BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The case of a woman who became seriously ill after being prescribed a thyroid dietary

supplement was examined in an item broadcast on 60 Minutes on 18 September 1994.

The item considered the extent of the controls on dietary supplements when

compared with orthodox medicines and included some filming at Megavitamin

Laboratories New Zealand Ltd, the company which made the supplement, and an

interview with the company's Dr Stewart.

The company's and Dr Stewart's solicitors complained to Television New Zealand

Ltd, the broadcaster, that 60 Minutes had gained the company's and Dr Stewart's

participation by deceit. When the deceit became apparent, the complainants

continued, the interview was terminated and there had been no reasonable opportunity

given to Dr Stewart to ensure balance. Some factually incorrect material had been

included and the item's editing distorted his views and was likely to cause alarm.

Maintaining that Dr Stewart was told that the item would deal with the proposed

changes to the law and the company's past disagreements with the Ministry of

Health, TVNZ said that cooperation had not been gained by deceit. As with any

medium which reported the news, TVNZ had not allowed Dr Stewart to be involved

in the editing but he had been given many opportunities to contribute and TVNZ

denied that any of the nominated standards had been breached. Dissatisfied with

TVNZ's response, on the complainants' behalf the solicitors referred the complaints

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

1989.

For the reasons below, the Authority upheld the aspect of the complaint that the item

incorrectly implied that all the pills prescribed by Nurse Kay to "Debbie" were made

by the complainants. It declined to uphold any other aspect of the complaint.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaints without a formal hearing.

The matters raised by this complaint have been presented in some detail because, as is

reported under the heading The Formal Interview between Dr Stewart and 60

Minutes on pp 8–10, TVNZ was unable to provide the field tape or a transcript of

the formal interview between Dr Stewart of Megavitamins and the 60 Minutes'

reporter. In the absence of the material, the Authority has been required to

reconstruct the interview, on the balance of probabilities, using the parties'

recollection of it.

The Item and its Preparation

"The Bitter Pill" was the title of an item on 60 Minutes broadcast by TVNZ on 18

September 1994. As part of an investigation into the differing controls on dietary

supplements and orthodox medicines, it included an investigation of the impact on one

person of a thyroid dietary supplement made by Megavitamin Laboratories in

Christchurch operated by Dr Stewart. The pills were prescribed by Nurse Kay in

Auckland – who declined to be interviewed – to a person interviewed and named as

"Debbie".

Two complaints about the programme were referred to the Authority. The first was

made by Mr Gary Mabey, manager of Health and Herbs (a health food company) and

president of the National Nutritional Foods Association (NNFA). The second was

from Megavitamins Laboratories New Zealand Ltd and its owner, Dr Warren Stewart.

Although some of the issues raised by the complainants were similar, Mr Mabey's

complaint focussed principally on the item's impact on the health food industry while

that from Dr Stewart and his company was primarily concerned with the way they

were dealt with by TVNZ before and during the interview. To ensure that the

different issues were addressed comprehensively, the Authority decided to issue two

distinct decisions – Nos: 63/95 and 64-65/95.

TVNZ and the complainants in this complaint agreed that TVNZ spent a day and a

half filming at Megavitamins during the preparation of the programme. It was also

agreed that the visit concluded with a wide-ranging interview with Dr Stewart. The

item showed the interview being terminated when Dr Stewart's wife disconnected the

equipment as, the item reported, questions were asked about "Debbie".

Before the item was screened, the complainants' solicitors (Weston Ward and

Lascelles) wrote to TVNZ. They said that Dr Stewart had consented to the interview

when advised by TVNZ that the focus of the story would be on how a more

restrictive Medicines Act would affect a typical healthfood company. However, they

wrote, during the interview it was apparent that TVNZ had been deceptive and

comments had been made that their client was only interested in making money and

the reporter repeated another doctor's comment that Dr Stewart and the company

was "immoral, untrained, untrustworthy, unprofessional, but not illegal".

These comments, the solicitors argued, indicated that Dr Stewart and Megavitamins –

not the Medicines Act – were the focus of the programme and the scope of the legal

action to be taken awaited the contents of the forthcoming broadcast. Meanwhile, the

solicitors requested the right to view the programme before it was screened in order to

respond to any defamatory, unbalanced or objectionable contents.

In response, TVNZ's lawyers denied that any deceit was involved and declined to

allow Dr Stewart the opportunity to view the programme prior to screening.

The Complaint

In the complaint to TVNZ following the broadcast of the item, the complainants'

solicitors reiterated that the complainants had been advised that the proposed

amendments to the Medicines Act were to be the item's focus. However:

In the course of the interview it became clear that 60 Minutes had been deceptive

as the focus of the story being produced by 60 Minutes was that our client was

making money by producing products which allegedly harmed consumers.

Consequently, the solicitors continued, the interview was terminated and as the

complainants were not given the opportunity to deal with the item's likely imbalance,

the standards were contravened. Further, it was incorrectly stated that the

complainants were providing a cure and it was implied that the company's products

could cause harm. Insufficient emphasis, it was added, was given to the fact that the

thyroid extract referred to was made under contract for the prescribing practitioner

who provided her own recipe.

The item's allegation that the company failed to comply with the Health Department

requirements was incorrect as the Health Department had only requested, and could

only request, voluntary compliance. Further, the item had not dealt adequately or

fairly with the Health Department's request with regard to the product Chaparral.

As for the questions about quality standards, the solicitors said one question –

whether the company complied with the ISO9000 standard – was repeated

unnecessarily when the answer, that the company was trying to do so, was evident.

In addition there was the question asked during the interview (but not broadcast)

which reported the Health Department doctor's opinion (Dr Robert Boyd) about Dr

Stewart and, the letter added:

Our client then became angry after this persistent repetitive question and used

an expletive which was shown on the programme. This, especially considering

the time the programme was broadcast, breaches the observance of good taste

and decency. However, because the provocative, offensive and defamatory

questions asked by the interviewer were edited out, with our client's expletive

screened, the overall views expressed by and demeanour of our client were

distorted.

In summary, the complaint alleged that the item was unbalanced, that as Dr Stewart's

consent to an interview was obtained by deceit it was partial and unfair, and, because

of the deliberate distortion through editing, was likely to cause alarm to the

company's customers.

The Standards

Before assessing the complaint, TVNZ wrote to the complainants' solicitors and

suggested that it alleged a breach of four specified standards. When no response was

received from them, TVNZ assessed the complaint under the standards in the

Television Code of Broadcasting Practice which it had nominated. They require

broadcasters:

            G1        To be truthful and accurate on points of fact.

            G3        To acknowledge the right of individuals to express their own opinions.

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

                         programme.

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

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

TVNZ's Response to the Formal Complaint

Emphasising that the item told "a cautionary story" about a woman who – when

wrongly diagnosed – had become seriously ill after being prescribed a thyroid extract,

TVNZ said the woman's plight revealed that dietary supplements were not subject to

the same controls that governed orthodox medicines.

TVNZ acknowledged that Dr Stewart was told that the programme would look at

proposed changes to the Medicines Act. He was also told that the Ministry of Health

had not spoken highly of him or his company and, TVNZ commented:

Dr Stewart is reported to have laughed and agreed that he had been involved in

"run-ins" with the Ministry before. The producer specifically told him that "60

Minutes" would wish to talk about those "run-ins" when he was interviewed.

He said that would be fine. Dr Stewart was left in no doubt that the interview

would touch on controversial matters.

TVNZ said that Megavitamins was chosen to illustrate the differing types of controls

in operation because it was the manufacturer of the thyroid supplement used by

"Debbie". It denied that Dr Stewart was tricked into the interview pointing to his

relaxed and vigorous manner apparent during the item. In line with the policy of most

media organisations, he had not been allowed to participate in the editing process.

However, following the interview's termination by Dr Stewart's wife, the reporter

remained with him for some time and, when advised that the material recorded would

be used, he declined to comment further. He had also been left TVNZ's business card

should he wish to resume the interview later.

In those circumstances, TVNZ did not accept that Dr Stewart had been unfairly

treated.

Dealing with the other aspects of the complaint, TVNZ said it reported a Health

Ministry warning to Dr Stewart about making claims that the company's pills could

cure. The programme, it stated, did not imply that the products could cause harm.

TVNZ said that the programme explained clearly that the thyroid supplements in

question were made by Megavitamins under contract to Nurse Kay and the distinction

on safety grounds was made between the contractor and the manufacturer. TVNZ did

not have access to "Debbie's" confidential records but, said TVNZ, it had been

advised by her General Practitioner that she was not on a "cocktail of prescription

drugs". It added:

With respect these references to "Debbie's" background appear to be a red

herring. The woman's illness was diagnosed as thyroid toxicity. The only

thyroid supplement she had been taking was that prescribed by Nurse Kay (and

manufactured by your client). Scientific analysis of the thyroid extract pills

showed an excessive dosage, which caused alarming consequences in "Debbie"

who, it turned out, was not suffering from a thyroid deficiency anyway.

As for Dr Stewart's disputes with the Health Ministry, TVNZ said that the item

made clear that Dr Stewart was not acting illegally when he ignored the Ministry's

advice. He was the only manufacturer, TVNZ added, who declined the Ministry's

request to remove Chaparral – a herbal product linked with hepatitis and liver damage –

from its shelves.

With respect to the complaint about repetitive questions, TVNZ argued that quality

controls were the central issue in the debate between the health food industry and

orthodox medicines and that Dr Stewart had been given every opportunity to explain

the controls in his factory. His comments on the issue were not edited.

TVNZ declined to uphold any aspect of the complaint.

The Referral to the Authority

When explaining the reasons for their dissatisfaction with TVNZ's response, the

solicitors first argued that standards G7, G16 and G19 should also be considered.

Standard G7 requires broadcasters:

            G7        To avoid the use of any deceptive programme practice which takes

                        advantage of the confidence viewers have in the integrity of broadcasting.

The other nominated standards provide:

            G16      News should not be presented in such a way as to cause unnecessary

                        panic, alarm or distress.

            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.

The solicitors explained that Dr Stewart agreed to the interview as a "typical dietary

supplement producer" and that, shortly before the formal interview, the "run-ins"

with the Ministry were mentioned and Dr Stewart said he was comfortable about

discussing them. He requested the opportunity to view the programme because of his

concerns about the defamatory material and, they noted, TVNZ had not included the

comments in the programme. They added:

However, Doctor Stewart's wife's anger and halting of the interview was

directed at these edited comments including that Doctor Stewart was "immoral,

untrained, untrustworthy, unprofessional, but not illegal".

TVNZ's argument that the reporter nevertheless then provided Dr Stewart adequate

opportunity to comment, they maintained, lacked credibility as it was "obviously not

reasonable in the circumstances".

As for TVNZ's comment that "Debbie's" medical background was a red herring, the

solicitors said that TVNZ only presented part of her history. While she might well

have not been on a "cocktail" of prescription drugs, as TVNZ had stated in its

response to the original complaint, the solicitors observed that she might have been

taking one or two medicines and the item had not assessed their impact.

The solicitors also wrote:

The programme stated that Debbie was taking 45 pills. The implication was

that these were unsafe thyroid pills produced by our client. In fact, this was

inaccurate – 3 of these pills were "Combination T" and 8 were "Combination P"

made by our client.

Maintaining that the distinction between manufacturer and prescriber was not given

adequate emphasis, the solicitors argued that TVNZ had not dealt with the complaint

that the interviewer had repeated Dr Boyd's comments that Dr Stewart was

"immoral, untrained, untrustworthy, unprofessional, but not illegal". They continued:

In our client's view offensive and defamatory comments were made about

Doctor Stewart and his staff in order to create a reaction. His response was

elicited which made good viewing, but was not a true reflection of our client's

demeanour and views. Therefore, TVNZ was not dealing with him justly and

fairly. This would take advantage of the confidence viewers have in the integrity

of the broadcasters as they would not have expected TVNZ to screen our

client's responses out of context without the screening of the interviewer's

comments.

The solicitors also maintained that the issue of vitamins and supplements as opposed

to orthodox medicine was not dealt with in a balanced way and, moreover, that the

sensational way the programme dealt with the issue could cause panic to the one

million New Zealanders who took some form of dietary supplement.

TVNZ's Report to the Authority

Having advised the complainants of the standards under which it was intended to

assess the complaint and not receiving any response at the time, TVNZ argued that

the nominated standards (G1, G3, G4 and G6) were appropriate and adequate.

With regard to the matters discussed when Dr Stewart agreed to take part, TVNZ said

it could not check the point again with the producer as she had left the company.

However, her notes (quoted verbatim) reported that Dr Stewart had agreed to talk

about his "run-ins" with the Ministry of Health and that he was in no doubt that

controversial matters would be touched on. There was no trickery and no deception.

Maintaining that it did not understand the reference to "defamatory comments",

TVNZ also said that it could not understand why Dr Stewart's wife moved so quickly

to end the interview. Dr Stewart, it added, declined the opportunity he was given to

elaborate.

TVNZ also maintained that all the relevant aspects of Debbie's medical history had

been presented and that thyroid experts had said "unequivocally" that the thyroid

supplements were the only products which seriously affected "Debbie". It added:

The programme indeed stated that Debbie was taking 45 pills. It did not say all

of them were the pills at issue. It did however quite legitimately ask why a

woman with a normal thyroid would be treated with such large numbers of pills.

The reporter, TVNZ said, recalled putting the Health Ministry's Dr Boyd's comment

to Dr Stewart and described as contemptuous the aspect of the complaint that such

remarks were put to someone for "mere reaction". None of Dr Stewart's comments, it

maintained, were broadcast out of context, adding:

We believe Dr Stewart's replies during the interview were a true reflection of his

demeanour and views.

In finishing, TVNZ wrote:

To conclude, TVNZ observes that this story highlighted a so-called thyroid

supplement that was as strong as a prescription medicine – so strong it almost

killed a normal healthy woman. That situation enhanced the broader issue of

vitamins/supplements vs orthodox medicines which was under scrutiny in the

Medicines Act. It was a proper subject for investigation and TVNZ believes it

was accurately and fairly presented on "60 Minutes".

The Formal Interview between Dr Stewart and 60 Minutes

In view of the dispute between the parties about the matters discussed in the formal

interview and the manner in which they were presented when the item was broadcast,

the Authority wrote to TVNZ requesting either a tape of the full interview or a

transcript of it.

TVNZ advised that it was unable to provide a transcript. One had been made by an

employee on her home computer but had since been erased and, despite an exhaustive

search, it had not been possible to find a hard copy. The relevant field tape, TVNZ

explained, was erased some time ago, as was customary. TVNZ averred:

We would emphasise there is nothing sinister in the fact that we are unable to

provide either a transcript or raw videotape. The transcripts are used to assist

in the editing process and there is rarely any purpose in keeping them after the

event. We certainly do not regard them as documents of records.

The reporter recalled, TVNZ said, that the early part of the interview dealt with

quality control and factory procedures. It then moved on to "Debbie" and her

prescription after which Dr Boyd's comments were introduced. They were not made,

TVNZ stressed, simply to provoke a reaction but because it would have been unfair

not to put the allegations about Dr Stewart made by a senior Health Ministry

spokesperson.

In their response, the complainants' solicitors maintained that standards G7 and G19

were relevant and pointed out that the original complaint had alleged deceptive

programme practices and irregular editing. Further, these points were mentioned in

TVNZ's reply at that time.

The solicitors asked why it was not possible for TVNZ to approach the employee

who had left the company's employ and maintained that their client's recollection of

the events was correct. It was deceitful, they continued, when TVNZ did not mention

the case of "Debbie" during the day and a half of filming before the interview.

Pointing out that a transcript or field tape was necessary, they said TVNZ's advice

that neither was now available stretched credulity.

TVNZ, they continued, would have been well aware of what was meant in the referral

about defamatory comments, as would have been the reason why the interview was

terminated. Questioning who were the thyroid experts consulted by TVNZ, the

solicitors said it was necessary to have that information to comment on whether all

the relevant aspects of Debbie's medical history had been advanced.

The solicitors observed, first, that the reporter's recollection of the interview – that

quality control was discussed early and that Dr Boyd's comments were advanced

after the discussion about Debbie – was in conflict with the reporter's earlier

comments and, secondly, that the issue could have been clarified had a transcript or

field tape been available. They questioned whether journalism was so "squeaky

clean" as TVNZ maintained and, in fact, whether journalists in fact never asked a

question for the purpose of seeking a reaction. The absence of a transcript was then

dealt with and after listing the correspondence relating to the complaint starting before

the broadcast of the item, they argued:

In the circumstances, our client believes further investigation needs to be made in

relation to TVNZ's claims of the deletion or loss of transcripts and raw tape

including timing and our client requests a preliminary hearing on this issue be

conducted by the Authority.

In its response, TVNZ wrote:

We must confess to being disturbed by both the content and tone of the

correspondence from the complainant's solicitors.

In essence we stand accused of deceit in obtaining our interview with Dr Warren

Stewart. We also stand accused of a "cover-up" by, apparently, deliberately

destroying tapes and transcripts of the interview with Dr Stewart.

There was no deceit. There was no cover up.

It reported that it received many requests for untransmitted material and transcripts

which as a rule, even if kept, were not released. It added:

There is nothing sinister at all in the fact that we are unable to produce raw

tapes or transcripts as requested by the complainant.

TVNZ also made the offer:

If the Authority wants to go so far as requesting sworn affidavits from "60

Minutes" staff attesting to the fact that nothing sinister was involved in the

erasures and that erasures are simply a matter of routine, then I can arrange it.

Repeating its contention that the Authority should confine its consideration to the

standards to which the complainants' solicitors had not objected, TVNZ argued that

the Authority should review and investigate the issues that, in accordance with the

Broadcasting Act, were raised in the original complaint.

It also argued that the complainants' assertions showed an "astonishing

misunderstanding" of current affairs and commented:

Reflecting on the letter from Weston Ward and Lascelles we note their use of

colourful words and phrases to suggest that Dr Warren Stewart was somehow

duped or deliberately misled by the "60 Minutes" team. For example emotive

words like "deceit", "provoked", "distortion", "sinister", "gloss over" and

"sensitivity" are used without providing any evidence to back them up. We

cannot help but see this as an attempt to distract the Authority from the

responses we have already provided to this complaint.

In conclusion, TVNZ maintained that the item dealt with the prescription of a specific

thyroid supplement and, more generally, the distinction between dietary supplements

and orthodox medicine.

In response, the complainants' solicitors pointed out that TVNZ acknowledged that

deception had been an issue before the programme had been screened and that editing

was a concern in the original complaint. Standards G7 and G19, it argued, were clearly

relevant.

Turning to the absence of the field tape or a transcript, the solicitors argued that

TVNZ had an obligation to retain the material.

As for TVNZ's "colourful" language comments, they wrote:

We feel compelled to comment on TVNZ's allegation that we have used

colourful language in our letter of 24 April 1995 to distract the Authority from

TVNZ's responses. Firstly, this is ironic, considering the content of the

programme which was labelled by TVNZ as "Pills that Kill". Further, of the six

examples quoted by TVNZ, only words "deceit" and "gloss over" actually

appear in our letter 24 April 1995. Further, the world "deceit" was used only

twice – once being a direct quote from TVNZ's own solicitor's letter 15

September 1995 and the second time being another reference to TVNZ's

solicitor's denial of deceit in paragraph (b) on page 4.

Our client believes that our use of language has been appropriate. It is

concerned that TVNZ when accused of unfair practices chooses in its latest

letter to make allegations which by a simple re-reading of our letter 24 April

1995 are demonstrated to be patently untrue. This gives our client further

reason for disquiet in relation to TVNZ's behaviour in this matter.

With reference to the "serious issues" raised because of TVNZ's conduct in relation to

the interview, and the disappearance or distinction of the transcript and raw footage,

the solicitors contended that the Authority should undertake a more thorough

investigation as, "unfortunately, TVNZ's word cannot and should not be taken at face

value". They concluded:

We suggest it would be appropriate for the Broadcasting Standards Authority to

make a more thorough investigation into the latter and it may be appropriate for

our client to have the opportunity to have input into this and to cross-examine

witnesses brought before the Broadcasting Standards Authority.

The Authority's Findings

(i)    A Hearing

On the basis that the absence of both a field tape and a transcript "stretched

credulity" and that TVNZ's word could not and should not be taken at face value, the

complainants' solicitors submitted that the Authority should hold a hearing – at which

the witnesses would be cross-examined – and TVNZ would be required to explain the

absences. TVNZ opposed the application.

While acknowledging that the absence of the material made aspects of the complaint

extremely difficult to determine, the Authority decided that a hearing about the

reasons for the absence were peripheral to the issues raised in the complaint. It also

noted TVNZ's explanation and its offer of affidavits in confirmation. Giving

particular emphasis to the relatively narrow issue on which the transcript would have

been of relevance – other than confirming the order in which the topics were discussed

and the point at which Dr Stewart's wife terminated the interview – and that it would

have been of little assistance in deciding whether or not the broadcast contravened the

standards, the Authority declined to order a hearing.

(ii)    The Standards

The complainants maintained that deception and editing had been issues raised in the

formal complaint and, therefore, argued that the Authority should assess the

complaint under standards G7 and G19, as well as under standards G1, G3, G4 and

G6.

TVNZ said the complainants had not responded to its letter when it had nominated

standards G1, G3, G4 and G6 and, consequently, in view of the Authority's task to

investigate and review a broadcaster's decision, it was inappropriate to consider

standards G7 and G19 at this stage.

The Authority agrees that it is inappropriate to assess complaints under standards

raised for the first time when the matter is referred to the Authority. However, that

has not occurred on this occasion as both deception and editing causing distortion

were specifically mentioned in the original complaint. Accordingly, the item has been

assessed under standard G19.

Despite its conclusion on the point as to when deception was first raised by the

complainants, the Authority has declined to assess the complaint under standard G7.

In previous decisions it has considered the phrase "deceptive programme practice"

contained in the standard and has ruled that it is confined to technical practices. For

example, the Authority ruled on one occasion (Decision No: 27/93, 18.3.93) that a

breach of standard G7 occurred when a visual was incorrectly captioned as an

"amateur video". The Authority records that it is discussing with broadcasters an

amendment to clarify the standard.

The standard has been cited in this complaint because TVNZ's approach to the

complainant company was, allegedly, less than completely honest or had in fact been

deceptive. In other words the aspects of the complaint made under standard G7

claimed that the complainants had not been treated fairly.

As fairness in the way people are dealt with or referred to is an aspect of standard G4,

and as it is one of the standards under which TVNZ assessed the complaint initially,

the Authority has subsumed the aspects of the complaint which refer to deception as,

in fact, alleging a breach of standard G4.

(iii)    The Formal Interview

A substantive part of the complaint related to the issues discussed, and the order in

which they were canvassed, and whether they had been raised beforehand during the

formal interview between Dr Stewart of Megavitamins and the 60 Minutes reporter.

By way of introduction, the Authority observes, first, because the interview was

terminated abruptly by Dr Stewart's wife, secondly, because deception was alleged

before the item was broadcast and, thirdly, because distortion through editing was

alleged in the formal complaint, it shares the complainants' astonishment that a

transcript of the interview was not retained until the complaint process had been

resolved. Whereas the complainants raised the possibility of a deliberate action on

TVNZ's part, the Authority accepts that the destruction was not deliberate.

Nevertheless, although accepting the loss as unintentional, it unquestioningly, and

indeed unwelcomingly, added to the Authority's task in determining the complaint.

The Authority expects TVNZ will examine its internal procedures to ensure that such

inadvertence does not recur.

As a consequence of the events which occurred on this occasion, the Authority

decided it would be appropriate to include a record of its understanding of the

interaction between the complainants and TVNZ which occurred before and during the

interview. Its attempts to do so were made more difficult by a comment from the 60

Minutes reporter during the broadcast that the interview was terminated when

"Debbie" was referred to. That comment, the Authority decided, was not strictly

correct. The interview had been terminated, the Authority concluded, a little later

when TVNZ quoted Dr Robert Boyd of the Ministry of Health to Dr Stewart. When

the reporter referred to Dr Boyd's opinion, Dr Stewart's wife began unplugging

TVNZ's equipment.

Reaching its decision on the balance of probabilities, the Authority decided that Dr

Stewart agreed to participate in the item as a healthfood manufacturer and to discuss

the possibility of amendments and extensions to the Medicines Act. Further,

although Dr Stewart was not aware of this point when he agreed to the interview,

TVNZ approached Megavitamins because it had been the manufacturer of the thyroid

supplement which had been toxic for "Debbie".

It was not entirely clear when the matter was raised but, before the formal interview,

Dr Stewart was advised that his "run-ins" with the Ministry of Health would be

canvassed and he had expressed his willingness to discuss those matters.

Quality control was discussed during an early stage of the formal interview and, from

the broadcast, the Authority accepted that Dr Stewart's exasperation expressed

verbally came from what he regarded as repetitive pointless questions. The specific

aspect of the complaint dealing with this exchange will be considered later.

Without apparent prior warning, the interviewer referred to "Debbie" and questioned

Dr Stewart about the pills which Megavitamins had made for Nurse Kay and which

Nurse Kay prescribed "Debbie". Again, there are specific aspects of this exchange

complained about which will be addressed below.

After, or perhaps as part of the questions about "Debbie", the Authority decided, the

interviewer put Dr Boyd's opinion about Dr Stewart to him and, at that point, the

interview was brought to an end by Dr Stewart's wife. Once again, the complaint

about the specific comments will be dealt with later.

The Authority also accepted that TVNZ offered to continue the interview then or at a

later date. The Authority appreciated as well that Dr Stewart could have felt

sufficiently cheated that he did not wish to have any further direct dealings with

TVNZ and, instead, he put the matter in the hands of the company's solicitors. Dr

Stewart, the Authority decided, had been given an adequate opportunity to give his

opinion. Rather than asking to view the programme before it was broadcast, which

was a request to which TVNZ was unlikely to agree, the solicitors could have

requested a further discussion which might have resulted in an opportunity for Dr

Stewart to comment further in acceptable circumstances.

On the basis of the above summary, the Authority considered the specific aspects of

the complaint.

(iv)    Deception and the Termination of the Final Interview

A central point of the complaint was the allegation that 60 Minutes gained Dr

Stewart's and the company's co-operation through deceit. The complainants'

solicitors advised that Dr Stewart had agreed to participate because he believed that

TVNZ was studying the possible effect of changes to the Medicines Act on a health

food manufacturer. However, the solicitors contended, that approach was used by

TVNZ as a cover to question – and to blame – the company for the effect of the

thyroid pills made by the company on "Debbie".

There is agreement that Dr Stewart, in talking about legislative changes, had concurred

with the inclusion of the company's "run-ins" with the Ministry of Health.

However, the complainants maintained that not only was deception about the thrust

of the item used to gain his co-operation to participate, but that the item which was

broadcast was unbalanced because, additionally, TVNZ had distorted the interview

through editing.

Because it is central to much of the complaint, the Authority assessed this aspect of

the complaint under standard G4. To repeat, it requires broadcasters, in the

preparation and presentation of programmes:

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

                        programme.

Whereas "run-ins" with the Health Ministry were acknowledged as a matter to be

discussed before the interview began, the Authority was divided as to whether the

method of approach breached standard G4.

The Authority accepted, as TVNZ argued, that the item used a cautionary story about

one specific person, "Debbie", to deal with the broader issue about the extent of the

current controls on dietary supplements when compared with orthodox medicines.

The Authority also accepted that TVNZ chose Megavitamins, not only because it

could be seen as a typical health food company, but also because it had made the

thyroid supplements – to a recipe supplied by Nurse Kay – which were toxic for

"Debbie".

In addition, from the information supplied by the Ministry of Health, and given by a

Ministry spokesperson, it is apparent that TVNZ understood that Megavitamins was

not seen as the most responsible operator in the healthfood industry.

Moreover, not only did the Ministry refer to the disagreement between Dr Stewart

and itself over the years, the item also reported that the company had been prosecuted

and convicted for offences under the Fair Trading Act.

The majority of the Authority accepted that this information justified the 60 Minutes

approach not to advise Dr Stewart that "Debbie" would be the subject of specific

questions and, consequently, it concluded that the means used to gain the

complainants' participation did not breach standard G4. It also accepted that a

journalist was not bound to tell interviewees everything they were going to be asked.

With regard to the current complaint specifically, on the basis that Dr Stewart had

been warned that "run-ins" were matters for discussion and that the Ministry of

Health representative said during the item that he had spoken to Dr Stewart about

"Debbie's" case, the majority were firmly of the opinion that the reference to

"Debbie" was an example of a specific "run-in". Accordingly, it did not accept that

TVNZ's approach amounted to a breach of standard G4.

The minority disagreed. It agreed with the majority that TVNZ had deliberately not

advised Dr Stewart that "Debbie" would be the subject of questions, However, it

considered that the information that TVNZ had acquired did not justify its method to

talk about the industry in general terms and the company's specific work for a day

and a half and then, without warning, to ask a series of questions which were directed

at pills made at the request of the customer and prescribed by that customer to one

patient. The minority concluded that the process amounted, as alleged, to deception

to the extent that it contravened the fairness standard.

As noted above, the Authority decided that the interview was terminated by Dr

Stewart's wife when he was asked to respond to the Health Ministry's comment that

he was immoral, untrained, untrustworthy, unprofessional, but not illegal and not, as

the item reported, when "Debbie" was raised.

The Authority was unanimous – as "run-ins" were on the interview agenda – that

TVNZ's paraphrase of Dr Boyd's opinion during the formal interview did not breach

standard G4.

Questions of the possibility of defamation are not a matter of broadcasting standards.

Another issue for the Authority was whether the item had breached the standard

requiring that people be dealt with fairly by asking questions principally in order to

provoke a reaction in the interests of "good viewing". The question posed was said to

be the one which contained Dr Boyd's opinion and it was the question to which Dr

Stewart's wife reacted by disconnecting TVNZ's equipment and thus terminating the

interview. That reaction was broadcast and the complainants alleged that it breached

standard G4.

In determining that aspect of the complaint, the Authority was required to consider

whether the item had explained adequately Dr Stewart's wife's behaviour to viewers.

It decided that it did not breach any of the nominated standards because, in suggesting

that questions about "Debbie" were the reason for Dr Stewart's wife's behaviour, 60

Minutes had provided for viewers sufficient linkage between the matters objected to

and the action not to contravene the requirements for fairness.

(v)    Dr Stewart's Curt Responses

The complainants alleged that Dr Stewart was asked persistent and repetitive

questions to which he responded with an expletive. The standards were breached,

they wrote, because some of the questions which provoked that response were edited

out. Moreover, they alleged that the response breached the good taste requirement

and the broadcast, by showing the response but not the provocative questions, had

distorted Dr Stewart's demeanour.

On the balance of probabilities given the information available, the Authority decided

that the repetitive questions complained about were directed at Megavitamins quality

control standards and its efforts to comply with IS09000.

The Authority reached the conclusion that Dr Stewart's short-tempered response was

a reaction to the questions about quality control and as the broadcast showed the

repetitive nature of the questions, that this did not amount to unfairness or distorted

editing.

The Authority also decided that the broadcast of Dr Stewart's response which

included the word "wanker" did not breach the standards, given the context of the

question asked, and his full response which followed, explained the reason for his

annoyance.

(vi)    Debbie's Medical History

To the aspect of the complaint which argued that the item breached the standards by

giving insufficient information about "Debbie's" medical history, the Authority

decided that enough information had been given to justify the points which the item

was trying to make. Although Nurse Kay, the prescriber, was seen to decline to take

part, a general practitioner and other experts expressed substantial concern about

"Debbie's" use of the supplements. Therefore, given the item's theme, the Authority

was of the view that further details of "Debbie's" medical history were not pertinent

as far as providing balance was concerned.

(vii)    "Debbie" was taking 45 pills

On this point, the Authority agreed with the complainants that the item implied that

the 45 pills which "Debbie" had taken were made by Megavitamins. However, when

the complainants explained that only 11 of these pills were made by Megavitamins,

the Authority upheld this aspect of the complaint as a breach of the requirement for

factual accuracy in standard G1.

(viii)    Distinction between the Manufacture and Prescription of the Pills

The complainants emphasised that the pills were manufactured by Megavitamins and

were prescribed by Nurse Kay. That distinction, they insisted, was not made clear in

the broadcast.

The Authority disagreed with the complainants on this point. It was a distinction, it

decided, which was made abundantly clear in the comments from Dr Stewart

broadcast during the item.

(ix)    Pills that Cure

With regard to the complaint that the item had stated that the complainants made pills

which provided a cure, the Authority accepted that the item reported the Health

Ministry's comment on this point. It was not advanced as the complainants' opinion

and, therefore, was not a breach. Moreover, the Authority decided, the item had given

Dr Stewart adequate opportunities to respond to the suggestions that Megavitamin

products caused harm.

(x)    Balance Overall and Causing Alarm

Under this heading, the complainants argued that at a general level, first, the issue of

vitamins and supplements as opposed to orthodox medicine was presented in an

unbalanced way and, secondly, the sensationalist manner in which the item dealt with

the issue could cause alarm and panic to the many New Zealanders who took some

form of dietary supplement.

Deception, the Authority believed, was the issue which the complainants considered

to be at the crux of the complaint and the Authority has ruled above on a number of

specific matters alleging deception.

The Authority has determined another complaint about the item's overall balance (No:

63/95) where that issue was fully canvassed. In view of the small amount of material

advanced in support of this point with this complaint, it has declined to determine the

matter on this occasion.

The complaints' solicitors also expressed considerable concern that Dr Stewart was

not allowed to view the programme before it was broadcast in order to ensure that he

had a proper opportunity to provide balancing information. Although balance is a

central issue in most documentaries, the Authority is of the opinion that only in most

unusual circumstances would an interviewee be entitled to view a programme before

broadcast. On this occasion, TVNZ was required to give Dr Stewart the opportunity

to respond to questions relating to his involvement with "Debbie" and Nurse Kay.

The Authority considered that such opportunities were in fact given and on this

point, accordingly, the broadcast had not contravened the balance standard.

With regard to the complaint about the causing of alarm, on the minimal detail

advanced by the complainants on this issue, the Authority was unable to agree that

any standards had been breached.

For the reasons above the Authority upholds the aspect of the complaint that

the item breached standard G1 of the Television Code of Broadcasting Practice

when it implied that the 45 pills prescribed to "Debbie" were all manufactured

by the complainants.

A majority of the Authority declines to uphold the aspect of the complaint that

Television New Zealand Ltd's approach to gain the complainants' cooperation

was unfair and in breach of standard G4.

The Authority unanimously declines to uphold any other aspect of the

complaint.

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

Broadcasting Act 1989.

On the basis that only part of the complaint about was upheld, the Authority decided

that it was not an appropriate case for an order to be imposed.

Co-opted Member

Ms Rosemary Barraclough was co-opted as a person whose qualifications and

experience were likely to be of assistance to the Authority. She took part in the

deliberations of the Authority but the decision is that of the permanent members.

Signed for and on behalf of the Authority

Iain Gallaway

20 July 1995

Appendix

Megavitamin Laboratories New Zealand Ltd's and Dr Warren Stewart's

complaint to Television New Zealand Ltd – 13 October 1994

The solicitors for the complainants (Weston Ward and Lascelles) complained to

Television New Zealand Ltd that an item broadcast on 60 Minutes between 

7.30–8.30pm on Sunday 18 September entitled "Pills that Kill" breached the broadcasting

standards.

The complaint referred to a letter sent to TVNZ before the broadcast which reported

that a film crew had been allowed to film in conjunction with an item on proposed

amendments to the Medicine Act and, in particular, the impact of the changes on the

complainant company's product range, number of staff employed and exports. The

filming concluded with a formal interview with Dr Stewart and:

In the course of the interview it became clear that 60 Minutes had been

deceptive as the focus of the story being produced by 60 Minutes was that our

client was making money by producing products which allegedly harmed

consumers.

Because of TVNZ's deceit, the interview was terminated and the complainants' later

request to view the programme before broadcast to ensure balance was not complied

with. The complaint stated:

Therefore, it is our belief that reasonable efforts were not made, nor reasonable

opportunity given to allow our client to present a significant alternate point of

view in the programme.

Furthermore, the complainants maintained, the programme had been factually

incorrect when it said that the complainants were providing a cure as they had never

made such a statement.

The programme, they added, had given insufficient emphasis to the fact that the

thyroid extract which was made by Megavitamins and which caused the harm

documented in the item was made under contract to the prescribing practitioner who

supplied her own recipe. Further, insufficient emphasis had been given to the

patient's psychiatric history or other medicine she might have been taking.

Comments on this point made by Dr Stewart during the interview were not included

in the broadcast.

The programme, the letter noted, had also been factually incorrect when it said that

Megavitamins had not complied with Health Department requirements. The

Department's requests were not enforceable but Dr Stewart's explanation of this

point was not included. The letter continued:

In relation to the recall of the product Chaperelle (sic) mentioned in the

programme, our client had simply requested the Health Department answer a

number of questions so our clients were in a position to make a judgment

whether to voluntarily withdraw the product. Again this was not dealt with

fairly.

The reporter had unnecessarily repeated a question about the company's compliance

with international standards when it was self-evident that accreditation was being

sought. Dr Stewart became angry at the repetitive questioning and used an expletive

which was broadcast in contravention of the good taste and decency standard.

However, the complaint continued:

... because the provocative, offensive and defamatory questions asked by the

interviewer were edited out, with our client's expletive screened, the overall

views expressed by and demeanour of our client were distorted.

The complaint concluded:

In summary, therefore, the programme presented was plainly unbalanced. Our

client was interviewed as a result of deceit, provoked, and then after the quite

understandable termination of the interview, Dr Stewart's request to view the

programme to provide balance was denied. As such the programme was

inaccurate in fact, did not deal justly with our client, showed imbalance,

partiality and unfairness in dealing with this controversy. The programme was

presented in a distorted way likely to cause alarm or distress to customers of

our client and the editing distorted the views expressed by our client in a

seemingly deliberate manner.

TVNZ's Response to the Formal Complaint – 28 October 1994

Explaining that the item was a "cautionary story" about a woman who became

seriously ill after being diagnosed – inaccurately by the practitioner named during the

programme – as suffering from thyroid deficiency and being prescribed a thyroid

extract, TVNZ assessed the complaint under standards G1, G3, G4 and G6 of the

Television Code of Broadcasting Practice.

It examined first the aspect of the complaint that the item was unfair to Dr Stewart as

a deceptive approach had been used and by not providing him access to the finished

programme prior to broadcast.

TVNZ maintained that Dr Stewart was told that the programme would look at the

proposed changes to the Medicines Act. It continued:

The producer told Dr Stewart she had spoken to the Ministry of Health and

that the staff there had not spoken highly of him or his company. Dr Stewart is

reported to have laughed and agreed that he had been involved in "run ins" with

the Ministry before. The producer specifically told him that "60 Minutes"

would wish to talk about those "run ins" when he was interviewed. He said that

would be fine. Dr Stewart was left in no doubt that the interview would touch

on controversial matters.

The complainants had been referred to in the broadcast and had been introduced when

the programme looked at the issue of the comparatively lax controls on dietary

supplements in contrast to the controls on orthodox medicines. TVNZ added:

            That Megavitamins was chosen was natural because, as the manufacturer of the

            thyroid supplement, there was a clear link with the story about the woman,

            identified by "60 Minutes" as "Debbie".

TVNZ denied that issues such as exports or product range had ever been mentioned

and it commented:

TVNZ further notes that Dr Stewart was not tricked into the interview. He was

approached beforehand, gave his consent, and for most of the camera crew's

visit was relaxed and open, responding to the reporter's question with vigour

and candour. That much is abundantly clear from viewing the programme.

Proceeding to point out that interviewees were not involved in editorial decisions,

TVNZ said Dr Stewart had ample opportunity to answer questions when the crew

were at Megavitamins. Although his wife terminated the interview prematurely, the

reporter and producer stayed with Dr Stewart for some time and Dr Stewart was

invited to call and resume the interview if he so wished to do so. He did not respond

to that invitation.

TVNZ said the item had not stated that Dr Stewart was providing a cure. It had

reported – with attribution – the Health Ministry's warning to Dr Stewart that he

could not make such a claim. The item showed the wide range of pills produced by

the company but did not suggest that they could cause harm. It spelt out clearly the

different roles of the manufacturer and the prescriber of the thyroid extract referred to,

adding:

You state incorrectly that the fact that Dr Stewart made the pills under contract

to Nurse Kay was not given emphasis. In fact Dr Stewart was carefully

questioned on the ethical considerations of providing unsafe thyroid pills, and

further questioned on where the responsibility lay between contractor and

manufacturer for ensuring the safety of products.

Arguing that references in the complaint to "Debbie's" background were red herrings,

TVNZ said that scientific analysis showed that the thyroid extract pills contained an

excessive dosage. TVNZ said that the item dealt with Dr Stewart's differences with

the Ministry of Health but at no point said that he had broken the law, observing:

On the matter of Chapparal (sic) we can inform you that your client was the

only vitamin manufacturer who refused a Ministry request to remove the

product from its shelves. It is a herbal product which the Ministry had warned

was linked to hepatitis and liver damage. "60 Minutes" reported this fairly.

Dr Stewart had not been badgered unfairly on the matter of standards which was a

central issue and he had, said TVNZ, been given every chance to explain the quality

controls used. He had, however, been evasive and his responses had not been

distorted.

Apologising that the complainants were upset, TVNZ said that the standards had not

been breached.

The Complainants' Referral to the Broadcasting Standards Authority – 2

December 1994

Dissatisfied with TVNZ's response, the complainants' solicitors referred the

complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. Because of

Dr Stewart's illness, the reasons for the complainants' dissatisfaction were not

received by the Authority until February 1995.

The solicitors included a copy of a letter they had written to TVNZ after the

interview with Dr Stewart but before the broadcast of the item explaining that the

interview had been agreed to on the basis that the broadcast would examine the impact

of a more restrictive Medicines Act on a typical health food company. However, the

letter added, during the interview it became clear to Dr Stewart that 60 Minutes'

approach had been deceptive as it was apparent that the item was to be an attack on

both the company and Dr Stewart personally. The solicitors wrote at that time:

During the interview, statements were made by the interviewer in the presence

of other persons and thus were published, that our client was "only interested in

making money and not worried about killing people" and the interviewer

repeated comments apparently made by a doctor that Dr Stewart was "immoral,

untrained, untrustworthy, unprofessional, but not illegal".

Noting in the letter that Dr Stewart and Megavitamins reserved their legal rights

should the item be broadcast, the solicitors stated:

As it is quite clear to our client now that the consent to the filming and interview

was obtained by deceit, our client demands the right to view the programme

before it is screened.

In the letter to the Authority of 7 February 1995 which gave the reasons for referring

the complaint, the complainants' solicitors noted the following reasons for

dissatisfaction with TVNZ's response to the formal complaint.

First, it said that TVNZ should have assessed the complaint under standards G7, G16

and G19 in addition to standards G1, G3, G4 and G6.

Despite TVNZ's denial, the letter proceeded, the complainants maintained that the

effects of changes to the Medicines Act on the company and its exports, product

range, and staff numbers were specifically mentioned by TVNZ as the programme's

focus at the time of seeking the complainants' participation.

After a day and a half of filming at Megavitamins and shortly before the formal

interview, the question of "run-ins" with the Ministry was raised by 60 Minutes and

Dr Stewart had said that he was comfortable about discussing them. "Debbie" was

not brought up until the interview was in progress and, the solicitors observed:

This is despite TVNZ's admission in their letter "that Megavitamins was

chosen was natural because as the manufacturer of the thyroid supplement there

was a clear link with the story about the woman identified by 60 Minutes as

Debbie". This is in our client's view clearly deceptive and in fact it is clear our

client was, in TVNZ's words, "tricked" into the interview.

Through its solicitors, TVNZ had declined Dr Stewart's request to view the

programme before it was screened although the broadcast omitted the defamatory

comments made by TVNZ during the interview. At that point of the interview, the

referral commented:

... Doctor Stewart's wife's anger and halting of the interview was directed at

these edited comments including that Dr Stewart was "immoral, untrained,

untrustworthy, unprofessional, but not illegal".

The solicitors continued:

For TVNZ to argue after such defamatory badgering that Doctor Stewart was

given ample opportunity to express his views because the reporter and producer

tried for 30 minutes after the interview was prematurely ended lacks credibility.

It was obviously not reasonable in the circumstances to expect Doctor Stewart

to make an immediate response. Doctor Stewart by asking to see the

programme in advance was only asking for an opportunity to correct any

inaccuracies.

The references to "Debbie", they said, were not a red-herring as TVNZ claimed.

Because of the constraints in the Privacy Act, Dr Stewart was unable to comment on

"Debbie's" other medication but TVNZ had presented only part of her medical

history. TVNZ's claim that "Debbie" was not on a "cocktail of prescription drugs"

did not refer to the impact of any one particular drug she might have been prescribed.

The programme stated that "Debbie" took 45 pills and implied that they were all

thyroid pills. That was inaccurate, the solicitors pointed out, as only 11 were made

by the complainants (3 "Combination T" and 8 "Combination P").

The item was unbalanced, the referral continued, as insufficient emphasis was given to

the distinction between unsafe products and unsafe prescribing when the pills,

although manufactured by Megavitamins, were prescribed by Nurse Kay.

The solicitors then referred to some specific points made in the original complaint

which, it said, were "glossed over" by TVNZ. The unanswered questions in the

complaint were:

            (a)        Did the interviewer ask our client to comment on statements such as "a

                        little girl goes down to the library to collect books" (which is clearly sexist

                        and offensive)?

            (b)        Did the interviewer repeat Doctor Boyd's plainly defamatory comments

                        that Doctor Stewart was "immoral, untrained, untrustworthy,

                        unprofessional, but not illegal"?

            (c)        If these questions were asked, why were these edited from the interview?

            (d)        Was it fair that Doctor Stewart's responses after this line of questioning

                        which resulted in Doctor Stewart beginning to lose his temper be screened

                        after the editing of the previous comments?

The solicitors then raised standards G4 and G7 and recorded:

In our client's view offensive and defamatory comments were made about Dr

Stewart and his staff in order to create a reaction. His response was elicited

which made good viewing, but was not a true reflection of our client's

demeanour and views. Therefore, TVNZ was not dealing with him justly and

fairly. This in our client's view is a deceptive programme practice which would

take advantage of the confidence viewers have in integrity of the broadcasters as

they would not have expected TVNZ to screen our client's responses out of

context without the screening of the interviewer's comments.

Referring again to TVNZ's response to the complaint, the solicitors maintained that in

arguing that the issue was the differing controls on dietary supplements and orthodox

medicines, TVNZ failed to provide balance. In providing balance, the alternative

health industry would have advanced the view that the costs involved in administering

the orthodox controls acted as an economic entry barrier from which the multi-national

pharmaceutical companies benefited.

In commenting that one million New Zealanders take some form of dietary

supplement but not providing balance about the dangers from pharmaceutical

medicines, the solicitors wrote:

The programme was presented in a sensational way which could cause

unnecessary panic, alarm or distress to the one million New Zealanders who use

dietary supplements.

TVNZ's Response to the Authority – 9 March 1995

In its report to the Authority on the complainants' referral, TVNZ dealt with the

specific matters raised point by point.

TVNZ said the complaint should be considered under standards G1, G3, G4 and G6

which were the ones it had nominated on receipt of the original complaint and which

the complainants had accepted at that time. It would be unfair, TVNZ maintained, to

assess the complaint now under the additional standards G7, G16 and G19, although

it acknowledged that all the issues encompassed under the extra standards were

nevertheless covered by the original four.

As the producer involved had since left, TVNZ was unable to check on the terms

under which it was agreed that an interview with Dr Stewart would take place.

However, TVNZ quoted the producer's notes which referred to the proposed changes

in the Medicines Act and recorded:

There was never any mention of an emphasis on exports, product ranges and

staff numbers.

Dr Stewart had agreed to talk about his "run-ins" with the Ministry of Health and

TVNZ maintained:

He was in no doubt that the interview would touch on some controversial

matters. We were never deceptive as to the focus of the story. The story was

looking at the unrestricted nature of the vitamin industry and how the Medicines

Act might change that.

In addition, the reporter had had a lengthy interview with Dr Stewart and he was not

tricked into discussing any particular issue and he was seen to respond to questions

about the thyroid supplement used by Debbie.

TVNZ continued:

TVNZ has no idea what is meant by "defamatory comments". TVNZ in

common with all other news services that we know does not ever allow prior

screenings of material used in current affairs programmes. The principle is

soundly based for the value of any journalistic enquiry is diminished if a party

involved in that enquiry is also involved in the editing process.

TVNZ, nor its reporter nor camera team, has any idea why Dr Stewart's wife

moved so quickly to end the interview.

Dr Stewart was given every opportunity to respond to TVNZ's questions. It

was Dr Stewart and his wife who chose not to elaborate further.

Arguing that the item had presented an adequate summary of "Debbie's" medical

history for the purpose of the programme, TVNZ wrote:

Thyroid experts told "60 Minutes" unequivocally that the only products which

seriously affected "Debbie" were the thyroid supplements manufactured by

Megavitamins to a prescription written by Ruth Kay.

TVNZ acknowledged that the item said that "Debbie" was taking 45 pills but it had

not said that all of them were in issue. Nevertheless, the broadcast had justifiably

asked why a woman with a normal thyroid needed such a large number of pills. With

regard to the treatment, TVNZ stated:

Dr Stewart made it clear in the broadcast interview that he felt no responsibility

for the prescription written by Nurse Kay. The scientist and thyroid specialist

who analysed the thyroid pills said they were, in fact, too potent and were

dangerous for someone like Debbie whose thyroid was normal.

In dealing with the points which the referral considered had been "glossed over",

TVNZ said its reporter could not recall any question about a little girl and a library

book or, indeed, why such a remark would have been made.

As for Dr Boyd's comments, TVNZ reported:

[The reporter] does recall putting to Dr Stewart the fact that Dr Boyd

considered Dr Stewart's practices over the years to be immoral and

unprofessional, but not illegal.

No offensive or defamatory remarks are ever made to anyone for mere

"reaction" as suggested by the complainant. Indeed the very suggestions is itself

defamatory of the journalistic profession and should be treated with the

contempt it deserves.

None of Dr Stewart's answers were broadcast out of context.

We believe Dr Stewart's replies during the interview were a true reflection of his

demeanour and views.

Overall, TVNZ maintained that the broad issue was vitamins and supplements as

opposed to orthodox medicines and that the story was given a human face. It added

that it was not a story about economics or licensing but had reported the fact that one

million New Zealanders take some form of dietary supplement. It contended:

 "60 Minutes" did not "make an issue". It reported a relevant fact. The

cautionary tale being told, pointed to problems involving health supplements in

a case such as "Debbie".

It finished its report to the Authority:

To conclude, TVNZ observes that this story highlighted a so-called thyroid

supplement that was as strong as a prescription medicine – so strong it almost

killed a normal, healthy woman. That situation enhanced the broader issue of

vitamins/supplements vs orthodox medicines which was under scrutiny in the

Medicines Act. It was a proper subject for investigation and TVNZ it believes

its was accurately and fairly presented on "60 Minutes".

Further Correspondence

When the above correspondence was considered at the meeting on 24 March 1995, the

Authority noted the complainants' allegation that TVNZ had asked some questions of

Dr Stewart "in order to create a reaction". TVNZ vehemently denied that allegation

and, maintaining that Dr Stewart's answers were not broadcast out of context, argued

that the replies screened were a "true reflection of his demeanour and views".

Because of the lack of clarity about the order of the questions and responses, the

Authority sought from TVNZ a transcript of the discussion between TVNZ and Dr

Stewart which showed the context in which Dr Boyd's opinion was put to Dr

Stewart.

In its reply dated 13 April, TVNZ apologised as it was unable to provide the

transcript and wrote:

The transcripts in this case were done on contract by an employee who used her

home personal computer. They have since been erased from that machine and

we have been unable to find any extant hard copies, despite an extensive and

exhaustive search of the current affairs area.

The relevant field tape, as is customary, was erased some time ago.

TVNZ maintained that "there is nothing sinister" that the material had been destroyed

as they were not regarded "as documents of record". TVNZ said that the 60 Minutes

reporter recalled:

It is the reporter's recollection that Dr Boyd's comments were introduced after

the discussion about "Debbie". She strongly refutes any suggestion that the

Boyd remarks were advanced simply to provoke a reaction. As with all

question lines, they were offered in the hope that they would produce

productive answers which could be usefully included in the programme. It

would have been unfair to Dr Stewart not to put the allegations made by Dr

Boyd. They were, after all, the views of a senior person at the Ministry.

TVNZ concluded:

We apologise for the delay in you receiving this reply to what might have

seemed to be a straightforward request. The delay was caused by the prolonged

but fruitless search for a copy of the transcript, and the difficulty of getting the

reporter and investigator in the same place at the same time.

A copy of TVNZ's letter was sent to the complainants' solicitors.

The Complainants' Final Comment – 24 April 1995

The complainants' solicitors maintained that standards G7 and G19 were relevant as

deceptive practices and irregular editing had been raised in the original letter.

Moreover, it was argued that TVNZ had responded to these points at the time.

The solicitors then referred to a letter from TVNZ's solicitors to make the point that

these issues had been raised by the complainants from the outset.

As for the terms of TVNZ's interview with Dr Stewart, the solicitors argued that it

should be possible for TVNZ to check with the producer and, it contended, selective

quoting from notes was unsatisfactory. Only during the final formal interview, after a

visit of a day and a half, was the case of "Debbie" brought up and they commented:

If Debbie was the focus of the story by 60 Minutes our client cannot see why

all conversations over a day and a half before the formal interview did not

address this issue at all unless the intention was to deceive our client as to the

focus of the formal interview.

They added:

TVNZ state the interview with Dr Stewart was a lengthy one covering many

issues. We, of course, need to see a transcript or field tape, but TVNZ

conveniently advise by their letter 13 April 1995 that these have either been

destroyed or mislaid. This is stretching our client's credulity.

Expressing disbelief that TVNZ did not know what the defamatory comments were as

that matter had been brought to TVNZ's attention before the programme was

broadcast, the solicitors also questioned whether the broadcast dealt with "Debbie's"

medical history adequately. The item was also incorrect to suggest that the 45 pills

taken by "Debbie" related to thyroid.

With regard to the matters discussed during the formal interview, the solicitors wrote:

The reporter does recall putting the allegations made by Dr Boyd. The reporter

recalls that Dr Boyd's comments were introduced after the discussion about

Debbie whilst the early part the interview dealt with quality control. This

conflicts with the reporter's comments that the interview with Dr Stewart was a

lengthy one covering many issues. Again the field tape or transcript would

clarify matters.

They said, in addition, that TVNZ had not addressed the aspect of the complaint

about the line of TVNZ's questions which led to Dr Stewart losing his temper,

commenting:

TVNZ seem to believe they can gloss over this with an assertion that

apparently not only they but the entire journalistic profession never seek to ask

questions to elicit a viewers reaction.

Moreover, TVNZ have suggested to the Authority that that aspect of the complaint

be treated with contempt.

The solicitors then outlined the process of their clients' complaint, concluding:

Our client has considerable concern that the tape and transcript's destruction

seems convenient considering TVNZ have been on notice since before the

programme was screened that our client would pursue further action against

them in relation to the interview.

In those circumstances, the solicitors argued that the Authority should conduct a

preliminary hearing as to the loss of the transcripts and the field tape. The letter

finished:

We therefore do not believe at present it appropriate for the Authority to

determine the complaint based on the new information brought before the

Authority as a result of TVNZ's letter 13 April 1995.

Further Correspondence

The Authority sought TVNZ's response to the complainants' request and its reply

dated 11 May 1995 began:

We must confess to being disturbed by both the content and tone of the

correspondence from the complainant's solicitors.

In essence we stand accused of deceit in obtaining our interview with Dr Warren

Stewart. We also stand accused of a "cover up" by, apparently deliberately

destroying tapes and transcripts of the interview with Dr Stewart.

There was no deceit. There was no cover up.

Referring to the correspondence between the solicitors for the complainants and the

solicitors for TVNZ before the item was broadcast, TVNZ said that deceit had been

denied since that time. TVNZ also reported that it received many requests each year

for untransmitted material which, as a general rule, was not released. It added:

There is no reason why we should keep untransmitted material – and indeed

there is a great demand in the news and current affairs area for tapes onto which

fresh material can be recorded. Tape is an expensive item and every effort is

made to recycle tape as soon as possible.

There is nothing sinister at all in the fact that we are unable to produce raw

tapes or transcripts as requested by the complainant.

TVNZ was prepared to provide affidavits if requested reporting that the reuse of the

tapes had been routine.

TVNZ continued to reject the application to assess the complaint additionally under

standards G7 and G19 as the solicitors had earlier accepted that the standards

nominated were appropriate.

As for the tone of the solicitors, letter, TVNZ remarked:

Reflecting on the letter from Weston Ward and Lascelle we note their use of

colourful words and phrases to suggest that Dr Warren Stewart was somehow

duped or deliberately misled by the "60 Minutes" team. For example emotive

words like "deceit", "provoked", "distortion", "sinister", "gloss over" and

"selectivity" are used without providing any evidence to back them up. We

cannot help but see this as an attempt to distract the Authority from the

responses we have already provided to this complaint.

TVNZ concluded by repeating its final paragraph of its letter of report to the activity

dated 4 March:

"To conclude, TVNZ observes that this story highlighted a so-called thyroid

supplement that was as strong as a prescription medicine – so strong that it

almost killed a normal, healthy woman. That situation enhanced the broader

issue of vitamins/supplements vs orthodox medicines which was under scrutiny

in the Medicines Act. It was a proper subject for investigation and TVNZ

believes it was accurately and fairly presented on "60 Minutes"."

The Authority sent the complainants' solicitors a copy of TVNZ's letter and, in its

reply dated 15 May 1995, they pointed out that deceit and editing had been issues

from the early correspondence which indicated the standards G7 and G19 were in

issue. In addition, they observed, s.5(h) of the Broadcasting Act urged minimal

formality initially. The solicitors noted:

The issue remains that TVNZ are unable to provide transcript or raw tape of

this interview. This is despite assertions in their letter of 9 March 1995 that

none of Dr Stewart's answers were broadcast out of context which indicates that

the field tape or transcript were available at that point.

Because a complaint had been laid, the solicitors argued, the untransmitted material

should have been retained but now:

Our client is being asked to accept without question TVNZ's explanation

without TVNZ providing any supporting evidence.

The solicitors agreed that discovery did not apply to the complaints procedure but

pointed out that the Authority could use its Commission of Inquiry powers to require

production.

As for TVNZ's comments about the use of language, the solicitors wrote:

            We feel compelled to comment on TVNZ's allegation that we have used

            colourful language in our letter of 24 April 1995 to distract the authority from

            TVNZ's responses. Firstly, this is ironic, considering the content of the

            programme which was labelled by TVNZ as "Pills that Kill". Further, of the six

            examples quoted by TVNZ, only the words "deceit" and "gloss over" actually

            appear in our letter 24 April 1995. Further, the word "deceit" was used only

            twice – once being a direct quote from TVNZ's own solicitor's letter 15

            September 1995 and the second time being another reference to TVNZ's

            solicitor's denial of deceit in paragraph (b) on page 4.

            Our client believes that our use of language has been appropriate. It is

            concerned that TVNZ when accused of unfair practices chooses in its later letter

            to make allegations which by a simple re-reading of our letter 24 April 1995 are

            demonstrated to be patently untrue. This gives our client further reason for

            disquiet in relation to TVNZ's behaviour in this matter.

Expressing concern about TVNZ's conduct and arguing that a more thorough

investigation was required, the solicitors maintained that a hearing at which it could

cross-examine witnesses was appropriate.