BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

An item on One Network News on 31 March 1998 reported the findings of the Nursing Council following its investigation into a midwife’s management of the delivery of a baby who subsequently died. The item reported six adverse findings which the council had allegedly made on the midwife’s care and treatment.

Jean O’Neil, the midwife referred to, complained to Television New Zealand Limited, the broadcaster, that the report was inaccurate and unfair because it failed to acknowledge that some of the charges were not upheld, and it portrayed her as guilty of charges on which she had been exonerated.

TVNZ responded that the report was wrong on two matters of fact. It upheld the complaint and offered an on-air apology on One Network News. TVNZ wrote that it deplored the sloppy and careless reporting, and the reporter had been made aware of his failings.

Dissatisfied with TVNZ’s failure to implement its apology, Ms O’Neil referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint that the action taken was insufficient and orders Television New Zealand Limited to pay costs to the Crown in the sum of $500.00.

Decision

The members of the Authority have watched a tape of the item complained about, and have read the correspondence (which is summarised in the Appendix). On this occasion, the Authority determines the complaint without a formal hearing.

The adverse findings from the Nursing Council’s investigation into a midwife’s management of the delivery of a baby who later died were reported on One Network News. The item, which included an on-screen graphic of six findings, was broadcast on TV One on 31 March 1998 between 6.00–7.00 pm. It also reported that the midwife had "botched" the delivery of the baby, and had delayed seeking specialist opinion.

Ms O’Neil complained to TVNZ that the item was inaccurate and unfair. She wrote that it failed to acknowledge that some of the charges were not upheld, and it portrayed her as guilty of charges from which she been exonerated. She sought an apology, and the broadcaster’s agreement to refrain from any further broadcasting of anything relating to the case.

The broadcaster advised that it had assessed the complaint in the context of standards G1, G4, G14 and G19 of the Television Code of Broadcasting Practice. The first two require broadcasters:

G1 To be truthful and accurate on points of fact.

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

The latter two standards provide:

G14 News must be presented accurately, objectively and impartially.

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.

TVNZ wrote that it had studied the decision of the Nursing Council and viewed the news item, and it agreed that the item was incorrect on two points.

The broadcaster upheld the complaint by accepting that a breach of standard G1 had occurred and that, as a consequence, the other nominated standards were infringed also. Apologising for the distress which had been caused by the broadcast, TVNZ offered to acknowledge fault in the form of an on-air apology on One Network News. TVNZ said that it wanted to be sure that the complainant approved that course of action and, noting that the apology needed to be placed in the context of the Nursing Council report, asked Ms O’Neil whether she was sure she wished to have that matter raised again.

TVNZ sought written confirmation from the complainant that she would like the apology to be broadcast. It concluded that the matter had been taken very seriously and that it had deplored what it called the sloppy reporting which resulted in the broadcast.

When referring the matter to the Authority, the complainant said that she had serious doubts about the sincerity of the apology expressed by TVNZ, in view of what had occurred since its letter was written. She said that she had made various attempts to contact TVNZ since receipt of its letter. On 27 May, she wrote, the verdict and penalty of the Nursing Council was released to the media. She was anxious to speak to the nominated TVNZ spokesperson, Ms O’Neil continued, and made various calls to him, leaving messages and "trying to locate him without any reply to date". She stated that having:

…already had TVNZ crew unannounced on my doorstep in the middle of the day I presumed there would be reference to me on the evening news and I wished to confer with [the nominated spokesperson] so that this offered apology could be tendered at the same time as the verdict in the news programme.

The complainant also expressed concern at TVNZ’s statement that its apology "must necessarily" be placed in the context of the Nursing Council report. Stressing that an apology was an expression of regret for a fault or failing, with the emphasis on the apologiser, Ms O’Neil wrote that the statement felt like a threat that if she insisted on a public apology it would be granted but that TVNZ would also "rehash" the whole matter.

Questioning what was involved when a reporter was made "fully aware of his failings", as had been advised to her by TVNZ, she asked whether there was an actual deterrent against this happening in some form again. The complainant also asked whether it would be unreasonable to require the "offensive footage" to be removed from all of the archives.

In its report to the Authority, TVNZ expressed disappointment that the complainant saw its offer to broadcast a correction and apology as a threat. Conscious that Ms O’Neil was feeling tormented by the media attention her case was receiving, TVNZ wrote that it felt that she might not have wished to place the matter before viewers again. If an apology or correction was to make any sense, it had to refer to the subject of the offending item, it concluded.

The broadcaster noted that none of the parties had been aware that the decision of the Nursing Council (on the penalty to be imposed on Ms O’Neil) was to be announced on 27 May. When it was announced, it was a story which, in the public interest, had to be included in its evening news, TVNZ continued. Included within that story, it wrote, was the corrected version of the information which had flawed the earlier news item. For some reason, TVNZ and the complainant were unable to make telephone contact, it maintained. With her concerns at the forefront, the decision was made to broadcast the corrected information without drawing extra attention to Ms O’Neil, the broadcaster contended.

Concluding with a wish not to cause the complainant further hurt, TVNZ emphasised that her case was clearly one of considerable public interest and concern. To have failed to follow her case would have been a dereliction of its obligation to the viewing public, it wrote.

The Authority notes that the broadcaster found that the news item was incorrect in its reporting of two aspects of the Nursing Council decision. TVNZ accepted that standard G1 had been infringed, and, as a consequence, that standards G4, G14 and G19 were also infringed. TVNZ, the Authority also notes, proffered a personal apology to Ms O’Neil. It also acknowledged, and the Authority takes its acknowledgment into account:

This matter has been taken very seriously by TVNZ and the sloppy and careless reporting has been deplored at the most senior editorial level. You can be assured that the reporter has been made fully aware of his failings.

Finally, the Authority notes, the broadcaster offered an on-air apology, for which it sought to obtain the complainant’s approval before proceeding. The broadcaster contended, and the Authority appreciates, that any on-air apology necessarily required the report of the Nursing Council to be raised again, to provide some context to the apology.

In the Authority’s view, the steps which the broadcaster was intending to take to this point were entirely reasonable. However, the events which then unfolded led to a further broadcast, in which the broadcaster failed to acknowledge the error it had made in its earlier broadcast. The Authority acknowledges that TVNZ went to air on 27 May with a corrected version of its flawed broadcast of 31 March, but it did so in a way which did not address the breach, and which was silent about its own earlier erroneous reporting. Its failure to address this issue in the 27 May broadcast was serious, in the Authority’s view, for the news item arose out of a high profile and tragic media case. The Authority considers that TVNZ had an obligation to remedy its breach at the first opportunity. The Authority accepts that TVNZ unavoidably had to delay broadcasting an apology while seeking the approval of the complainant. It also understands that events somewhat overtook these negotiations through no fault of the broadcaster, and that it made genuine efforts to respect Ms O’Neil’s wishes when compiling its subsequent report. However, the Authority considers that efforts made to make contact with Ms O’Neil for her urgent and necessary input in relation to the apology were seriously deficient, and notes with concern that she made repeated efforts to communicate on the day in question, to no avail. It considers that the onus was on the broadcaster to negotiate an acceptable outcome for both parties, as a matter of priority, and notes with concern that it failed to do so.

Whatever its original intentions, the Authority considers the result of the broadcaster’s failure to contact Ms O’Neil meant that it compounded its initial breach. Consequently the Authority considers the action taken by TVNZ to have been inadequate.

The Authority briefly refers to the "other matters" in the broadcast which the complainant alleged were untrue. These related to the on-air statements that the complainant "botched" the baby’s delivery, and that she was the instigator of a 40-minute delay at the time of the baby’s delivery. On the first of these matters the Authority is not prepared to uphold the complaint. In its view, the general description of this tragic affair as a "botched" delivery was reasonable in the circumstances. On the second issue, the Authority does not consider that it has sufficient available material to enable it to consider the matter. It therefore does not determine this aspect of the complaint.

Finally, the Authority notes Ms O’Neil’s wish, in her negotiations with TVNZ, for the broadcaster to desist from future reporting on the case, and others, in which she was involved, and her further wish that certain archival footage of her be destroyed. The Authority does not consider that it would have been appropriate, or in the public interest, for TVNZ to cease referring to matters in the public arena in which she was involved. Nor does it consider it desirable for archive footage to be destroyed.

For the reasons set forth above, the Authority upholds the complaint that the action taken by Television New Zealand Limited was insufficient.

Having upheld a complaint, the Authority may impose an order under s.13(1) or s.16(4) of the Broadcasting Act 1989. It invited submissions from TVNZ and the complainant on the question of penalty, and it has taken their submissions into account in considering penalty.

In its consideration of penalty, the Authority considers first the submission that the broadcaster should pay monetary compensation to Ms O’Neil resulting from the Authority’s finding that the action taken by the broadcaster was insufficient in the circumstances. The Authority notes that s.13(1)(d) of the Broadcasting Act 1989 empowers it to direct a broadcaster to pay compensation to an individual where the Authority has found "that the broadcaster has failed to maintain, in relation to that individual, standards that are consistent with the privacy of that individual". In this instance, the Authority notes that Ms O’Neil’s complaint was not concerned with a breach of privacy. Accordingly, the Authority is not empowered to make an order for the payment of compensation.

The Authority turns next to consider Ms O’Neil’s request that the broadcaster be ordered to refrain from using film footage of her in future. As it noted earlier in this decision, the Authority does not consider this action would be appropriate.

Finally, the Authority, having reviewed the material provided to it, and taking into account the broadcaster’s compounding of its initial breach by its later failure to contact the complainant, considers that the broadcaster’s actions call for an award of costs to the Crown under s.16(4) in the sum of $500.00.

Orders

The Broadcasting Standards Authority orders Television New Zealand Limited, under s.16(4) of the Broadcasting Act 1989, to pay within one month of this decision costs in the sum of $500.00 to the Crown.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
12 November 1998

Appendix

Jean O’Neil’s Complaint to Television New Zealand Ltd – 17 April 1998

Ms O’Neil of Lower Hutt complained to Television New Zealand Limited about an item broadcast on One Network News between 6.00–7.00 pm on TV One on 31 March 1998. The item reported the findings of the Nursing Council of New Zealand following an investigation into the professional conduct of Ms O’Neil. The council had investigated her midwifery care of a woman whose baby had died some five weeks after his birth.

The complainant wrote that the item had included an on-screen graphic which purported to be the decision of the Nursing Council. The graphic, she continued, displayed the following writing:

"…guilty of professional misconduct"

"…you failed to appropriately monitor Mrs [M’s] pregnancy…"

"failed to arrange heart beat tracing for 20 minutes"

"failed to act on abnormal tracing"

"delayed specialist opinion"

"unprofessional and inappropriate".

Ms O’Neil claimed that the Nursing Council had provisionally found her guilty of professional misconduct but had exonerated her with respect to the monitoring of Mrs M’s pregnancy. Further, she stressed, there had been a finding that she did not act unprofessionally or inappropriately. Those findings were clearly outlined in the opinion which had been provided to the media by Mrs M and her husband, she maintained.

Its failure to accurately report the Nursing Council’s findings resulted in the broadcaster breaching a number of the broadcasting standards, Ms O’Neil wrote. The reporting was not truthful and accurate on points of fact, she contended, and the inaccuracies resulted in her not being treated justly or fairly. In addition, the news item showed her in the worst possible light and did not acknowledge that half the charges against her were not upheld, she continued. The slanting of the reporting, she claimed, portrayed her as guilty even of charges on which she had been exonerated. That was not impartial, objective or fundamentally honest reporting, she wrote. Finally, she noted, the extracts used in the item did not accurately or truly reflect the decision of the Nursing Council and wilfully distorted the true facts.

Other matters in the broadcast were also untrue, Ms O’Neil wrote. She did not "botch" the baby’s delivery. The 40-minute delay occurred after she had sought help, she continued, while waiting for the obstetrician to arrive and decide to proceed to a caesarean delivery.

Ms O’Neil requested an apology, and that TVNZ refrain from broadcasting further material related to the case.

TVNZ’s Response to the Formal Complaint – 18 May 1998

TVNZ considered the complaint under standards G1, G4, G14 and G19 of the Television Code of Broadcasting Practice, as had been nominated by the complainant.

The broadcaster wrote that it had studied the decision of the Nursing Council and had viewed the broadcast. It agreed that the item broadcast was incorrect on two points. Its programme reported that Ms O’Neil "failed to appropriately monitor Mrs M’s pregnancy", TVNZ said. The Nursing Council’s decision, it conceded, was that the Council was not satisfied that the particular accusation had been proved to the required standard of proof.

The broadcaster noted the programme’s report that Ms O’Neil’s behaviour after the birth was "unprofessional and inappropriate". It admitted that the Nursing Council report did not make that finding but, rather, made no finding on that aspect of the complaint.

TVNZ accepted that a breach of standard G1 had occurred and that, as a consequence, the other standards cited by Ms O’Neil had also been infringed. It therefore upheld the complaint.

Apologising for the distress caused to her by the broadcast, TVNZ wrote that it was prepared:

…to acknowledge fault in the form of an on-air apology on One Network News. That we have not already made that apology (having upheld the complaint) is because we want to be sure that you approve that course of action. The apology must necessarily be placed in the context of the Nursing Council report and we are unsure whether you are prepared to have that matter raised again.

If you would like the apology to be broadcast, please write….

This matter has been taken very seriously by TVNZ and the sloppy and careless reporting has been deplored at the most senior editorial level. You can be sure that the reporter has been made aware of his failings.

Ms O’Neil’s Referral to the Broadcasting Standards Authority – 8 June 1998

Dissatisfied with TVNZ’s response, Ms O’Neil referred her complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

The complainant noted TVNZ’s written apology and expressed her appreciation of the courtesy and consideration shown by the broadcaster’s programme standards manager. She however expressed doubts about the sincerity of the apology in view of subsequent events. On 27 May, she wrote, she attempted on a number of occasions to contact a spokesperson for TVNZ, as had been suggested by the broadcaster. On that day, the Nursing Council verdict and penalty in her case was publicly announced, Ms O’Neil advised. She was anxious, she wrote, to ensure that TVNZ’s apology could be tendered during that evening’s news, as she presumed that the news would carry a reference to her case. To date, she reported, she had not had any reply from the TVNZ spokesperson to whom she been referred. Obviously the offered apology, Ms O’Neill wrote:

…was not to be included in TVNZ’s agenda, possibly diluting the sensational newsworthiness of my penalty. So in fact G4 "to deal justly and fairly with any person taking part or referred to in any programme" was infringed again.

Referring to TVNZ’s statement that its apology "must necessarily be placed in the context of the Nursing Council report", Ms O’Neil stated that her understanding of an apology was an expression of regret for a fault or failing, with the emphasis on the apologiser, not the victim. Questioning why TVNZ wanted to superimpose the guilty verdict upon its apology, she wrote:

This felt like a threat to me that if I insisted on a public apology it would be granted but they would also rehash the whole matter. The last thing I need at this time is to bring the case once more into the spotlight.

Asking what was involved when a reporter was "made fully aware of his failings", she referred to the Authority’s Decision 1998-41,42. There the Authority referred unfavourably to the tone of footage of Ms O’Neil used in a TVNZ programme, and yet, she said, that footage was still liberally used.

Concluding, the complainant requested that the offensive footage be removed from all archives. Otherwise, she wrote, the Authority’s findings were of little value. The penalty imposed by the Authority’s decision would not, she believed, deter any programme from defiling her and her profession.

TVNZ’s Comments to the Authority – 19 June 1998

Expressing disappointment that the complainant saw TVNZ’s offer to broadcast a correction and apology as a threat, the broadcaster wrote:

We were conscious … that Ms O’Neil was feeling tormented by the media attention her case had attracted. Because of this we felt that she may not wish to have the matter thrust before the viewing audience again in the form of an apology or correction which must – if it were to make any sense at all – make reference to the subject of the item which was at fault.

[The offer] was sincerely made. We knew we had made a mistake. We did not want to hurt Ms O’Neil by revisiting a subject without consulting her which she might have preferred to consider closed.

The broadcaster explained its version of the events of 27 May when, it wrote, efforts were made to contact Ms O’Neill. On that day, unknown previously to the broadcaster, the decision of the Nursing Council to strike her off the Midwives’ Register, but allowing her to continue nursing under supervision, was released. In the public interest, TVNZ continued, that story had to be included in the evening news. An editorial decision was then made to include "within that story the corrected information which had flawed the 31^st March story", it wrote.

Because "for some reason" Ms O’Neil and the TVNZ spokesperson were unable to make telephone contact with each other that day, the editorial decision was made to broadcast the corrected item, TVNZ maintained. It was felt that was the best way to handle the situation without drawing extra attention to Ms O’Neil.

Concluding, the broadcaster wrote:

We do not wish to cause Ms O’Neil further hurt, but we do question an attitude which seems implicit in her correspondence that somehow she has been unjustly pursued by the media. …[Her] case is clearly one of considerable public interest and concern. The outcome confirms that. …[To] have failed to follow her case would have been a gross dereliction of our obligation to the viewing public.

Ms O’Neil’s Further Comment – 17 June 1998

The complainant sought an apology, in the event that the Authority’s decision was found in her favour. However, she stressed, if an apology involved reiteration of the facts of the case, verdict and penalty, it failed to be an apology and only added to the distress that the media had caused her. Ms O’Neil wrote that she sought an apology "with no strings attached", an understanding that a breach of the code involved discipline of a deterrent nature, and that "offensive" video footage of herself held by the broadcaster be destroyed. She wrote:

The damage done to my person and profession cannot readily be reversed, I have received my penalty over and over again, and in this instance where…TVNZ…acted out of order, the focus of the discipline should surely be upon them and not causing further anguish and penalty to me.

Ms O’Neil’s Final Comment – 30 July 1998

Writing that she was agreeably impressed with TVNZ’s initial response to her complaint and its offer of an on-air apology, the complainant maintained that the complaint had been compounded subsequently by the broadcaster’s failure to uphold the offer.

She explained that TVNZ’s spokesperson referred her to a nominated spokesperson on 27 May, to further discuss the matter of the on-air apology. She received a message from him that "he would be around his office to take my call that day", she wrote. That was the day, previously unknown to both the complainant and the broadcaster, that the Nursing Council publicly released its penalty in her case. Because that "would have been an ideal time for an apology and for TV1 to identify that it had wronged" her, Ms O’Neil said that she increased her efforts to contact the nominated spokesperson. She wrote that she left numerous messages on his answer machine and with other staff. Notwithstanding those, she reported that the broadcaster chose in its news report of the penalty "to remind the nation of the errors previously reported by their TV1 News". The introduction, she wrote, was prefaced with the words "The Nursing Council didn’t uphold charges…" but it did not contain the hint of an apology. Ms O’Neil continued:

There is reference to the fact that half of the 10 charges laid against me were not upheld, and those [that] were sustained cumulated in the harsh sentence of professional misconduct. The presentation of the TV1 News programme infers that this professional misconduct was the cause of [the baby’s] death "[C] died 5 weeks later after a bungled birth"; that has never been the issue and no practitioner has had the gall to state that publicly.

She referred to a statement allegedly made in the same news broadcast by the leader of the Nurses Society that "some midwives feel the punishment should have been even harsher". How, she questioned, did that tally with TVNZ’s stated objective of finding the best way to handle the situation without drawing extra attention to her? The response she had had from countless midwives was contrary to that cited, as they considered that she had been treated with unprecedented harshness, Ms O’Neil wrote.

She contended that the Health and Disability Commissioner had used the complainant’s case, in the media, to illustrate her objections to the confines of the Nurses Act. The Nursing Council document, to which the media obviously had access, stated that its penalty would be published if there was no appeal within a specified time, the complainant continued. Instead, she maintained, the media chose to report the misleading comments of the Commissioner which implied that the Nursing Council would not inform the public of its decision. "The media relishes and presents only the sensational portions of the whole situation", she wrote.

The complainant concluded by reiterating her complaint that the broadcasts breached standards G4, G6, G13 and G16 of the Television Code of Broadcasting Practice.

Further Correspondence

The Authority wrote to TVNZ on 13 August 1998 inquiring whether the broadcaster considered that Ms O’Neil’s comments on its news broadcast of 27 May amounted to a second complaint. TVNZ responded, on 20 August 1998, that there had been no separate formal complaint lodged by Ms O’Neil concerning the 27 May broadcast. Her comments "should be seen as referring to the ‘action taken’ as a result of the complaint concerning the 31^st March item being upheld", it wrote. The broadcaster continued:

On 27^th May TVNZ was faced with an ideal opportunity to broadcast the corrected information when the Nursing Council released its decision on Ms O’Neil. There was no advance warning that this decision was coming out, and although we might have preferred to speak to Ms O’Neil before broadcasting the information which corrected the impression left by the 31^st March item, the priority was to get the information to air within a context in which it made sense, and the Nursing Council report was the ideal vehicle. Broadcasting the correct information in the setting of the Nursing Council report ensured that it could be included without causing any of the extra stress which might occur were it to be included in a "stand alone" situation.

On 9 October 1998, having decided to uphold the complaint that the action taken was insufficient, the Authority wrote to the complainant and the broadcaster inviting submissions on penalty.

The broadcaster, in a letter dated 13 October 1998, wrote:

Based on the diligent manner in which TVNZ tried to meet Ms O’Neil’s needs, and her stated wish for "no further perverse or otherwise coverage of myself", TVNZ submits that its decision to run a correct summary on 27^th May was not unreasonable and that therefore it is not appropriate for the Authority to impose a penalty on this occasion.

In her response dated 25 October 1998, Ms O’Neil urged the Authority to make an order that the broadcaster refrain from using the "dark and grey" film footage of her, leaving her home and "always shown in slow motion", at any future time. She wrote that she did not want a public apology "which includes a restatement of any of the matters surrounding the [M] case". Ms O’Neil sought an order for compensation of $3,000.00, under s.13(1)(d) of the Broadcasting Act 1989.

In seeking that order, she submitted that TVNZ had the Nursing Council’s entire interim decision and so had all the information necessary to publish the facts accurately and honestly. The broadcaster also, she wrote, did not accurately publish the charges. Its report also did not mention that she had been exonerated on some charges, she continued, and some of those she was found guilty of related largely to one matter. This, she submitted, coloured the opinion of many of the public against her, including potential nursing employers. Ms O’Neil pointed out that she was able now to practice nursing, but not midwifery, and she observed that her nursing practice had been destroyed. That, she accepted, was partly a result of the professional disciplinary findings, but "the untruthful portrayal by TVNZ" had not helped. She wrote that most people who watched the news expected a very high standard of reporting, and totally believed the accuracy of what they were told. Further, Ms O’Neil wrote, TV networks had entire staffs available to ensure accurate and true reporting, and fair treatment of those who were its subjects. That TVNZ made no effort to contact her when it was going to air with the Nursing Council’s final decision, despite her "increasingly frantic calls", was in her view a deliberate evasion. She wrote:

I was left with the impression that TVNZ were avoiding me and were not making any attempt to act in good faith regarding the profferred apology.

Ms O’Neil reiterated her difficulty in understanding why TVNZ made the error it did, when it had a full written copy of the decision. Its failure to correct its information, when it was informed of the error, and could have readily checked the veracity of the complaint and taken action to correct it, was a serious and blatant breach of broadcasting standards, she wrote. While making the reporter aware of his failings (as TVNZ reported it did) might make him more cautious in the future, she asserted, it did nothing to redress her situation.