Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item about woman who was soon to have a mastectomy because of breast cancer – item said woman had been told by a doctor, the complainant, almost a year previously that she had nothing to worry about – same advice said to be given six months later – woman referred to National Women’s Hospital on unrelated matter – woman again expressed concern about a breast lump – Hospital arranged mammogram and tumour revealed – reporter’s investigation allegedly involved breach of privacy and was unfair – item allegedly inaccurate, unbalanced and unfair
Standard 3 (privacy – preparation) – preparation did not involve privacy breach – not upheld
Standard 6 (fairness – preparation) – manner assertive but not unfair – not upheld
Standard 4 (balance – broadcast) – issue essentially one of fairness – balance subsumed under fairness – not upheld
Standard 5 (accuracy – broadcast) – inaccurate to suggest meeting in May and visuals of mammogram were the patient’s – upheld
Standard 6 (fairness – broadcast) – seriously unfair to suggest misdiagnosis in May – unfair to suggest that complainant had not followed the procedure suggested by specialist – unfair to suggest that complainant in letter to patient acknowledged that she had been at fault – upheld
1. Broadcast of a statement
2. Payment of legal costs of $5,000
This headnote does not form part of the decision.
 An item about a woman (Sonya Cavanagh) who was to have a mastectomy a few days later was broadcast on One News at 6.00pm and repeated on Tonight at 10.30pm on TV One on 15 September 2004. The item reported that the woman had seen her doctor (the complainant) some ten months earlier about a lump in her breast and had been advised not to worry. The item also reported that the same advice had been given some six months later following another visit. After the woman had been referred to National Women’s Hospital on an unrelated matter, a mammogram had disclosed a breast tumour. The woman said that she intended to make a formal complaint about the complainant.
 Through her solicitor, Dr Barbara Fraser complained to Television New Zealand Ltd, the broadcaster, about both the preparation of the item and the item itself. She contended that the preparation had involved breaches of the standards relating to fairness and privacy, and the item had been unbalanced, inaccurate and unfair.
 With regard to the item’s preparation, Dr Fraser said the reporter had called unannounced at the medical practice reception desk where she worked at about 1.00pm on 14 September 2004 and had demanded to see her. As the complainant had left the building and staff were unable to contact her, the reporter returned at 2.00pm to see the head of the practice. The complainant said that the reporter’s actions in the reception area were “assertive and threatening”, and had caused concern to the receptionist and “possible distress” to other patients.
 The complainant was then contacted by the practice by telephone and spoke to the reporter who sought her comments in regard to one named patient. The reporter was given the complainant’s fax number and sent her a list of questions. The reporter later contacted the doctor at home by telephone and “aggressively” asked for comments. The complainant said that she had pointed out to the reporter that she could not discuss the patient because of privacy obligations. The complainant described the reporter’s telephone manner as “aggressive and threatening” and said that the reporter had assumed “guilt and mismanagement” on the doctor’s part.
 The reporter, Dr Fraser continued, then arranged for the patient to give consent to enable the doctor to release information. As the complainant considered that the four questions sent to her by the reporter were inappropriate for a direct response, she said she had written to the patient who had forwarded the letter to the reporter. A copy of the letter was attached to the complaint.
 Dr Fraser complained that the reporter’s actions in preparing the item involved “unacceptable” breaches of privacy and were unfair both to her and the practice.
 Turning to the item itself, the complainant denied that she had told her patient some ten months earlier that she had nothing to worry about. When she had examined the patient on 4 November 2003, nothing of concern was found and the patient was asked to return in three months.
 The item, she said, then implied that the patient had been examined some six months later (in May) and again had been told that she had nothing to worry about. However, following a referral to National Women’s Hospital on another matter, the item continued, she had mentioned the lump and the response was swift. The complainant described this summary of events as both untrue and misleading. First, the complainant had not seen the patient in May and, secondly, the referral was an outstanding matter which had only involved, in May 2004, a telephone call and a re-referral. Moreover Dr Fraser wrote, the patient had not mentioned a lump at the gynaecological unit, but a thickening of the breast, and a mammogram was taken some two months later. The item had showed a mammogram being taken which, it suggested incorrectly, was of the patient.
 The item showed the main sign outside the practice where she worked and quoted, in graphics on the screen, an extract from her letter to the patient, namely:
I did not feel that the referral to a breast specialist was warranted at that time because of the lack of clinical evidence. With the 20/20 vision afforded by hindsight I wish I had made such a referral.
 The complainant’s solicitor contended:
The whole programme had proceeded on the basis that the doctor had on more than one occasion missed a breast lump with catastrophic results. Selection of the genuine and very understandable expression of regret by the doctor was clearly made with an eye to the inference that guilt was being admitted.
 A specialist not involved in the care of the patient had been interviewed for the item and was shown suggesting that a patient concerned about a breast lump should be monitored and re-examined at a different time in the menstrual cycle. In fact, the complainant said, that had occurred on this occasion, but the item did not advise viewers of that.
 The complainant contended that the item included allegations which the reporter knew were in dispute and should have been investigated. It was inaccurate and unbalanced, and unfair to both her and the practice.
 The complainant later provided written comments from two receptionists at the practice who described the reporter’s actions on her two visits in terms similar to those used in the complaint.
 TVNZ assessed the complaint under the following standards:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
3a Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6a Care should 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.
6f Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.
 Dealing first with the complaint about the reporter’s actions in preparing the item, TVNZ observed that some among the public did not fully understand a reporter’s role to investigate matters on behalf of the public. Having considered her actions on this occasion, TVNZ said that the reporter had not wavered from her obligations to obtain comment from a person whose name had arisen in a news context. While expressing regret if the reporter’s actions were seen as threatening or aggressive, TVNZ pointed out that the reporter was meeting the obligations imposed by the broadcasting standards with regard to fairness and balance. TVNZ also pointed out that while everyone had the right to decline to be interviewed, that action would not bring the story to an end.
 TVNZ noted that a reporter was entitled to enter properties and ask legitimate questions, as had occurred on this occasion. In view of the impending mastectomy operation, TVNZ did not regard the intrusion as offensive. Moreover, it noted, the inquiries were in the public interest, which overrode any specific privacy obligation.
 As for the item itself, TVNZ set out the following chronology.
 TVNZ said that the comment reported in the item that the patient had nothing to worry about was a reasonable interpretation of the complainant’s comments made in October and November 2003.
 As for the independent specialist’s comment about monitoring, TVNZ said the item reported the patient’s comments made by her doctor some ten months previously. In relation to the mammogram images, TVNZ also pointed out that the use of file footage, especially in medical stores was routine.
 With regard to the practice’s signboard which was shown in the item, TVNZ said that the story referred to the complainant only and there was no implication that anyone else was involved. The extract from the letter, it continued, was used not as an admission of guilt, but
… the extract in fact provided the balance which the programme had been unable to get through a direct interview with your client. The extract stated clearly why Dr Fraser had not taken action such as arranging a radiology referral. It said “I did not feel the referral to a breast specialist was warranted at that time because of lack of clinical evidence”. The comment about the benefits of hindsight did not suggest wrong-doing by your client, rather it was a natural and human reaction to what had occurred.
 Turning to the standards, TVNZ considered that the item would have been “enhanced” if the complainant had appeared on camera, but balance was achieved as best as it could be in the circumstances. The reporter, it added, made considerable efforts to obtain the complainant’s viewpoint. It was unable to ascertain any “proven inaccuracies” in the item, and considered that the complainant had been treated fairly. It declined to uphold any aspect of the complaints.
 As Dr Fraser was dissatisfied with TVNZ’s decision, her solicitors referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 The referral raised five specific points:
 TVNZ responded to each of the above five points:
[The patient] lost a breast to cancer just a year after being told by Dr Fraser that “I did not find anything of concern” – that was the basis of the story, and in TVNZ’s view reflects an issue which demonstrably is in the public interest.
 In her final comment, the complainant addressed the same issues:
 As an additional point, the complainant’s solicitor contended that TVNZ’s basis for its story was biased and assumed:
… Dr Fraser’s guilt and medical mismanagement and fails to acknowledge and understand the progression of the disease. A normal breast examination by a GP or breast specialist or even a normal mammogram does not guarantee that cancer does not develop 9 months later.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The complainant contended that TVNZ, in its preparation of the item, had breached the standards relating to privacy and fairness, and that the item as screened had breached the standards relating to balance, fairness and accuracy.
 The complainant also expressed concern about the item’s integrity as the reporter involved was not TVNZ’s regular reporter on health issues. The Authority considers that selection of reporters is not usually a matter of broadcasting standards, and the complainant has not raised any matter which would justify the Authority investigating the matter on this occasion.
The preparation of the programme
 The complainant indicated that the reporter’s manner at the medical practice, and in the telephone conversations with the complainant, was assertive. The complainant used the word “threatening”, pointing out that some of the reporter’s allegations were made in the practice’s waiting room in the hearing of other patients waiting for their appointments. The reporter’s manner at the practice, the complainant maintained, caused distress and her approach in telephone conversations assumed “guilt and mismanagement”.
 The Authority accepts that the reporter’s conduct on this occasion could have been perceived as aggressive and it acknowledges that the two practice receptionists found their experience of the reporter’s behaviour to be unpleasant. However, given a reporter’s role and the responsibilities to meet the standards, as TVNZ explained, the Authority does not accept that the reporter’s actions on this occasion contravened either of the nominated standards.
The item broadcast on 15 September 2004
 The requirement for balance applies to items which deal with “controversial issues of public importance”. The Authority notes that while the item raised the issue of the complainant’s professional competence, it did not address the wider issue of doctors’ competence or professional accountability generally. Rather, it reported the personal account of a 38 year-old woman who was about to have a mastectomy. As such, the Authority considers the complainant’s concerns are best dealt with under Standard 6 – Fairness (see paras 45–56 below).
 Having reviewed the correspondence, the Authority has compiled a chronology of key events on which it has based its determination:
8 October 2003 – complainant is regular doctor of woman patient who consults complainant on a number of matters. Breast examination performed because, according to patient, she “felt a lump” but according to doctor, patient complained of “thickening of the breasts”. Some small cysts located but as these could be related to menstrual cycle, patient asked to return after her period. On other matters, the patient referred to gynaecological clinic at National Women’s Hospital.
4 November 2003 – patient consults complainant on a number of matters. Right upper breast again examined, cysts no longer present and nothing found of concern. Complainant assures patient that there is probably nothing to be worried about. Complainant contends that she asks patient to return in three months for a recheck. Patient disputes this and states she was advised to return for another examination only if she noticed there were any changes to her breasts.
May 2004 – according to complainant, after being told by National Women’s that patient had not kept referral appointments, she telephoned patient and arranged for a re-referral to the gynaecological clinic.
15 June 2004 – patient mentioned lump at the National Women’s gynaecological unit. Referred for a mammogram.
26 August 2004 – mammogram taken which showed tumour.
 The Authority considers that the item included two inaccuracies. The item stated:
[The patient] says she raised the issue again with her doctor six months later and again was told not to worry. That was during a visit on an unrelated matter which saw her referred to National Women’s Hospital and when she mentioned the lump to doctors here the response was quick.
 The complainant stated that the computer records for her practice showed no record of a visit on that date and TVNZ did not present any evidence to dispute that contention. Accordingly, the Authority considers that no visit to Dr Fraser took place six months after the November consultation.
 In her original complaint to TVNZ, Dr Fraser clearly stated that no such consultation had taken place. The only contact around that time had been a telephone contact regarding a referral to National Women’s Hospital that the patient had twice failed to attend. In her letter to the patient, the complainant wrote that “I followed through to urge you to keep the appointment”. In response, TVNZ did not provide any evidence that the consultation had taken place, but instead defended the statement by saying that it was reporting accurately what the patient had said.
 In referring her complaint, Dr Fraser noted that whether this consultation had occurred was “a matter of record”. TVNZ responded by providing a copy of Dr Fraser’s letter to the patient which the patient had annotated. TVNZ noted that the patient’s “bewildered and sometimes emotional responses clearly indicate that there is a difference of opinion between the two people involved which cannot be resolved simply by referring to a doctor’s records”.
 The Authority does not agree with TVNZ’s responses. In relation to TVNZ’s defence that it was simply reporting the patient’s words, the Authority notes that TVNZ adopted the patient’s words, rather than simply reporting them; TVNZ presented the May consultation as a matter of fact.
 Regarding Dr Fraser’s letter to her patient that the patient annotated, the Authority notes that in her many annotations, the patient does not comment on the doctor’s assertion that the patient did not see her in May.
 TVNZ suggested that the issue of the May visit was irrelevant as the patient had been told some ten months before the broadcast that she had nothing to worry about. The Authority does not agree because:
 Taking into account the evidence presented and, on the balance of probabilities, the Authority prefers the complainant’s version of events on this point. For this reason, the Authority considers that the item, in stating that the patient visited Dr Fraser in May 2004, was inaccurate and breached Standard 5 of the Free-to-Air Code.
 The item also showed an x-ray of a breast with a large tumour. The complainant argued that the images shown were not of the patient. In reply, TVNZ said it was “routine” to use file footage, especially in medical stories, and that the tumour shown was not “worse” than the patient’s one.
 The Authority accepts that file footage is often shown, but notes that it should be labelled as such. In the present case, given the context in which the images were shown, the item suggested that the images were indeed from the patient. It finds that the item was misleading in this regard and accordingly breached Standard 5, guideline 5b.
 The use of the term “breast lump” by the patient and by the reporter in contrast with the phrase “breast thickening” used by the complainant, does not amount to an inaccuracy in the Authority’s opinion. Indeed, the former term, albeit emotive, is the one used and understood by laypersons. This aspect of the complaint is not upheld.
 The Authority considers that the item was unfair to the doctor in a number of respects:
 The thesis advanced by this item was that this patient had been poorly treated – perhaps even negligently treated – by her doctor. The doctor allegedly failed to take appropriate steps in response to the patient’s concerns about a possible breast lump, first in October and November 2003, and then again in May 2004. The item clearly suggested that the catastrophic consequences the patient was now suffering were as a direct result of misdiagnosis on these occasions.
 As noted above, the Authority does not accept that any such consultation in May 2004 took place. In these circumstances, the Authority considers it unfair to Dr Fraser that the item suggested she had been negligent in respect of a consultation that had never taken place.
 Furthermore, the item failed to note the complainant’s denial that there had been such a consultation. When TVNZ received the letter written by Dr Fraser to the patient, it was – or should have been – aware that one of the key factual bases for its allegations against Dr Fraser was disputed. Despite this, the item proceeded with no mention of Dr Fraser’s version of events.
 A further ground of unfairness relates to the interview with the breast specialist. The specialist was shown explaining the appropriate process that a doctor should follow in the event that a woman presents with a breast lump. The clear implication was that this was not the procedure followed by Dr Fraser.
 What did happen, as the complainant and patient agree, is that, because of a concern expressed by the patient, the complainant examined the patient’s breasts in October 2003. She asked the patient to return in order to carry out another examination at a different stage of the menstrual cycle. That took place in November 2003 and, following the re-examination, the patient was assured that she probably had nothing to worry about. The disagreement between patient and complainant relates to what happened next. The complainant claimed that she asked the patient to return in three months for a recheck. The patient stated she was advised to return for another examination only if she noticed there were any changes to her breasts.
 While this latter point is in dispute, there is agreement that the complainant carried out an initial re-examination. That was exactly the procedure advanced by the breast specialist interviewed for the item. Accordingly, in showing the interview with the specialist without explaining that Dr Fraser had followed his suggested treatment plan, the item was unfair to Dr Fraser.
 After being presented with a number of questions by the journalist, Dr Fraser wrote a letter to the patient, explaining her view of what had taken place. Dr Fraser made it clear that while she wished to be able to respond to the allegations, she was concerned that she do so only with the express consent of the patient. She left it to the patient to decide whether the letter be passed to TVNZ.
 In her letter Dr Fraser set out detailed responses to the questions posed by the reporter, explaining what she had done and why she had done it, and stated quite clearly that there had been no May consultation. TVNZ quoted just one passage from this letter, from near the end, where Dr Fraser wrote:
I did not feel that referral to a breast specialist was warranted at that time  because of the lack of clinical evidence. With the 20-20 vision afforded by hindsight, I wish I had made such a referral.
 The item made no other reference to any of the doctor’s explanations, despite the letter providing a full account of her actions. The Authority considers that TVNZ’s inclusion in the broadcast of only this, despite the challenges made in the letter to the patient’s account, indicates that it accepted with insufficient scrutiny the allegation that the complainant had failed to act properly. No challenges were made to the patient’s account of events, and no explanations were given on behalf of the doctor, despite that information having been made available.
 The extract used served only to highlight the fact that Dr Fraser had expressed her regret that she had not made an earlier referral and acknowledged a degree of responsibility. However, the extract came near the end of the four-page letter of explanation, and seen in context the statement took on an entirely different meaning. The Authority considers that in selecting that single passage from Dr Fraser’s letter, while failing to use any of the background explanatory material, the item was unfair to Dr Fraser.
 For the above reasons, the Authority considers that the item was unfair to Dr Fraser and thus breached Standard 6 of the Free-to-Air Television Code.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determinations to uphold the complaint. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons, the Authority upholds the complaint that the broadcast of an item by Television New Zealand Ltd on One News of 15 September 2004 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.
 Noting that the complaint had been upheld, the complainant sought the broadcast of a statement summarising the decision, and enclosed a draft statement. She also sought the reimbursement of her legal expenses and enclosed accounts amounting to $14,732 (including GST and disbursements).
 Rather than making a specific submission, TVNZ listed five matters “in mitigation” which it asked the Authority to take into account. TVNZ suggested:
 In view of the extent of the item’s unfairness, the Authority is in no doubt that it should make an order which requires TVNZ to broadcast a statement which comprehensively summarises the Authority’s decision. The Authority has considered the draft statement attached to the complainant’s submission but sees no reason to depart from its usual practice by which the broadcaster is required to draft a statement for the Authority’s approval.
 As the Authority has explained in earlier decisions (see, for example, Decision No: 2004-115), awards for legal costs are not intended to be punitive. Rather, they are intended to reimburse (in whole or in part at the Authority’s discretion) the actual costs of successfully bringing or defending a proceeding. In making an award of costs, the Authority also takes into account the relatively straightforward complaints process and considers whether the legal advice has facilitated efficient consideration of the complaint.
 Given the impact of the item on the complainant, the Authority accepts that seeking legal advice was an understandable response to the broadcast. The Authority also notes that the arguments in support of the complaint assisted in its consideration of this complex matter. In the circumstances, it considers a contribution to legal costs is appropriate and sets the sum at $5,000.00.
1. Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement comprehensively summarising the Authority’s decision. The statement shall explain why the complaint was upheld as a breach of Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at a date and time to be approved by the Authority.
2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $5,000.00, within one month of the date of this decision.
The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
The order for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
4 May 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Dr Barbara Fraser’s formal complaint to Television New Zealand Ltd –
21 September 2004
2 TVNZ’s initial response to Dr Fraser – 27 September 2004
3 Dr Fraser’s further complaint to TVNZ – 7 October 2004
4 TVNZ’s response Dr Fraser – 19 October 2004
5 Dr Fraser’s referral to the Broadcasting Standards Authority – 24 November 2004
6 TVNZ’s response to the Authority – 5 January 2005
7 Dr Fraser’s final comment – 27 January 2005
8 Dr Fraser’s submission on orders – 5 April 2005
9 TVNZ’s submission on orders – 6 April 2005