video and TVNZ

choosing to screen the item.

In characterising its response with the presentation of the video and written statement

in a very negative light, Canterbury Health claimed, TVNZ caused the programme to

become further unbalanced, unfair and distorted. TVNZ's response was to

characterise the matter as an issue of press freedom, Canterbury Health asserted,

when an objective overview of the facts made it clear that was not the case.

TVNZ's Response to the Final Comment – 23 June 1998

At the outset, TVNZ commented critically on the time it had taken the complainant to

respond to the broadcaster's decision of 30 March. Noting that Canterbury Health

had referred its complaint to the Authority on 20 April, TVNZ noted that it had taken

the complainant until the middle of June to comment on its decision of 30 March.

The broadcaster wrote:

It might not contravene any clause in the Act, but such tardiness is surely

contrary to the spirit of the formal complaints procedure? Should a

broadcaster have tarried so long, we feel sure the Authority (with justification)

would have made its displeasure abundantly clear.

TVNZ confirmed that it adhered to the comments made in its letter of 30 March.

The broadcaster also confirmed that it would not accept a "corporate" videotape

where accountability was in issue in a matter. Few reputable news outlets, it wrote,

would accept a press statement in such circumstances and all would seek access to the

source.

Replying to Canterbury Health's comment that TVNZ had previously used footage

provided by it, TVNZ responded that was in quite different circumstances where

accountability was not in issue. It occurred, TVNZ advised, in a factual story about

the first heart transplant operation in Christchurch. The matter was non-controversial

and the use of the footage did not contravene journalistic ethics, TVNZ continued.

TVNZ agreed that the item was edited in advance and was ready for transmission on

the day Canterbury Health delivered its video and transcript. It wrote:

...Holmes had no intention of using the tape so further debate became

redundant. We emphasise again that where issues of accountability arise,

TVNZ will not use material from this source or any other, now or in the

future. That is a non-negotiable editorial policy.

The broadcaster stressed that Canterbury Health "at no time" asked the programme-

makers what questions they wanted to put to the doctor. TVNZ wrote that

Canterbury Health:

...decided what should be asked and what therefore would appear on the tape.

It was made perfectly clear from the outset that a tape produced in such

circumstances would not be acceptable.

Referring to the complainant's comment that the treating clinician was concerned

about the prospect of an "intimidating interview" by TVNZ, the broadcaster

commented that the doctor knew the reporter and knew that "such is not her style".

TVNZ conceded that the doctor would have been asked some difficult questions, but

it denied that intimidation was part of the repertoire of the reporter, or the style of

TVNZ, and rejected the comment.

Finally, TVNZ stressed again that regardless of the content of the video, in a story

where accountability was an issue, it would have been unethical for the broadcaster to

use an interview undertaken by the very body whose accountability was being

questioned. It concluded that TVNZ's "editorial integrity was at stake".

TVNZ attached, in reply to a request from the Authority, a copy of the written

transcript supplied to it with the video prepared by Canterbury Health.

Further Correspondence

Canterbury Health, in a letter to the Authority dated 1 July 1998, submitted a copy

of the written transcript of the interview with the treating clinician which had been

supplied to the broadcaster. In addition, it supplied the accompanying video and an

audio tape of the same interview.

In response to TVNZ's comments on its tardiness, the health provider noted that

there were no statutory time limits breached by it in replying to the broadcaster's

comments on the referral of its complaint. TVNZ, it claimed, failed to recognise that

the legislative spirit of the complaints process was to provide some accountability for

broadcasters.

Reiterating that print, radio and visual media routinely used press statements issued to

them, Canterbury Health wrote that TVNZ had not explained why a statement in

video form, as provided by it to the broadcaster, was different from a statement in

print or audio form. It continued that TVNZ's statement that reputable news outlets

would not accept press statements in such circumstances "was patently incorrect"

and it attached transcript examples of the use of its tape by various radio stations.

The health provider emphasised that TVNZ was under no obligation to screen the

video or written statement which it had provided in its entirety. The material could

have been edited or extracts taken, it wrote. The real issue however was not whether

TVNZ was obliged to screen the tape, it stressed, but that it had an obligation to

comply with the requirements of the Television Code of Broadcasting Practice,

including the obligation "to be fair, just and balanced". Its failure to screen any

portion of the tape, or to summarise the points made on it, was a breach of the code,

Canterbury Health continued. TVNZ had ample opportunity to question or clarify

issues, or to verify statements, it contended, in the week between its receipt of the

tape from Canterbury Health and the broadcast of the item.

Commenting on TVNZ's statement that it had no intention of using the tape and that

was non-negotiable editorial policy, the complainant noted that while the broadcaster

might regard that as non-negotiable:

...the fact of the matter is that TVNZ itself is accountable. It has a statutory

obligation to comply with the Code which requires it to be, amongst other

things, fair, just, balanced and impartial.   TVNZ, whatever their preference

may be, do not have the ability to wilfully disregard material ... if the result is

that the programme is unfair, unjust, unbalanced and not impartial, or breaches

the Code in any other way.

Canterbury Health concluded by emphasising that the item's reference to an MP

fighting for the child was misleading when TVNZ had the health provider's statement

in its possession that its clinicians were arranging a further assessment of the child. It

also rejected the implication that the debate was about the avoidance of public

accountability, and emphasised that did not wish to have any of its non-clinicians

interviewed on the programme when it believed that the real decision-makers should

be held accountable. Thus, it stressed, its communications manager was not its

"voice".

In its response to the Authority dated 8 July 1998, TVNZ disagreed that its decision

not to screen any part of the video was in breach of the broadcasting code, nor that

what other news media outlets did with the story was relevant. Television, it wrote:

...is a very different medium to radio and we have no doubt that we would be

severely criticised by academics in the various media schools if we used

supplied video tapes to provide balance to an item where accountability was in

issue.

The broadcaster otherwise reiterated the comments it had made in its earlier letters.

In a further letter to the Authority dated 10 July 1998, Canterbury Health corrected

and clarified some of the quotations used by TVNZ in its letter of 8 July, and

underlined some discrepancies in TVNZ's "non-negotiable editorial policy".