BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – reported one woman’s experience with receiving poor quality healthcare from The Palms Medical Centre in Palmerston North – Health and Disability Commissioner upheld her complaint about the centre – item named and showed footage from a previous item of one of the doctors involved – allegedly in breach of privacy, controversial issues, accuracy and fairness

Findings
Standard 6 (fairness) – medical centre was told that Kay Shirkey was being interviewed about her experience at The Palms and that the story would be critical of the centre – Dr Saxe was her primary doctor – reporters asked several times to interview someone at the centre – not unfair – not upheld

Standard 3 (privacy) – no private facts revealed about Dr Saxe – not upheld

Standard 4 (controversial issues – viewpoints) – story focused on Ms Shirkey’s experience with The Palms – no discussion of a controversial issue of public importance – not upheld

Standard 5 (accuracy) – comments clearly distinguishable as Ms Shirkey’s opinions – standard not applicable – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on Tuesday 1 September 2009, reported on the experiences of one woman, Kay Shirkey, who believed she had received a poor quality of general practice care from six different doctors over eight visits to The Palms Medical Centre in Palmerston North. Her complaint to the Health and Disability Commissioner (HDC) had been upheld, and the centre had been found to have breached the Code of Patients’ Rights.

[2]   The item began with an interview with Ms Shirkey and her husband. The reporter then stated that “the majority owner of The Palms Medical Centre is South African Ralph Saxe who featured on Close Up three years ago as the flying botox doctor.” A brief segment of the item and an excerpt of an interview from Dr Saxe, broadcast in 2006, were shown.

[3]   The reporter went on to say that “he’s been Kay’s GP for five years but Ralph Saxe didn’t see her until months after her back started hurting.” The reporter outlined criticisms of Dr Saxe from the HDC’s report which was followed by Ms Shirkey giving her impression of Dr Saxe. She was shown commenting, “fobbing me off and just saying it’s all up here [pointing to her head] and there’s really nothing wrong with you and excuse me I’ve got my next patient to get to”.

[4]   The reporter stated that “Commissioner Ron Paterson has found serious defects in Kay Shirkey’s care and has criticised four of the doctors involved”. An excerpt from the HDC’s report was read out accompanied by an on-screen graphic reading, “One has to ask, is this as good as it gets? In my view, if this is the face of modern primary medical care in New Zealand, it is not a pretty picture.”

[5]   Viewers were told that “no one from The Palms would talk to Close Up but in a statement clinical director Wayne Hayter says they’ve apologised to Kay Shirkey and regret the delay in diagnosing her. He says The Palms now encourages patients to see their regular GP, has improved its systems and three doctors are undergoing specialist GP training.”

[6]   Back in the studio, the Close Up presenter conducted a live interview with the Health and Disability Commissioner, Ron Paterson. He stated that he had felt the need to publicly name the medical centre involved because the public had a right to know.

Complaint

[7]   Through his lawyer, Dr Ralph Saxe made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards relating to privacy, controversial issues, accuracy and fairness.

[8]   First, Dr Saxe emphasised that, while the HDC’s review named The Palms Medical Centre, none of the doctors, including himself, was named in the report. Further, although four of the doctors, including Dr Saxe, were criticised by the Commissioner, none of them was found to have breached the Code of Patients’ Rights.

[9]   Prior to the 1 September item, TVNZ contacted The Palms Medical Centre for comment, which it declined, but provided a statement from its clinical director. Dr Saxe maintained that at no time before the broadcast was The Palms Medical Centre, the clinical director or Dr Saxe advised that Dr Saxe would be referred to by name, that a clip from the previous story would be used, or that Ms Shirkey would specifically criticise Dr Saxe. Dr Saxe maintained that he would not have participated in the earlier item if he knew it would be used in the future as a basis for criticisms, which were “quite disproportionate” to the criticism made in the HDC’s report.

[10]   Dr Saxe argued that the criticisms made by Ms Shirkey in the programme, including that he had “fobbed her off”, told her that it was “all up here [in her head]”, told her that there was “nothing wrong”, and tried to “charge double” breached Standard 5 (accuracy) because they were not made in the HDC’s report, and he was not given an opportunity to respond to them.

[11]   The complainant contended that the item discussed a controversial issue and had failed to show balance and impartiality, by not advising Dr Saxe that he would be singled out, and not attempting to get a response from him. He argued that this breached Standards 4 (controversial issues), 6 (fairness) and 3 (privacy).

Standards

[12]   Standards 3, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or 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.

Standard 5 Accuracy

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/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[13]   Looking first at privacy, TVNZ accepted that Dr Saxe was identifiable in the broadcast. With regard to whether any private facts were disclosed about him, TVNZ noted that the item disclosed his name and the fact that he was the owner of the medical centre, and that the item included footage from a previous item for which he gave consent and which TVNZ owned. It said that Dr Saxe did not place any restriction on the future use of the footage, and considered that it was justified by the context of the 1 September item. TVNZ concluded that nothing in the item concerning Dr Saxe could be considered a private fact.

[14]   In any event, TVNZ maintained that the public interest defence applied as the HDC had named the medical centre that was found to have breached the Code of Patients’ Rights and “real issues of public interest arose relating to the woman’s diagnosis and care”. It did not uphold the Standard 3 complaint.

[15]   Turning to Standard 4 (controversial issues), TVNZ acknowledged that the findings of a significant HDC’s report were a matter of public importance. However, it considered that there was no controversy surrounding the report, and therefore the requirements under Standard 4 did not apply. TVNZ declined to uphold this part of the complaint.

[16]   Looking at accuracy, TVNZ noted that the HDC’s report stated that it had considered the care provided by the medical centre and in particular the adequacy of systems for ensuring continuity of care. It was therefore not surprising that the HDC did not find that the doctors had breached the Code of Patients’ Rights, it said. However, the report had been referred to the Medical Council of New Zealand with a recommendation that it consider whether any of the doctors seen by the patient should undergo a competence review. It concluded that this aspect of the item was not inaccurate.

[17]   With regard to Dr Saxe’s argument that he was not singled out in the HDC’s report, TVNZ noted the report stated that Dr Saxe “accepts that he had overall responsibility for Ms [Shirkey’s] care for eight years” and that Dr Saxe was the owner of the medical centre. It therefore found that it was not misleading or inaccurate for the item to focus on Dr Saxe.

[18]   TVNZ considered that Ms Shirkey’s comments about Dr Saxe in the item were her personal opinion and that viewers would not have interpreted them as fact. TVNZ maintained that “the medical centre did try to charge Ms Shirkey twice for her appointment with Dr Saxe.” Accordingly, TVNZ declined to uphold any aspect of the accuracy complaint.

[19]   Turning to fairness, TVNZ maintained that Dr Saxe was offered the opportunity to appear on the programme and he had declined. The Close Up reporter and producer both telephoned The Palms Medical Centre, it said, and invited Dr Saxe to appear on the programme. The producer told the medical centre that Close Up was interviewing Ms Shirkey about her experience there and that the story would be critical of the centre, so the programme wanted an interview with the medical centre in response. The producer received a call from the centre’s public relations representative who said that no one from the medical centre would be commenting and that Close Up should deal with her directly. TVNZ maintained that subsequent attempts were handled by the public relations representative who refused to let Close Up speak to Dr Saxe.

[20]   TVNZ asserted that the public relations representative and Dr Saxe had an indication that the programme was interested in him, because the reporter had asked several questions about Dr Saxe, including whether he would appear on the programme. It said that Close Up had communicated to Dr Saxe’s representative that they had interviewed Ms Shirkey and that she would like to meet with Dr Saxe to “show how stuffed up her life is now”. TVNZ provided copies of email correspondence.

[21]   In response to Dr Saxe’s assertion that the clip from the previous item was used to support criticisms of him, TVNZ maintained that he was named because he was Ms Shirkey’s doctor and the owner of the medical centre which had admitted to causing her suffering. Ms Shirkey considered Dr Saxe to be her primary doctor. TVNZ stated that it was not required to ask Dr Saxe’s permission to use the footage. The footage belonged to TVNZ, it said, and Dr Saxe had not stipulated any conditions or restrictions on future use of the footage.

[22]   TVNZ therefore concluded that Dr Saxe had not been treated unfairly.

Referral to the Authority

[23]   Dissatisfied with the broadcaster’s response, Mr Saxe referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant provided a copy of the HDC’s report, dated 30 June 2009, a transcript of the Close Up item subject to complaint, and email correspondence between the programme and the medical centre.

[24]   Dr Saxe reiterated that names had been removed from the HDC’s report “to protect privacy”, including Ms Shirkey’s. He maintained that her choice to appear on television was not sufficient to waive the confidentiality which attached to her medical records.

[25]   Dr Saxe asserted that he was not the owner of the medical centre, but was the managing director and worked at the centre. He maintained that the shareholding of the relevant company could have been ascertained by TVNZ from public records and that it was “sloppy” for TVNZ to then broadcast inaccurate information.

[26]   The complainant maintained that the HDC’s report was not limited to the systems in place at the medical centre, because it discussed the actions of unnamed doctors. He considered that TVNZ’s interpretation of the report and the referral to the Medical Council was incorrect because this was standard practice. Further, the Council had determined that there was no issue with Dr Saxe’s competence.

[27]   Dr Saxe disagreed that viewers would have understood Ms Shirkey’s comments about him to be opinion. He maintained that her allegations were statements of fact.

[28]   The complainant disputed that he had been offered the opportunity to appear on the programme. He accepted that the medical centre had been offered a chance to respond, but maintained that the email correspondence showed that there was no specific request to interview him. The question, “will he meet with [Ms Shirkey]?” did not suggest that the meeting would be filmed or broadcast, he said, and the reporter did not specifically ask if he would appear on the programme. Questions about his ownership of the centre did not warn him that he would be named and singled out for criticism. He said that a medical centre spokesperson had stated that Dr Saxe had already met with Ms Shirkey and did not see “what the purpose of a further meeting and conversation would be”.

[29]   Accordingly, Dr Saxe refuted that he should have been aware that the story involved criticisms of him. He considered that TVNZ should have told him that he would be named and seriously criticised and provided him with an opportunity to respond. He maintained that TVNZ’s failure to do this breached broadcasting standards.

Broadcaster’s Response to the Authority

[30]   TVNZ responded to the comments made in Dr Saxe’s referral. It maintained that no “private facts” were revealed in the item about Dr Saxe; he was the major owner of the medical centre which was found to have breached the Code of Patients’ Rights, and he was Ms Shirkey’s primary physician. TVNZ noted that the reporter had emailed the centre’s public relations representative saying, “according to the companies register Saxe is the majority shareholder... i.e. the owner, or one of the owners.” The representative had responded, “I think we can agree on one of the owners.”

[31]   TVNZ maintained that Dr Saxe was found in the HDC’s report to have provided “brief, inadequate” history in his first appointment with Ms Shirkey, no record of “history, examination and assessment” after the second appointment and “inadequate history” and “inadequate mental health assessment” at the third appointment.

[32]   With regard to whether Dr Saxe had been asked to appear on the programme, TVNZ maintained that two reporters who were working on the story had tried a number of times to speak with the medical centre’s management, the owner of the centre, or Dr Saxe. Following the interview with Ms Shirkey, a second reporter attempted to get an interview with Dr Saxe or someone in management by phoning and emailing the centre’s representative. This was also “rebuffed”, TVNZ said, even though the reporter had phoned several times on the day of the interview. On the day before the broadcast, and the day the programme went to air, the reporter again offered opportunities for Dr Saxe or his clinical director to appear on Close Up live and respond to the HDC’s report, but these offers were also refused. TVNZ stood by its view that Dr Saxe would have known about the likely content of the programme.

Authority’s Request for Further Information from the Broadcaster

[33]   The Authority asked TVNZ for further information about the efforts that were made to interview Dr Saxe, specifically any details showing that either reporter explicitly asked to interview him for the programme, whether there were any emails requesting an interview with him on the day of Kay Shirkey’s interview, and what the centre’s public relations representative was told about the nature of the programme.

[34]   TVNZ provided the following information:

• the reporter’s cell phone records from the day of the interview with Ms Shirkey, showing that she had called the centre’s public relations representative. The reporter said she told her that she was going to interview Ms Shirkey, and asked for an interview with The Palms’ clinic representative, and for comment from the medical centre and its owner.

• an email from the public relations representative acknowledging a phone call from the programme’s producer dated 19 August, and including a statement from the medical centre to be used in the item. TVNZ said that “the clinic was aware that the story was to do with Kay Shirkey, her care at the clinic and the HDC’s report.”

• a briefing note from the producer to the reporter dated 19 August, stating that she had left a message with the manager of the medical centre and was waiting for her to return the call.

• email correspondence discussing that Dr Saxe was the owner of the clinic, that he was aware of Close Up’s meeting with Ms Shirkey and that he declined to meet with her again. The public relations representative stated that The Palms had declined the offer to appear on the programme.

• share parcel information showing that Dr Saxe and his wife were the majority share owners of the clinic.

Authority's Determination

[35]   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 6 (fairness)

[36]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[37]   In our view, it is clear that assumptions were made by both the broadcaster and Dr Saxe before the broadcast went to air. TVNZ was of the view that sufficient information was given to alert Dr Saxe that his care of Ms Shirkey would be discussed in the item. Dr Saxe seems to have assumed that, even if the programme discussed him, it would not mention him by name because his name was suppressed in the HDC’s report.

[38]   At the outset, we note that there was no restriction placed on the broadcaster in naming Dr Saxe. Although the HDC made the decision not to include his name, that did not amount to a formal suppression order such as those imposed by the courts. Accordingly, we find that naming Dr Saxe in itself was not unfair. We now turn to discuss whether the broadcaster gave him a reasonable opportunity to comment in the item.

[39]   Based on the information provided by the parties, we consider that the following events are relevant in determining whether reasonable efforts were made by TVNZ:

19 August: the programme’s producer phoned and left a message for the manager of the medical centre to phone her back. TVNZ maintained that the receptionist at Palms Medical Centre was told that Close Up “planned to interview Kay Shirkey about her experience at Palms Medical Centre” and “needed an interview with someone from Palms Medical Centre in response” because the story would be critical of the centre.

19 August: the centre’s public relations representative responded by email saying, “Thanks for the courtesy of a call to The Palms Medical Centre” and attached the centre’s statement for the programme.

20 August: the reporter interviewed Kay Shirkey, and phoned the centre’s public relations representative, as shown in the reporter’s cell phone records.

24 to 28 August: email correspondence between the reporter and the public relations representative discussed whether Dr Saxe was the owner of the medical centre. The public relations representative told the reporter that he was “a director” of the centre and “one of the shareholders”.

28 August: reporter emailed the public relations representative saying, “Kay Shirkey says in my interview she’d like to meet with [Dr] Saxe to show him how stuffed her life is now – will he meet with her?”

28 August: public relations representative responded saying that Dr Saxe had apologised to Ms Shirkey in writing and over the phone, and they did not see the purpose of a further meeting.

31 August: reporter emailed the public relations representative and said, “We are looking at running the Palms story tomorrow, but that may change. Can I ask if any of the directors/managers etc will come onto our show to do a live interview with Mark Sainsbury, after my piece runs. It would be good to get the balance – and give them a chance to have a say – since they wouldn’t talk to me for my story.”

1 September (day of the broadcast): public relations representative emailed saying, “The Palms has declined your offer to appear on the programme this evening and trusts you will provide balance by including their previous statements and explanations to your questions.” TVNZ maintained that the reporter made a further request for someone to appear on the programme.

[40]   We consider there was sufficient contact between the broadcaster and the medical centre, and sufficient information given, for The Palms to be aware that:

• Close Up was interviewing Kay Shirkey about her care and experience at the medical centre
• the story would be critical of the centre
• the reporter was interested in speaking to Dr Saxe as the owner/director of the centre
• the reporter wanted someone from the medical centre to participate in an interview or appear on the programme “to get... balance”.

[41]   The email correspondence between the reporter and public relations also discussed the HDC’s report, which contained comments about Dr Saxe’s conduct. Although he was not named in the report, we consider that the complainant should have realised that there was a distinct possibility that a story about Ms Shirkey’s medical care would necessarily involve a discussion of his conduct. Dr Saxe had, after all, been her primary GP for a number of years. The reporter phoned the public relations representative on the day of her interview with Ms Shirkey in an effort to obtain a response, and later informed her that Ms Shirkey believed her life had been “stuffed” and that she wanted to meet with Dr Saxe. His response through his public relations representative was that he had already met her. But the subtext is that Close Up wanted to film the meeting. In our view this should have been apparent to Dr Saxe and his public relations representative. This made it clear that Dr Saxe was the subject of the story and was going to be named.

[42]   Accordingly, we find that Dr Saxe and the centre were adequately informed about the nature of the programme and were given a reasonable opportunity to provide a response to the criticisms raised by Ms Shirkey in the programme. We decline to uphold this part of the fairness complaint.

[43]   Dr Saxe also complained that it was unfair to include footage of him from a previous story in the Close Up item. We accept that the footage belongs to the broadcaster and that there were no restrictions with regard to its use in future stories. Furthermore, its use on this occasion did not cast Dr Saxe in a negative light. We therefore find that Dr Saxe was not treated unfairly in this respect.

Standard 3 (privacy)

[44]   When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. As Dr Saxe’s full name was disclosed in the item and footage of him was shown, we accept that he was identifiable.

[45]   Second, we must consider whether the broadcast disclosed any private facts about Dr Saxe. Aside from his name, the item disclosed his place of work, aspects of his involvement in Ms Shirkey’s treatment at The Palms Medical Centre, that he had been her GP for a number of years, that he was the majority owner of The Palms, that the HDC’s “report says he failed to record some of her visits, delayed passing on crucial MRI results, and didn’t even realise she’d had surgery”, and that he had featured on Close Up three years before.

[46]   We note that Dr Saxe was an owner of, and worked in, a large medical centre. In these circumstances, we are of the view that Dr Saxe would not have had a reasonable expectation that his name, place of work, or involvement in Ms Shirkey’s case would have remained private. The same can be said of the footage of Dr Saxe from a previous Close Up item, which we accept belonged to TVNZ and which had already been broadcast. Ms Shirkey was entitled to publicly share her experiences with Dr Saxe and with the medical centre, as well as her complaint to the HDC.

[47]   Accordingly, we conclude that the item did not disclose any information that amounted to a “private fact” about Dr Saxe and we decline to uphold the Standard 3 complaint.

Standard 4 (controversial issues – viewpoints)

[48]   Standard 4 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.

[49]   In our view, the focus of the story was Ms Shirkey and her experience with The Palms Medical Centre. The Authority has previously held that Standard 4 does not apply to programmes focusing on individual stories (see FD and TVWorks¹ and Egg Producers Federation and TVWorks²). We accept that the Health and Disability Commissioner touched on the issue of whether there was a wider problem associated with the level of care in large general practices. However, we do not consider that the programme purported to discuss this wider issue in depth.

[50]   Accordingly, we find that the programme did not discuss a controversial issue of public importance, and therefore that Standard 4 does not apply in the circumstances.

Standard 5 (accuracy)

[51]   Standard 5 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. Dr Saxe maintained that Ms Shirkey’s comments about him were inaccurate, and that he could have provided a response to them if given an opportunity.

[52]   In our view, Ms Shirkey’s comments were clearly her personal opinion and her recollection of her experience at the medical centre. Reasonable viewers would have understood that Ms Shirkey was not making statements of fact. Guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as comment or opinion. We therefore find that Standard 5 did not apply to Ms Shirkey’s remarks about Dr Saxe.

[53]   With regard to Dr Saxe’s argument that he should have been given an opportunity to respond to Ms Shirkey’s comments, we consider that his concerns in this respect have been adequately dealt with under Standard 6.

[54]   Accordingly, we decline to uphold the complaint that the item breached Standard 5.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 May 2010

Appendix

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

1.           Dr Ralph Saxe’s formal complaint – 25 September 2009

2.          TVNZ’s response to the complaint – 23 November 2009

3.          Dr Saxe’s referral to the Authority – 21 December 2009

4.          TVNZ’s response to the Authority – 15 March 2010

5.          Dr Saxe’s response – 30 March 2010

6.          Further information provided by TVNZ – 5 May 2010

¹Decision No. 2009-112

²Decision No. 2009-053