BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

An allegation that mental health hospital records were being falsified to disguise the fact

that patients were being dumped into the community was reported on a National Radio

news item broadcast at 6.00 and 8.30am on 10 February 1994.

Professor Werry complained to Radio New Zealand Ltd that the item dealt with mental

health professionals unfairly, that it was not accurate, objective or fair, and that it made

use of an unreliable news source.

Insisting that it had reported the sourced item correctly, RNZ declined to uphold the

accuracy complaint. It also denied that the brief item was unfair or unbalanced and

argued that sufficient information was provided to allow the listener to form an opinion

on the contention reported. Dissatisfied with RNZ's reply, Professor Werry referred the

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

Act 1989.

For the reasons given below, the Authority upheld the complaint that the item was

unbalanced.

Decision

The members have not been supplied by RNZ with a tape of the brief item complained

about. However, they have read a transcript and the correspondence (summarised in the

Appendix). As is its practice, the Authority has determined the complaint without a formal

hearing.

A brief news item broadcast by RNZ on National Radio news at 6.00 and 8.30am on 10

February stated:

A Dunedin-based group for families of mentally ill people is alleging that hospital

records are falsified to look good so patients can be dumped out of the system.

Patricia Perkins of Caring Communities says patients are released against the advice

of families who know best what their relatives are like.

She says releases are also often based on fraudulent, inaccurate information.

[Mrs Perkins] "So that nothing that signifies inappropriate behaviour is

recorded in the special incidents book or in the nursing notes of a recent

nature so, therefore, these people can be dumped out and of course

naturally they do reoffend".

Patricia Perkins says those who let out patients who re-offend should be held

accountable, with their jobs on the line.

Professor Werry complained to RNZ that the broadcast, on six specified grounds, breached

standards R1, R5, R10, R16, R17, R18 and R21 of the Radio Code of Broadcasting

Practice. The first three require broadcasters:

R1  To be truthful and accurate on points of fact in news and current affairs

programmes.

R5 To deal justly and fairly with any person taking part or referred to in any

programme.

R10 To avoid the use of any deceptive programme practice which takes

advantage of the confidence listeners have in the integrity of broadcasting.

The other ones read:

R16 News must be presented accurately, objectively and impartially.

R17 The standards of integrity and reliability of news sources should be kept

under constant review.

R18 News should not be presented in such a way as to cause panic or

unnecessary alarm or distress.

R21 It shall be the responsibility of each station to be fair in the allocation of

time to interested parties in controversial public issues. In exercising this

responsibility a station will take into account the news value of the

viewpoints offered and previous allotment of air time.

The standards had been contravened, Professor Werry continued, as the item involved an

inaccurate and inflammatory comment made by an unreliable news source. Moreover,

the truth of the allegation was accepted in the broadcast, there had been no rebuttal and

RNZ did not provide an adequate mechanism for Auckland listeners to register their

responses.

In its response to the complaint, RNZ emphasised that it reported an allegation which was

clearly attributed to the organisation responsible for making it. The broadcast did not

contain any editorial comment about the accuracy of the claim but left it to the listener to

form an opinion about the contention. The question of a mechanism for Auckland

listeners to record their reaction, RNZ opined, was not a matter of broadcasting standards.

RNZ added that the theme running through the complaint was an allegation of a lack of

balance in contravention of s.4(1)(d) of the Act and standards R9 and R21 of the Code.

Standard R21 is noted above. Section 4(1)(d) provides:

4(1) Every broadcaster is responsible for maintaining in its programmes and

their presentation, standards which are 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;

Standard R9 requires broadcasters:

R9  To show balance, impartiality and fairness in dealing with political matters,

current affairs and all questions of a controversial nature, making

reasonable efforts to present significant points of view either in the same

programme or in other programmes within the period of current interest.

Proceeding to assess the complaint under these provisions, RNZ stated that the detention or

release of mental health patients was an on-going matter and listed items on the issue

broadcast between 1–15 February on National Radio, on "Report" programmes and on

Nine to Noon. One of the broadcasts on the last mentioned programme was an interview

with Professor Werry on 15 February. In view of the extensive coverage given to the

issue, RNZ declined to uphold the complaint that the broadcast had breached any of the

balance provisions.

When he referred the complaint to the Authority, Professor Werry said within the brief

item the allegation was made three times that records were falsified. Noting that he was

complaining in his accepted role as a spokesperson for the mental health service, he

maintained that he was trying to protect the mentally ill and their families, as well as the

mental health professionals, from a malicious and ill-informed attack. Withdrawing his

complaint about factual inaccuracy under standard R1, Professor Werry argued that the

broadcast was unfair to mental health professionals and, because of the seriousness of the

allegation, the contrary perspective should have been broadcast promptly. He expressed

alarm at RNZ's proposition that it was not responsible for ensuring the truth of the

material which was broadcast. He acknowledged that there was a fine line between

censorship and establishing veracity but, in view of the allegation of fraud and the alarm

that the statement might have caused, he believed that the need to ensure the truthfulness

of the allegation on this occasion was overriding.

When dealing with the question of balance, Professor Werry said the seriousness of the

allegation required a specific comment in response. The reply that it was part of an on-

going debate was insufficient as was the reference to his interview five days after the item

complained about as it was broadcast to a different audience and had dealt with different

issues.

In response, RNZ argued that a number of the issues raised by the complainant involved

editorial matters – not broadcasting standards. On the aspect of the complaint that the

specific item required to be "matched", RNZ maintained that it was not necessary given the

brevity of the item discussing an on-going issue. As for the complainant's opinion that the

broadcaster bore a responsibility to ensure the accuracy of all its programmes, RNZ agreed

that was necessary if presenting a matter as a statement of fact. It continued:

However, should the Company, within the ever-present pressures of hourly bulletin

deadlines, accurately report the statement of a named person or organisation the

bona fides of whom or which are known or verified, then the case is very different.

The Authority first assessed the complaints under the specific standards cited by Professor

Werry in his initial letter of complaint. It agreed with RNZ that the following standards

were not breached for the following reasons.

* Standard R5 – no person other than Ms Perkins was referred to; and

facilities for listeners in Auckland to call RNZ were not a standards matter.

* Standard R10 – there was no evidence of any deceptive programme practice;

* Standards R16 and R18 – the item was a neutral report of a statement

which was sourced;

* Standard R17 – the item reported an allegation which was clearly

attributed. The Authority believed that RNZ's decision to report the clearly

attributed allegation was acceptable. If standard R17 is interpreted too

harshly, broadcasters risk censoring the expression of controversial

viewpoints that may prove to contain some truth. The decision to report

the opinion without seeking comment from those criticised is considered below.

The Authority also concurred with RNZ that balance was the central issue raised in the

complaint. Because of the overlap between the standards cited by RNZ, the Authority

decided to subsume s.4(1)(d) and R21 into standard R9 and to assess the balance

complaint under that standard only.

To summarise the parties' arguments on this issue, RNZ maintained that the bulletin was

part of an on-going debate about the incarceration or release of mental health patients

and, furthermore, it was a debate to which the complainant had contributed on Nine to

Noon some five days later. Moreover, RNZ supplied the Authority with a transcript of that

broadcast in which Professor Werry described another statement from Mrs Perkins as

"grossly inaccurate" and, later in the broadcast, had strongly contested any allegation that

hospital records were falsified.

In his complaint, Professor Werry insisted that the remark would alarm patients and their

families and, in view of the extremely serious allegation of fraudulent behaviour by a

group of professionals, it merited an immediate response.

The Authority focussed on what it believed was the most important issue – the nature of

the allegation made – which in this instance would have been the overriding matter

regardless of its source. The allegation, the Authority decided, was very serious and related

to a currently controversial issue involving public safety. It would have been of real

concern to psychiatric patients (a vulnerable group in society) and those supporting them.

It was also an allegation of fraud against a group which holds a position of responsibility

which it must exercise ethically.

The disagreement between the complainant and the broadcaster about whether or not it is

necessary to verify allegations before they are reported is not a matter which the

Authority is required to address specifically in determining this complaint as the aspect

alleging factual inaccuracy was withdrawn before the complaint was referred to the

Authority. However, the argument brings up one matter which is relevant on this

occasion. RNZ argued that it was a listeners' responsibility – not the broadcaster's – to

form an opinion on the accuracy of an allegation reported. The Authority would observe

however, that listeners might well need other information to assess the validity of the

allegation.

One such possible piece of information is the alternative viewpoint reflected in the

obligation on the broadcaster to provide balance as required by standard R9. In addition,

when reaching an opinion, the listener will give weight to the credibility of the body

making the allegation. With well-known bodies, the listener will have knowledge on

which to ascribe credibility (or its absence). With little known groups on the other hand a

basis for such an opinion is unlikely to have been formed.

The comment broadcast on this occasion was made by the spokesperson for Caring

Communities. The Authority believed most viewers would have had little knowledge as to

the credibility of the group. In such a situation, and taking into account the seriousness of

the allegation, the Authority decided, the broadcaster had a responsibility to include an

alternative viewpoint, even if it was only as brief as a one sentence denial. Accordingly,

the Authority concluded that the item breached standard R9 as it was reported without a

reply at the time.

For the above reasons, the Authority upholds the complaint that the

broadcast by Radio New Zealand Ltd of an item on National Radio at about

6.00am on 10 February 1994 breached standard R9 of the Radio Code of

Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaint.

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

Broadcasting Act 1989. It does not intend to do so as the item, although it contained a

serious allegation broadcast without rebuttal, could be regarded as related to a high profile

issue at the time. Furthermore, in the interview with Professor Werry broadcast some five

days later on a different programme, RNZ provided an opportunity, albeit belated, for the

rebuttal.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
26 July 1994

Appendix

John S Werry's Complaint to Radio New Zealand Limited

In a fax dated 10 February 1994, Professor John S Werry of Auckland complained to

Radio New Zealand Ltd about a news item broadcast at 6.00am that morning and

referred to in the headlines at about 6.10am. He wrote:

This item stated (more or less) that professional staff in the mental health services

in NZ were falsifying entries into the patients records so as to disguise the fact that

patients were not in fact ready to be released from hospital. In support of this a

short interview with Mrs Perkins was played.

Reporting that he had been unable to contact RNZ news in Auckland before 7.00am,

Professor Werry listed six grounds for his complaint.

1) The item breached standard R5 of the Radio Code of Broadcasting Practice as the

implication that fraudulent activities occurred was injurious to all mental health

professionals.

2) R17 of the Code as it involved an unsubstantiated inflammatory statement and the

use of such a source contravened standard R10.

3) In contravention of standards R16 and R18, no effort was made to suggest that

the statement was other than true and the practice widespread.

4) No rebuttal was offered at this time or later which breached the requirement for

fair play in standards R5 and R21.

5) The statement was likely to be untrue in breach of standard R1.

6) Initial rebuttal was required in view of the highly damaging nature of the item

but, in contravention of standard R5, RNZ did not provided an adequate

mechanism for Auckland listeners to register their reaction.

RNZ's Response to the Formal Complaint

RNZ advised Professor Werry of its Complaints Committee's decision in a letter dated 25

March 1994. By way of comment, RNZ observed that a decision on a specific complaint

would not be influenced by threats of legal action or future complaints.

With reference to the complaint about the news item broadcast on 10 February, it

recorded that the story was introduced with the words:

A Dunedin-based group for families of mentally ill people is alleging that hospital

records are falsified to look good so patients can be dumped out of the system.

RNZ, it continued, had not presented the allegation as a fact. Rather, it reported a

statement which was attributed to a source. The item then reported, without any editorial

endorsement:

Patricia Perkins of Caring Communities says patients are released against the advice

of families who know best what their families are like. She says releases are also

often based on fraudulent, inaccurate information.

Noting that the only fact reported was the name of the group's spokesperson, the item

proceeded to report the audio insert when Ms Perkins said:

So that nothing signifies inappropriate behaviour is recorded in the special incidents

book or in the nursing notes of a recent nature, so therefore these people can be

dumped out and of course naturally they do re-offend.

The item concluded:

Patricia Perkins says that those who let out patients who re-offend should be held

accountable, with their jobs on the line.

RNZ emphasised its role by repeating the point that each of the five sentences contained in

the report was "clearly attributed" to the person or organisation making the statement. It

was important, RNZ added, not to shoot the messenger.

With reference to the standards allegedly contravened, RNZ denied that there was any

inaccuracy in breach of standard R1. As Mrs Perkins was the only person identified and as

the item did not deal with her unfairly or unjustly, standard R5 was not transgressed.

As for the complaint about "reliable sources" or "deceptive practices" under standards R10

and R17, RNZ said the item was not an in-depth study. In carrying Mrs Perkins'

contention, it reported an allegation and, secondly, it reported an allegation correctly.

That did not involve any deceptive programme practice.

RNZ also rejected the complaint under standard R16 (accurate, impartial and objective

presentation) and R18 (presentation causing distress) as, it argued, having provided the

listener with the source of the statement, it was the listener's task to form an opinion

about the weight to be given to the contention.

Under the requirement in standard R5 to deal justly and fairly with persons taking part in

a programme, Professor Werry complained that he was unable to contact anyone at RNZ

in Auckland at the time of the broadcast. RNZ said that it did not accept that standard R5

was intended to cover the matter raised.

RNZ argued that the theme running through the complaint was an alleged breach of

s.4(1)(d) of the Broadcasting Act and standards R9 and R21, ie a lack of balance.

Discussing this alleged lack of balance, RNZ pointed out that the standard required the

provision of a "reasonable opportunity" for the publication of differing opinions and then

observed that the issue raised by Mrs Perkins dealt with an on-going matter. It next listed

reports on the issue broadcast between 1 - 15 February on National Radio, on "Report"

programme and Nine to Noon. Declining to uphold the complaint that the item

transgressed the requirement for balance, RNZ concluded:

The [Complaints] Committee further noted that the complainant was given, and

took, the opportunity during an extended appearance on the morning of February

15th to comment on Mrs Perkins' statement.

Professor Werry's Complaint to the Broadcasting Standards Authority

Dissatisfied with RNZ's response, in a letter dated 14 April 1994 Professor Werry referred

his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

The complainant began with the following synopsis of the item complained about:

In the middle of the furore over release of allegedly dangerous "psychiatric"

patients, RNZ National broadcast an item on its morning news bulletin which

consisted of five parts, each one to two short sentences in length, as follows: the

story itself; a summary of what had been said by a small pressure group; a direct

quote from their spokesman, then a typical recorded sound bite of the type

described by Joe Atkinson, and finally another direct quote. All five parts contained

only three bits of information (families wishes were not being respected, staff were

often falsifying case notes to release dangerous patients, and those who discharged

these patients should be answerable with their jobs if the patients offended). The

main bit of information, contentions of falsification of records, was repeated three

times.

Before discussing the issues raised in the complaint, Professor Werry considered the role of

the Broadcasting Standards Authority . Referring to the danger that organisations set up

to protect the public were frequently captured by the bodies which they were supposed to

control, Professor Werry said the thrust of RNZ's letter was to take the "moral high

ground" in asserting its right to broadcast the news as it saw fit. Contrary to what he said

was the BSA's emphasis, RNZ had not considered reconciliation. He mentioned the unequal

access to the law and wrote:

I hope therefore that the Broadcasting Standards Authority without compromising

the need for impartiality and fairness, takes into account the relative impotence of

the private citizen before the law and large corporations.

The Authority's role, he added, was similar to that of an ombudsman.

He then listed four matters which underlaid the complaint.

1) He was trying to improve RNZ's sensitivity to complainants.

2) He was acting on behalf of the mental health service, observing that he was

recognised by his peers as a spokesperson for the service because of his academic

background and internationally recognised work with adolescent schizophrenia

and manic depressive disorder. He argued that the attacks on psychiatric hospital

care had not only become more sensational but the media failed to recognise that

mental illness was additionally a social handicap. Consequently, staff were now

very demoralised.

3) He was trying to protect the mentally ill and their families and noted that the

mentally ill very seldom appeared on television. Pointing out that although RNZ

maintained that Mrs Perkins' attacked no one personally, he argued that he felt

obliged to respond to malicious and ill-informed attacks.

4) In addition, he was trying to improve reporting of psychiatric matters which, he

maintained, was poor at present and sensational. Ironically, he added, National

Radio did a much better job than television but:

Those of us who care about RNZ National as the last bastion of high quality

journalism have a public duty to protect it from corruption. The

shortcomings I draw attention to in my complaint are matters of what is an

acceptable level of journalism that RNZ should strive for, not what others

may be doing.

His complaint, he added, was about the maintenance of broadcasting standards.

He then turned to the specifics of the complaint. Under the heading "Rebuttal of judgment

by RNZ", he conceded that he was wrong in alleging inaccuracy as RNZ had, as it

explained, accurately reported Mrs Perkins. However, he added, that did not affect the

substance of the complaint.

As for RNZ's decision that the just and fair dealing requirement was inapplicable as no one

had been referred to, the complainant believed that, in view of the seriousness of the

allegation, RNZ was required to present the contrary perspective promptly. It was serious

in that it stated that records were falsified and, besides reflecting on the staff, it would

cause great unease among patients and their families.

In regard to the "reliable sources" requirement, the complainant said that along with a

number of other groups he had shown that Mrs Perkins public statements made during

the past year were inaccurate, exaggerated and inflammatory. He gave one example of

recent statements from Mrs Perkins about the need to lock-up paranoid schizophrenics

which met these three criteria. RNZ's response that Mrs Perkins held confirming

documentation of inappropriate behaviour had not been recorded, the complainant

continued, and was not evidence of "widespread falsification".

Professor Werry acknowledged that Mrs Perkins was newsworthy when she made

sensational statements but, he argued, in view of the amount of news available, surely

credible newsworthiness was involved in the sifting process.

In response to RNZ's statement that it had no responsibility to ensure that reported

statements in its broadcasts were true, the complainant stated:

I find this unbelievable and I hope the committee does too. Obviously, there must

be a fine balance between censorship and the need to establish veracity. But am I

alone in believing that on the face of it the statement, which in essence implies most

of the staff of the mental health service is engaged in fraud is unbelievable? If that

statement is credible, there needs to be an urgent and major public enquiry into the

service.

Furthermore, he questioned whether there was any rush to broadcast the particular item

without checking or interviewing a mental health service spokesperson. The item, he

stated, would have spread alarm among patients and their relatives.

As for the absence of facilities for the listener to call in, the complainant argued that an

0800 number was the minimum service which should be provided.

RNZ's response to his complaint that the item was unbalanced, Professor Werry recalled,

was to state that the item was but part of a continuing debate. He declined to accept this

reason as the item in itself was serious and merited a specific comment. However,

although broadcast on the news at 6.00am, it was not addressed on Morning Report after

7.00am. His response on Nine to Noon some five days later dealt with different issues.

Emphasising the controversial and damaging nature of the item, he discussed at length his

interview on 15 February and wrote:

Surely balance, requires active efforts by the broadcaster and most important also

requires, not merely balance of content, but balance of audience. If the item is

potentially unfair or damaging surely it must be targeted to most of those who

have heard the original item? There must also be balance of impact. With a highly

damaging item, balance of impact can only be achieved by immediate response

while the audience is aroused and interested by the allegation.

He concluded by describing the item as poor journalism (for the reasons given above) and

said RNZ had failed to show sensitivity towards its listeners. He had complained, he added,

to make the point that the free press must be not only free but responsible and accurate.

RNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its

letter dated 20 April 1994 and RNZ's reply, 23 May. Pointing out that the item was

broadcast in only one bulletin cycle and that the complainant had supplied a transcript, it

believed that it was not necessary for the Authority to listen to the item. RNZ also

provided a transcript of the interview with Professor Werry broadcast on Nine to Noon on

15 February and copies of some other correspondence between the complainant and itself.

RNZ reviewed its decisions on the standards cited - R1, R5, R9, R10, R16, R17, R18 and

R21 - and, for the reasons given in its letter to the complainant, denied that any were

breached.

It then dealt with the points raised by the complainant when he referred his complaint to

the Authority. Beginning by noting that the Authority's role was confined to matters

covered by broadcasting standards, it listed a number of issues covered by Professor Werry

in his referral to the Authority. It believed that these issues raised editorial matters rather

than standards. Similarly, it continued, the complainant's concern about RNZ's sensitivity

to complaints and his backgrounding of longer-term health issues did not refer to

broadcasting standards.

Moving on to deal with the matters raised by Professor Werry under the "Rebuttal"

heading, RNZ expressed the opinion that the issues covered were either outside the

boundaries of the standards or imposed a width to the standards which they could not

sustain. Specifically, RNZ wrote:

The company does not believe that a brief bulletin story which is part of a long-

term, ongoing coverage requires to be "matched" instantly by a report of the

opposite.

With regard to the complainant's argument about the broadcaster's responsibility for

accuracy, it recorded:

[If a broadcaster] chooses to present a statement as a record of fact, then it is

certainly under an obligation to verify whatever statement it is making. However,

should the Company, within the ever-present pressures of hourly bulletin

deadlines, accurately report the statement of a named person or organisation the

bona fides of whom or which are known or verified, then the case is very different.

It added a list of unlikely events which, subsequently were found to be correct.

RNZ concluded by arguing that the matters dealt with by Professor Werry in his final

pages "however soundly or unsoundly they may be argued", were outside the Authority's

bailiwick.

Professor Werry's Final Comment to the Authority

When asked to comment briefly on RNZ's reply, in a letter dated 8 June 1994 Professor

Werry noted that he and RNZ remained poles apart and that independent arbitration was

necessary. He summarised what he saw as the issues.

1 The item was calumnious in suggesting the practice of falsifying records.

2 The item was likely to cause concern among consumers of the mental health

services and undermine faith in the service's professionals.

3 The source was known for inaccurate and partisan comment.

4 Research as to the accuracy of the allegation was not undertaken.

5 RNZ did not offer an opportunity for rebuttal.

6 Lack of urgency allowed time for research.

7 The item itself was constructed in an unacceptable way.

8 As it was only broadcast on only two occasions, it was not highly regarded by RNZ.