BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The dismissal of HealthCare Otago general surgeon Mr Robert Phipps in November

1994, following HealthCare Otago's receipt of a report from the Royal Australasian

College of Surgeons which highlighted concerns about his assessment, judgment and

management of patients referred for rectal and colonic surgery, was examined in an

item on TV3's 20/20 broadcast between 7.30–8.30pm on 24 July 1995.

The Royal Australasian College of Surgeons complained to TV3 Network Services Ltd

that the broadcast distorted some facts and was seriously flawed in the way that the

College had been treated. It stressed that the item had not made clear that its report

had recommended retraining not dismissal. Further, the summary of the College's

letter given on the 'Mailbag' segment of 20/20 on 31 July was inadequate.

HealthCare Otago complained that the item was both unfair and unbalanced and that it

contained unsubstantiated allegations against Mr Phipps' former colleagues.

TV3 upheld the complaint from both complainants that the item implied, incorrectly,

that Mr Phipps had been recruited in London, rather than Auckland. However, it

denied that the item was unbalanced or had treated either of the complainants unfairly.

Further, it considered the synopsis of the College's letter broadcast in the 'Mailbag'

segment of 20/20 to be appropriate and the action taken on the aspect upheld to be

sufficient in view of the relative unimportance of the breach.

Dissatisfied that the complaints were not upheld in full, both complainants referred

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

1989. HealthCare Otago was also dissatisfied with the action taken by TV3 on the

aspect upheld.

For the reasons below, the Authority declines to uphold any aspect of the complaints

referred other than the one that the broadcast was unfair to HealthCare Otago in that

some of the specific allegations against Mr Phipps' former colleagues were not

substantiated. An order is not imposed as the Authority is of the view that the breach

was not major in the context of the total programme.

Decision

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

the extensive correspondence (summarised in the lengthy Appendices). As is its

practice, the Authority determines the complaints without a formal hearing.

In view of the aspect of HealthCare Otago's complaint which focussed on the manner

in which the interview with its Chief Executive (John Ayling) had been edited, the

Authority obtained from TV3 the full transcript of that interview. The Authority's

conclusions, having examined this material, are recorded below.

The Programme

The dismissal of general surgeon Robert Phipps by HealthCare Otago was the issue

covered in a three part item broadcast on TV3's 20/20 between 7.30–8.30pm on

Monday 24 July 1995. The programme included interviews with Mr Phipps and also

showed him with his family and at a public meeting arranged by his supporters. In

addition, it included interviews with some of his supporters and focussed on Jean

McLean, a former deputy mayor of Dunedin, who spoke very positively about Mr

Phipps' attributes as a breast surgeon.

HealthCare Otago was represented in the programme by John Ayling, its Chief

Executive. Some other comments about a number of the medical issues involved were

provided by John Simpson, Chair of the New Zealand Committee of the Royal

Australasian College of Surgeons, Professor Grant Gillette of the Otago Medical

School, Paul Anderson of Adelaide who was one of Mr Phipps' former colleagues at

HealthCare Otago, John Griffiths in London who was described as 'one of the world's

foremost colorectal surgeons', and Nurse Elaine Gousmett, described as an

experienced breastcare nurse. The programme showed Professor van Rij, head of

surgery at HealthCare Otago and Mr Phipps' supervisor, being approached for an

interview as he climbed into his car. He declined.

The item recorded that reports in the media at the time of Mr Phipps' dismissal had

noted that the dismissal was based on matters of patient assessment and management.

Having investigated the matter, the item advanced the case that a combination of

professional jealousy and poor staff relations, rather than questions of Mr Phipps'

competence as a colorectal surgeon, were the underlying reason for his dismissal.

Complaints about the programme were made by the Royal Australasian College of

Surgeons (RACS) and HealthCare Otago (HCO). The RACS also complained that its

letter sent to TV3 after the broadcast on 24 July, was dealt with inadequately on

20/20's 'Mailbag' segment broadcast on 31 July. When it referred its complaint to

the Authority, HCO complained as well about the inadequacy of TV3's action on the

aspect of the complaint which the broadcaster upheld.

The Complaint – Royal Australasian College of Surgeons (RACS)

Before the dismissal of Mr Phipps, the programme reported, HCO had obtained a

report from the RACS following professional concerns about Mr Phipps' ability as a

colorectal surgeon. The item also reported that although the report did not recommend

dismissal, its findings had been used by HCO – at a media conference – as the

justification for the dismissal. The item also suggested that there was ill-feeling

between Mr Phipps and Professor Andre van Rij (head of surgery at HCO) and

described Mr van Rij as a 'senior member' of the College.

In its complaint, the RACS objected to what it described as the item's implications

that its report was seriously flawed, and that it was neither impartial nor objective. It

objected particularly to what it saw as an implication that the report had suggested

dismissal. To the contrary, it described the report as constructive in that it had

recommended intensive supervision and retraining in colorectal surgery for Mr Phipps.

It also noted that the review team, in its preparation of the report, had examined 22

cases advanced by HCO and had spoken to a range of people. Mr Phipps, it added,

had initially provided, but had later withdrawn, a further ten cases for review.

Pointing out that the College did not have a 'senior member' category, the RACS said

the use of the phrase to describe Professor van Rij had implied that the report was

biased. It also complained about the item's suggestion that, after the dismissal, the

College had, on its own initiative, written to the Medical Council commenting as to

whether Mr Phipps should retain specialist registration. That letter, it explained, had

been written at the Council's request. The short space in the item (65–70 seconds)

given to TV3's interview with John Simpson (the College Chair), it added, was

inadequate to allow a fair presentation of a significant point of view. Further, the item

was inaccurate when it suggested that Mr Phipps had come to his position in Dunedin

from England when, in fact, he had taken up the position from Auckland.

The RACS noted that some of its objections had been reported in 20/20's 'Mailbag'

segment on 31 July. However, it wrote, the report on that occasion had been an

inadequate summary of the letter. The items, overall, it said, had breached s.4(1)(d) of

the Broadcasting Act 1989 and standards G1, G4, G6 and G20 of the Television Code

of Broadcasting Practice.

The Complaint – HealthCare Otago (HCO)

John Ayling, HCO's Chief Executive, began the complaint by reporting that the

organisation was 'extremely angry' at the ethical standards displayed in the item. He

explained:

I agreed to participate in the programme on the condition that it was clearly

understood that Mr Phipps would be pursuing his personal grievance with

HealthCare Otago through the Employment Tribunal and that I would not be

able to comment on matters relating to Mr Phipps' dismissal. This was agreed.

On camera, TV3 proceeded to present allegations, information and documents

including patient notes which appeared to have been supplied to them by Mr

Phipps and expected me to respond spontaneously to these. In spite of an

undertaking at the conclusion of the interview that these documents would be

passed on to HealthCare Otago so that the allegations could be properly

investigated, this never happened.

The complaint also pointed out that Mr Phipps was recruited from Auckland, not

London, as the item suggested, and it said that Professor van Rij had been harassed

when approached for an interview at his home.

Mr Ayling objected to the 'unsubstantiated allegations' in the item about Mr Phipps'

former colleagues at HCO and the reference to one preventable death, without making

any attempt to speak to the family involved. Nurse Gousmett's comments during the

programme about the Otago/Southland breast care screening programme were

incorrect, it stated, and she had never worked for HCO or Mr Phipps. The issue of

operating rights for Mr Phipps at Mercy Hospital noted in the item, Mr Ayling

wrote, had nothing to do with HCO.

Noting that Mr Phipps had been interviewed while with his wife, his children and

even the family cat, Mr Ayling concluded:

Finally, there is the issue of the way the programme was edited. I was

interviewed on camera for 45 minutes. As part of that interview I explained

very carefully the reasons for Mr Phipps' dismissal. I also explained the

reasons that personal information relating to individual patients contained in the

Royal College of Surgeons' report could not be discussed publicly. All of this

footage was edited out. The only comments used were ones where after

repeated questioning about personal information, I was forced to repeat my

response until I began to sound slightly abrasive and look defensive.

TV3's Response – Royal Australasian College of Surgeons

TV3 acknowledged that the item was in error when it reported that Mr Phipps had

been recruited from England. However, describing the error as insignificant in the item

overall, it declined to take any further action.

Referring to correspondence from Professor van Rij to the Medical Council about Mr

Phipps written in 1994, TV3 said, first, that the item did not carry any bias in its

description of the Professor, and secondly, if it did so, it was justified.

TV3 said that the item made it clear that HCO had requested a report from the RACS

and that the report did not recommend Mr Phipps' dismissal. It added that the

following point made in the item was a matter of public record:

What the programme did say was HealthCare Otago took it upon itself to use

the report as the basis to sack Mr Phipps.

TV3 said the item explored the motives for seeking the report and advanced some of

the matters raised by Mr Phipps when he questioned its accuracy on specific points.

As Mr Simpson (the College Chair) had refused to respond to the key questions, for

example, about the inconsistencies between the comments in the report and the

patients' notes, TV3 argued that he had limited his presence in the programme. He

had stood by the report's conclusions and he was shown doing so. That stance, TV3

added, was contained in the RACS letter to 20/20 which was reported adequately in

the following week's 'Mailbag' segment.

TV3 declined to uphold any aspect of the complaint from the RACS other than the

accuracy aspect regarding Mr Phipps' arrival in Dunedin.

TV3's Response – HealthCare Otago

Acknowledging again that it was possible to interpret the item to suggest that Mr

Phipps came to Otago directly from London, TV3 upheld that aspect as a breach of

accuracy. It declined to uphold any other aspect.

Nurse Elaine Gousmett, it wrote, who spoke strongly in favour of Mr Phipps during

the item, was interviewed as an experienced breastcare nurse – not as an HCO

employee. Further, Mr Phipps' duties were described correctly and the reference to

Mercy Hospital (where Mr Phipps had later worked) was relevant to the item. TV3

also argued that each allegation made in the item about Mr Phipps' former colleagues

could be substantiated.

TV3 maintained that it was not constrained in the questions it could ask of Mr Ayling,

and, as it had agreed not to pass on the material it had been given, it had not done so.

It also disagreed that any of HCO's staff had been harassed. Professor van Rij was a

central figure and his refusal to be interviewed was respected. However, as a visual

was considered necessary, TV3 had obtained one.

TV3 said that it had been careful not to identify individual patients and, accordingly, it

had taken care when it had invited Mr Ayling to comment on the discrepancies in the

report and the patients' notes. Because Mr Ayling elected not to comment on some

matters as he felt patient privacy could be compromised, TV3 denied that he had been

dealt with unfairly. Describing the shot of the Phipps family cat as a 'cut away' and

maintaining that HCO had presented its side of the case to the extent that it believed

that it was able, TV3 contended that the requirements in the standards for balance

were not transgressed.

Referral of the Complaints to the Authority

In its referral, the RACS emphasised that the item had suggested that the College had

conducted a witch-hunt against Mr Phipps. The review team, it stressed, was

objective and impartial and comprised surgeons who neither knew Mr Phipps nor had

local knowledge.

More generally, the RACS was concerned about the way the item questioned its

integrity and the item's strong 'implication' of bias on the College's behalf. It

repeated its concern about the way the item described the reason why the College was

preparing a report for the Medical Council.

The College acknowledged that the item commented on three occasions that the report

did not recommend Mr Phipps' dismissal. Nevertheless, it maintained that the item

was unbalanced as although it had referred to the report at least 40 times, it had not

told the viewers what was in the summary and what were the recommendations.

As for TV3's argument that there was no compelling reason for Mr Simpson (the

College's Chair) not to respond to TV3's questions, the referral pointed out that the

RACS, at the time, was preparing a response for Mr Phipps and:

The College considers it would have been unethical if I had provided the news

media with the detailed information contained in this response before it had been

finalised and sent to Mr Phipps.

Noting that TV3 had not disclosed during the interview what it considered to be the

key questions, the RACS believed that 20/20's 'Mailbag' should have contained more

of the RACS' letter to counter the biased and misleading way the item had dealt with

the College.

In its referral, HCO expressed its dissatisfaction that TV3 had not addressed the

complaints adequately. Moreover, it believed a correction was appropriate on the

matter upheld as the incorrect information was included in the item on two occasions.

HCO considered the item was incorrect to state that Mr Phipps had been employed as

a breast specialist. Further, it maintained that the item implied that Nurse Gousmett

was employed by HCO as a breastcare nurse. Mr Ayling again objected strongly to

what he described as the programme's 'outrageous statements' about matters which

he considered were unsubstantiated allegations.

HCO considered the programme's message had been determined before Mr Ayling

was approached for comment. Mr Ayling denied that he had been unwilling to

comment on the documents produced. He had sought time to study them and had

been assured, incorrectly as it transpired, that he would be given them.

Reiterating the complaint that Professor van Rij had been harassed as the film crew

had entered his private property, HCO again contended that the visuals of Mr Phipps

at home were designed to induce sympathy for him. Mr Ayling repeated the

following point:

The 45 minute interview I did with the 20/20 crew was clearly edited in such a

way as to extract footage of me which would be unfavourable and suit the agenda

of the programme. Examination of the material on the cutting room floor would

indicate that the extracts used in no way portrayed the careful way I had

explained HealthCare Otago's reasons for dismissing Mr Phipps.

Expressing the opinion that a statement from TV3 correcting the acknowledged error

was appropriate, HCO maintained in conclusion that the programme had presented

only one side of the reason for Mr Phipps' dismissal.

TV3's Responses to the Authority on the Referrals

TV3 provided the Authority with a lengthy response to each referral to which it

appended various papers in support of its arguments that the item did not breach the

standards, other than on the point noted which it believed was relatively insignificant.

Because of what it said was the minor nature of the error, it did not believe that further

action was necessary. TV3 also noted that Mr Phipps had instituted defamation

proceedings against HCO and was seeking judicial review of the process involved in

the preparation of the report from the College.

As a result of these matters, TV3 asked the Authority to take into account the ruling

in TV3 v Broadcasting Standards Authority [1992] 2NZLR 724 before proceeding.

Dealing with the complaints overall, TV3 advised the Authority:

... it is TV3's view that no one aspect of the substance of the 20/20

documentary about errors in the RACS Report and the possible motives for

HealthCare Otago suspending Bob Phipps, has been challenged by either party.

This is a significant point. TV3 exposed a number of major discrepancies

between findings about Mr Phipps' conduct and the actual facts. TV3 was, and

is, able to substantiate each of these facts with documentary evidence. Neither

complainant has sought to challenge TV3 on the substance of its allegations.

Furthermore, the 20/20 documentary charts growing animosity between Mr

Phipps and his professional superior Professor van Rij (who called for Mr

Phipps to be suspended). Again significantly, these facts are not challenged by

either complainant.

TV3 reported that following its investigation of the well-publicised dismissal, it

reached the following conclusion which it had reported in the broadcast:

... that the campaign against Mr Phipps was possibly the product of jealousy

and commercial self-interest.

The material provided to the Authority, TV3 said, justified both the item's comments

about Mr Phipps' initial employment as coordinator of a pilot breast-screening

programme and Nurse Gousmett's credentials. Further, the comments from Ms

McLean justified the references to Mr Phipps' suspension from Mercy Hospital after

a telephone call from Mr Ayling to the supervisor at Mercy. TV3 commented:

Finally, it may be worth the Authority considering what HCO would have

gained from Mr Phipps losing his operating rights. Had this happened, Mr

Phipps would have had to have left Dunedin in search of work and would

probably have returned to the UK. Had this situation eventuated, Mr Phipps

would not now be in Dunedin maintaining a successful practice and taking legal

action against the HCO.

TV3 provided information to justify what the programme called 'staggering errors'

and which had provoked the complaint about 'outrageous statements'. It also

attached a letter to the HCO chairman from Professor van Rij (dated 15 March 1994)

in which he complained at that time about unsafe conditions for patients and advised

that 'some have died'. In response to the language used by HCO in its letter of

referral of the complaint to the Authority, TV3 believed that it was also appropriate

to describe the comment in the Professor's earlier letter as 'outrageous'.

TV3 also maintained that Mr Ayling was given an adequate opportunity to comment

on the papers put before him and argued that he had used 'patient confidentiality' as

a means to maintain a 'cloak of silence'. TV3 also insisted that, given Professor van

Rij's central role, it was appropriate to show him while recording that he had declined

to be interviewed.

In its conclusion on HCO's complaint, TV3 wrote:

1. The documentary set out to demonstrate that there was a real injustice in

the way in which Bob Phipps was publicly dismissed by HCO.

2. The documentary set out to show that facts relied on by the RACS (and

which had been supplied by HCO) were wrong, and that, despite this,

HCO had dismissed Bob Phipps – even though this dismissal was not

recommended by the RACS.

3. The documentary set out to demonstrate that people who are aware of

Bob Phipps' work (publicly and privately) believed there was another

agenda for his dismissal.

20/20 makes no apology for the facts which emerged – they speak for

themselves. It is this material that is the very heart of the documentary.

The Authority will have observed that these facts have not been

challenged.

In reply to the referral from the RACS, TV3 said it was made clear – on three

occasions – that the report did not recommend dismissal. It denied that the item

suggested that the report amounted to a witch-hunt. It also denied that the reasons

why the RACS was preparing a report for the Medical Council were of relevance.

The reason that report was mentioned, it said, was to raise the point that the RACS

felt that it was able to prepare an objective report on Mr Phipps for the Council while

the objectivity of its earlier report to HCO was being challenged. Disputing the other

matters in the RACS' referral, TV3 concluded:

The Authority will note that even now, neither the significant errors in the

RACS Report, nor their clear implications, have been disputed by the RACS.

...

TV3 demonstrated that HCO had provided RACS with incorrect information.

HCO then used that to dismiss Mr Phipps. The motive(s) for doing so was

open to real question.

The Complainants' Final Comments

The College expressed disappointment that TV3 did not acknowledge that the

programme was inaccurate and unbalanced and, in particular, that the RACS had not

been portrayed fairly. It pointed out that any correspondence between itself and

HCO on the latter's use of the report was a matter between HCO and itself. The

College's Mr Simpson commented:

Whilst TV3 may claim that the RACS was not the focus of its documentary, the

number of occasions it referred to this College, its repeated connecting of

Professor van Rij with the College, its interviewing of myself and its reference to

the College's report to the Medical Council of New Zealand (MCNZ) ensured

that this College was prominent in viewers' minds as a result of the programme -

either as dupe of HCO (as TV3 would appear to be suggesting in their written

response to the BSA) or as a partner in crime with Professor van Rij. The

College remains of the opinion that the overall tenor of the programme portrayed

it as indeed being part of an unpleasant conspiracy. We believe that there are no

facts to support this assertion.

As for the court proceedings against it, the RACS said it was based on Mr Phipps'

disagreement with the reviewers on the standards of his colorectal surgery. The

complaint, on the other hand, alleged that the item had not dealt with the events

surrounding the review in a balanced, fair or impartial manner. As different issues

were involved, it believed the Authority's investigation of the complaint should not be

hindered by the legal proceedings.

The RACS maintained that the item's report that the College's later report was 'to'

the Medical Council, rather than 'for' the Council, was evidence of bias. It also

argued that it was unreasonable to expect Mr Simpson (the College's Chair) to

respond on the spot to questions about a 138-page long report.

Repeating that the item had dealt with the RACS as well as HCO, the College said it

continued to maintain that the item was in breach of the standards as alleged in its

initial complaint.

In its final comment, HCO stated again that it believed TV3 had predetermined the

outcome of its investigation. It also considered that Professor van Rij's privacy had

been contravened and, it concluded:

TV3 set out to make a programme whereby 20/20 set itself up as advocate, judge

and jury for Mr Phipps in matters which are now before the High Court. Their

response to our criticisms of their programme indicate that they acknowledge

that they pre-determined their story and got a number of key facts wrong.

Their response indicates that they see themselves above normal standards of

balance and impartiality and believe they are on the side of right in this

programme regardless of the High Court's interest in the essential matters raised.

That key information relating to the substance of the programme was withheld

from HCO until the eleventh hour of a complaints process is, in our view,

journalistically and ethically unacceptable. This information, now that it has

come to light, in no way supports the statements made on the programme.

Further Correspondence

TV3 responded at length to the College's final comment. It focussed to begin with on

the report prepared by the RACS for the Medical Council regarding Mr Phipps'

fitness to remain on the specialist register. TV3 argued that the RACS, at that time,

must have been aware that Mr Phipps was challenging the content of the College's

report to HCO which had been used by HCO as the basis for dismissing Mr Phipps.

TV3 contested strongly the RACS' allegation that the item was grossly inaccurate in

the way that it dealt with the College's subsequent report to the Council. It wrote:

TV3 has chosen to begin its response to the RACS' complaint with this point

for a simple reason; no error 20/20 has been accused of, no alleged example of

'presenting opinions as fact', no 'incorrect detail' 20/20 has been attacked for,

requires as great a suspension of disbelief in its explanation as Mr Simpson's

insistence to the Authority that he did not learn before May 3 (six months after

Bob Phipps was sacked, and seven weeks after the March 14 Council meeting)

that Mr Phipps believed there may be 'errors' in the RACS Report.

Not only did it argue that the RACS was aware of Mr Phipps' challenge to its report

to HCO, TV3 also detailed events which, it insisted, disclosed that the RACS' report

to the Medical Council, in effect, supported Mr Phipps' removal from the specialist

register. It also repeated its contention that the review for the HCO arose as a result

of enmity between Mr Phipps and Professor van Rij. It reiterated the point that

Professor van Rij was, given the common meaning of the phrase, a 'senior member of

the College'. 'Fairness', TV3 concluded, was the thrust of the item.

In its response to the Authority, the College refuted 'absolutely' TV3's belief that its

approach to the complaint was in any way cavalier. It acknowledged that it was

aware of Mr Phipps' dissatisfaction with the College's report prepared for HCO

when it prepared the later report requested by the Medical Council on Mr Phipps'

continuing specialist registration, if for no other reason, than that it had been reported

in the media at the time of Mr Phipps' dismissal in November 1994. However, his 15

page detailed analysis was not received until some weeks after the RACS' report on

his continued specialist registration had been sent to the Council. Moreover, it wrote,

that report to the Council did not recommend his removal from the register but that he

undergo retraining in specific aspects of general surgery.

As for the RACS' report to HCO, and contrary to TV3's claim, the College stated

that Professor van Rij was not involved in the initial discussions. Later, when

preparing the report, the reviewers had spoken to many people. In reply to TV3's

claim that the reviewers omitted to speak to Dr Anderson, a former registrar who had

worked with Mr Phipps in Dunedin, or ten of the eleven people who had been

referees for Mr Phipps when he had applied for specialist registration, the RACS said

that Dr Anderson contacted the reviewers to ask about the ownership of the report

and had played no significant part in the cases under review, while the referees were

not interviewed as they were not involved with Mr Phipps' management of colorectal

patients.

The RACS also insisted that it was inappropriate for Mr Simpson to answer the

questions posed by 20/20 during the interview before it had responded to Mr Phipps

and, it concluded:

In our first letter of complaint of 20 August 1995, our principal concerns were

with balance, impartiality and fairness. Our opinion, then and now, is that those

criteria were not met by the 20/20 programme.

The Standards

The RACS alleged that the item breached standards G1, G4, G6 and G20 of the

Television Code of Broadcasting Practice and s.4(1)(d) of the Broadcasting Act 1989.

They were also the standards under which TV3 assessed HCO's complaint.

Section 4(1)(d) of the Act requires broadcasters to maintain standards consistent with:

(d) 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;

Standards G1, G4 and G6 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.

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

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

Standard G20 reads:

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 only be done

by judging every case on its merits.

Because of the overlap in this complaint between the requirements for balance in

s.4(1)(d) and standards G6 and G20, the Authority has decided to subsume all the

issues relating to balance under standard G6. The issues which raise questions of

fairness to the complainants will all be assessed under standard G4.

Procedural Matters

The allegation that the item was unfair because of the way in which the interview with

HCO's John Ayling was edited was a fundamental issue to HCO. Mr Ayling stated

that he had explained carefully during the interview the reasons for Mr Phipps'

dismissal. He had also explained the reasons why personal patient information could

not be discussed publicly. As that footage was edited out, he claimed, the item used

one response which, he maintained, began to make him 'sound slightly abrasive and

look defensive'.

In view of the Court of Appeal's decision in Comalco v Broadcasting Standards

Authority et anor (15.12.96 C.A. 148/95 & 159/95), the Authority decided that it was

essential to obtain the field tape or a transcript of the full interview with Mr Ayling.

Accordingly, TV3 was asked to supply that material.

TV3 questioned whether the Authority could proceed to determine the complaints in

view of the decision in TV3 v Broadcasting Standards Authority [1992] 2NZLR 724.

In that case, TV3 was both the broadcaster against whom a complaint had been laid

and the first defendant in a false statement/defamation claim brought by a party which

was both the complainant and the plaintiff.

In his judgment, McGechan J ruled that the Authority could not issue its

determination before the defamation action went to trial or was settled. He reached

that decision on the basis that any publicity surrounding the release of the Authority's

decision could influence a member of the public who might be a juror should the

complainant's/plaintiff's defamation action proceed to a jury trial.

With the current complaints, the person who was the focus of the television

programme has brought defamation action against one of the complainants for a

statement issued by that complainant three days after the item had been broadcast.

The Authority is of the opinion that the current complaints can be distinguished from

the 1992 case for the following reasons.

First, the broadcaster is not a defendant in the defamation action and thus the

Authority's decision will not reflect on it.

Secondly, the complainant (HCO), which is also the defendant, has not expressed any

concern about the issue when the matter was drawn to its attention.

Thirdly, the other complainant (RACS), which is also the defendant in an application

for judicial review, has expressed its opposition to any deferral of the complaints

proceedings.

Fourthly, and fundamentally, the matters raised in the complaint and in the defamation

action are distinct. The item questioned the reasons given officially for Mr Phipps'

dismissal by HCO as a general surgeon. The item, in addition to the material contained

in the RACS' report, noted that there had been some other concerns expressed about

the standards of surgery at HCO and that they included matters in which Mr Phipps

had not been involved.

As a result of the broadcast, HCO published a press release in which its surgeons

expressed confidence in the quality of care delivered by the Department of General

Surgery. The statement, which included the following comments, is the focus of Mr

Phipps' defamation proceedings against HCO:

'Surgeons are outraged that concerns about adequacy of patient treatment due to

limited resources as outlined in Professor van Rij's letter of March 1994 were

distorted by the recent 20/20 programme to apparently give credibility to the

increasing desperate claims of dismissed surgeon Mr Robert Phipps.'

'Those of us present in the department at the time believe Mr Phipps has only

his own shortcomings as a surgeon and professional colleague to blame for his

dismissal and subsequent misfortune' says Mr Hunter [of HCO].

'If he hopes that an inquiry will blacken the names of those who remain he is

going to be extremely disappointed. Rather such an inquiry is only likely to

further expose Mr Phipps himself'.

'Adequate public scrutiny of the serious deficiencies of Mr Phipps' practice

highlighted in the College of Surgeons report has been sadly lacking' says Mr

Hunter.

'Those deficiencies extend well beyond the terms of reference of that report.'

The next section of this decision explains why the Authority, in its determination of

the complaint, focusses on the issues of balance and fairness. When doing so, it is not

necessary to decide whether the item's comments about the findings in the RACS'

report on the specific cases reviewed are right or wrong. Rather, given the matters

raised by the complainants, it is the Authority's task to assess whether the contending

viewpoints, first, about the reasons why the report was sought, and secondly, the

accuracy of the contents of the report, were dealt with in a way which complied with

the standard G6 requirement for balance, impartiality and fairness, and the standard

G4 requirement that any person referred to in a programme be dealt with fairly.

On this basis, the Authority concludes that the matters which were relevant in the

1992 judgment are inapplicable to the current situation. Accordingly, it has proceeded

to determine the complaints.

The Authority's Findings

The Authority's Approach

The three part 20/20 item 'Cut and Thrust' examined the fairness of the dismissal of

general surgeon Robert Phipps by HealthCare Otago (HCO). The item recorded that

HCO had used, as the reason for its action, a report on Mr Phipps which it had sought

from the Royal Australasian College of Surgeons (RACS). The programme explained

clearly that the report, which examined Mr Phipps' competence at colorectal surgery,

did not recommend dismissal and that the decision to dismiss was taken by HCO as

Mr Phipps' employer. In making that decision, HCO accepted that the report was a

valid and authoritative view on Mr Phipps' skills in that area.

The item reported that some of the contents of the RACS' report, nevertheless, were a

matter of contention. However, neither of the complaints which were referred to the

Authority focussed on the contents of the report. The complaints were concerned

about its use. Accordingly, the Authority has not examined the issue of whether the

report was accurate in its description of Mr Phipps' competence as a surgeon.

Rather, and the Authority believes that it is important to emphasise the point, it has

approached the report on the basis – as the item reported – that it was used as the

determining factor in HCO's decision to dismiss Mr Phipps.

Although the item reported that HCO justified Mr Phipps' dismissal on the basis of

the RACS' report on his competence as a colorectal surgeon, it proceeded to advance

the case that professional jealousy was in fact the principal reason for it. The

broadcast claimed that Mr Phipps' growing reputation as an innovative breast surgeon

was taking work from the private practices of some of his colleagues. It questioned

why his claimed professional shortcomings were used as grounds for his dismissal

when it argued that other surgeons had also been deficient without being equally held

to account.

The RACS' complaint that its report was dealt with unfairly by the broadcast

Because of its approach to the complaint, the Authority is able to determine at this

stage the principal point made by the College in its complaint. The RACS alleged that

its report to HCO was dealt with unfairly and in an unbalanced way during the

programme. The RACS maintained that the item suggested that the report was not

impartial, that it was destructive and that it had accepted that a less than professional

standard was acceptable for colorectal surgery.

The Authority does not agree that the item contained these implications. Although

there was some questioning about the accuracy of some of the details of one or two of

the 22 cases studied in the preparation of the report, the Authority regards the

question of whether there were structural or professional reasons for the alleged

deficiencies in the Department of General Surgery at HCO as the more central concern

raised by the item when it questioned whether Mr Phipps had been dealt with fairly.

TV3 raised the point in its correspondence with the Authority that HCO's use of the

RACS' report might have been unfair. The RACS responded that that was a matter

between HCO and itself. The Authority agrees that that is a matter for the two

organisations to resolve. Indeed, the Authority considers that it is at this level that

issues of unfairness and partiality should be dealt with. In other words, the Authority

is of the opinion that the RACS' complaint that its report to HCO was dealt with

unfairly is a matter on which the RACS should seek an explanation from HCO. TV3

reported HCO's use of the report and, in presenting that information, has not

contravened the standards relating to fairness or balance.

HCO's complaint on the action on the aspect upheld

TV3 admitted to both complainants that the item was incorrect in suggesting that Mr

Phipps was recruited by HCO in England, rather than Auckland. Having upheld that

aspect, TV3 declined to take any further action in view of what it described as the

relative insignificance of the point overall. HCO was not satisfied that the action

taken was sufficient in view of the emphasis given to the matter in the broadcast.

On the basis that the matter was peripheral to the item's theme, the Authority accepts

that the broadcast of a correction was not necessary and, therefore, declines to uphold

that aspect of the HCO referral.

HCO's complaint about unfairness resulting from the editing of the interview with Mr Ayling

As for the part of HCO's complaint that the item in its approach to HCO was unfair,

unbalanced and omitted a significant point of view, the Authority has examined in

addition to the programme, the transcript of the interview with Mr Ayling. The

programme included shots taken from the press conference at which Mr Phipps'

dismissal was announced. It included considerable material from his supporters who

felt that he had been treated unfairly. Mr Ayling was interviewed to advance HCO's

case. HCO described the item as unjustifiably portraying Mr Ayling's apparent

demeanour at this point as 'defensive'. That had occurred, it added, as TV3 was

unfair at this point as it had deleted, while editing material, Mr Ayling's replies to the

points raised by TV3.

As noted above, TV3 when requested, sent the Authority a transcript of the full

interview with Mr Ayling. It explained that the transcript was completed by a

transcription service. A copy was forwarded by the Authority to Mr Ayling who,

while acknowledging that the transcript was a useful record of the interview, expressed

disappointment that the field tapes were unavailable. He wrote:

These would have clearly demonstrated the antagonistic and aggressive approach

that Television 3 took to the entire interview and the predetermination of the

issues which underlines the lack of balance in their approach.

TV3 explained that the 'field tape' – the original recorded tape of the interview –

was not available as, in current affairs, about 1/15th of what is taped is used in the

item which is broadcast. It observed:

Because of the high number of tapes involved, these tapes are put back into the

system reasonably quickly.

Thus, the Authority arrives at its conclusion on this aspect of the complaint having

read the transcript of the entire interview.

The Authority notes from the transcript that Mr Ayling, at the start, made it clear

that he was not prepared to discuss the specifics of any cases which would identify

staff or patients. He also said that he had been advised that Mr Phipps intended to

take his dismissal to the Employment Tribunal. The Authority notes however in his

later correspondence to the Authority, he stated that TV3 was incorrect to report that

HCO was involved in an Employment Court proceeding.

When asked about the number of reconstructive breast operations undertaken since

Mr Phipps' departure, Mr Ayling pointed out that Mr Phipps had been employed as

a general surgeon – not as a specialist breast surgeon. In response to a question as to

the reason for Mr Phipps' dismissal, Mr Ayling stated:

The whole report is, the conclusions of the report, the conclusions that the

report drew, indicated to us that there were serious deficiencies in Mr Phipps'

capacity to undertake this work as a general surgeon.

Having watched the programme and read the transcript, the Authority concludes that

standard G4 was not contravened. It is of the opinion that the extracts shown during

the item were a fair summary of the points made and approach taken by Mr Ayling.

HCO's complaint about TV3's approach to Professor van Rij

Professor van Rij, Mr Phipps' superior at HCO and head of surgery, had expressed

concern in writing in March 1994 about the working conditions there. TV3 considered

him to be a central figure in the matter it was investigating. He declined to be

interviewed. To obtain a visual of him, he was approached by a TV3 camera crew

while getting into his car at home. HCO alleged that this action by TV3 involved a

breach of privacy.

The Authority has expressed the opinion clearly in past decisions that it does not

accept the practice of doorstepping except as a last resort when the person who is

approached – in a public place – has earlier been given the opportunity, but has

declined, to take part. That was the situation on this occasion and, accordingly, the

Authority does not agree that TV3's approach to Mr van Rij was unfair or amounted

to a breach of privacy.

HCO's complaint about comments in the item's introduction

While explaining the background to the programme and the issues to be canvassed, the

reporter stated near the beginning of the broadcast:

20/20 has learned of staggering errors at HealthCare Otago. There have been

operations to remove non-existent cancers, a breast has been removed only to

discover that it was cancer-free in the first place. And a leg has been amputated

after a nightmare series of operations. None of those people were patients of

Bob Phipps and none of the surgeons responsible for those operations have

been investigated let alone sacked. But 20/20 has learnt of worse than that. We

have obtained a chilling letter, written by Andre van Rij to HealthCare Otago

bosses, after the resignation of a surgeon. A letter that talks of accidental

patient deaths.

An extract from that letter was read to justify the adjective 'chilling'.

In the complaint from HCO, Mr Ayling objected to what he described as the

'unsubstantiated allegations' about Mr Phipps' former colleagues. In its reply to the

complaint, TV3 assured HCO that each allegation could be substantiated.

In its assessment of this aspect of the complaint, the Authority has reviewed what

evidence was advanced in the programme to substantiate the serious allegations. While

Professor van Rij's letter expressed some major concerns at a general level, the

Authority believes that the item did not justify the highly critical comments about

operations to remove non-existent cancers. By raising the matters but not advancing

any specific evidence during the programme to justify the allegations, the Authority is

of the opinion that the item did not deal with HCO fairly. On this point, the

Authority concludes that standard G4 was contravened.

Other findings on matters raised by HCO

The Authority does not consider the description of Nurse Gousmett as a breastcare

nurse was inappropriate, given her experience.

It was also acceptable, the Authority decides, to describe Mr Phipps as a breastcare

surgeon during the item, in view of his training and interest. Although it might not be a

category recognised by the College and although Mr Phipps was employed by HCO

as a general surgeon, the Authority considers that it is an acceptable term in the

circumstances.

The other points in the RACS' complaint

The Authority declines to uphold the aspect of the RACS' complaint that the item did

not deal with its report in a fair and balanced way. The College also raised a number

of subsidiary issues.

First, the RACS objected to the description of Professor van Rij as a 'senior member'

of the College. It pointed out that it did not have such a membership category. TV3

maintained that the phrase was used for descriptive purposes and it did not suggest a

specific membership status. On the basis that it was apparent that the term was used

in a descriptive sense and made use of a commonly accepted meaning, the Authority

declines to uphold this aspect.

As the second point, the RACS alleged that the comment in the item that it was

preparing a report to the Medical Council on Mr Phipps suggested that the action was

being taken on its initiative. As the report had been requested by the Council, it

argued that the item should have reported that it was preparing a report for the

Council. While the Authority has some sympathy for the RACS on this point and

appreciates its concern that the issues could have been explained with legal clarity, it is

of the opinion that this point is of little consequence to the item overall and thus does

not amount to unfairness which contravenes the standards.

The RACS also complained at the way in which the item dealt with the report it had

prepared for its members. The Authority does not consider that the standards have

been contravened on this matter.

The manner of TV3's interview with the College's Mr Simpson, and the brief extracts

included in the programme which was broadcast, was the another aspect of the RACS'

complaint. It pointed out that it was unreasonable to expect Mr Simpson, first, to

comment instantly on a 138 page report, and secondly, to reply to questions publicly

when he was privately preparing a reply to Mr Phipps on the same specific matters

covered in the report.

Because Mr Simpson chose to decline to answer the questions posed - for whatever

reason – the Authority declines to uphold the complaint that his presence during the

broadcast was relatively brief. The essence of RACS' stance was evident when Mr

Simpson was seen to repeat the point earlier made that the report had not

recommended dismissal. He also stated:

At the present time the assessment process is still not complete, but our

conclusions at the present time is that all our conclusions stand. And that the

College did not intend to withdraw the review report.

The reporter added:

That's John Simpson's response to Bob Phipps' request that the College of

Surgeons review and withdraw their report. John Simpson is head of the

College.

As the College set its own limits to its contribution, the Authority decides that its

complaints both in relation to the item and the comment on how it was dealt with

cannot be upheld.

Having examined the RACS' referral carefully, the Authority is of the opinion that it

did not contain the implications alleged by the College. For example, the College

complained that in the 'Mailbag' segment the following week the item suggested that

the RACS provided a report to the Medical Council at the same time as it had

responded to Mr Phipps' criticisms. Not only was that 'grossly inaccurate' but,

RACS continued, the linkage was damaging to its reputation. TV3 dealt with this

specific point by writing:

Perhaps the point was not well made by TV3 in the documentary, however the

Authority should know that the point intended to be made by [the reporter] was

that, at a time when Mr Phipps had been dismissed by HCO using the RACS

report, at a time when the RACS report was being reviewed and was under

appeal by Mr Phipps, and at a time when the accuracy and validity of the

Report was being questioned, Mr John Simpson, the head of the RACS, felt

capable of providing the Medical Council with an uncompromised, objective and

non-controversial assessment of Mr Phipps 'fitness to remain on the specialist

register'; an assessment which could determine Mr Phipps' professional future.

That is the point TV3 intended to make.

TV3 did not dispute the chronological linkage between the events. However, the item

did not suggest that the RACS' report to the Medical Council did not acknowledge the

other events taking place. If that had been the case, it could well have been unfair. As

the description carried in the broadcast acknowledged the circumstances in which the

report was prepared, the Authority considers that it does not constitute a breach of

the standards.

The Authority above has dealt with the point relating to RACS' objections to the use

to which HCO put the report. It states that it is a matter for RACS to take up with

HCO. RACS would appear to have a basis to object – but its dissatisfactions should

be directed at the party which acted contrary to the report's recommendation – ie

HCO, not the broadcaster, in reporting the action. The Authority also repeats that it

is dealing with the complaints about the programme which was broadcast - not with

complaints about the accuracy or otherwise of all the details contained in the RACS'

report.

HCO's complaint that 20/20 had predetermined the issue

HCO complained that it was apparent that TV3 had 'predetermined' its approach to

the issue.

On this point, the Authority observes that the preparation of an item such as 'Cut

and Thrust' involves research before filming is contemplated, and some considerable

time before the final scripting and editing is carried out. Such research may well allow

the programme makers to reach tentative conclusions before filming begins. These

tentative conclusions allow questions to be formulated, and asked, of the different

people who it is decided should be interviewed on camera. The answers given may

confirm or dispel the tentative conclusions. While such a process can be described as

amounting to a 'predetermined approach', it can also be thought to be indicative of

thorough research to ensure that the time of both the programme makers and the

spokespersons interviewed is not wasted by asking irrelevant or facile questions.

In any case, it is legitimate for documentaries at times to adopt an advocacy stance

about an issue, especially where previous publicity has tended to present a different

interpretation of events.

Summary

By way of summary, the Authority observes that the item dealt with HCO's

dismissal of Mr Phipps. During the broadcast, Mr Phipps acknowledged that HCO

used the RACS' report as justification for its actions, but alleged that the report was

deficient. HCO stated that the reason for the dismissal was the report's comments on

Mr Phipps' deficiencies as a colorectal surgeon. The RACS stressed that the report

proposed supervised training rather than dismissal. TV3 suggested that although the

report was used by HCO as the justification for dismissing Mr Phipps, it contained

some factual errors but, more importantly, that professional jealousies were at the

basis of the dismissal. The Authority notes that TV3 – not Mr Phipps – advanced this

hypothesis.

The Authority concludes that TV3 put its case – that professional jealousy may have

played a noteworthy role in Mr Phipps' dismissal – in a way which did not breach the

nominated standards. The parties to the debate were given an adequate opportunity

to put their side on the matters canvassed. As a consequence, the item was not

unbalanced and the Authority does not accept that HCO and the RACS were treated

unfairly.

For the above reasons, the Authority declines to uphold the complaints that the

broadcasts on 24 and 31 July 1995 breached the standards other than the aspect

noted below. It also declines to uphold the complaint that the action taken by

TV3 Network Services Ltd, on the aspect upheld, was insufficient.

As the item broadcast on 24 July made serious allegations about some surgeons

at HealthCare Otago but failed to advance evidence to justify some of the

specific allegations, the Authority upholds this aspect of the complaint that the

item breached standard G4 of the Television Code of Broadcasting Practice.

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

the Broadcasting Act 1989. In view of the fact that the item included evidence that

Professor van Rij's general concern about patient safety had been brought to the

attention of the hospital administration, the Authority concludes that the breach is of

a relatively minor nature for which an order is not justified.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
12 September 1996

Appendix I

Royal Australasian College of Surgeons' Complaint to TV3 Network Services Ltd

- 20 August 1995

The President (John Royle) of the Royal Australasian College of Surgeons (RACS)

wrote to TV3 Network Services Ltd on 31 July 1995 about an item on 20/20

broadcast on 24 July. The item referred to the College's report reviewing colorectal

disease treated by general surgeon Mr Robert Phipps at HealthCare Otago.

The College rejected absolutely the item's claim that the report was seriously flawed

and maintained that the programme contained four distortions. First, the College said,

contrary to the implication in the item, the report was impartial and independent.

Secondly, it rejected the item's suggestion that because colorectal operations amounted

to a small proportion of a general surgeon's total workload, a less than professional

standard was acceptable. Thirdly, the report was constructive - despite the

impression given in the programme - in that it recommended intensive supervision and

training in colorectal surgery for Mr Phipps. Fourthly, before the review began, Mr

Phipps was given a list of 22 cases to be considered. He later added, and then

withdrew, a further 10 cases but the item did not include that point.

The College concluded:

The Royal Australasian College of Surgeons is very concerned that 20/20

presented such a distorted view of the College's report. It stands by the

report's conclusions and recommendations, and reasserts the impartiality of the

process used to compile it.

As TV3 did not, in the College's opinion, adequately convey these views in the 20/20

'Mailbag' section screened on 31 July, the College Chairman (John Simpson)

complained formally to TV3 on 20 August 1995 about the 20/20 item 'Cut and

Thrust' broadcast at 8.30pm on 24 July.

The College maintained that the broadcast breached the requirements for balance in

standard G6 in that while the College's report on Mr Robert Phipps' management of

22 cases of possible colorectal disease was referred to on more than 40 occasions, no

attempt was made to outline the reason for the review or its conclusions. Whereas it

was referred to as the reason why Mr Phipps was 'sacked', the College stressed that

the report recommended retraining rather than dismissal.

Moreover, the programme focussed on breast surgery while the report was concerned

with colorectal disease and, it said, viewers would have been misled on this point.

The College also considered that the broadcast breached standard G4 in that it was

unfair when it was suggested that because the Head of the Department of Surgery at

HealthCare Otago was 'a senior member' of the College, the report was inevitably

biased.

Noting that the College's Mr Simpson was quoted in the programme as saying that

'the College did not say he should be sacked', the presenter had gone on to say,

'However, John Simpson has subsequently written a report to the Medical Council

who had to decide Dr Phipps' quote fitness to remain on the specialist register'. In

the complaint, Mr Simpson stated:

The wording used in this section strongly implies that the College wrote of its

own accord to the Medical Council. However, when I was interviewed for this

programme by 20/20 staff I was made aware that they had a copy of my letter

to the Council. They knew, therefore, that this was written in response to a

specific request from the Medical Council for a recommendation on Mr Phipps'

continued specialist registration. The College believes the way this section of

the programme was written and presented dealt neither 'justly' nor 'fairly'

with myself as author of the letter and failed to provide viewers with this

essential piece of information.

The College also argued that the broadcast had breached standards G20, G1 and

s.4(1)(d) of the Broadcasting Act 1989. Standard G20 had been contravened as

although the report had been referred to repeatedly, only 65 - 70 seconds of time was

given to the College's representatives. Because of the small amount of time which had

been allocated to the College spokespersons, it argued that a significant point of view

had not been presented fairly.

The requirement for accuracy in standard G1 had been transgressed when the

programme stated that HealthCare Otago had invited Mr Phipps from England. Mr

Phipps had come from Auckland to his position in Dunedin.

Overall, the College commented:

The College is aware that 20/20 had at its disposal a considerable amount of

significant information eg a full copy of the report and of the College's response

to the Medical Council. The failure of the programme to show 'balance,

impartiality and fairness', to 'deal justly and fairly' with College members

interviewed or referred to as such, or to 'present all significant sides in as fair a

way as possible' was not due to lack of information on the part of the presenter

and producer. Whether intended or not, this undoubtedly has had the effect of

misleading the public.

Section 4(1)(d) had been breached, the College maintained, as its letter of 31 July had

not been discussed adequately the following week during the 'Mailbag' section of

20/20.

TV3's Response to the Formal Complaint - 13 November 1995

Assessing the complaint under the nominated standards, TV3 considered first the

aspect which alleged a breach of the accuracy requirement in standard G1.

As Mr Phipps was in England when he had been approached by HealthCare Otago,

TV3 did not accept the alleged breach. However, as Mr Phipps had spent some three

months in Auckland on his arrival in New Zealand, TV3 accepted that the item was

incorrect when it reported that Mr Phipps left England for Otago. It considered the

error to be insignificant in view of the item overall and thus did not order a correction.

Turning to the claim that the reference to bias was a breach of standard G4, TV3

pointed out that Andre Van Rij, who was Head of Surgery at HealthCare Otago and

Mr Phipps' immediate boss, was a senior member of the College. The item had also

reported that he had asked that Mr Phipps be suspended and, further, that he had

refused to be interviewed by 20/20. TV3 said in its assessment of the complaint that

it had noted Mr Van Rij's written comment in a confidential report to the Medical

Council when he stated:

In my position as both Bob's (Phipps) Head of Department and as Chairman of

the NZ Committee of the Board of General Surgery of the Royal Australian

College of Surgeons I find myself in a very difficult position for his sake.

In view of the factual information contained in the item, TV3 wrote:

The Complaints Committee does not accept the words carry the implication

complained of but if there is an implication of bias they are justified by Mr Van

Rij's documented concerns.

It also declined to uphold the complaint that the standard was breached by the

reference to the College's report to the Medical Council as it was clear from the script

that the report was requested by the Medical Council.

TV3 then examined the complaint that standard G6 was breached. It began

On viewing the programme the TV3 Complaints Committee feels the programme

made it clear that the Royal Australasian College of Surgeons report did not

recommend the dismissal of Bob Phipps. What the programme did say was

HealthCare Otago took it upon itself to use the report as the basis to sack Mr

Phipps. This is a matter of record.

Moreover, TV3 said, the programme explored the motives behind the review and

pointed out that Mr Phipps challenged the validity of the report. It added:

It is clear both from Mr Phipps' challenge to the report and the documented

evidence presented in the 20/20 programme that it would be inappropriate for

the programme to refer to its conclusions beyond the fact that it did not call for

Bob Phipps' dismissal. The question of retraining becomes relevant if it is

accepted the report is accurate.

Standard G6 was not breached as:

The TV3 Complaints Committee, on viewing the documented evidence of

contradictions and possible errors in the report, concluded the programme was

justified in questioning the report and its consequences for Mr Phipps.

TV3 next examined the alleged breach of standard G20. It noted that the College's Mr

Simpson refused during a lengthy interview to answer most questions on the basis that

the College at the time was still considering its review of the initial report. TV3

observed:

Had Mr Simpson chosen to respond to some of the key questions to which

20/20 was seeking answers, for example the inconsistencies between the report

and patient notes, it is certain those responses would have been broadcast.

Given the programme was not identifying patients there appears to be no

compelling legal or ethical reasons why Mr Simpson could not respond to these

questions.

As Mr Simpson chose to limit his responses, TV3 stated that he had limited his

presence in the broadcast. All he was prepared to say was that the College stood by

its conclusions. The alleged breach of standard G20 was not upheld.

As the broadcast the following week stated that the College 'stands by the report's

conclusions and recommendations, and reasserts the impartiality of the process used

to compile it', TV3 denied a breach of s.4(1)(d). It added:

Other comments in that Royal Australasian College of Surgeons letter of 31st

July are contradictory to information available to 20/20 and to publish them may

well have breached the Act and the Codes of Practice in relation to Mr Phipps.

TV3 also noted:

The period of current interest has not expired. There are still legal proceedings

regarding this issue that have yet to conclude. The TV3 Complaints Committee

has been advised that 20/20 is following these matters with interest and will, if

appropriate, prepare further reports. The Royal College of Surgeons will,

insofar as is relevant, be invited to put their views and opinions.

RACS' Complaint to the Broadcasting Standards Authority - 14 December 1995

Dissatisfied with TV3's response, Mr John Simpson (the Chairman of the College's

New Zealand Committee) referred the College's complaint to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

The RACS recalled that the item dealt with a review conducted by, and a report from,

the College and wrote:

The Royal Australasian College of Surgeons has conducted a number of reviews

on issues of surgical standards both here and in Australia. Our fundamental

concern in these instances has been to ensure that the public are receiving

competent surgery and are not being endangered by deficiencies in an

individual's practice. We have always focussed on being constructive when

criticisms had to be made. That is, outlining what would be necessary to bring a

particular surgeon or system up to a level of practice that provides satisfactory

public protection. We consider that the message received by the public as a

result of the 20/20 programme is that the College undertook a biased witch hunt

against a 'good guy', ie Mr Phipps. In nominating reviewers to carry out this

particular review for HealthCare Otago, I paid careful attention to selecting

surgeons who had no connections with Mr Phipps, who were without local

knowledge (and possible prejudice) and who had the appropriate specialist

knowledge.

Dealing first with the accuracy complaint (standard G1), the College maintained that

Mr Phipps came to work in Auckland and at that time an appointment to HealthCare

Otago was discussed. He was appointed in October 1990 although he did not qualify

for a specialist position as he did not have the necessary specialist qualification.

While acknowledging that the item did not state that Mr Phipps went from London to

Otago, the College maintained that it implied that HealthCare Otago sought Mr

Phipps out in London and, consequently, it had 'grossly exaggerated' the significance

of his appointment.

As for standard G4, the RACS remained of the view:

... that the programme implied that there was gross inbuilt bias on the part of the

RACS in producing its review report because Prof van Rij was (in the words of

TV3) a 'senior member' of the College. Firstly, the College does not have a

category of 'senior members' and therefore this is not 'a statement of fact' as

TV3 asserts. In addition, the 'confidential correspondence' they refer to from

Prof van Rij to the Medical Council, as evidence of bias if it existed, was a letter

of reference written in 1993. We fail to see how the comments in this letter

(written in relation to specialist registration and a year before the review was

requested by HealthCare Otago) can - as TV3 see it - justify any accusation of

bias on the part of RACS.

The 'strong implication' of bias was described as an affront to the RACS' integrity

as:

... the way this section of the programme was worded led members of the public

to infer that Prof van Rij's connection with the College had an impact on the

RACS report on the selected cases of Mr Phipps' work. There is no evidence to

support this implication.

As TV3 had introduced the Prof van Rij's report into the public arena, the College

cited its conclusion:

... I have reflected carefully on this and would not wish to unfairly influence the

council's deliberations. There are general concerns which I have as Head of

Department which are unrelated to breadth of training, technical skills or

knowledge and which may not impinge directly on the eligibility criteria as laid

down. These are sufficiently important that not to draw attention to them would

be remiss of me ... .

Referring to a number of occasions when TV3's Complaints Committee had in fact

misquoted the broadcast, the RACS stated that TV3's response had referred to the

College's report for the Medical Council. However, the broadcast referred to the

College's report to the Council which, Mr Simpson said:

The impression given by the programme is that I wrote an unsolicited letter and

that this was evidence that the College was pursuing some form of vendetta

against Mr Phipps. The opposite was the case with the College concerned he

receive natural justice. In December 1994 I wrote to the Medical Council

expressing the RACS concern that the process they were intending to follow for

Mr Phipps' specialist registration was potentially unfair and not in accord with

natural justice. This hardly supports the concept of a College inspired vendetta.

The RACS accepted that the programme commented on three occasions that the

College's report had not recommended Mr Phipps' dismissal. Nevertheless, the

alleged breach of standard G6 was advanced as:

The College's report was referred to a minimum of 40 times throughout the

programme. Stating three times what the report did not say yet never providing

the viewing public with information on what its summary and recommendations

did say does not constitute, in our opinion, adherence to standard G6.

The College disputed TV3's claim that there was no compelling reason why Mr

Simpson did not respond to the questions put to him. At the time the College was

preparing a response to Mr Phipps on his comments and:

The College considers it would have been unethical if I had provided the news

media with the detailed information contained in this response before it had been

finalised and sent to Mr Phipps.

Pointing out that TV3 did not explain to him which were the key questions during the

interview, but that he had been expected to respond immediately to documents put in

front of him, Mr Simpson commented:

Indeed, on viewing the final programme it appeared to me that 20/20 had

throughout selected clips that supported its contention of bias and had worded

the script in such a way as to attempt to mislead the public into accepting that

conclusion.

The College continued to argue that, in the interests of balance the item should have

presented more of the report's conclusions, and that more of its letter should have

been presented in the 'Mailbag' segment broadcast on 20/20 on 31 July.

The RACS concluded:

Overall, the RACS does not consider the Complaints Committee response has

dealt with the issues raised in our original letter of complaint. Our assertion

remains that the programme did contravene Standards G1, G4, G6 and G20 of

the Codes of Broadcasting Practice and Sn4(d) [sic] of the Broadcasting Act.

Consequent to these contraventions, we consider the programme portrayed the

Royal Australasian College of Surgeons in a manner that was unfair, inaccurate

and unsupported by evidence.

Further Correspondence

In a letter to the Authority dated 10 January 1996, TV3 advised that it considered the

referral amounted to 'a fresh complaint' to which it should not be required to

respond. In response, TV3 was advised of the Authority's policy not to accept

aspects of referrals which raised issues or standards not raised or implied in the initial

complaint. It was also pointed out to TV3 informally that the referral seemed to

amount to an acceptable elaboration although a formal decision would be made on the

matter if requested.

TV3's Response to the Authority - 27 February 1996

After seeking and obtaining approval from the Authority for extra time to respond in

view of the complexities involved, TV3's reply addressed both complaints. It also

appended various documents amongst which was a transcript of the item.

By way of background, TV3 advised the Authority that Mr Phipps was currently

taking legal proceedings against both complainants and, in addition, he was taking

action against HealthCare Otago in the Employment Court. The proceedings against

the Royal Australasian College of Surgeons involved seeking judicial review of the

RACS report. TV3 wrote:

Mr Phipps alleges that the facts on which the report relied are manifestly wrong

in substance, that those facts were the basis of criticism of Mr Phipps, and,

further, that those facts used by HCO to summarily dismiss him. Mr Phipps

alleges that, even given the incorrect facts relied upon by RACS, the medical

conclusions drawn from them were not justified and are contrary to

internationally accepted medical opinions.

Defamation proceedings had been taken against HCO and all the matters were to be

discussed shortly at a judicial conference and a hearing of the substantive matters,

before a judge and jury, was expected by the middle of the year. TV3 provided the

following opinion on the Authority's legal position:

The Authority is in the unusual position of receiving complaints from two

organisations who are defending proceedings in the High Court on the same

matter. The proceedings deal with the substantive facts revealed by TV3 in the

20/20 documentary under examination by the Authority. Before the Authority

makes any finding, the outcome of which will affect an issue which might be

contentious in any of those three proceedings, particularly the defamation

proceeding, the Authority ought to hesitate: TV3 v Broadcasting Standards

Authority, [1992] 2 NZLR 724.

It continued:

Having said that, it is TV3's view that not one aspect of the substance of the

20/20 documentary about errors in the RACS Report and the possible motives

for HealthCare Otago suspending Bob Phipps, has been challenged by either

party. This is a significant point. TV3 exposed a number of major discrepancies

between findings about Mr Phipps' conduct and the actual facts. TV3 was, and

is, able to substantiate each of these facts with documentary evidence. Neither

complainant has sought to challenge TV3 on the substance of its allegations.

Furthermore, the 20/20 documentary charts growing animosity between Mr

Phipps and his professional superior Professor Andre van Rij (who called for

Mr Phipps to be suspended). Again significantly, these facts are not challenged

by either complainant.

In so drawing this to the Authority's attention, TV3 acknowledges, save for

matters of fact, the Authority is able to determine issues of journalistic

convention or code.

TV3 then gave some background focussing specifically on the 20/20 item. It reported

that Mr Phipps was dismissed by HCO at a news conference held by Mr Ayling.

The public dismissal, it added, received extensive media coverage and the method was

the subject of editorial comment. In contrast to the support for the HCO which the

dismissal had evoked, 20/20's thesis argued:

... that the campaign against Mr Phipps was possibly the product of jealousy

and commercial self interest. This will also be the basis of the actions by Mr

Phipps against HCO.

In support of its comments about the approach taken by the print media referred to,

TV3 enclosed some of the newspaper coverage. 20/20's efforts, it recorded, involved

prolonged research and given 'the historical propensity of Health Authorities to be

less than forthcoming' when dealing with their failings, it had been interested in

HCO's handling of the matter.

Following the research, 20/20 became aware both of some facts which had not

previously been examined by the media and the motives of the personalities involved.

It emphasised:

Given the substantial publicity HCO had already received for its explanation of

the sacking of Mr Phipps, 20/20's investigation was deliberately not an attempt

to revisit HCO's justifications.

However, if the facts revealed did not reflect well on HCO, that was not a matter for

which 20/20 was culpable. In TV3's opinion:

Of critical importance in this appeal is this fact: Mr Ayling focuses his

criticisms on facts which are peripheral to the central focus of the story. Not

one of 20/20's criticisms of the RACS report, nor the motivations behind HCO

calling for this Report, is challenged.

Under the heading 'The Fundamental Issue', TV3 argued:

The fundamental issue in the documentary is quite simple: were the facts set

out in the Royal Australasian College of Surgeons ('RACS') Report, and relied

on by HCO to dismiss Bob Phipps, true?

The alleged factual inaccuracies raised, TV3 continued, were not aspects of the central

focus of the item. TV3 accepted that the item's explanation of the Phipps' family's

arrival in New Zealand was misleading, although 'That misstatement is however

beside the point'. TV3 also disagreed with HCO that the item had implied that HCO

went to great lengths to obtain Mr Phipps.

Nevertheless, it attached a July 1990 letter from Professor van Rij to Mr Ayling's

predecessor at HCO as evidence that the statements in the item about a breast

screening project and Mr Phipps experience and strengths were correct. Further, the

letter showed that HCO wished to employ him 'as soon as possible'. Pointing to the

other material before the Authority, TV3 maintained:

... what is clear is that Mr Phipps was in London, that he ended up in Otago,

and that HCO was eager to employ him. Whether he came there via Auckland is

immaterial.

The same letter was consistent with the item's claim that Mr Phipps was hired both

as a general surgeon and surgical co-ordinator of the pilot breast screening programme.

TV3 then listed Ms Elaine Gousmett's credentials in breast care nursing which

included a glowing description in an (attached) letter from Professor van Rij. He had

written a reference (also attached) which referred to her management of breast cancer

and she had delivered a paper (also enclosed) to the National Surgical Nurses

Conference in 1994. TV3 concluded on this point:

The basis of HCO's criticism of the inference that Ms Gousmett was employed

in that capacity by HCO is unjustified. Further, it is beside the real point; The

fact is Ms Gousmett is or was part of a 'team'. That 'team' delivered 'breast

care'. By HCO's reckoning, Ms Gousmett was very good at her job.

TV3 then addressed the complaint about the item's references to Mercy Hospital.

Sister Lucia of Mercy confirmed that Mr Phipps was suspended from operating at

Mercy after she had discussed the matter with Mr Ayling who pointed out that Mr

Phipps had been suspended from a public hospital. The comments made by Sister

Lucia to Jean McLean and reported in the broadcast were again said to be correct by

Ms McLean, and by two other people at the meeting. TV3 observed:

Finally, it may be worth the Authority considering what HCO would have

gained from Mr Phipps losing his operating rights. Had this happened, Mr

Phipps would have had to have left Dunedin in search of work and would

probably have returned to the UK. Had this situation eventuated, Mr Phipps

would not now be in Dunedin maintaining a successful private practice and

taking legal action against HCO.

Noting some of the discrepancies between the comments made by HCO and itself,

TV3 said it stood by its report of events.

As for the aspect of the complaint which alleged that the broadcast included some

'outrageous' statements, TV3 supplied the details of the patients who fell into the

category of what the item called 'staggering errors'. It began:

- TV3 will not under any circumstances disclose its sources for this information.

- Some of the subjects of the information have not been approached by TV3 and

do not know TV3 has this information.

It then proceeded to list the details of the cases which had been referred to in the item.

It also attached a 1994 letter from Professor van Rij to the HCO Chairman when he

referred to unsafe conditions of HCO and patients being compromised to the extent

that 'some have died'. TV3 remarked:

It is difficult to imagine anything 20/20 might say which could be more

'outrageous' than the Head of Surgery at major public hospital confessing

patients have been 'severely compromised' and 'some have died'.

There were other cases which were known to Mr Phipps and his counsel and, TV3

concluded on the point that the statement made in the programme was one of fact. It

commented:

It appears to TV3 that it is not the truth of the statement HCO disputes, but

rather, TV3's right to make it. HCO says 20/20's statement scares the public.

If that is the case, so be it. The statement is not designed for any purpose at all.

The statement is fact and speaks for itself.

As Mr Ayling had changed his mind about who had used the word 'pilloried', it was a

fresh allegation in the referral to which, TV3 pointed out, it was not required to

respond.

In regard to the complaint about the use of the documents, TV3 said that the reporter

put to Mr Ayling the RACS synopsis of the case of one preventable death which was

attributed to Mr Phipps. However, the reporter also put to Mr Ayling the patient

notes which showed that Mr Phipps was not the surgeon who saw her during the six

months her treatment was delayed. The matter was put to Mr Ayling with the

suggestion that the error in the report was 'pretty serious'. He refused to comment at

the time having regard to his obligations to patients and their families. TV3 outlined

its position:

(a) Mr Ayling was given an opportunity to comment

(b) The basis for his refusal is more apparent than real - it is spurious.

(c) Mr Ayling was raising 'patient confidentiality' as a means of maintaining a

cloak of silence.

The reporter, TV3 pointed out, had not identified a patient. He had asked a question

to which a 'yes' or 'no' answer would suffice.

As for the other documents about which Mr Ayling declined to comment, TV3 noted:

The whole basis for the documentary, particularly in view of the very public

way in which HCO dismissed Mr Phipps and justified that dismissal, was that

it was incumbent on Mr Ayling to now publicly acknowledge or justify

obviously erroneous facts they had presented to the RACS and on which the

RACS relied to write a report which HCO then used to give Mr Phipps the

sack.

Mr Ayling was content to publicly dismiss and criticise Mr Phipps. When

HCO's own errors were demonstrated, he attempted to hide behind a cloak of

privacy. In short; for no good reason, and TV3 submits: certainly not out of any

legitimate concern for privacy being breached, Mr Ayling refused to follow a

precedent for public accountability which he himself had set.

Turning to the aspect of the complaint which focused on 20/20's dealings with Mr

Andre van Rij, TV3 observed that he had not complained himself. It noted:

It is not sufficient for HCO to exonerate Professor Andre van Rij from

appearance or comment. Again, HCO itself set the precedent for a high degree

of public discussion of the Phipps case.

Given the various roles held by Mr van Rij, TV3 maintained that it was justified, at

the very least, to record that he had declined to be interviewed.

Privacy was the next matter addressed and on the basis that none of the reporter's

questions required the identification of patients, it maintained that the privacy

principles were not contravened.

TV3 concluded its report on the HCO complaint:

1. The documentary set out to demonstrate that there was a real injustice in

the way in which Bob Phipps was publicly dismissed by HCO.

2. The documentary set out to show that facts relied on by the RACS (and

which had been supplied by HCO) were wrong, and that, despite this, HCO had

dismissed Bob Phipps - even though this dismissal not recommended by the

RACS.

3. The documentary set out to demonstrate that people who are aware of

Bob Phipps' work (publicly and privately) believed there was another agenda

for his dismissal.

20/20 makes no apology for the facts which emerged - they speak for

themselves. It is this material that is the very heart of the documentary. The

Authority will have observed that these facts have not been challenged.

TV3 included an index of the documents attached. They have been referred to in the

summary above where appropriate.

TV3 then responded to the specific points made by the Royal Australian College of

Surgeons. It began by dealing with the complaint that the references to the RACS

report breached standard G6. In reply, it cited several statements from the item to

indicate that it was not stated during the item that the report recommended that Mr

Phipps be dismissed. Indeed, the reporter on one occasion stated specifically:

John Ayling gave Bob Phipps the sack even though the College's Report didn't

recommend that.

TV3 concluded on the point:

Given that TV3 did not ever state the RACS Report recommended Mr Phipps

be dismissed, given that TV3 did state the contrary three times, and given that it

was HCO and Mr John Ayling who repeatedly used the RACS Report to

justify sacking Mr Phipps, it may be that the RACS complaint would be more

usefully pursued against HCO than TV3.

In response to the complaint that the item did outline the reason for the review, TV3

responded:

20/20 explored the motives behind HCO calling for the Review. This is one of

the principal themes of the documentary.

A number of comments (18) were included from throughout the programme to justify

that comment and TV3 summarised the matters in the following way:

The documentary therefore considered the motives for the treatment of Bob

Phipps, particularly in the context of TV3's knowledge that HCO had provided

the information for the RACS to write its Report.

(a) Specialist Registration enabled Phipps to operate in private practise, and

in particular to offer breast cancer treatment privately

(b) van Rij unsuccessfully opposed that registration

(c) Phipps instigated legal proceedings against van Rij, van Rij withdrew his

opposition and apologised. Subsequently, Phipps' reputation in surgery (and

breast surgery) grew.

(d) Phipps and van Rij clashed over their respective interests in public

practice

(e) van Rij's partners in private practice (Pettigrew and Packer, who are also

General Surgeons) performed private breast treatment

(f) van Rij called for Phipps' suspension

(g) a RACS Investigation was called for, focused on Phipps

(h) HCO, where van Rij is Head of Surgery, selected the cases for

investigation by RACS

(i) RACS was not asked to investigate mistakes and/or errors and/or

preventable deaths caused by other General Surgeons at HCO

TV3's documentary explored the extent to which these factors may have

motivated the request for Mr Phipps' suspension. It is clear that the RACS had

not been made fully aware of these factors by the HCO. The Authority may

find that detail, in itself, revealing - particularly in its demonstration of HCO's

determination, or otherwise, to ensure the RACS assessment of Mr Phipps was

fully informed and fair.

Insofar as conclusions and recommendations of the RACS Report are concerned,

the Authority will see its particular relevance to the documentary was threefold

...

(a) That, for reasons discussed previously, HCO initiated the writing of the

RACS Report, and provided the information for RACS to write it.

(b) That HCO repeatedly used the Report to justify the decision to sack Bob

Phipps - and did so contrary to the findings of the Report itself.

(c) That the Report contained errors of fact.

The Authority will note that these are the substantive matters raised by 20/20 in

respect of the RACS Report. Also note RACS has not objected to any of these

facts.

Dealing with the process by which the matters were raised in the broadcast and the

investigations reported in the item, TV3 concluded:

In conclusion, TV3 did not, at any stage, suggest that RACS undertook a biased

witch-hunt against a 'good guy'. Again, it is important to note that TV3 stated

and restated that the RACS Report did not recommend Mr Phipps be sacked.

The RACS, in its complaint to the Authority, has completely neglected this

point.

As for the complaint that the item was biased and dealt with some people unfairly,

TV3 referred to the arguments it had advanced in relation to the standard G6

complaint about the lack of balance. In addition, it noted the College position held by

Mr Andre van Rij which, because it would not be a position given to a newly elected

member, justified his description as a 'senior member'. Noting again that the RACS

report did not recommend Mr Phipps' dismissal, TV3 commented:

However, what is significant in this regard is that Mr van Rij, on behalf of the

HCO, provided the HCO with a synopsis of case histories (of patients who had

been in the care of Mr Phipps) for RACS to consider. The RACS report

contained many (as many as 20 odd) errors of fact. Had the patient notes

themselves (as opposed to the synopsis prepared for RACS benefit) been

studied meticulously and relied on exclusively and/or patients interviewed, these

errors of fact would not have been made. Oddly these errors of fact mirror

errors made in the synopsis.

Enclosing a copy of the legal proceedings initiated, TV3 continued:

If the synopsis provided by HCO (prepared by Mr van Rij) did not form the

basis of documents considered by RACS for their review, then TV3 is at a loss

to explain how a panel of professionals could make so many eliminatory errors

of fact.

The application for judicial review brought by Mr Phipps is to be heard later

this year in the Dunedin High Court. Counsel for Mr Phipps has advised that

he hopes to obtain a hearing about June or July. That proceeding will cover the

issues we refer to in this submission in some detail. Because the Authority is

not a forum in which facts and evidence can be presented and tested adequately,

there is a risk that the Authority will make a finding of fact inconsistent with the

High Court.

TV3 then addressed the aspect of the RACS' complaint that the reference to the

Medical Council Report was unbalanced. On the basis that the item was concerned

with the motivational factors behind HCO requiring the Report, rather that its

substance, and with the way HCO used it, TV3 considered the complaint unjustified.

It added:

Perhaps the point was not well made by TV3 in the documentary, however the

Authority should know that the point intended to be made by John Campbell

[the reporter] was that, at a time when Mr Phipps had been dismissed by HCO

using the RACS report, at a time when the RACS report was being reviewed and

was under appeal by Mr Phipps, and at a time when the accuracy and validity

of the Report was being questioned, Mr John Simpson, the head of the RACS,

felt capable of providing the Medical Council with an uncompromised, objective

and non-controversial assessment of Mr Phipps 'fitness to remain on the

specialist register'; an assessment which could determine Mr Phipps'

professional future. That is the point TV3 intended to make.

The Authority may be interested to know that, as TV3 understands it, the fact

that Mr Simpson felt able to offer such an opinion during this period, will be

part of the forthcoming High Court proceedings against RACS by Mr Phipps.

The irony of the complaint by RACS against TV3 is, Mr Simpson's provision

of an opinion on Mr Phipps to the Medical Council, had TV3 been more clear,

may well have had a more negative impact on public opinion of the RACS than

the negligible impact of the information that was, in fact, briefly mentioned in

the documentary.

Turning to the complaint under standard G20 about the interview, TV3 stated that

20/20 was exasperated with the paradox that while the College's Mr Simpson was able

to prepare a report on Mr Phipps' 'fitness' for the Council, Mr Simpson was unable

to discuss Mr Phipps with 20/20.

Because a summary of its report had been circulated to the members of RACS, 20/20

considered that having offered an opinion on Mr Phipps' professional future, Mr

Simpson was acting inconsistently in declining to comment. It contended:

20/20 made Mr Simpson aware of its intention to publish a documentary

revealing factual errors in the Report. Given the amount of publicity already

given to the Report, given the amount of publicity already given to the sacking

of Mr Phipps, and given that no patients were being identified by 20/20, there

can be no logical reason for Mr Simpson's claim that confidentiality or privacy

prevented him from responding to 20/20's concerns.

The Authority will have noted that Mr Simpson has much in common with

HCO's Mr Ayling in this regard. TV3 submits this: both men appear to have

developed their great concern for confidentiality and privacy at precisely the

moment when 20/20 began asking them difficult questions.

TV3 regarded the aspect of the complaint that Mr Simpson did not comment because

he had insufficient time to study the documents as inconsistent with the above point,

and wrote:

Either Mr Simpson was going to answer questions or he was not. Having

previously declined to answer questions for reasons of privacy and

confidentiality, Mr Simpson now implies that, in this case, he would have

answered them. The Authority may be interested to ascertain from Mr Simpson

whether this means he had decided to breach the high ethical standards with

regard to privacy and confidentiality he had previously used to justify not

answering questions.

Pointing out that Mr Ayling did not need time to study the same documents before

replying, TV3 argued that Mr Simpson's reasons did not withstand close scrutiny.

TV3 also referred to the interview with Professor Grant Gillette who was able to

comment on the documents within seconds.

As for the standard G6 complaint that the selection of clips showed bias, TV3 pointed

out that it was raised in the referral only.

By way of conclusion, TV3 recorded

The Authority will note that even now, neither the significant errors in the

RACS Report, nor their clear implications, have been disputed by the RACS.

Expressing confidence that 20/20's criticism of HCO's use of the RACS' Report

would be upheld in the High Court proceedings, TV3 concluded:

TV3 demonstrated that HCO had provided RACS with incorrect information.

HCO then used that to dismiss Mr Phipps. The motive(s) for doing so was

open to real question.

Appended were a private practise letter bearing the names and signatures of Packer,

Pettigrew and van Rij, and a copy of the proceedings filed by Mr Phipps against the

two complainants.

RACS' Final Comment - 11 April 1996

The College began by expressing disappointment that TV3 was not prepared to

acknowledge that the programme was inaccurate and unbalanced and, in particular, that

the College had been portrayed unfairly.

It pointed out that the initial complaint had focussed on a limited number of specific

matters and it rejected TV3's allegation that, as a consequence, it had accepted the

accuracy of the rest of the broadcast. It also commented that the publicity in

November-December 1994 at the time of Mr Phipps' dismissal occurred some seven

months before the broadcast and would probably have been forgotten by viewers.

The College argued:

The story, as portrayed by TV3, centres on apparent injustice to Mr Phipps

and does not inform the viewer that a serious issue about surgical standards was

at stake. To us, this is a matter that is vital to achieving anything approaching a

'balanced view'.

The College then dealt with the matters raised by TV3. It continued to insist that the

item had dealt with its report in an unbalanced and unfair way. To TV3's argument

that the item recorded on three occasions that the report had not recommended

dismissal, the College responded:

As we have stated previously, the RACS Report was referred to at least 40

times and yet the programme did not provide the viewing public with adequate

information on the clinical background, conduct, conclusions and

recommendations of the Report.

Any communication between itself and HealthCare Otago about HCO's use of the

report was a private matter, it wrote, and did not bear on the issue of whether TV3

had dealt with the report adequately.

The College repeated its argument that TV3 should have reported that the report

considered Mr Phipps' management of 22 patients with colorectal disease. TV3, it

pointed out, advised the Authority that business considerations were the issue, to

which the College replied:

This College would never consider a formal review of an individual's surgical

practice without first establishing that there is a case to answer in the area of

standards of surgical practice. In this case, the substantive findings of the RACS

Report to HCO which identified deficiencies in aspects of Mr Phipps' surgical

practice, provided final justification for the review being undertaken.

It added:

The Authority may or may not be aware that the RACS Report did comment in

its final recommendations on the poor relationships that existed within the

Department of Surgery. It can therefore be seen that the reviewers were aware

of this situation but did not consider that this could in any way excuse the

substantive deficiencies identified in areas of Mr Phipps' surgical practice.

Moreover, the College emphasised that the review, sought by HCO, would not have

been undertaken unless there was evidence to suggest problems in Mr Phipps' surgical

standards.

It was accepted that the review included examining the HCO files of the 22 designated

patients. However, the RACS stated, the review also involved interviews with Mr

Phipps and staff in Dunedin hospital. These people, as the report had made clear,

gave differing accounts of their working relationship with Mr Phipps. As TV3 had

access to the Report but did not report this information, the College was of the view

that this also reflected adversely on the fairness of TV3's approach.

The College repeated that although HCO had used the report as part of its reasons for

dismissing Mr Phipps, the report had recommended supervised practice and

retraining.

Referring to TV3's argument that the Report contained errors of fact, the College said

it did not reply to the specific points when interviewed for the broadcast as it was

preparing a full response for Mr Phipps on many issues he had raised. Now that the

full response was with Mr Phipps, the College acknowledged a transcription error.

That did not, however, alter the conclusion of that section which dealt with Mr

Phipps' poor communication with a patient's GP. The College also acknowledged an

error as to who first saw a particular patient although, it insisted, the matter was not

as alleged in the item to be 'the crucial point'.

It continued:

Rather the key issue was the nature of the operation performed by Mr Phipps

when he carried out the surgical procedure. These two issues had no bearing on

the conclusions reached in the Report about Mr Phipps' management of

individual cases or on the overall conclusions reaching about his ability to

perform colorectal surgery. This would have been apparent to TV3 as they had

obtained a copy of the Report.

Professor Grant Gillette was interviewed on the programme about the transcription

error but the item:

... in no way gave the viewers an understanding of the significance of the issue

surrounding the laboratory report, to that section of the Report ie Mr Phipps'

communication with a general practitioner.

The programme, the College commented, obtained comment from 'a world expert' in

colorectal surgery but the British expert's criticisms of the surgical practices

highlighted in the report were not put to HCO. Further, there were no comments from

any Australasian expert.

The College concluded this section of its reply:

Whilst TV3 may claim that the RACS was not the focus of its documentary, the

number of occasions it referred to this College, its repeated connecting of

Professor van Rij with the College, its interviewing of myself and its reference to

the College's report to the Medical Council of New Zealand (MCNZ) ensured

that this College was prominent in viewers minds as a result of the programme -

either as a dupe of HCO (as TV3 would appear to be suggesting in their written

response to the BSA) or as a partner in crime with Professor van Rij. The

College remains of the opinion that the overall tenor of the programme portrayed

it as indeed being part of an unpleasant conspiracy. We believe that there are no

facts to support this assertion.

The RACS then dealt with its complaint of bias under standard G4. It reiterated that

it was not a 'statement of fact' that it had a 'senior member' category. It disputed

TV3's claim that its report contained up to 20 errors of fact. It accepted that there

were a small number but insisted that they did not alter the report's substantive

findings.

To suggest that the conclusions in the report were based on the written synopses by

the employing body, the College contended, disclosed TV3's inadequate research or

understanding of the review process and, furthermore, was demeaning to the

professionalism of the reviewers.

On the question of the court proceedings underway, the RACS wrote:

We are concerned over TV3's apparent suggestion that the issue before the BSA

is the same as the issue before the High Court. The RACS complaint over the

20/20 programme is its failure to present to the public a balanced, fair, impartial

programme as it related to events surrounding the review of Mr Phipps'

colorectal surgical practice. Mr Phipps' action against the RACS, apart from the

small number of errors acknowledged by the College, is principally based on his

disagreement with the reviewers over whether his colorectal surgery meets

acceptable standards for New Zealand. We would be concerned if the BSA

considered it could not respond to the RACS complaint because of the High

Court action instigated by Mr Phipps.

The College then pointed out TV3's transcription error in using the word 'for' rather

than 'to' when referring to the College's report for/to the Medical Council, and:

Consequently, we remain firmly of the opinion that the impression given by this

section of the programme, was one of bias by the RACS against Mr Phipps.

The section of TV3's reply in which it dealt with the complaint about the unbalanced

way in which the item covered the Medical Council report, the College wrote,

involved the presentation of opinion as fact. TV3 at first acknowledged that it was

unaware whether the RACS had complained to HCO about the use of its report as a

reason for dismissing Mr Phipps. Later, TV3 stated that the College had not formally

protested to HCO on the point. TV3, the College wrote, should be consistent.

TV3, it added, had also made some errors in relation to the RACS report to the

Medical Council. In the correspondence, TV3 had said that the item should have made

the following point:

... at a time when Mr Phipps had been dismissed by HCO using the RACS report,

at a time when the RACS report was being reviewed and was under appeal by Mr

Phipps, and a time when the accuracy and validity of the Report was being

questioned, Mr John Simpson, the head of the RACS, felt capable of providing the

Medical Council with an uncompromised, objective and non-controversial

assessment of Mr Phipps 'fitness to remain on the specialist register', an

assessment which could determine Mr Phipps' professional future ...'

This allegation, the College commented, could be seen as further evidence of bias. It

then provided a chronological history of events between itself and the Medical

Council between late December 1994 - mid June 1995 concerning Mr Phipps, stating

that it had sent its response to the Medical Council's request for a report on Mr

Phipps' fitness to remain on the specialist register some weeks before being informed

that Mr Phipps considered that there were errors in the report to HCO. It added:

It is also important to note that the RACS response to the Medical Council did

not recommend Mr Phipps be removed from the Specialist Register. It

suggested the Council place limits on which areas of general surgical practice Mr

Phipps could carry out unsupervised until he had retrained in those areas of

general surgery in which the RACS Report found him to be deficient.

The following were advanced as the reasons for the complaint about this aspect of the

programme:

TV3 is therefore grossly inaccurate in stating that the College provided its report

to the Medical Council at the same time it was formulating its response to Mr

Phipps' stated criticisms. We consider the linkage implied between the two

events is damaging to our reputation with the New Zealand public. We are

aware that TV3 had obtained a copy of the RACS report to the Medical Council

as this was shown to me during their interview. TV3 therefore must have been

aware of the date of this report.

The College then addressed the aspect of the complaint which alleged that the

interview with Mr Simpson breached standard G20.

First, TV3's reporter's request for a copy of the report - on the basis that he had the

same status as the Medical Council - was described as 'rather presumptuous'.

Because TV3 said that it was paradoxical that a summary of its report on Mr Phipps

was sent to the RACS' members, the College advised that it had decided to deal now

with a minor inaccuracy included in the item. It recorded the process which it had

followed in regard to information for its members when HCO had referred to the

College Report in its dismissal of Mr Phipps and concluded:

In summary then, the RACS did not circulate its Report widely but rather gave

New Zealand Fellows of the College the option of receiving a copy of the

information released into the public arena; and the RACS report to the MCNZ

was in response to a request under legislated regulations. The College does not

consider these to be precedents that should therefore require additional comment

to be made in a public forum. The RACS did 'not address (this paradox) in (its)

complaint' as it did not consider there was a paradox to be so addressed. We

must request Mr Campbell [the reporter] to live with his paradox.

The College also maintained that it was appropriate that Mr Phipps should receive in

full the College's response to his queries rather than to hear a 'partial and premature

response' on television. It maintained in addition, contrary to TV3's argument, that

there were logical reasons based on privacy and confidentiality for not responding to

20/20's concerns.

As for the aspect of the complaint which focussed on the documents to which the

College's Mr Simpson was expected to respond without study, the RACS noted that

its report was 138 pages long without appendices and had been prepared after

extensive inquiries. Mr Simpson continued:

I am familiar with the Report, as I informed TV3, but this does not mean it is

sensible or reasonable to respond to part of a document of this type without the

opportunity to re-read it at leisure and consult other material as necessary. I

asked the 20/20 producer for the opportunity to read the documents prior to the

programme. She declined saying something to the effect of 'it makes for better

television' to confront an interviewee with the documents rather than allow

them to make a considered response. I consider it totally unreasonable of Mr

Campbell to expect me to do so instantaneously and a reflection of poor

journalism to then claim the person is merely refusing to comment out of ' ...

embarrassment arising from the consequences of the propositions put to him ..'.

Had he been given an adequate opportunity to examine the documents, he would have

been able to deal with the central issues. Professor Grant, who commented on the

transcription error, it pointed out, was not interviewed as a RACS spokesperson.

In view of the exclusive references in the programme to the RACS, the College

continued to disagree with TV3 that the programme was about HCO solely. The

College it argued, also had to be dealt with fairly.

By way of conclusion, the RACS repeated the point that, by not commenting on a

particular matter in the programme, it did not accept that it was accurate. It

understood that a complainant was not allowed to raise issues not included in the

original complaint. However, should the Authority require further information on the

item's inaccuracies, that could be provided. It concluded:

The Royal Australasian College of Surgeons stands by its original letter of

complaint to the TV3 Complaints Committee and our covering letter in referring

this complaint on to the BSA. Indeed, some of the opinions expressed in the

TV3 response to the BSA lead the College to believe it was even more biased in

its view and incorrect in its observation of detail (eg dates of correspondence)

than we had considered it to be from observing the 20/20 programme.

Appended to the response was a copy of a letter from the College Chair to members

(dated 31.11.94 (sic)) following the publicity surrounding HCO's dismissal of Mr

Phipps. It concluded:

We want to make it clear that media reports suggesting that the College report

recommended dismissal are untrue and damaging to the College. Reviews such

as this depend on every effort being made to identify and correct problems in a

confidential and humane way befitting surgical colleagues.

TV3's Response to the RACS' Final Comment - 28 May 1996

In view of some of the matters raised by the RACS in its final comment, TV3

responded in a lengthy letter.

Dealing first with the aspect of the complaint which focussed on the report to the

Medical Council and which the College alleged amounted to a breach of standard G6,

TV3 provided the following information in relation to the chronology of events

outlined by the RACS. It began:

It is TV3's belief that Mr Simpson's chronology does not set out the full facts

for the Authority's consideration. TV3 believes that, at best, Mr Simpson's

chronology is undermined by forgetfulness, and that at worst, it is deliberately

misleading.

TV3 then dealt with the Medical Council meeting on 14 March 1995 at which Mr

Simpson acknowledged being present for some time. At that meeting, Mr Simpson

was asked to prepare a report on Mr Phipps' suitability to remain on the specialist

register. That report was presented at the meeting on 3 May and, TV3 recorded:

Since the March 14 meeting occurred some seven weeks before Mr Simpson's

May 3 Report to the Medical Council, and since Mr Simpson tells the

Authority that he wrote the May 3 Report in complete ignorance of Mr Phipp's

concerns over the RACS Report, it must be the case that Mr Simpson did not

become aware, before, during, or as a consequence of the March 14 meeting, that

Mr Phipps had expressed concerns about the RACS Report.

TV3 then listed a number of events which, in its opinion, indicated that Mr Simpson

must have been aware by 14 March, if not earlier, of Mr Phipps' objections to the

RACS' report. However, TV3 continued:

In their totality, the four points listed above are critical. The Authority will be

aware that Mr Simpson uses his claim that he wrote the Report to the Medical

Council 'some weeks before being informed by Mr Phipps ... that he considered

there were errors in the Report', to attack 20/20 as being 'grossly inaccurate'.

Mr Simpson concludes: 'We consider the linkage implied between the two

events is damaging to our reputation with the New Zealand public'.

Recording 11 occasions when Mr Simpson could have been advised of Mr Phipps'

concerns, TV3 again challenged the accuracy of Mr Simpson's observation that he was

not aware of Mr Phipps' concerns until 3 May and his use of this lack of information

as a basis for an attack on the item.

TV3 concluded this section of its response:

TV3 has chosen to begin its response to the RACS complaint with this point for

a simple reason; no error 20/20 has been accused of, no alleged example of

'presenting opinions as fact', no 'incorrect detail' 20/20 has been attacked for,

requires as great a suspension of disbelief in its explanation as Mr Simpson's

insistence to the Authority that he did not learn before May 3 (six months after

Bob Phipps was sacked, and seven weeks after the March 14 Council meeting)

that Mr Phipps believed there may be 'errors' in the RACS Report.

TV3 would point out that it too had compiled a chronology of events. TV3 was

aware its story was controversial. TV3 was also aware that any mistakes or any

inference which could not be supported by fact, would almost certainly result in

legal action being taken by HealthCare Otago and/or the RACS against TV3.

(The Authority may be interested to know that despite the strenuous attacks

that have been made against TV3 to the Authority, neither HCO nor the RACS

has chosen to file any proceedings against TV3 through the Courts.) Hence,

TV3 drew up a detailed chronology of events long before the story went to air,

returning to it well before making any suggestion that it may have been

inappropriate for Mr Simpson, as Chairman of the RACS, to offer, while the

RACS Report was under attack, another opinion on Mr Phipps, particularly one

which might directly and significantly impact on his future.

It is clear, in fact, that TV3's chronology is more detailed and accurate than Mr

Simpson's. Or at least, that TV3's chronology is more detailed and accurate

than the chronology Mr Simpson has chosen to provide for the Authority.

In short, TV3 would contest that one of the central allegations made in the

RACS complaint against 20/20 is itself more lacking in credibility or integrity

than any of the alleged faults in the 20/20 documentary. TV3 finds this to be

quite incomprehensible. TV3 would further suggest that the insubstantive

nature of the RACS complaint, particularly in conjunction with the moral

outrage of its tone, implies that the RACS has a somewhat cavalier attitude

towards both the Authority and TV3, and that, for whatever reason, the RACS

appears prepared to waste the Authority's time.

Noting that RACS stated that its report to the Medical Council did not recommend

Mr Phipps' removal from the specialist register, TV3 maintained that the Medical

Council decided despite the lack of an explicit direction, to remove Mr Phipps after

receiving the RACS' report. That decision, it added, had been deferred in view of the

forthcoming item on 20/20 and remained on-hold.

The RACS report to the Council nevertheless, TV3 added, stated explicitly that

should Mr Phipps have been applying for registration for the first time, it would not

have been recommended. That comment was made, moreover, after RACS had said

that this was one of the criteria it had been asked to apply when preparing the report.

TV3 wrote:

TV3 would add an observation to this point. It there is a deception (and

deliberate or otherwise, it is arguable that the effect is the same), it is not TV3's

job to compliantly act as parrot. In this instance, for example, Mr Simpson

claims he 'did not' recommend Mr Phipps be removed. TV3 insists that given

the paragraph above and the context in which it was written, given Mr

Simpson's conclusion 'That a clear answer about Dr Phipps' competence

cannot be given at the present time', given the uprecedented requirements that

Mr Simpson suggested should be attached to Mr Phipps' assessment, given that

all this was conducted against the background of Mr Phipps having already been

sacked by HealthCare Otago, and given that Medical Council did initially decide

to remove Mr Phipps from the specialist register, it is clear that although Mr

Simpson did not explicitly recommend Mr Phipps be removed from the

Register, he may as well have done.

TV3 next dealt with the aspect of the complaint which argued that the item dealt with

the RACS' report in an unbalanced way. It insisted that the item was fair given the

dictionary's definition of 'fair' as 'just', commenting:

Was TV3 'just'? It is TV3's strong belief that the facts, as demonstrated to the

Authority, and as will be testified to the High Court, prove that TV3 was.

TV3 would also suggest to the Authority that, given the lack of factual vigour

displayed in the RACS complaint to the Authority, it may well have been that

had 20/20 unreservedly parroted the RACS line, thus displaying 'balance' as

Mr Simpson seems to define it, the documentary might have found itself very

far from the truth.

As for the RACS concern that the High Court action could impede the Authority's

determination of the complaint, TV3 acknowledged that the Authority could

determine the complaint before the High Court hearing. However:

... it is TV3's belief that the High Court will determine the true reasons for the

RACS Report being undertaken, and also whether or not the Report was fair and

true. Thus the High Court hearing may enable the Authority to better judge

whether or not 20/20 has been 'balanced, fair and impartial'.

TV3 also expressed the opinion that the RACS had most to gain by requesting the

Authority to defer its consideration, if it was so confident that it would win the High

Court case.

The reason for the RACS review was the next issue addressed by TV3 and it repeated

its argument that the review arose from the enmity between Professor van Rij and Mr

Phipps. The material disclosed in the High Court case, TV3 contended, showed that

Professor van Rij played a significant role in determining the terms of reference for the

RACS report. It noted:

This information is telling. TV3 would respectfully suggest that it throws a

different light on not only the validity of the RACS complaint to the Authority,

but also the validity of the complaint made by HealthCare Otago. TV3 would

also respectfully suggest that this information may provide an insight into why

Mr Simpson urges the Authority to adjudicate on the RACS complaint before

the High Court hearing.

In response to the comment from the College that the reviewers interviewed Mr

Phipps and a considerable number of other staff at Dunedin Hospital, TV3 pointed

out that Mr Anderson was not seen. Mr Anderson, TV3 added, was the Registrar

who worked with Mr Phipps longer than any other doctor in Dunedin and he had

advised the RACS that he wished to testify on Mr Phipps' behalf. Further, of the ten

individuals who supplied letters of reference when Mr Phipps first applied for

specialist registration, only one was interviewed. Nevertheless, the reviewers spoke

to Professor van Rij and his two partners in private practice.

Turning to the College's allegation of bias and a breach of standard G4, TV3 described

RACS response to the senior member's comment as disingenuous. In usual

terminology, it argued, Professor van Rij was a senior member of the RACS. TV3

observed that for the first time, the RACS acknowledged that its report contained 'a

small number of errors'. If Mr Simpson of the RACS was not prepared to comment

on the errors, TV3 believed that he should have made himself available for the

interviews.

TV3 concluded:

TV3 would suggest that the RACS is operating with an agenda other than its

stated desire for 'fairness'.

TV3 would contest that the RACS is intent on making 20/20 a part to self-

interest, disingenuousness and deception. TV3 contends that this is not the role

of journalism.

Finally, TV3 would respectfully point out that the RACS complaint has

involved both TV3 and the Authority in a great deal of time and trouble. TV3

would suggest that the Authority has been drawn into an exercise in which the

RACS has wasted the Authority's time in pursuit of agendas other than fairness,

balance and truth.

RACS' Final Comment in Response to TV3's Reply - 6 August 1996

In its response, Mr Simpson of RACS began with the following points:

1. It is disappointing that TV3 feel the need to devote a significant portion of

their most recent letter to focus on my role in the Phipps issue rather than

the real issue which is whether their programme meets the standards

required by the Broadcasting Standards Authority.

2. We are also disappointed that TV3 should make the allegation that the

RACS has 'a somewhat cavalier approach towards both the Authority and

TV3', and is '(wasting) the Authority's time' (TV3: p.5, para 7) and being

'in pursuit of agendas other than fairness, balance and truth' (p.11, para

9). The Royal Australasian College of Surgeons absolutely refutes these

allegations.

3. This matter is consuming a large amount of time for the College and, we

presume, for TV3 and the BSA also. The RACS considered not

responding to the most recent submission from TV3 in order to assist the

BSA to move to consider the issues at hand. However, there were a

number of inaccuracies and false assumptions and conclusions within this

submission. Thus, it was decided a response was necessary to correct

these. Whilst the RACS would prefer that this complaint does not linger

on, it is clearly the BSA's decision whether to consider this matter before

or after the judicial hearing.

The report to the Medical Council was the first matter addressed. The College

maintained:

At the time when the assessment of Mr Phipps' 'fitness to remain on the

specialist register' was requested and delivered to the MCNZ the RACS was

unaware of any specific concerns. We were unaware that the report was 'being

reviewed' and nor had Mr Phipps notified the RACS of his 'appeal'. The

RACS had not been formally told that the 'validity' of its Report 'was being

questioned' when the report on specialist registration was sent to the Medical

Council on 3 May 1996. The RACS maintains that its chronology does show

that TV3 was inaccurate in its view as quoted above.

Mr Simpson then explained in detail the relationship between the College and the

Medical Council. The RACS acknowledged that it was aware of Mr Phipps concerns

about the report if, for no other reason, than they had been reported in the media in

late 1994. However, his 15 page analysis containing his specific concerns was not

received until 'some weeks after' the RACS report had been sent to the Council.

Moreover, the RACS nominee on the Council had not discussed Mr Phipps with him

and would not have been expected to do so. In reply to TV3, Mr Simpson reported

that the College was using the BSA - a legally constituted body - in its pursuit of

justice, and:

Regardless of the out of context quotes, listed on p.6 of the TV3 letter, the

bottom line is that the RACS did not recommend Mr Phipps be removed from

the specialist register but that he should undergo training in specific aspects of

general surgery with restrictions on his surgical practice in these areas until such

training had occurred.

Mr Simpson added that he was not aware of the Council's decision on the RACS

report on this matter.

On the other aspects raised by TV3, Mr Simpson said that the media were not

expected to 'parrot' the RACS view. However, balance was required and that was

not achieved on this occasion.

As for the reasons for the review, Mr Simpson said detailed discussions were held

with two parties and, later, Professor van Rij was involved in a tele-conference with a

number of other staff. He continued:

The judgement at that time was that a case had been made for a review. It was

made clear in the RACS Report that the reviewers did not ascertain exactly how

the reviewed cases were selected. However, no matter who selected them or

how they were selected, the fact remains that the reviewers identified issues

relating to surgical standards in a number of the cases studied. This led to their

recommendations that Mr Phipps required retraining in a limited part of his

surgical work. In response to the accusation of being disingenuous when

reporting that a number of medical and other staff from Dunedin Hospital were

interviewed, I can only comment that if stating a fact is being disingenuous I am

prepared to live with this epithet.

The reviewers interviewed a number of former staff at length. Dr Anderson was not

formally interviewed as he was in Adelaide and played no significant role in the cases

under review. One of the reviewers was spoken to by Dr Anderson because he was

interested in the outcome of the review. He was told that the report was the property

of HealthCare Otago. Mr Simpson noted:

We would like to clarify for the BSA that Dr Anderson cannot possibly have

worked with Mr Phipps 'for a longer period, than any other doctor at

HealthCare Otago'. There are doctors in the Department of Surgery who were

there during the total duration of Mr Phipps' involvement in the Department.

Dr Anderson, on the other hand, had left the employment of HealthCare Otago

before Mr Phipps' departure.

As Mr Phipps' referees for specialist registration were not involved with his

management of colorectal patients, they were not interviewed by the reviewers.

Mr Simpson repeated his objection to the use of the title 'senior member' as it

implied an 'old boys' conspiracy - an implication the College totally rejected.

The RACS, he said, stood by its comment that there were a 'small number' of errors

and it was inappropriate to discuss the report on television before responding to Mr

Phipps. As TV3 had not supplied him with a list of questions he was unable to

advise them before the interview that he would not have been able to answer those

points. He concluded:

In our first letter of complaint of 20 August 1995, our principal concerns were

with balance, impartiality and fairness. Our opinion, then and now, is that those

criteria were not met by the 20/20 programme.

Appendix II

HealthCare Otago's Complaint to TV3 Network Services Ltd - 15 September

1995

Describing the complainant organisation as 'extremely angry' at the ethical standards

displayed in the item, the Chief Executive of HealthCare Otago (HCO) (John Ayling)

complained to TV3 Network Services Ltd about the 20/20 item entitled 'Cut and

Thrust' broadcast on 24 July 1995.

Mr Ayling recalled that he had been approached by 20/20 which was making a

programme to show that general surgeon Mr Phipps had been 'pilloried' by HCO.

Describing the item as unbalanced, he continued:

I agreed to participate in the programme on the condition that it was clearly

understood that Mr Phipps would be pursuing his personal grievance with

HealthCare Otago through the Employment Tribunal and that I would not be

able to comment on matters relating to Mr Phipps dismissal. This was agreed.

On camera, TV3 proceeded to present allegations, information and documents

including patient notes which appeared to have been supplied to them by Mr

Phipps and expected me to respond spontaneously to these. In spite of an

undertaking at the conclusion of the interview that these documents would be

passed on the HealthCare Otago so that the allegations could be properly

investigated, this never happened.

The item, he added, made unsubstantiated allegations about Mr Phipps' former

colleagues in the general surgery department and erroneous comments about the breast

screening programme in the district. The comments about breast screening were made

by Elaine Gousmett who, despite the fact she was described as a Breast Care Nurse,

had never worked in that role for HealthCare Otago. It was also incorrect to state that

Mr Phipps was recruited as a breast specialist who left England for Otago. He was

recruited while working in a non-specialist position in Auckland.

The complaint also said:

TV3 threatened to harass HealthCare Otago staff who refused to be interviewed

for the programme. This harassment included a statement from [TV3's] Mr

Keith Slater to HealthCare Otago's Communications Manager that 'We'll have

to do, what we have to do' when Professor van Rij declined to provide a video

footage of himself to the programme. This harassment then took the form of a

TV3 crew hiding behind a hedge outside Professor van Rij's private residence to

obtain footage of him getting into his car in the morning.

The item also lacked balance as although TV3 apparently had the records of the

preventable death alluded to, no attempt was made to talk to the family involved.

In conclusion, Mr Ayling wrote:

Finally, there is the issue of the way the programme was edited. I was

interviewed on camera for 45 minutes. As part of that interview I explained

very carefully the reasons for Mr Phipps' dismissal. I also explained the

reasons that personal information relating to individual patients contained in the

Royal College of Surgeons' report could not be discussed publicly. All of this

footage was edited out. The only comments used were ones where after

repeated questioning about personal information, I was forced to repeat my

response until I began to sound slightly abrasive and look defensive.

Mr Phipps on the other hand had numerous sequences on the programme which

included footage of his wife, his children and even the family cat which had a

touching cameo appearance.

TV3's Response to the Formal Complaint - 14 November 1995

TV3 reported that it had assessed the complaint under s.4(1)(d) of the Broadcasting

Act 1989 and standards G1, G4, G6 and G20 of the Television Code of Broadcasting

Practice. It then discussed the complaint under each standard.

Dealing first with the accuracy requirement in standard G1, TV3 said the item did not

state that the nurse quoted (Elaine Gousmett) worked either for HealthCare Otago or

Mr Phipps. However, she was an experienced breastcare nurse and had a reference to

that effect from Professor van Rij.

TV3 acknowledged that, given a strict interpretation of the phrase, it was incorrect to

state that Mr Phipps left London for Otago as he had worked briefly in Auckland.

However, he was approached by HCO in London.

As for the complaint that Mr Phipps' duties were reported incorrectly, TV3 said it

had a letter to the complainant from Professor van Rij in which he wrote:

Mr Phipps is a very able individual, and has particular strengths in the area of

the management of early breast cancer. This would tie in very well with the

screening project, with which he would become the surgical coordinator ... (he)

would work as a junior consultant.

Agreeing that Mercy Hospital (an institution where Mr Phipps had worked later in

New Zealand) and HealthCare Otago were separate, TV3 said that as Mr Ayling had

spoken to Sister Lucia of Mercy, it was unable to accept that Mercy had nothing to

do with HealthCare Otago.

In response to the complaint that the programme made unsubstantiated allegations

about Mr Phipps' former colleagues, TV3 assured the complainant that each allegation

could be substantiated.

TV3 then considered the standard G4 aspect of the complaint - that it had not dealt

fairly with people taking part in the programme.

Denying that its staff had used the word 'pilloried', TV3 maintained that it was

obvious that the programme sought Mr Ayling's views on the report from the Royal

Australasian College of Surgeons and the dismissal of Mr Phipps. While Mr Ayling

might well have referred to the grievance procedures, TV3 maintained that it was not

constrained from asking questions on the matter, as at the time, no court proceedings

had been lodged.

TV3 acknowledged that Mr Ayling was asked to comment on some documents but, it

wrote, it had not undertaken to pass them on as they were not 20/20's to do so.

Further, the material would have been available to Mr Ayling from HCO's files

anyway.

TV3 denied that it threatened or harassed HCO staff who refused to be interviewed.

It continued:

The key interview sought was with Professor Van Rij. He refused and his

refusal was respected. As a consequence, and in a polite and reasonable manner

20/20 sought an opportunity to record some vision of Professor Van Rij. This

was declined for reasons that are not understood given his prominent and

publicly remunerated position. It was stated by 20/20's Executive Producer

[Mr Slater] during a discussion with HealthCare Otago's Communications

Manager, Mr Swindells, that 'we'll do what we have to do to secure video

images of Prof. Van Rij'. When faced with 20/20's camera Mr Van Rij handled

the situation professionally, calmly and with understanding.

While HealthCare Otago had said in the complaint that personal information about

patients could not be discussed publicly, TV3 pointed out that the interviews did not

seek to identify patients. It said:

Mr Ayling was invited to comment on apparent discrepancies in the RACS

report which he could have done without compromising the privacy of patients.

Opinion from the family concerned was not relevant to the conclusions of the

RACS report and subsequent actions taken by HealthCare Otago against Mr

Phipps.

As a large part of the interview with Mr Ayling consisted of his refusal to comment,

TV3 said that the parts included in the programme were a fair representation of the

interview overall. Declining to uphold the alleged breach of standard G4, TV3

concluded:

The TV3 Complaints Committee concludes that Mr Ayling had reasonable

opportunity to respond to the allegations made in the programme. It was Mr

Ayling who elected not to comment on matters that were of a medical and

procedural nature. He could have, if he so wished, commented on these without

compromising patient privacy. That he elected not to do so should not later be

used as a basis for a complaint alleging a breach of G4 of the Broadcasting

Codes of Practice.

Turning next to the requirement in standard G6 for balance, TV3 maintained that all

relevant parties were involved. It went on to deal with the specific reference to the

Phipps' family and their cat and wrote:

The programme was about Mr Phipps, his termination and related matters. It

was entirely appropriate to show Mr Phipps and his family. The shot of the

cat was what is known as a 'cut away' or a brief image of an object, person or

animal, unrelated to the main action used to enable a visually coherent transition

from one scene to another. It is an accepted device in television production.

The Committee accepts that, apart from the interview with Mr Ayling, the

programme makers were not given access to HealthCare Otago premises and

personnel making it difficult to show more telling images, other than archive

footage and exteriors, of HealthCare Otago.

As for the standard G20 requirement that all significant sides are to be presented

fairly, TV3 declined to uphold that aspect reporting:

The Complaints Committee is mindful of the many restrictions and caveats self-

imposed by HealthCare Otago on what it could and could not say. The

Committee is also mindful of the refusal of Professor Van Rij to grant an

interview. The Committee believes, given these constraints, the programme did

not breach G20 of the Broadcasting Codes of Practice.

In conclusion to the complaint overall, TV3 said that the statement that Mr Phipps

'left London for Otago' was a breach of standard G1 but given its minor relevance to

the programme overall, it did not consider an on-air apology was necessary.

HealthCare Otago's Complaint to the Broadcasting Standards Authority - 15

December 1995

Dissatisfied with TV3's response, Mr Ayling of HealthCare Otago referred the

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

Act 1989. He began:

This programme was about the dismissal of HealthCare Otago General Surgeon

Mr Robert Phipps in November 1994 following HealthCare Otago's receipt of a

report from the Royal Australasian College of Surgeons which highlighted

concerns about his assessment, judgement and management of patients referred

for rectal and colonic surgery. All public statements made by HealthCare Otago

around that time relating to this matter were made available to Television 3 and

can also be made available to the Authority if you would like to see them.

Further, on 17 May 1995 he had been advised by the Association of Salaried Medical

Specialists that Mr Phipps rejected the offer to settle his personal grievance and that

proceedings would begin within a few days with a pro-forma statement of claim.

Accordingly, Mr Ayling continued:

On the basis of that notice, HealthCare Otago had no wish to comment on many

of the issues raised in the interview with 20/20 because they would clearly have

legal implications.

Dissatisfaction was felt with TV3's response to the complaint as, first, it failed to

address the issues raised and, secondly, it upheld a style of journalism which was

inherently unbalanced in that it was designed to argue a case rather than present a

balanced view on the issues. Further, no effective redress was offered on the one

point upheld. As the erroneous statement was made twice and left a strong

impression, a correction was required.

Mr Ayling then discussed the item's alleged factual errors when it said that Mr

Phipps was approached by HCO in London, and that he was employed as a

specialist. The process by which Mr Phipps came to New Zealand was explained in

some detail and, it was recorded, when he was in Auckland he was approached by

Professor van Rij. After a year with HCO, he was put on the Consultant pay scale on

the understanding that he would continue to act under supervision until he passed the

appropriate exam to become a registered specialist. The letter recorded:

In our view the statement that he was employed as a 'breast specialist' is

factually incorrect although his previous experience in managing patients with

early breast disease was recognised by Professor van Rij.

In the next section of the referral headed 'Inferences', Mr Ayling noted the

circumstances in which Elaine Gousmett was introduced and he maintained that it was

implied that she worked in a hospital environment as a breast care nurse. However:

Elaine Gousmett has never worked for HealthCare Otago, the Otago Area Health

Board, Mr Phipps or anyone else as far as we are aware as a 'Breast Care

Nurse'. In fact Elaine Gousmett was unhappy about her non-appointment to

the position of Breast Care Nurse when the position was first established by

HealthCare Otago in 1993.

In view of the possible implications of the reference to Mercy Hospital, Mr Ayling

considered that TV3 should have made some effort to verify the unsubstantiated

allegations contained in the item. He then stated:

The introduction to the programme made outrageous statements about

'appalling errors at HealthCare Otago' and reference is made to 'operations to

remove non-existent cancers'. These allegations are repeated further into the

programme with further statements 'a breast has been removed only to discover

that it did not contain cancer' and 'a leg amputated after a series of nightmare

operations'. These allegations can not be substantiated and were designed to

scare the public without being supported by the content of the programme.

Such desperate claims were clearly designed to alarm and frighten the audience.

The programme made no attempt to substantiate these claims and TV3 has no

right to make such statements without verifying them in the context of the

programme in which they were made.

'Issues of Balance, Impartiality and Fairness' was the title of the next section and, Mr

Ayling stated:

It is HealthCare Otago's firm view that the makers of this documentary had

predetermined the essential messages of this programme before they ever

approached HealthCare Otago for comment or an interview.

While the word 'pilloried' might not have been used when he was approached by

TV3, that was the impression given, which he considered was not impartial. He

believed it was reasonable for him to ask the interviewer what were the documents

cited in order to check whether they matched documents in HealthCare Otago's

possession. He commented:

On no occasion did I say that I was unwilling to comment on these documents

once I had had the chance to study them. I was given a verbal assurance by

20/20 that these documents would be passed on.

As Professor van Rij chose not to provide video footage, TV3 had not respected his

wishes. The footage taken involved entering the Professor's private property and

amounted to harassment. As for TV3's statement about his demeanour when

approached, it was described as:

... extraordinary in view of the fact that the programme used the footage on a

number of occasions without giving viewers the opportunity to hear exactly

what he had to say.

Patients could be recognised, Mr Ayling stated, from descriptions of their medical

history - without publication of their names. Therefore:

HealthCare Otago's insistence that it could not discuss the personal health

details of these patients is therefore based on the law (Privacy Act) and on fact.

His response to the visual of the Phipps' family and the cat was:

The images of the Phipps family and cat had nothing whatsoever to do with the

subject matter of the programme and in our view were used in an attempt to

engender feelings of warmth and compassion for Mr Phipps. Reference to the

Phipps baby as a 'Kiwi' was typical of the pathos laden rhetoric which

accompanied these shots which were used on several occasions. The 'cut away'

may be a recognised link between scenes but how a cat could link scenes about

the termination of Mr Phipps employment defies rational explanation. The two

camera crew spent a great deal of time in my office which contains cartoons on

the walls and various memorabilia. There were plenty of opportunities for the

programme makers to use sympathetic footage had this in any way been of

interest to them.

He summarised the balance aspect of the complaint.

The 45 minute interview I did with the 20/20 crew was clearly edited in such a

way as to extract footage of me which would be unfavourable and suit the agenda

of the programme. Examination of the material on the cutting room floor would

indicate that the extracts used in no way portrayed the careful way I had

explained HealthCare Otago's reasons for dismissing Mr Phipps. The

constraints of both the Privacy Act and of an impending case in the

Employment Court were based on sound legal advice, not on any attempt to

hide behind anyone's privacy. The law upholds my decision not to comment on

the matters of a 'medical and procedural nature'. It does not uphold TV3's view

that I could have commented on these matters without compromising patient

privacy.

In conclusion, Mr Ayling repeated that the item breached the nominated standards. It

had done so by presenting only one side of the argument about Mr Phipps' dismissal

by HealthCare Otago. Mr Phipps, Mr Ayling added, was portrayed sympathetically

while HCO was shown in an unfavourable manner.

TV3's Response to the Authority - 27 February 1996

TV3's detailed reply to the Authority dealt with both complaints together. The full

response is contained in Appendix I where, on p.vii, the Authority's summary of

TV3's response begins.

HealthCare Otago's Final Comment - 18 March 1996

On HCO's behalf, Mr Ayling commented under three headings. On 'matters of fact',

he wrote:

HealthCare Otago has noted that TV3 has conceded that Mr Phipps did not

leave London for Otago, that Elaine Gousmett has never worked as a 'specialist

breast care nurse' and Sr Lucia's own statement that 'Mr Ayling did not

attempt to persuade her [Sr Lucia] to suspend Mr Phipps' operating rights' on

page 5 of their submission directly contradicts statements of Jean McLean made

in the programme.

Expressing grave concerns about the use, at a late stage of the process, of individual

cases regardless of privacy concerns, HCO maintained that the cases quoted did not

justify the item's conclusion about 'staggering errors'. Moreover, Mr Ayling said,

TV3 was incorrect to state that HCO was involved in an Employment Court

proceeding. He commented:

HCO has not challenged the claims of the programme in relation to the Royal

Australasian College of Surgeons (RACS) report because they are matters

between Mr Phipps and the RACS and are currently before the High Court. It

is not HCO's role, nor is it TV3's role to sit in judgement on matters before the

High Court. HCO has not asked the BSA to rule on these matters - the High

Court will presumably do so. This does not mean that HCO accepts TV3's

conclusions about these matters. It means that HCO accepts the jurisdiction of

the High Court on these matters.

As for balance, impartiality and fairness – the second issue – Mr Ayling said TV3's

claim that coverage elsewhere in the media was unbalanced was not relevant as to

whether the 20/20 item was balanced. Mr Ayling wrote:

HCO has consistently maintained its view that TV3 predetermined the outcome

of its investigation. In our view, the nature of the TV3's response to the BSA is

evidence of their predetermination of the matters being 'investigated'.

Moreover, he said that the transcript supplied by TV3 contained a serious omission in

that the reporter's comment about the public pillorying of Mr Phipps was not

included. He also observed that TV3's lack of response to the aspects of the

complaint referring to the item's editing and the sympathetic footage of the Phipps'

family and cat seemed to suggest that a lack of impartiality was acceptable. He also

stated that TV3 had not responded to HCO's complaint about the invasion of

Professor van Rij's privacy, noting:

TV3 does not have an inalienable right to film people who do not want to be

filmed. Those people have a right to privacy even when television is making a

programme containing references to them. TV3 appears to concede that the

crew came onto private property to interview him.

Privacy was the third heading in HCO's final comment and Mr Ayling maintained that

TV3's use of information about individual patients in its report to the BSA, without

the individual's consent, was both a breach of the courtesy and the Privacy Act. He

added:

This approach typifies TV3's approach to patient privacy demonstrated in their

response to our insistence that we could not discuss the details of individual

patients on camera with a television journalist without the express permission of

the individual patients to do so. The fact that patients are not named in this

process is immaterial. Patients can be identified by descriptions of their medical

conditions, through their medical records, through descriptions of tests and

procedures they may have had particularly when associated with dates or other

identifying references. Significantly, the Ombudsman upheld HealthCare

Otago's decision not to release the bulk of the RACS report under the Official

Information Act to a journalist even with names deleted on exactly those

grounds.

By way of conclusion, Mr Ayling wrote:

TV3 set out to make a programme whereby 20/20 set itself up as advocate, judge

and jury for Mr Phipps in matters which are now before the High Court. Their

response to our criticisms of their programme indicate that they acknowledge

that they pre-determined their story and got a number of key facts wrong.

Their response indicates that they see themselves above normal standards of

balance and impartiality and believe they are on the side of right in this

programme regardless of the High Court's interest in the essential matters raised.

That key information relating to the substance of the programme was withheld

from HCO until the eleventh hour of a complaints process is, in our view,

journalistically and ethically unacceptable. This information, now that it has

come to light, in no way supports the statements made on the programme.