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Waitemata Health and TV3 Network Services Ltd - 2000-052

Dated

4th May 2000

Number

2000-052

Channel/Station

TV3

Broadcaster

TV3 Network Services Ltd


Ms Loates declared a conflict of interest and did not participate in the determination of this complaint.


Complaint
20/20 – documentary – mental health outpatient– inaccuracies – lacked balance – discrimination against mental health patients – verbal agreement about interview content

Findings
(1) Standard G1 – inaccuracies not proven – no uphold

(2) Standard G6 – balance provided where required through interview with mental health provider – no further imbalance proven – mentally ill not portrayed as inferior – no uphold

This headnote does not form part of the decision.


Summary

An item on 20/20 called "Flatmate Wanted" was broadcast on TV3 on 12 September 1999, from 7.30pm. The item concerned the deaths of Lachlan Jones and Malcolm Beggs and was critical of the mental health system, which it implicated in the deaths.

Waitemata Health complained to TV3 Network Services Ltd, the broadcaster, that the item breached broadcasting standards relating to accuracy, balance and fairness, good taste and decency, and discrimination.

TV3 considered that the item was accurate, fair and not misleading, and that Waitemata Health had not established that there had been any breach of standards in these areas. It commented that the item was not about the general state of mental health services in New Zealand and therefore was not required to contain comment on the positive benefits of the health privacy code or positive aspects of the mental health system. Comments made in the programme about the mental health system were, it said, in the public interest. TV3 also disagreed that it had breached standards relating to good taste and discrimination. It contended that the broadcasting standard relating to discrimination was not intended to prevent the broadcast of factual statements. TV3 declined to uphold the complaint.

Dissatisfied with TV3’s response, Waitemata Health referred its complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed the item complained about and have read a transcript of the item. They have also read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

The Authority records that member Ms Loates declared a conflict of interest and did not participate in the determination of this complaint.

An item on 20/20 called "Flatmate Wanted" was broadcast on TV3 on 12 September 1999, from 7.30pm. The item concerned the deaths of two young men. It was reported that Lachlan Jones had killed his flatmate, Malcolm Beggs, and then himself. The item also reported that Lachlan Jones had a mental illness and was receiving outpatient services from Waitemata Health. Criticism was levelled at the mental health system because neither Lachlan Jones’ family nor Malcolm Beggs was told of Jones’ condition, and because Jones had been released into the community despite his condition.

The Complaint

Waitemata Health complained to TV3 that the broadcast had contravened numerous broadcasting standards. It submitted that standards G1, G2, G4, G5, G6, G7, G13, G14, G16, G19 and G20 of the Television Code of Broadcasting Practice had been breached. The first seven of these standards require broadcasters:

G1  To be truthful and accurate on points of fact.

G2  To take into consideration currently accepted norms of decency and taste in language and behaviour bearing in mind the context in which any language or behaviour occurs.

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

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.

G13  To avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of race, age, disability, occupational status, sexual orientation or the holding of any religious, cultural or political belief. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely-held opinion in a news or current affairs programme, or

iii) in the legitimate context of a humorous, satirical or dramatic work.

The remaining standards provide:

G14  News must be presented accurately, objectively and impartially.

G16  News, current affairs and documentaries 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.

G20  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, and this can be done only by judging every case on its merits.

Breach of verbal agreement

Waitemata Health began its complaint by alleging that TV3 had breached a verbal agreement concerning an interview with Waitemata Health’s General Manager (Bette Kill). It maintained that it had agreed to the interview on condition that Ms Kill could express her condolences publicly, state that there would be an independent review and explain that Waitemata Health would implement any recommendations resulting from the review. These aspects of the interview were not broadcast.

Standards G1, G6 and G14

Next, Waitemata Health set out the reasons why it believed that there had been a breach of standards G1, G6 and G14. It said that, in addition to breaching its agreement with Waitemata Health, 20/20’s reporter (Karen Pickersgill) had taken Ms Kill’s words out of context "to the point of gross distortion", and had given factually incorrect information to viewers. Waitemata Health also complained that TV3 had only broadcast a small part of the interview with Ms Kill.

Waitemata Health considered that it was unable to point out the inaccuracies to which it referred in any detail without breaching its obligations under the Health Information Privacy Code, but took examples from the transcript of the 20/20 item from TV3’s website which it considered were amongst some of the worst:

"…the Mental Health Service… allowed Lachlan Jones out into the community, free to kill." (Ms Pickersgill)

"…nurses had visited Malcolm’s house daily to deliver medication to Lachlan, though no one bothered to make sure he took it." (Ms Pickersgill)

"Malcolm had been deliberately kept in the dark." (Ms Pickersgill)

Next, Waitemata Health quoted from statements it said that Ms Kill had made in her interview but which were not broadcast. It contrasted these statements with one of the reporter’s comments.

Waitemata Health said it had been horrified by the use of Lachlan Jones’ medical notes by TV3. It said that attempting to interpret them "without clinical/expert advice" contributed to TV3’s account being "irresponsible and misleading".

Also misleading, wrote Waitemata Health, was TV3’s account of a point Ms Kill had made. It said that the reporter made the following statement:

"Waitemata Health pointed out that there are a hundred thousand New Zealanders with serious mental illness, the majority living in the community."

However, Waitemata Health maintained that Ms Kill had repeatedly made the point that the majority of people with mental illness were living "safely" in the community. It said "TV3 portrayed an inaccurate picture which has contributed to a general state of public hysteria".

Waitemata Health continued by alleging that TV3 had failed to advance the positive benefits of the Health Information Privacy Code and positive aspects of the mental health system.

According to Waitemata Health, the language used in the item was subjective and biased in tone and content. TV3 had shown it lacked understanding about mental illness, had made unproven accusations and assumptions, and had not considered the effect such bias would have on people with mental illnesses.

Standards G2 and G13

In relation to standard G2, Waitemata Health wrote:

As with previous stories of this nature, such as Emergency Heroes, TV3 failed to take into consideration currently accepted norms of decency and taste in language and behaviour relating to the mentally ill.

As to standard G13, Waitemata Health said that the item had portrayed the mentally ill as inherently inferior, and in a way which would encourage discrimination. The following statements and words used in the item were given in support of this claim:

"A bloody murder in a bedroom of this Henderson house. Inside, a young man … his life snuffed out by a madman with an axe"

"a dangerously, mentally ill patient"

"nutter" "sick" "disturbed"

"Lachlan Jones had murder in his mind"

Waitemata Health said that TV3 had disregarded the rights of mental health patients. Furthermore, it said the 20/20 item had left an impression that mental health patients were inherently dangerous and inferior, and encouraged these views by omitting to include a statement in the item that:

most people with serious mental illness live safely in the community with the support of caregivers, health services and/or medication.

Standards G4, G7, G19 and G20

Waitemata Health alleged that 20/20 programme makers had failed to deal justly and fairly with Ms Kill and that this was in breach of standard G4.

Standard G7 was breached according to Waitemata Health because:

TV3’s programme practice was deceptive in the presentation of this story by taking advantage of the confidence viewers have in the integrity of broadcasting.

Next, Waitemata Health maintained that TV3 had not taken necessary care in editing the item, as the extracts from Ms Kill’s interview which were broadcast were not a true reflection of the interview. In its view, they distorted "the tragedy, the events leading up to it, and the overall views expressed by Waitemata Health".

According to Waitemata Health, standard G20 was breached because TV3 did not state that its footage of Lachlan Jones leaving the psychiatric unit was a reconstruction, and this was misleading.

Standard G5

Four grounds were given in support of the contention that standard G5 was breached. First, Waitemata Health repeated that 20/20 had breached its agreement with Waitemata Health regarding the interview with Ms Kill. Secondly, it alleged that TV3 had breached section 29 of the Coroners Act 1988 which prevents the release of particulars about the manner in which a suicide has occurred. Thirdly, it said that 20/20 had both filmed Waitemata Health premises without permission, and fraudulently misrepresented permission for such filming. Lastly, it maintained that TV3 had, in general, ignored the principles of natural justice.

Standard G16

The final aspect of Waitemata Health’s complaint concerned standard G16. Filming without permission had, it said, caused unnecessary panic and distress for both patients and staff. It said it, and other mental health providers, had received "an avalanche" of calls from mental health patients concerned about the possible consequences for them. "The presence of a camera without any preparatory warning was dangerous and irresponsible, not to mention illegal", it wrote.

TV3’s Response to the Complaint

TV3 dealt with the various aspects of the complaint in the order in which they had been set out in the Waitemata Health’s complaint.

Breach of Verbal Agreement

TV3 denied that 20/20 had any verbal agreement with Waitemata Health in relation to Ms Kill’s interview. It said that it had accepted assurances from the reporter and comments from the programme’s Executive Producer that there was no such agreement.

Standards G1, G6 and G14

TV3 then said Waitemata Health had not provided any evidence that Ms Kill’s words had been taken out of context, or of any public hysteria created by the item.

TV3 considered that all the examples Waitemata Health had cited of inaccurate and unfair reporting were in fact both accurate and fair. It also considered that there was no breach of broadcasting standards caused by the fact the item did not put forward the positive benefits of the Health Information Privacy Code or the positive aspects of New Zealand’s mental health system. TV3 observed that the item was "about the death of two young men, not about the general state of mental health services in New Zealand".

Standards G2 and G13

TV3 considered whether each of the quotations selected by Waitemata Health had breached standard G2 or G13. In its view, all the comments were either factual or genuinely held opinion, and well within standards of good taste in relation to the language used.

Standards G4, G7, G19 and G20

TV3 responded to these aspects of Waitemata Health’s complaints as follows:

Your letter does not identify the manner in which these alleged breaches may have occurred.

TV3 also said that it had considered whether the broadcast of the reconstruction of Lachlan Jones leaving the psychiatric unit breached standard G7. It explained that:

The stylised nature of the footage – filmed low, revealing only the body, never the face – is a familiar device in New Zealand news and current affairs programmes to indicate the filming was creative, not actual documentary footage. It is not customary for 20/20 to key the word "reconstruction" over such sequences unless there is real doubt about their authenticity.

In TV3’s opinion, a reasonable viewer would have understood that the footage was a reconstruction.

Standard G5

TV3 advised that it could not determine the aspect of Waitemata Health’s complaint concerning alleged "fraudulent misrepresentation" about filming permission without further and better particulars. However, TV3 conceded that it did not have permission to film at the hospital. It did not consider this lack of permission contravened standard G5, as the shots were not of a controversial nature and no filming was done close by or inside Waitemata Health premises. TV3 added that the 20/20 team saw only a small number of people during filming and were approached by only one of those people. That person did not appear distressed, said TV3.

Standard G16

In response to the final aspect of the complaint about breaches of broadcasting standards, TV3 said it would be greatly concerned if patients were in fact panicked or distressed by the item or the filming at the hospital, but it was:

convinced that [the item was] accurate, fair and in the public interest… [and] …therefore that if any alarm was created it was not "unnecessary".

It also noted previous decisions of the Authority which it said supported its conclusion that the standard was not breached.

Breach of the Coroners Act

Lastly, TV3 disagreed that it had breached the Coroners Act, saying that it had consulted with the Coroner, who had sanctioned the wording used in the item.

The Referral to the Authority

Waitemata Health commented on TV3’s response in its referral to the Authority.

At the beginning of its referral, it set out what it considered was relevant background. It said that it had communicated this information to TV3 before and during the interview with Ms Kill.

Waitemata Health said that "legislation, clinical codes and policies" had prevented it from telling Malcolm Beggs about Lachlan Jones’ health. It elaborated on this by noting its view that any comment it could make about Lachlan Jones’ death was restricted by the Coroners Act.

Next, Waitemata Health said that although it had a "permissive stance" regarding disclosing information about patients to family and established caregivers, it was also mindful of patients’ expressed wishes. In this case, Lachlan Jones was "adamant that he did not wish his father to be involved". Waitemata Health said TV3 was aware of this. It noted that mental health workers were not always successful in their attempts to encourage patients to share personal information with others.

Waitemata Health then observed that the interview with Ms Kill had taken place in advance of a planned external enquiry. Accordingly, it said:

It was not possible to pass any fair, reasoned and informed opinion or judgment. However, we believed we were in a difficult situation because a refusal to appear would be interpreted as an admission of "something to hide".

The next of Waitemata Health’s points concerned the reasons it said it did not respond to Lachlan Jones’ father’s comments about lack of consultation with him. It cited the Health Information Privacy Code and professionalism as explanations.

Waitemata Health then detailed the environment in which clinicians decide whether to detain a patient, and patients’ ability to resist efforts to effect clinicians’ wishes.

Commenting on specific aspects of TV3’s response, Waitemata Health began by advising that it disagreed with TV3’s contention that there was no verbal agreement in relation to the interview with Ms Kill. While conceding that TV3 had not verbally agreed to the stated conditions for the interview, Waitemata Health said that its silence when the request was made "undoubtedly amounted to an agreement to the specific conditions".

As to TV3’s suggestion that there was no public hysteria following the item’s broadcast, Waitemata Health said:

the Mental Health Commission, the Mental Health Foundation and Mental Health Services across the country all had to contend with very upset mental health consumers who felt vulnerable and at risk as the result of the tone and bias of this programme.

Next, Waitemata Health referred to the statement made in the item that "Lachlan Jones had murder in his mind". It disagreed that this was correct, commenting that mental health was not a continuous state of acute illness, but instead was "episodic".

Waitemata Health repeated its contention that it had not been dealt with fairly and justly by TV3. The broadcaster had, it said, implied that Waitemata Health was grossly negligent. It continued:

We assert that TV3’s tone and selection of material was biased to a preconceived thesis that we had irresponsibly released Lachlan Jones knowing that he was intending to murder someone.

Waitemata Health observed that it had conveyed its opinion to TV3 that it would be difficult to broadcast a balanced and fair story on Lachlan Jones until the Coroner’s findings about the case had been released. It noted that since the broadcast, the Coroner had ordered the media not to release any information about the circumstances of Lachlan Jones’ death.

In relation to standard G5, Waitemata Health again disagreed with what had been said by TV3. It said: 

20/20 not only recorded without consent outside a mental health unit on our property where they were observed by patients and staff, they also lied when challenged, saying [Waitemata Health] had given them permission when [it] had not.

Waitemata Health then repeated its view that the filming had upset patients. It noted that 20/20 programme makers had the opportunity to ask for filming permission. Finally, Waitemata Health commented that it considered it was no defence that the woman who approached the 20/20 team while they were filming was described as not being distressed, saying that its staff were trained to remain calm and neutral in their demeanour "whatever the circumstance".

TV3’s Response to the Authority

In TV3’s report to the Authority, it made the following comments. First, in relation to questions about whether Waitemata Health ought to have disclosed information to Lachlan Jones’ father or Malcolm Beggs, it said it believed the issue had been dealt with satisfactorily in the programme. It said that the reporter had stated that Waitemata Health considered the privacy of the patient to be paramount. Then, it continued, Ms Kill, Lachlan Jones’ father and Malcolm Begg’s sister had each commented on this point in the item.

Regarding the matter of the enquiry which was to take place about the deaths, TV3 said that this was noted in the item and Ms Kill was also able to make the point that a more informed judgment could be made after the enquiry had been concluded.

Next, TV3 observed that Lachlan Jones could have been detained and, with hindsight, should have been detained.

Then, TV3 denied that 20/20 programme makers had any agreement with Waitemata Health concerning the interview with Ms Kill. Although they concurred that Ms Kill had stated a desire to express her condolences, TV3 said no consent had been given to this effect, adding:

Naturally Waitemata Health found itself in a difficult position; whether or not to consent to an interview on a subject where there were privacy constraints. However, even though Bette Kill faced dilemmas on how to answer the questions, the Committee feels it is unrealistic for Waitemata Health to expect either the interviewer or the programme itself to avoid all matters of contention.

TV3 contended that the point had been made in the item that many mentally ill people lived in the community, the inference being that they did so safely. It disagreed with Waitemata Health’s assertion that this point had not been presented.

As to the use of Lachlan Jones’ clinical notes, TV3 said the fact Waitemata Health had complained that comment on these was not sought from it did not sit well with the assertion made in the referral that Waitemata Health did not wish to receive questions which made particular reference to Lachlan Jones. TV3 also disagreed that the 20/20 programme makers had chosen extracts selectively which "bolstered their preconceived thesis", saying the extracts used were in keeping with the tenor of the rest of the clinical notes.

TV3 then commented on Waitemata Health’s allegation that 20/20 programme makers were biased to a preconceived thesis that Lachlan Jones had been irresponsibly released knowing he intended to murder someone. This, it said, was a serious charge, and quite wrong. TV3 said the item had said, in effect, that Lachlan Jones was released in the knowledge that he had been having murderous thoughts and that, in hindsight, this was a wrong decision "because he did, in the end, commit an act of irrational murder".

Finally, TV3 said it agreed that 20/20 programme makers admitted that they had not sought permission for filming the exteriors of the psychiatric unit. It apologised for this.

Waitemata Health’s Final Comment

In its final comment, Waitemata Health reiterated its view that there was a binding agreement about the broadcast of a full statement by Ms Kill. It contended again that silence by the film crew at the time amounted to assent by TV3 to Waitemata Health’s "condition" regarding the broadcast of the statement.

Next, Waitemata Health noted that it only received an apology from TV3 about filming without permission after it had referred the matter to the Authority.

Waitemata Health then repeated its observation that the Coroner had made orders restricting media reporting about the deaths of Malcolm Beggs and Lachlan Jones "presumably because he was concerned about the breaches by the media".

In response to TV3’s comments about the use of extracts from Lachlan Jones’ medical notes, Waitemata Health commented that TV3 did not reveal how much of the file on Lachlan Jones it had obtained "illegally".

Waitemata Health also commented that it thought a reasonable member of the public would have concluded, after viewing the item, that it had irresponsibly released Lachlan Jones, knowing that he was about to murder someone.

Waitemata Health then assured the Authority that it did not wish to "stifle debate" about the deaths, which it said would be reported "once the case [was] dealt with in the Coroner’s Court". However, in its view:

TV3 went to air with a documentary that was in effect demanding immediate answers [from Waitemata Health] when it knew they could not be given for legal reasons, within two weeks of the tragedy, and the police were still investigating.

The Authority’s Findings

Waitemata Health contends that standards G1, G2, G4, G5, G6, G7, G13, G14, G16, G19 and G20 of the Television Code of Broadcasting Practice were breached. In a number of instances, the matters relied upon as constituting breaches under different standards are the same. In the Authority’s view, the relevant issues are most appropriately dealt with under standards G1, G4 and G6. The Authority is also satisfied that, except where otherwise stated in this decision, the matters raised under standard G4 are best dealt with under standard G6 and it has subsumed them accordingly.

Standard G1 – accuracy

Waitemata Health contended that several statements made in the item were inaccurate, and that further inaccuracies resulted from the way Ms Kill’s interview was edited and interpreted.

However, Waitemata Health submitted that it was unable to provide the information necessary to demonstrate these inaccuracies due to the Health Information Privacy Code. Waitemata Health singled out three statements on the programme as demonstrating inaccuracies:

"…the Mental Health Service… allowed Lachlan Jones out into the community, free to kill."

"…nurses had visited Malcolm’s house daily to deliver medication to Lachlan, though no one bothered to make sure he took it."

"Malcolm had been deliberately kept in the dark."

The Authority notes Waitemata Health’s points that:

it was Lachlan Jones’ legal right to choose to leave its inpatient service;

it was unfair to suggest that nursing staff did not care whether Lachlan Jones took his medication; and

Waitemata Health did not deliberately keep Malcolm Beggs in the dark.

The Authority is not persuaded that the programme breached standard G1. Certainly the language used was emotive, and perhaps capable of pejorative out-take. But in the Authority’s view it was not necessarily inaccurate or misleading. To the extent that the statements complained about raise issues of fairness or balance, it considers they are best dealt with under standard G6.

The Authority concludes that standard G1 is not breached on this occasion.

Standard G6 – balance, fairness and impartiality

Waitemata Health contended that the item was unbalanced and unfair because the tone and selection of the programme material was biased. Specifically, Waitemata Health claimed that: 

20/20 programme makers had failed to honour the verbal agreement which it believed was made with Ms Kill

The reporting in the programme contained inaccurate and misleading statements

Ms Kill was misquoted and her words were taken out of context

The selective use of medical notes was misleading and unfair

The item did not present positive elements of the mental health system or its privacy code

The item had caused unnecessary alarm and distress to some patients and caregivers living in the community.

The Authority deals first with the verbal agreement claimed to exist between Waitemata Health and 20/20 programme makers in relation to the interview with Ms Kill. As Waitemata Health put it, its agreement to interview was subject to conditions. These were "clearly stated and not refused by TV3". The conditions were that Ms Kill be allowed to:

express her condolences publicly;

state that there was to be an independent review; and

explain that Waitemata Health would implement any recommendations resulting from the review.

TV3’s position is that it never agreed to these conditions and it points out that "it would be extremely unusual for conditions such as these to be accepted" in such an interview.

Waitemata Health has acknowledged to the Authority that "it is true that Ms Pickersgill did not respond with a verbal ‘Yes, we agree’." But, it claimed, the response of the programme makers in proceeding with the interview in the knowledge of those conditions amounted to an agreement. In the Authority’s view, if those pre-conditions to interview were so fundamental to Waitemata Health, then agreement to them should have been unequivocally plain. But, even on Waitemata Health’s version of what occurred, it is clear that no agreement to those conditions was expressly made by TV3. The Authority is not persuaded that this is a case where that agreement could be safely implied. It concludes that the selection of material to be broadcast was a matter for the editorial judgment of the programme makers unfettered by the pre-conditions which Waitemata Health sought to impose.

The Authority’s next task is to consider whether the omission of aspects of Ms Kill’s interview resulted in any imbalance in the item. The Authority observes that the programme was made from the viewpoint of the families of Malcolm Beggs and Lachlan Jones. The 20/20 presenter introduced the item as:

…a story on behalf of two devastated families mourning the deaths of their sons. Two families who say their sons would be alive if it were not for failings in the mental health system.

The Authority does not consider that the failure to broadcast certain aspects of the interview with Ms Kill resulted in any imbalance, given this focus. In addition, it finds that substantial parts of the interview were referred to on the programme, and Waitemata Health had, thereby, the opportunity to put its point of view.

The Authority deals next with the particular statements which were complained about by Waitemata Health. It finds that the language used was emotive and there was content from which pejorative inferences could be drawn. Taken together, the following statements might be interpreted as revealing a bias against Waitemata Health:

"…the Mental Health Service… allowed Lachlan Jones out into the community, free to kill."

"…nurses had visited Malcolm’s house daily to deliver medication to Lachlan, though no one bothered to make sure he took it."

"Malcolm had been deliberately kept in the dark."

"A bloody murder in a bedroom of this Henderson house. Inside, a young man … his life snuffed out by a madman with an axe"

The Authority considers that the first three of these statements required balance. It is also satisfied that the opportunity was indeed given to Waitemata Health to respond, through its spokesperson, Ms Kill. In response to the reporter’s question about how the signs of Lachlan Jones’ deteriorating condition had been missed, Ms Kill said "I don’t know". Ms Kill was also asked why Lachlan Jones’ privacy was more important than letting his father know of his condition or Malcolm Beggs’ safety. In the Authority’s view, the reporter directly raised the key issues requiring balance with Ms Kill, and she was given an opportunity to address them. The final statement referred to did not raise an issue critical of Waitemata Health and, although emotive, did not require any balancing input.

The Authority turns next to the issue of the medical notes. Waitemata Health contended that the extracts were misleading and the use of the notes unfair. The Authority accepts that the extracts used on the programme did not necessarily constitute the complete medical record. However, it is hampered in coming to any conclusion about this part of the programme because Waitemata Health did not provide the Authority with any information which demonstrated the inaccuracy complained of. The Authority is satisfied that the programme makers had sufficient material before them on which to base their claim that Lachlan Jones was in a "dangerous state of mind" and from which they could legitimately raise the question which they then posed:

All of this raises the question why Lachlan Jones was ever allowed to leave the unit in the first place.

Implicit in Waitemata Health’s objection is that it was unfair to use the notes in this way. If that objection relates to the use of the notes per se, then the Authority observes that if some breach of confidentiality or privacy code has occurred, that is a matter for the appropriate authorities. But so far as the broadcast is concerned, neither the source nor the content has been shown to be unreliable. As to content the Authority observes that the issues raised were put to Ms Kill in a general way and she answered them as best she could. Perhaps the public would have been better informed had the content of the notes been put directly to Ms Kill, but this alone does not suffice to breach the standard in the Authority’s view.

As to Waitemata Health’s contention that TV3 ought to have included material about the positive aspects of the mental health system or the Health Information Privacy Code in the programme, TV3 submitted that it did not consider such material to be relevant to this particular story. TV3 contended that the item was about the death of the two men, not the general state of mental health services in New Zealand. The Authority accepts TV3’s submissions on the point and expresses the view that the exclusion of the information which Waitemata Health believed should have been canvassed was a matter for the programme makers’ editorial judgment.

The Authority declines to uphold this aspect of the complaint.

Other standards

The Authority makes four further points. First, in relation to the contentions made about public alarm, the Authority is not satisfied that there was any unnecessary distress or panic as contemplated by standard G14. The documentary was a factual item and although some patients in the community may have had some concern, the Authority concludes that the wider general public, which it considers is contemplated in the Television Code, would be unlikely to have been affected by it.

Secondly, the Authority records that it does not consider that the mentally ill were portrayed in the item as inferior. In its view, that group of people was portrayed as being in need of care. Standard G13 concerning discrimination and denigration is not threatened.

Thirdly, the Authority notes that TV3 accepts that some filming took place without permission. The Authority considers that while this was potentially discourteous, it does not of itself transgress any broadcasting standards.

Finally, the Authority considers the allegation that the broadcast contravened section 29 of the Coroners Act and was thereby in breach of standard G5. It accepts TV3’s assurance that the content of the programme in relation to Lachlan Jones’ suicide was referred to and approved by the Coroner prior to the broadcast. That seems to satisfy the requirements of section 29 of the Act. In those circumstances, there can be no ground for a complaint that the broadcast breached standard G5.

 

For the reasons set forth above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

 

Sam Maling
Chairperson
4 May 2000

Appendix

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

1. Waitemata Health’s Complaint to TV3 Network Services Ltd – 8 October 1999

2. TV3’s Response to the Formal Complaint – 8 November 1999

3. Waitemata Health’s Referral to the Broadcasting Standards Authority – 1 December 1999

4. TV3’s Response to the Authority – 6 January 1999

5. Waitemata Health’s Final Comment – 24 January 2000