BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – examined differences in breast cancer treatment in Australia and New Zealand, and the funding of a drug called Herceptin – interviewed an Australian and a New Zealander with similar cancer and compared their prognoses – allegedly unbalanced and inaccurate

Findings
Standard 4 (balance) – broadcaster failed to present significant viewpoints on the controversial issue within the programme, and within the period of current interest – due to the presentation of the programme and the nature of the issue, the period of current interest limited to a short time after the broadcast – alternative perspectives were not presented – upheld

Standard 5 (accuracy) – two statements would have misled viewers – upheld

Order
Section 13(1)(a) – broadcast of a statement
Section 16(4) – payment of costs to the Crown $3,000 

Broadcast

[1]   An item on 60 Minutes, broadcast on TV3 at 7.30pm on 16 October 2006, examined differences in the treatment of breast cancer and the funding of that treatment in New Zealand and Australia. The report focussed on the availability of a drug called Herceptin, which was publicly funded in Australia, but was only funded for New Zealand women with breast cancer in the advanced stages.

[2]   The programme included interviews with two women – one New Zealander and one Australian – who had been diagnosed with HER2-positive breast cancer. It discussed the differences in prognosis between the women due to the unavailability of certain drugs and treatments in New Zealand. The reporter interviewed an Australian oncologist, Fran Boyle, who stated that New Zealand women were receiving treatment that was “not up to the standard of the Western world”. Comments from a New Zealand “breast cancer survivor and activist”, Libby Burgess, were also included. Ms Burgess gave her view that Herceptin should be funded in New Zealand.

[3]   The reporter asked “why won’t the Government fund Herceptin for all women with breast cancer”, and noted that PHARMAC had reiterated that it would “only be funded for those in the advanced stages” because it questioned the science. The reporter summarised an excerpt from a letter written by the Minister of Health, Pete Hodgson, as follows:

…the available clinical data is not sufficient, it’s short term and does not show the long term benefit of Herceptin, particularly on life expectancy.

[4]   The reporter said that, as well as questioning the clinical results, the Government had pointed to the cost of $20-25 million dollars per year for up to 320 patients.

Complaint

[5]   PHARMAC made a formal complaint about the item to CanWest TVWorks Ltd, the broadcaster, alleging that the programme was unbalanced and inaccurate. Looking first at Standard 4 (balance), the complainant submitted that 60 Minutes had presented a very one-sided view of the Herceptin debate without taking into consideration many of the viewpoints that had been expressed both in New Zealand and overseas. While the views of patients and their advocates were clearly important, it said, there were other equally compelling perspectives which should have been presented in order to provide balance.

[6]   PHARMAC noted that it had not been approached for comment for the item, even though it was “the decision-maker in this particular case”. Furthermore, it argued that the statements made in the item had not been questioned, and were accepted as being the absolute truth when in fact there were contrary viewpoints. It wrote:

The item clearly set out to provoke an emotional response from viewers, even to the point of contrasting a healthy-looking Australian patient with a less healthy, and hairless, NZ patient. While this is the prerogative of the broadcaster and not grounds for a complaint, it is distressing for 60 Minutes to tell patients with breast cancer that, in effect, Australian patients with breast cancer have hope; New Zealanders have none.

[7]   Turning to Standard 5 (accuracy), PHARMAC pointed to several statements in the item which it alleged were inaccurate.

Statement that the New Zealand woman’s life expectancy was 50% at 10 years, and the Australian woman’s “chances of dying before her children grow up are slim”

[8]   The complainant noted that the item had not given a percentage life expectancy for the Australian woman, as it had done for the New Zealand woman. The survival rate for women with HER2-positive breast cancer in New Zealand was approximately 50-60% at 10 years. It said that the survival rate in Australia was not clear from the data available, but in Finland (where Herceptin was available) the survival rate was 62% at 10 years compared to 50-60% in New Zealand.

Statement that the Australian patient was “getting a sophisticated treatment package, treatment which means Australian women are 28% more likely to survive breast cancer than women here”

[9]   PHAMAC contended that the programme had repeatedly mixed data on HER2-positive breast cancer and breast cancer overall, without discussing factors such as population differences and access to early diagnosis. This, it said, was misleading for viewers. The 28% figure related to breast cancer overall, as a comparison of HER2-positive breast cancer mortality in Australian and New Zealand had not been undertaken.

“Herceptin, the wonder drug of breast cancer…”

[10]   In the complainant’s view, this was a highly emotive statement that overstated the effectiveness of Herceptin. The drug was not effective for all women with HER2-positive breast cancer, it wrote, and data from a large-scale trial had shown that:

…37 women would need to be treated for three years to save one life (a 2.7% increase in survival rates). The absolute improvement in disease-free survival was 6.3% at three years. The smaller FinHer trial showed an 11.7% improvement in disease-free survival at three years.

[11]   PHARMAC observed that the anti-nausea drug ondansetron was funded in New Zealand for patients undergoing chemotherapy. It said it was unclear which anti-nausea drug was being referred to in the programme.

“Those trials show women with HER2-positive early breast cancer are up to 50% less likely to have a recurrence of the cancer with Herceptin and 33% less likely to die”

[12]   The complainant stated that these figures were for “relative risk reduction” and had been described as misleading by “the prestigious BBC Panorama programme”. As stated above, it said, the “absolute risk reduction” at three years after a year’s treatment with Herceptin was 6.3% less likely to have a recurrence, and 2.7% less likely to die.

[13]   These figures, the complainant wrote, suggested to viewers that 33 out of 100 women would die if not treated with Herceptin. PHARMAC said that this was not the case, and it observed that 50-60% of HER2-positive patients were still alive 10 years after diagnosis even without Herceptin.

Libby Burgess’ statement that “we calculate that actually 66 additional lives could be saved every year if we use Herceptin on 400 women in New Zealand”

[14]   PHARMAC wrote that it was difficult to know how this figure had been calculated. Using the data from the large scale trial, it said, treating 400 women for three years with Herceptin may result in the deaths of approximately 12 patients being delayed. The complainant noted that the available data on Herceptin only extended to a maximum of four years, and the data showed that its effects may abate over time.

[15]   PHARMAC said that it had estimated that:

• without Herceptin, women with HER2-positive breast cancer had a 25-year life expectancy
• with Herceptin, life expectancy increased by 2-5 years (depending on how long effects persisted) to become a 27-30.5 year life expectancy

[16]   This compared with a 35-year life expectancy for women aged 50 in the general population, it said, and 30 years for women aged 50 with HER2-negative breast cancer. PHARMAC said that the “extremely divergent views on the long-term effects of Herceptin underscore the uncertainties in the data that have led PHARMAC to conclude that funding of Herceptin is not justified at this time”.

Standards

[17]   Standards 4 and 5 and guideline 5b of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with 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.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guideline 5b

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

[18]   CanWest accepted that the item had discussed a controversial issue of public importance to which the balance standard applied. The focus of the item was, it said, the differences in treatment available to New Zealand and Australian women with a particular form of breast cancer. It submitted that the PHARMAC and Government position had been given considerable coverage across all media, adding:

All major print, internet and audio visual media have carried stories from all perspectives – by the time this programme screened the [complaints] committee considers that viewers with an interest in the subject would be well aware of the significant points of view – on one side Pharmac and Government spokespeople have questioned the science and pointed to the cost – on the other hand a number of breast cancer professionals and women affected have spoken out in favour of wider use and increased funding of the drug.

[19]  CanWest contended that the balance standard did not require a “mathematical equality of time or input”. Against the background of considerable media coverage, it found that there were sufficient references in the programme to the Government and PHARMAC perspective “to remind and alert viewers to that point of view”. The broadcaster pointed to passages in the programme which referred to the letter written by the Minister of Health, and it noted that 60 Minutes had sought direct comment from the Minister but he had declined to be involved.

[20]  In CanWest’s view, reasonable opportunities had been given to the Government to present its point of view, and PHARMAC’s position, in the item. It declined to uphold the balance complaint.

[21]  Turning to Standard 5 (accuracy), the broadcaster observed that PHARMAC had made some highly technical arguments. It said it was unable to determine the “science” behind the statistics, but could assess whether the programme carried out a sufficiently detailed and careful investigation before asserting the facts. The producer of the item had provided a detailed response to the complaint, CanWest said, which addressed each of the points made by PHARMAC.

Statement that the New Zealand woman’s life expectancy was 50% at 10 years, and the Australian woman’s “chances of dying before her children grow up are slim”

[22]  The producer contended that this statement was “an honest one” based on the information the woman had given to the programme. To express it in more specific terms would have entailed the disclosure of detailed private information which was not warranted in the circumstances. The producer said that the life expectancy figures were particular to the two women and were not intended to have general application.

[23]  The producer wrote that PHARMAC’s statement that survival rates “for women with HER2-positive breast cancer in New Zealand are approximately 50-60% at 10 years” was disputed by two oncologists that the producer had consulted. They had said that there was no data on 10-year survival for HER2 cancers.

Statement that the Australian patient was “getting a sophisticated treatment package, treatment which means Australian women are 28% more likely to survive breast cancer than women here”

[24]  The producer noted that PHARMAC did not seem to dispute the figures for overall breast cancer survival in the two countries. The statement did not refer to Herceptin but to a “treatment package”, and the producer disagreed that this was misleading to viewers.

“Herceptin, the wonder drug of breast cancer…”

[25]  In the producer’s view, the term “wonder drug” adequately conveyed and summarised the terms used by medical researchers in connection with Herceptin, to a general audience. The producer maintained that the term “wonder drug”, for a disease as serious as breast cancer, did not necessarily carry an implication that all cases would be cured, but that it would provide a significant improvement on the status quo. Based on the advice provided by the experts, the producer contended that Herceptin could be described as a “wonder drug”.

Statement that the New Zealand patient would not “get the new generation anti-nausea drugs available in Australia, because they’re not funded here”

[26]  The producer wrote that the drug referred to in the programme was aprepitant (Emend®), an addition to ondansetron, which was available in Australia but not New Zealand. Other more powerful drugs were also not available in New Zealand.

“Those trials show women with HER2-positive early breast cancer are up to 50% less likely to have a recurrence of the cancer with Herceptin and 33% less likely to die”

[27]  The producer confirmed that the figures in this statement were “a matter of fact”, writing:

In the HERA trial, which involved 5081 women in total, and where women given Herceptin for 12 months were compared with women who were not, 23 months after the finish of their treatment, 90 in the group not given the drug had died compared with 59 from the group given Herceptin (Smith, 2006). This can be expressed as a 33% reduction in the risk of death compared with no Herceptin at three years…as PHARMAC points out, this is relative risk reduction.

[28]  The producer stated that viewers would not, as PHARMAC asserted, have interpreted the phrase “33% less likely to die” to mean 33 women out of 100 will die without Herceptin.

Libby Burgess’ statement that “we calculate that actually 66 additional lives could be saved every year if we use Herceptin on 400 women in New Zealand”

[29]  The producer explained how Ms Burgess had calculated the above statistic:

• Approximately 600 New Zealand women were diagnosed with HER2-positive breast cancer each year, and around 400 of those would not be eligible for Herceptin treatment
• The ten-year survival for patients with HER2-positive breast cancer was about 50% (Ross and Fletcher, 1998), so it was expected that 200 of those HER2-positive women would die within ten years of their diagnosis
• The latest trial results suggested that this annual total of deaths could be reduced by 33% with the addition of Herceptin to their treatment regimes (Smith et al. 2006), i.e. 200 x 0.33 = 66 lives saved per year.

[30]  The producer queried PHARMAC’s conclusion that Herceptin’s effects may abate on the basis of the available data, and disputed the statement that there were “extremely divergent views” on the long-term effects of Herceptin. The producer added:

The fact that many countries around the world are now funding Herceptin for use in early HER2-positive breast cancer demonstrates that their pharmaceutical assessment and regulatory agencies have clearly concluded that Herceptin will have long-term benefits.

[31]  In light of the above, CanWest declined to uphold the accuracy complaint.

Referral to the Authority

[32]  Dissatisfied with CanWest’s decision, PHARMAC referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. It reiterated that neither PHARMAC nor the District Health Boards, the Herceptin funding decision makers, had been approached for comment.

[33]  PHARMAC stated that CanWest had attempted to justify this omission in two ways. First, the broadcaster had suggested that viewers with an interest in the topic would already have an understanding of PHARMAC’s position due to other media coverage. While it agreed that Standard 4 did not require a “mathematical equality of time or input”, the complainant contended that

…on no objective reading of Standard 4 could it be said that the standard is met by allocating no time at all.

Nor can Standard 4 be interpreted as suggesting that coverage of a story in other media entitles TV3 to ignore the requirement of balance within its own programme. TV3 is not even able to say that the alternative (PHARMAC or DHB) viewpoint has been presented on television, let alone by TV3, let alone by the 60 Minutes programme. It is presumptuous to assume all viewers have been exposed to, and understand, all points of view that have been presented around any one issue, particularly an issue as complex and controversial as this one.

[34]  Second, PHARMAC said that CanWest had attempted to justify its decision not to contact PHARMAC by noting that a request was made to interview the Minister of Health, and that he had declined that request. The complainant said that while the Minister would have an interest in the outcome given his health portfolio, he was not the decision maker with respect to the funding of pharmaceuticals. Furthermore, it understood that the Minister had referred CanWest to PHARMAC for comment.

[35]  Turning to Standard 5 (accuracy), the complainant observed that CanWest had provided a detailed response to the matters raised in its complaint. It stood by its assertion that the statements were inaccurate, and stated that it could make a detailed counter-response to CanWest’s letter if required.

Broadcaster’s Response to the Authority

[36]   CanWest remained of the view that the excerpt from the Minister of Health’s letter was accurate and an adequate explanation of the Government’s view, and PHARMAC’s. It wrote:

The programme did not set out to be a detailed examination of the position of the funding agencies and those who challenge their funding decisions – it was clearly presented as a human interest story – allowing the two women upon whom the story was focused to tell their story. It was more generally an examination of the different experiences of these two women and took in more than simply the different funding decisions made in relation to Herceptin by health agencies in Australia and New Zealand.

[37]   The broadcaster said that it had sought comment from the Minister because “he was the appropriate (and the only) commentator on the various strands of the wider issues relating to the difference in survival rates in Australia and New Zealand”. To have sought comment from PHARMAC or the DHBs, it said, would have unnecessarily complicated a short current affairs story.

[38]   With respect to accuracy, CanWest contended that, unless PHARMAC was prepared to demonstrate the points it had made, the Authority should decline to determine this aspect of the referral.

Complainant’s Final Comment

[39]   In its final submission, the complainant reiterated that PHARMAC and the District Health Boards were the decision-makers with respect to Herceptin. The Minister of Health, it wrote, had no direct impact on the decisions made, and this should have become apparent to CanWest when the Minister referred it to PHARMAC for comment.

[40]   PHARMAC stated that the excerpt from the Minister of Health’s letter did not encapsulate PHARMAC’s view on the debate. It maintained that it could have provided responses to everything that the programme had presented as “facts”, leading to a story that was not one-sided.

[41]   The complainant contended that “human interest” stories still needed to be balanced. It noted that comment had been sought from Herceptin campaigners in addition to the patients who were the subjects of the item.

Further Response from the Broadcaster

[42]   CanWest maintained that the programme had focused on a set of issues facing women with cancer; not simply the debate about PHARMAC’s funding decision. Referring to the Authority’s Decision No. 2007-123, the broadcaster stated that, even where a programme addressed an issue of importance to the public, the way in which that topic was approached by the participants must itself amount to a discussion of a controversial issue.

[43]   In CanWest’s view, the funding decision was only part of what the participant’s were discussing and, in light of the wider focus, what was said about the funding was sufficient for viewers to understand the range of views around the issues.

Further Information Requested by the Authority

Information from PHARMAC

[44]   The Authority asked PHARMAC to provide a response to CanWest’s argument (see paragraphs [29] and [30]) about Libby Burgess’ statement that “66 additional lives could be saved every year if we use Herceptin on 400 women in New Zealand”.

[45]   PHARMAC stated that it disagreed with this calculation for three reasons. First, it said, Ms Burgess had not divided the “lives saved” figure by 10 to reach a number per year. If 200 women would die within 10 years of their diagnosis, applying the 33% reduction would give 66 lives saved over 10 years i.e. 6.6 lives saved per year.

[46]   Second, PHARMAC contended that the estimate was too high because the cited survival rates for patients not treated with Herceptin were too pessimistic, and also because there was no reason to assume Herceptin would continue to be effective long-term.

[47]   Third, the complainant said that the phrase “reduced by 33%” was confusing and ambiguous. It noted that the change in survival from the HERA trial was 1.8%, whereas the change in deaths was 35%; therefore when measuring against survival, not deaths, the 1.8% figure should be used. In PHARMAC’s view, the following calculation was appropriate:

1. Around 400 new cases/year x 1.8% over 23 months median x 120 months/23 months (in order to expand to 10 years) = 37.6 deaths prevented in that cohort over 10 years
2. In any one year that would be 3-4 deaths prevented. That is, around 1/18th of what CanWest calculated, even before adjusting for the possibility that the 1.8% reduction would not be sustained over the full 10 years.

Information from CanWest

[48]   The Authority asked CanWest to provide details of the other media coverage surrounding the Herceptin debate that it referred to in its correspondence.

[49]   CanWest provided the Authority with several articles from the New Zealand Herald and other online publications, and it gave information about items broadcast on TV3 surrounding the Herceptin debate.

Further Information from the Broadcaster

[50]   CanWest provided a further response to PHARMAC’s argument regarding Ms Burgess’ statement. It said that her statement referred to the potential effects over 10 years of treating 400 women within one year, writing “put more simply, each year in which we treat 400 women with early HER2 positive breast cancer we could potentially save 68 lives over the following ten years”.

Further Information from the Complainant

[51]   PHARMAC reiterated that its main concern was that the 60 Minutes item was not balanced. With respect to the point about Ms Burgess’ statement, PHARMAC contended that CanWest’s latest response – which referred to 68 lives saved over ten years – supported its argument that the statement in the item was inaccurate.

Authority's Determination

[52]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Standard 4 (balance)

[53]   Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the item asked why the drug Herceptin was not publicly funded in New Zealand, as it was in Australia. The Authority notes that this issue has topical currency, and there has been ongoing public debate about whether Herceptin should be funded for all HER2-positive breast cancer patients. In these circumstances, the Authority concludes that the requirement for balance applied to the programme.

[54]   PHARMAC’s complaint is that the programme was a one-sided look at the debate about Herceptin. It argued that CanWest should have presented PHARMAC’s viewpoint, as it was the decision-maker about drug funding in New Zealand.

[55]   The Authority agrees that PHARMAC had a significant perspective on the issue of whether Herceptin should be publicly funded in this country, because it was the body responsible for that decision. The Authority disagrees with CanWest that the item was simply a “human interest” story; it also presented the views of a highly regarded Australian specialist and a “breast cancer survivor and activist”, who both strongly criticised the decision not to fund Herceptin in New Zealand. Accordingly, the Authority considers that CanWest had a responsibility to present PHARMAC’s viewpoint within the programme complained about, or during programmes within the period of current interest.

Balance within the programme

[56]   The Authority notes the following excerpts from the programme which CanWest contends adequately presented PHARMAC’s perspective:

So why won’t the Government fund Herceptin for all women with breast cancer? Just today, PHARMAC reiterated that it will only be funded for those in the advanced stages. Why? Well, because it questions the science.

In this letter to [cancer patient’s] sister, Health Minister Pete Hodgson says the available clinical data is not sufficient, it’s short term and does not show the long term benefit of Herceptin, particularly on life expectancy.

… As well as questioning the clinical results, [the Government] points to the cost, $20-25 million per year for up to 320 patients, around half the public hospital budget for cancer drugs.

[57]   In the Authority’s view, this was insufficient to meet the requirement for balance. The programme presented a series of highly controversial statements that were left unchallenged. For example, Fran Boyle stated that New Zealand women were getting substandard treatment because their doctors were unable to “use drugs that are going to save lives”, and she indicated that Herceptin should be available to all women in this country. Also, Libby Burgess stated that “66 additional lives could be saved every year” if 400 women were treated with Herceptin.

[58]   The Authority notes that Standard 4 exists to ensure that viewers are provided with all significant perspectives on a controversial issue. The Authority agrees with PHARMAC that the short statement from the Minister of Health was not adequate to present an alternative viewpoint on the contentious statements which were made throughout the item. Therefore it considers that 60 Minutes viewers were deprived of at least one significant perspective on the question of whether Herceptin should be publicly funded in New Zealand.

[59]   The Authority concludes that CanWest did not meet the requirement for balance within the 60 Minutes programme complained about. Accordingly, it turns to consider whether CanWest made reasonable efforts or gave reasonable opportunities to present significant points of view within the period of current interest.

Balance within the period of current interest

[60]   The Authority considers that the “period of current interest” during which CanWest could provide balance was limited to a period within close proximity to the broadcast, for two reasons. First, in the Authority’s view, the 60 Minutes item complained about purported to be a self-contained discussion about whether Herceptin should be publicly funded in New Zealand. However, as discussed above, the programme presented only one side of the argument, and the alternative view was mentioned only briefly in several sentences read out by the reporter. This short segment did not specifically relate to the controversial claims made in the item. The Authority considers that, in order to fulfil its obligations under the balance standard, CanWest was required to present other significant perspectives in a programme of similar length, impact and audience reach, within a very short period of time.

[61]   Second, the Authority observes that the Herceptin debate is not an issue about which the general public has a comprehensive understanding. It is not a subject such as euthanasia or abortion, about which competing arguments have been advanced over a lengthy period of time to enable viewers to arrive at an informed and reasoned opinion. A significant proportion of the media coverage about Herceptin has focused solely on the plight of breast cancer patients who feel that they should be given access to the drug, and who criticise PHARMAC’s decision not to fund it. Therefore CanWest needed to give viewers an alternative perspective on the views canvassed in the programme within a time period close to the broadcast.

[62]   The Authority has reviewed the additional material provided by CanWest which outlines other media coverage of the Herceptin debate leading up to the broadcast complained about. There is no evidence that during the period of current interest as defined above, CanWest – or any other broadcast or print media – broadcast a programme which presented viewers with PHARMAC’s perspective, or any other perspective, on the issue of whether Herceptin should be funded in New Zealand.

[63]   Accordingly, the Authority concludes that CanWest did not make reasonable efforts to present significant points of view on the controversial issue within the period of current interest. It upholds the Standard 4 complaint.

[64]   For the record, although the Authority has found that PHARMAC had a significant perspective on the controversial issue which was not presented in the programme, this does not amount to a finding that CanWest was required to interview a representative from PHARMAC. The Authority observes that alternative perspectives could adequately have been presented by the reporter or by an interviewee from another appropriate organisation with sufficient knowledge of the issue.

Standard 5 (accuracy)

[65]   The complainant has identified several alleged inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority now considers each allegation in turn.

“Those trials show women with HER2-positive early breast cancer are up to 50% less likely to have a recurrence of the cancer with Herceptin and 33% less likely to die”

[66]   The Authority  considers that the programme overall would have left viewers with the impression that women who were not treated with Herceptin had a high risk of dying. For example, it included statements such as:

“If you’re HER2-positive, then you need Herceptin”

“I would be really worried about her chances of survival and as soon as she can get some Herceptin, she needs to get cracking”
“Women are dying unnecessary deaths from breast cancer because we’re not putting the right treatments in place that can save their lives. And Herceptin is a case in point here…”

“She started on Herceptin, a drug she’s pinning her hopes and her life on”.

[67]   In light of these statements, the Authority finds that the statement that women were “33% less likely to die” if they received Herceptin would have appeared to viewers as a substantial reduction in their risk of dying. The programme did not inform viewers that, in actual fact, a small proportion of women from both the Herceptin and non-Herceptin groups in the HERA trial had died. Relevant to this point, the Authority received the following statement from the 60 Minutes producer:

In the HERA trial, which involved 5081 women in total, and where women given Herceptin for 12 months were compared with women who were not, 23 months after the finish of their treatment, 90 in the group not given the drug had died compared with 59 from the group given Herceptin (Smith, 2006).

[68]   The Authority agrees that 33% fewer people died in the group that received Herceptin, comparing 90 deaths in the non-Herceptin group with 59 deaths in the Herceptin group. However, taking into account the total number of women who participated in the trial (5081), the figures showed that there was only a 2.7 percentage point differential between the rate of death of those women taking Herceptin and those who were not.

[69]   Guideline 5b to the accuracy standard states that broadcasters should refrain from broadcasting material which is misleading. Because the “33% less likely to die” statement was not put into this context, the Authority finds that viewers would have been unable to judge the figure of 33% against the appropriate baseline. Accordingly, it considers that viewers would have been misled as to the actual difference that Herceptin would make to the number of women dying from HER2-positive breast cancer.

[70]   Therefore the Authority upholds this part of the complaint as a breach of Standard 5.

Libby Burgess’ statement that “we calculate that actually 66 additional lives could be saved every year if we use Herceptin on 400 women in New Zealand”

[71]   The Authority considers that Libby Burgess was presented as an authoritative and credible source making statements of fact to which the accuracy standard applies. The Authority has reviewed the calculations provided by both parties (outlined in the correspondence section) in order to assess whether it was accurate to state that “66 additional lives could be saved every year if we use Herceptin on 400 women”. Having done so, it concludes that the statement was inaccurate and in breach of Standard 5. In reaching this conclusion, the Authority takes note of the following statement in CanWest’s last response on this matter:

Put more simply, in each year in which we treat 400 women with early HER2 positive breast cancer we could potentially save 68 lives over the following ten years.

[72]   This statement, in the Authority’s view, supports PHARMAC’s argument that Ms Burgess’ statement in the programme was inaccurate. The Authority acknowledges that, after a period of ten years treating 400 women each year (i.e. 4000 women), 66 lives could potentially have been saved (assuming the figures provided by 60 Minutes are correct). However, there was no suggestion in the programme that Ms Burgess’ calculation of 66 lives related to lives saved annually after a ten-year period. She simply stated that 66 lives would be saved each year, and the Authority finds that viewers would have assumed that this reduction in deaths would take effect from the first year that those women were being treated with Herceptin.

[73]   Accordingly, the Authority concludes that the statement would have misled viewers. It finds that Standard 5 was breached in this respect.

Statement that the New Zealand woman’s life expectancy was 50% at 10 years, and the Australian woman’s “chances of dying before her children grow up are slim”

[74]   PHARMAC has argued that the survival rates for breast cancer in New Zealand are comparable to other countries, and therefore it was misleading to use the survival chances for these two women as an example of a discrepancy that does not exist. The Authority disagrees with CanWest that the statement was merely giving the particular life expectancies for these two women; it agrees with PHARMAC that viewers would have understood that the two women were compared for the purpose of highlighting the difference in life expectancies between New Zealand and Australia.

[75]   However, the complainant has admitted that “it is not clear what the survival rate is in Australia”. Because PHARMAC has provided no evidence to suggest that the survival rates in Australia are similar to those in New Zealand, the Authority has no basis upon which to conclude that the statement was inaccurate or misleading. Therefore it declines to uphold this part of the complaint.

Statement that the Australian patient was “getting a sophisticated treatment package, treatment which means Australian women are 28% more likely to survive breast cancer than women here”

[76]   PHARMAC has not disputed that Australian women are 28% more likely to survive breast cancer than New Zealand women, but it said that this figure relates to the difference in survival rates for breast cancer overall, not for HER2-positive breast cancer which was being discussed in the programme. The Authority finds that the statement was not inaccurate. It considers that viewers would have understood that the figure of 28% related to breast cancer overall, as there was no suggestion in the surrounding dialogue that specifically related to HER2-positive breast cancer. Accordingly, the Authority finds that Standard 5 was not breached in this respect.

“Herceptin, the wonder drug of breast cancer…”

[77]   In the Authority’s view, describing Herceptin as “the wonder drug of breast cancer” was not a statement of fact to which the accuracy standard applies. It considers that viewers would have understood that the phrase “wonder drug” was a colloquial and hyperbolic way to reflect the current hype surrounding the drug’s effectiveness. Accordingly, the Authority finds that it was not presented as a statement of fact, and it concludes that the accuracy standard did not apply to the reporter’s statement.

Statement that the New Zealand patient would not “get the new generation anti-nausea drugs available in Australia, because they’re not funded here”

[78]   PHARMAC observed that it was unclear which anti-nausea drug was being referred to in the programme, and CanWest responded that it was aprepitant (Emend®) which is not funded by the government in New Zealand. Based on the evidence provided by CanWest, which has not been refuted by the complainant, the Authority concludes that it was not inaccurate to state that there are anti-nausea drugs that are funded in Australia, but not in New Zealand. It declines to uphold this part of the complaint.

Bill of Rights

[79]   For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast of an item on 60 Minutes by CanWest TVWorks Ltd on 16 October 2006 breached Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice.

[80]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

Submissions from CanWest and amendment of draft decision

[81]   Having received the Decision in Part, CanWest expressed concern about two aspects of the Authority’s determination. It argued that the Authority was incorrect to uphold as inaccurate the statement that women with HER2-positive breast cancer would be “33% less likely to die” if treated with Herceptin. It also denied that the statement by Libby Burgess that “66 additional lives could be saved every year” was inaccurate. CanWest also argued that one statement in the Authority’s decision had been expressed in a way that was not statistically accurate.

[82]   In light of the concerns expressed by CanWest, the decision about these two statements was amended to make the Authority’s reasoning clearer, and to take account of CanWest’s concerns about the statistical accuracy of one of its statements. However, the Authority’s decision that these two statements were inaccurate did not alter.

Submissions on orders

[83]   PHARMAC submitted that the Authority should order a corrective statement to be broadcast at the beginning or end of the first 60 Minutes episode to be aired following the Authority’s final formal decision. It provided a draft statement which it hoped would draw viewers’ attention to the fact that there were two sides to the Herceptin story.

[84]   CanWest submitted that the publication of the Authority’s decision was sufficient on this occasion.

Authority’s decision on orders

[85]   The Authority agrees with PHARMAC that an order requiring the broadcaster to broadcast a statement is appropriate. The Authority has considered the draft statement attached to the complainant’s submission, but sees no reason to depart from its usual practice by which the broadcaster is required to draft a statement for the Authority’s approval.

[86]   Costs to the Crown are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. The Authority has found that the programme would have misled viewers in respect of two statements which would have affected their overall understanding of the issues. Further, the broadcaster did not provide viewers with any alternative perspectives on the Herceptin issue within the programme itself, or within the period of current interest. Taking into account the public interest in this matter and the impact this item would have had on viewers, the Authority considers that the broadcaster should pay $3,000 costs to the Crown on this occasion.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders CanWest TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during 60 Minutes, on a date to be approved by the Authority
• contain a comprehensive summary of the Authority’s decision.
  

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(4) of the Act, the Authority orders CanWest TVWorks Ltd to pay to the Crown costs in the amount of $3,000, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.

Joanne Morris
Chair
11 September 2007

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.            PHARMAC’s formal complaint – 18 October 2006
2.           CanWest’s decision on the formal complaint – 13 November 2006
3.           PHARMAC’s referral to the Authority – 1 December 2006
4.           CanWest’s response to the Authority – 15 February 2007
5.           PHARMAC’s final comment – 2 March 2007
6.           Further response from CanWest – 26 March 2007
7.           Response to request for information from PHARMAC – 3 April 2007
8.           Response to request for information from CanWest – 24 April 2007
9.           Further response from PHARMAC – 1 May 2007
10.          PHARMAC’s submissions on orders – 22 June 2007
11.          Submission on the draft decision from CanWest – 2 July 2007
12.          Submissions on orders from CanWest – 15 August 2007