BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item about child’s death from meningococcal disease following misdiagnosis – paediatrician involved in initial misdiagnosis named twice during the item – allegedly in breach of privacy

Findings
Standard 3 (privacy) – doctor's name, place of work and involvement in the case not private facts – 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 27 November 2008, investigated the death of a young child from meningococcal disease after the illness was misdiagnosed at Wanganui Hospital. In the first part of the item, a Close Up reporter outlined what had happened, and interviewed the parents of the child at their home. The paediatrician who examined the child at Wanganui Hospital was named twice in the item, first by the reporter, and then by the child’s mother, as follows:

Reporter:    Paediatrician, [full name] examined [the child]. But [the mother] says she
                  didn’t see him look at the other doctor’s notes, and she says he didn’t seem
                  too worried about the rash.

Mother:       Doctor [surname] came up to us and said, if he had stayed in the night, it
                  probably would’ve been this outcome; [the child] still would have passed away...

[2] Close Up then conducted a live studio interview with the child’s mother, the Chief Executive of the Whanganui District Health Board, and another paediatrician with the Whanganui DHB.

Referral to the Authority

[3] Leeann Morton lodged a privacy complaint directly with the Authority under section 8(1A) of the Broadcasting Act 1989, alleging that "the programme grossly overrode privacy principle 4 in naming the paediatrician involved" in the baby’s initial diagnosis and treatment.

[4] Ms Morton argued that the disclosure of the paediatrician's name was highly offensive because investigations surrounding the baby’s death had not been completed, and it was possible that the paediatrician would be found to have acted reasonably in the circumstances. However, "a slur has been cast on his reputation and competency", when he was publicly identified in the item, Ms Morton said. She considered that, while it may have been discovered that the doctor acted negligently – in which case the public interest defence in privacy principle 8 could apply – publicly naming him before investigations had concluded grossly breached his privacy.

Standards

[5] Standard 3 and privacy principles 1, 4 and 8 are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles

1. It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

4. The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.

8. Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

Broadcaster’s Response to the Authority

[6] TVNZ assessed the complaint under privacy principle 1, which relates to the public disclosure of private facts. It said it first needed to establish whether any private facts had been publicly disclosed, then consider whether the disclosure was highly offensive to an objective reasonable person, and lastly decide whether a defence of legitimate public interest applied.

[7] TVNZ did not accept that the item disclosed any private facts about the paediatrician. The paediatrician involved was an employee in a public hospital, it said, and his name appeared in documents associated with the case. The broadcaster argued that the only information about him in the item was his name, which was not a private fact. It maintained that information about a child’s case in a public hospital did not amount to a private fact about the paediatrician.

[8] The broadcaster stated that, even if private facts were disclosed, it considered that the disclosure would not be highly offensive to an objective reasonable person. TVNZ contended that a high threshold needed to be crossed in this respect; the concern was when information disclosed was "truly humiliating or distressing about the person", it said. No such information about the paediatrician was broadcast in the Close Up item, TVNZ wrote.

[9] For these reasons, the broadcaster concluded that the item did not breach the privacy of the paediatrician. However, it was of the view that, regardless, the defence of legitimate public concern applied. The item dealt with a public District Health Board and the case, and tragic death, of a young child who was treated in the New Zealand public health system. TVNZ maintained that real issues of public interest arose relating to the child’s diagnosis and care.

[10] Accordingly, the broadcaster declined to uphold the privacy complaint.

Complainant's Final Comment

[11] Ms Morton noted that TVNZ had assessed her complaint with reference to privacy principle 1, while she had nominated privacy principle 4.

[12] The complainant disagreed with TVNZ that the only information about the doctor in the item was his name. He was obviously an employee of the Whanganui DHB, she said, so the broadcaster also disclosed his place of work. While not disclosing his personal address or phone number, Ms Morton said, the broadcaster revealed where he could be contacted for the majority of the day, so that anyone could have phoned Wanganui Hospital and asked for him. Further, she considered that anyone consulting a phone book with reference to his name may also be able to identify his private address and telephone number.

[13] Ms Morton argued that the item also disclosed other information about the doctor, when one of the interviewees in the studio spoke of him as being highly experienced and well respected. This, she said, meant that the public revelation of his name would be all the more distressing and unfair to him, particularly given his experience, because the item insinuated that he had made a mistake with awful consequences, and he did not have an opportunity to put forward his side of the case. The complainant considered that the public disclosure of this information was "truly distressing or humiliating".

[14] The complainant noted that TVNZ had not outlined why broadcasting the doctor's name at this point was so vital to the public interest. The item could easily have been screened without revealing his identity, she said. She agreed that the item was of public interest, and that "real issues of public interest arose relating to the child's diagnosis and care". However, she considered that the public needed to know only that there had potentially been a tragic misdiagnosis, and that all appropriate investigations were taking place to determine what happened and who was accountable. Then, if the doctor was found to have been negligent, he would be publicly named and the appropriate steps taken to ensure the public was safe from potential harm.

[15] Ms Morton reiterated her view that "a hardworking and respected professional has had his reputation called into question without all the facts being known, or indeed, it being established that he had made a call that the majority of physicians would have made at the same time given the same set of facts". She considered this to be “terribly unfair”.

Authority's Determination

[16] 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.

[17] First, the Authority notes that Ms Morton nominated privacy principle 4 in her complaint. TVNZ concluded that her concerns would be better dealt with under privacy principle 1.

[18] The Authority agrees. It has stated on a number of occasions that privacy principle 4 was developed to prevent the broadcast of a person’s details in circumstances where they are disclosed for the purposes of encouraging harassment of that person by members of the public (see, for example, Decision Nos. 2008-089, 2008-017, 2007-108). The Authority is of the view that the disclosure in the Close Up item of the doctor’s name and place of work was not intended to encourage viewers to harass the doctor, but rather was incidental to telling the mother’s story.

[19] Accordingly, in the Authority's view, Ms Morton’s complaint is appropriately addressed under privacy principle 1, which states:

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[20] When the Authority deals with a complaint that an individual's privacy has been breached, it must first consider whether the individual was identifiable in the broadcast. As the doctor's full name was disclosed during the story, the Authority concludes that he was identifiable.

[21] Second, the Authority must determine whether the broadcast disclosed private facts about the doctor. Aside from his name, the item disclosed his place of work, and aspects of his involvement in the baby's medical treatment. The Authority notes that the doctor was an employee in a public hospital, and the mother was in possession of her child's case notes. In these circumstances, the Authority is of the view that the doctor would not have had a reasonable expectation that his name, place of work, or involvement in the case would have remained private. Therefore it concludes that the item did not disclose any information that amounted to a "private fact".

[22] For the record, the Authority considers that, even if the information disclosed in the programme constituted "private facts", the disclosure would not have been highly offensive to an objective reasonable person. The item clearly conveyed that an investigation into the case was under way and yet to be completed. Further, the other paediatrician interviewed on Close Up emphasised that the doctor involved was highly skilled and experienced, and that the nature of the disease made it extremely difficult to diagnose.

[23] Having concluded that the item did not disclose any private facts about the doctor, the Authority declines to uphold the privacy complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
3 March 2009

Appendix

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

1.  Leeann Morton's direct referral to the Authority – 28 November 2008
2. TVNZ's response to the complaint – 23 December 2008
3. Ms Morton's final comments – 20 January 2009