Mabey and Television New Zealand Ltd - 1995-063
Members
- I W Gallaway (Chair)
- L M Loates
- W J Fraser
Dated
Complainant
- Gary Mabey
Number
1995-063
Programme
60 MinutesBroadcaster
Television New Zealand LtdChannel/Station
TVNZ 1Standards
Standards Breached
Summary
The case of a woman who became seriously ill after being prescribed a thyroid dietary
supplement by a nurse was examined in an item broadcast on 60 Minutes on 18
September 1994. During the item, her case was used to question the adequacy of the
controls which apply to dietary supplements.
The manager of a health food company and president of the National Nutritional
Foods Association, Mr Mabey, complained to Television New Zealand Ltd, the
broadcaster, that the item was inaccurate and unbalanced and unfair to some of the
people interviewed. He listed 13 specific points of complaint.
Maintaining that the story was a "cautionary tale" about the experiences of one
woman with one dietary supplement, TVNZ said that the item was accurate and that
all appropriate parties had been approached for comment. It declined to uphold the
complaint. Dissatisfied with TVNZ's decision, Mr Mabey referred his 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 aspect of the complaint that,
overall, the item had not dealt with the health food industry in a balanced way. It
declined to uphold any other aspects of the complaint.
Decision
The members of the Authority have viewed the item complained about and have read
the correspondence (summarised in the Appendix). As is its practice, the Authority
has determined the complaint without a formal hearing.
A 60 Minutes item interviewed "Debbie" who had become severely ill following a
course of a thyroid dietary supplement prescribed by a nurse. A medical practitioner
who had arranged for the pills to be analysed expressed the opinion that the excessive
dose could have led to a fatal heart attack. The pills in question were made by
Megavitamin Laboratories New Zealand Ltd and the item included scenes from the
company's factory in Christchurch. Dr Stewart of Megavitamins was seen showing
the 60 Minutes team around and answering some questions about the company's
operations. He was also shown making some terse responses to some questions
during an interview with the 60 Minutes reporter and, the item reported, his wife
terminated the interview when some questions were asked about "Debbie".
The Complaints
Two complaints about the programme were referred to the Authority. The first was
made by Mr Gary Mabey, manager of Health and Herbs (a health food company) and
president of the National Nutritional Foods Association (NNFA). The second was
from Megavitamins Laboratories New Zealand Ltd and its owner, Dr Warren Stewart.
Although some of the issues raised by the complainants were similar, Mr Mabey's
complaint focussed principally on the item's impact on the health food industry while
that from Dr Stewart and his company was primarily concerned with the way they
were dealt with by TVNZ before and during the interview. To ensure that the
different issues were addressed comprehensively, the Authority decided to issue two
distinct decisions – Nos: 63/95 and 64-65/95.
In his complaint, Mr Mabey said he had been advised before the broadcast that the
programme would be "well balanced and researched" but, he continued, both
requirements had been missing in the item which was broadcast.
He listed 13 specific points of complaint:
1) While dietary supplements were not subject to the same stringent controls as
medicines, they were not exempt from Ministry of Health controls as the
programme implied.
2) It was incorrect to describe the pills prescribed as a "cure" as such an
appellation for dietary supplements was legally prohibited.
3) In its questioning of Dr Stewart, the item failed to acknowledge
practitioner/patient confidentiality and, secondly, no evidence was presented
from the Poisons Control Centre to support the allegation that "Debbie" had
been poisoned by the prescribed dietary supplement.
4) While the item referred to "Debbie" as a recovering alcoholic, it did not mention
either what other medicine she might have been taking or that she might have
incurred some degree of permanent liver damage.
5) While a doctor (Dr Cooper, a friend of "Debbie's") said she might have died,
there was no evidence that the supplement was the cause of her ill-health.
6) Dr Cooper had expressed concern that Nurse Kay (who prescribed the dietary
supplement) was still operating her practice but the item did not report that she
was the subject of a Nursing Council hearing.
7) "Debbie's" description of Nurse Kay as a "charlatan" was possibly libellous.
8) The questions to Dr Stewart about his business dealings with Nurse Kay failed
to acknowledge that it was a company/customer matter.
9) Recent research failed to confirm the item's allegation that the herbal product
Chaparral was linked to hepatitis and liver cancer.
10) The link said to exist between L-Tryptophan and blood problems failed to
acknowledge that it referred to one contaminated batch only.
11) Dr Jim Mann, described during the item as New Zealand's "leading nutrition
expert" was unknown to the dietary supplement industry and as a nutritionist,
was not qualified to comment on the manufacture of dietary supplements or
their legislative control.
12) Contrary to the reporter's comments, any revision of the Medicines Act or the
Regulations was unlikely to increase the controls which applied to dietary
supplements.
13) Mr Mabey wrote:
The final statement "she for one will never use Dietary Supplements
again" indicates, by association, that there are problems with all Dietary
Supplements and manufacturers and does considerable harm to the whole
health food industry.
TVNZ's Response to the Complaint
TVNZ assessed the complaints under standards G1, G4 and G6 of the Television
Code of Broadcasting Practice. They 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.
It pointed out that the item was a "cautionary tale" about one woman and her
experience with one dietary supplement and it had not been necessary to include the
view of the NNFA. It then dealt with the specific points raised by Mr Mabey.
1) As dietary supplements were not defined in the Medicines Act as medicines,
they escaped the stringent controls which applied to "medicines".
2) That the pills which were prescribed were meant to "cure" was an accurate
summary of what "Debbie" said she had been told.
3) Dr Stewart had said that questions about why the pills had been prescribed
should be put to Nurse Kay and he refused to acknowledge that he was
responsible for the recipe of pills. Dr Cooper had diagnosed thyroid toxicity
and "Debbie's" suffering had been alleviated when she stopped taking the pills.
Two analyses had shown that the pills contained a high concentration of thyroid
extract.
4) TVNZ questioned whether the reference to "Debbie" as a recovering alcoholic
involved a breach of patient confidentiality on Mr Mabey's part and reported
that it had been told she was "not on a cocktail of prescription drugs".
5) Dr Cooper's diagnosis was based on his medical expertise and was supported
by independent medical and scientific sources.
6) At the end of the item, the reporter had referred to the Nursing Council's
investigation of Nurse Kay.
7) TVNZ regarded "Debbie's" "charlatan" remark as fair comment.
8) TVNZ described the questions to Dr Stewart about his dealings with Nurse Kay
as fair and noted in addition that at that stage Dr Stewart's wife had terminated
the interview.
9) and 10) TVNZ observed that the comments about Chaparral and L-Tryptophan were
confirmed by the Ministry of Health.
11) TVNZ referred to Dr Mann's speciality and expertise which justified the item's
description of him.
12) The reference to tighter controls in the future was based on the Health
Ministry's comments.
13) The item reported "Debbie's" determination not to use dietary supplements
again.
Further Correspondence
When Mr Mabey referred his complaint to the Authority, he repeated the specific
aspects of his complaint and as the item - not his letter - referred to "Debbie" as a
recovering alcoholic, he questioned the competence of TVNZ's Complaints
Committee. He argued that it was unfair to use a partial case history to discredit an
entire industry and was adamant in his opinion that the NNFA should have been
consulted as the trade association which represented the health food industry.
In its report to the Authority, TVNZ said that the item dealt with one woman who
had become seriously ill after taking a prescribed dietary supplement and had then
asked whether such supplements should not be subject to the same stringent
regulations which applied to orthodox medicines. Specifically, TVNZ acknowledged
that the item reported that "Debbie" was a recovering alcoholic and insisted that the
observation about patient confidentiality related to the aspect of the complaint that
suggested that "Debbie" was using a number of prescribed drugs.
TVNZ maintained that the story was told clearly and accurately and that it was
explicitly presented as a cautionary tale.
In his response to TVNZ, Mr Mabey referred to some other specific matters which
he believed justified questioning the competence of TVNZ's Complaints Committee.
He concluded with the following comments.
The programme has had a devastating financial effect on both Megavitamin
Laboratories and Ruth Kay. Neither parties have been found guilty of any
wrong doing at this time and have the support of the NNFA and various other
groups and associations.
...
There are many areas of concern about this programme and all I ask is that you
view the programme very carefully and hopefully make some recommendations
to prevent a similar occurrence.
In response, TVNZ wrote to the Authority:
It was perfectly right and proper to pursue this story. It revealed an
unsatisfactory situation which the public at large had a right to know. Any
decision which suggests otherwise must raise serious questions about the
freedom of the press in this country – a freedom many New Zealanders accept
unquestionably [sic], but which must be jealously guarded at all times if
democracy is to be meaningful.
The 60 Minutes team acted throughout with care and integrity, and we invite the
Authority to consider the views of the many medical experts in this story who
have offered their support for "Debbie" because of their obvious concerns for
the safety of the public.
Because of the differing views about Chaparral and L-Tryptophan, the Authority
sought opinions from the Ministry of Health, and specifically Dr Boyd who was
referred to by both the complainant and broadcaster.
Dr Boyd reported that TVNZ had researched the matter fully before seeking the
Health Ministry's advice. As for Chaparral, Dr Boyd said that it had been associated
with liver damage. It was not used in New Zealand in medicines but had been sold as
a food in dietary supplements products and, he added:
Because the risks appeared to outweigh the benefits of having this product as a
food, the Ministry, through its Foods Administration Section asked
manufacturers to remove chaparral from food products.
Secondly, Dr Boyd explained that in view of cases of illness in patients overseas who
had taken high doses of L-Tryptophan, the Ministry said that it recommended that it
remain available for low daily intakes as a dietary supplement and as a medicine. The
recent research from WHO had said that L-Tryptophan was not a proven link to
eosinophilia-myalgia (EMS).
The Authority's Findings
Part of the correspondence between Mr Mabey and TVNZ involved allegations about
the competence of TVNZ's Complaints Committee. The Authority noted that Mr
Mabey based his allegation on the seemingly inaccurate comments on some specific
matters by TVNZ about, for example, the source of Mr Mabey's knowledge of
"Debbie's" alcoholic history.
TVNZ maintained that the allegation of incompetence was based on Mr Mabey's
misinterpretation of its letter. The Authority, while it agreed that Mr Mabey's
interpretations were correct, nevertheless accepted that TVNZ's intention was
wrongly expressed and that, as the issue has been resolved, nothing in the decision
was influenced by Mr Mabey's reading of TVNZ's letters on the points in dispute.
The Specific Points
1) The Authority did not accept that the comment in the item about the lack of the
stringent controls applicable to dietary supplements – like those which applied
to medicines – was inaccurate. However, because it could be taken that the item
implied that there were no controls, rather than the less stringent controls which
in fact exist, the Authority believed that this aspect should be considered, as a
minor point, when the item's balance overall was determined.
2) The Authority accepted TVNZ's argument on the point that the use of the term
"cure" summarised "Debbie's" belief in the product which she had been
prescribed.
3) As the patient/practitioner relationship involved Nurse Kay and "Debbie", in
the Authority's opinion questions to Dr Stewart about this relationship could
not be considered to threaten the standards. While his answers might have
breached confidentiality, his proper response was to decline to answer. He
followed that approach and his answers, therefore, did not contravene
broadcasting standards.
The Authority also decided that while "toxic" and "toxicity" might have been
better words to use rather than "poison" and "poisoning", the analysis of the
pills which was undertaken was sufficient for the item to reach the conclusions
that were advanced about the impact on "Debbie" of the thyroid extract.
4) The item stated that the thyroid extract was the cause of "Debbie's" illness. It
was also noted that "Debbie" was a recovering alcoholic. To the aspect of the
complaint which argued that the item breached the standards by giving
insufficient information about "Debbie's" medical history, the Authority decided
that enough information had been given to justify the points which the item was
trying to make. Although Nurse Kay, the prescriber, was seen to decline to take
part, a general practitioner and other experts expressed substantial concern about
"Debbie's" use of the supplements. Therefore, given the item's theme, the
Authority was of the view that further details of "Debbie's" medical history were
not pertinent as far as providing balance was concerned.
5) Dr Cooper's comment was presented, justifiably in the Authority's view, as his
opinion on a medical matter and therefore was not in breach.
6) Dr Cooper's comment about Nurse Kay's continuing practice was also
appropriate given the reference at the end of the item by the reporter to the
Nursing Council's investigation.
7) The "charlatan" comment was clearly "Debbie's" opinion to which Nurse Kay
was given the opportunity to respond. It did not therefore contravene the
standards.
8) To the extent that the matter was raised in this complaint, the Authority
considered that TVNZ was completely justified in its questions about the
business relationship between Nurse Kay and Dr Stewart of Megavitamins.
Because of the centrality of this issue to the complaint from Dr Stewart and
Megavitamins, this issue is explored further in the decision on their complaint.
9) and 10) Because it was unclear as to whether the item's comments about
Chaparral andL-Tryptophan had been sourced appropriately, the Authority sought
the Health Ministry's views. As was recorded in the section above, these inquiries
disclosed that the views expressed were confirmed by the Ministry and,
therefore, did not breach the requirement for accuracy.
11) While it would have preferred Dr Mann to be described as "a" leading expert
rather than "the" leading expert, the Authority considered that Dr Mann's
credentials justified the item's use of his views not only about nutrition and
hormones, but also about the manufacture of dietary supplements.
12) The Authority did not believe that the comment about the outcome of the
review was so contentious that it was necessary to be sourced.
13) The issues raised under this heading involve the item overall and are addressed in
the following section.
The Programme Overall
Despite the inadequacies noted above under point (1) which related to standard G6,
the Authority was of the opinion that its review of the specifics in themselves did not
justify the conclusion that the item was unfair or unbalanced. Moreover, taking into
account the item's theme, it did not accept that the item overall was inaccurate and,
consequently, decided that it had not transgressed standard G1.
Furthermore, as Nurse Kay was seen to be given an opportunity to answer the
criticisms made of her, the Authority did not consider it had been unfair to her in
contravention of standard G4.
However, before the Authority determined whether the item was unfair to Dr Stewart
and Megavitamins on the specific matters raised by Mr Mabey or was, in view of its
tenor, unbalanced overall, it considered the theme of the item.
The Authority began by agreeing with TVNZ that it was a "cautionary tale" but it did
not accept TVNZ's suggestion that, therefore, it was almost totally focussed on
"Debbie" and Nurse Kay and the dietary supplement prescribed to her. The
programme was, in the Authority's view, a matter of major importance when it
reported not only that "Debbie" could have died because she was the unwitting victim
of a charlatan nurse, but also that there was a lack of controls relating to the
manufacture of dietary supplements.
Megavitamin Laboratories was shown to make dietary supplements to the
practitioners' recipes but the degree of the internal and external controls was left
unclear – except that the former had yet to be developed fully and the latter were not
stringent. Dr Stewart was asked some questions about his responsibilities and the
programme suggested that at least some responsibility lay with the manufacturer
although the principal responsibility rested with the prescriber. Further, there were
some hints that Dr Stewart's business was disreputable as not only was it outside
orthodox medicine but also that Dr Stewart himself was possibly a maverick within
the health food industry. When these concerns were raised during the item with Dr
Stewart, he made the points that the company was legally allowed to manufacture
dietary supplements and should it step outside the legal requirements, the Ministry of
Health was prepared to take action. 60 Minutes reported that action had indeed been
taken against the company.
As these legal compliance matters were addressed in full and the issues were raised
with Dr Stewart, the Authority decided that, within the confines of Mr Mabey's
complaint, neither Megavitamins nor Dr Stewart had been treated unfairly in
contravention of standard G4.
The final matter considered by the Authority was whether or not the item overall was
unbalanced. The Authority noted that the item focussed on "Debbie" and her
relationship with Nurse Kay. Nurse Kay was portrayed as the person who bore
considerable responsibility for "Debbie's" severe ill-health. Nurse Kay declined to
participate – either in person or through her solicitor. The programme then examined
Megavitamins and revealed its disputes with the Ministry of Health and with other
authorities. Having dealt with the specific company, the programme then questioned
whether the controls on the health food industry generally were sufficient. It was this
aspect of the item which the Authority concluded was not adequately balanced.
The Authority accepted that the story which began by featuring "Debbie's" plight
might well not have set out to examine the health food industry. Indeed, it was made
clear that Megavitamins might not be totally representative of the entire industry.
However, it was shown that most of its business operated within the boundaries
applicable to the health food industry. Furthermore, in questioning what the industry
inflicted on "Debbie", admittedly through an independent prescriber, issues of the
industry's moral – if not legal – responsibility were aired. Having raised such broad
questions, the Authority was of the view that the industry should have been given an
opportunity to respond.
The Authority does not believe that the NNFA should necessarily have been
approached to advance the industry's perspective. However, as the industry's
responsibility had been raised directly, an industry response in some form was
required in the interests of balance, impartiality and fairness. As TVNZ explained, the
item pointed out that the buyer of dietary supplements had to be wary. The item also
noted some of the consequences which might arise should the buyer not be wary.
However, to ensure the cautionary tale was told in full, the Authority believed that
the buyer should also have been told the extent to which the industry was already
controlled in the buyer's interests.
For the reasons above, the Authority upholds the complaint from Gary Mabey
that the 60 Minutes item on dietary supplements broadcast by Television New
Zealand Ltd on 18 September 1994 breached standard G6 of the Television
Code of Broadcasting Practice in that an industry representative was not given
a chance to answer the criticisms made in the item about the industry.
The Authority declines to uphold any other aspect of Mr Mabey's complaint.
Having upheld a complaint, the Authority may make an order under s.13(1) of the
Act. Although incorporating aspects of one of the 12 specific points raised by Mr
Mabey, on the basis that the matter upheld, although a major issue, was peripheral to
the central focus of the broadcast, the Authority has decided not to make an order.
Signed for and on behalf of the Authority
Iain Gallaway
20 July 1995
Appendix
Mr Mabey's Complaint to Television New Zealand Ltd – 19 September 1994
As president of the National Nutritional Foods Association (NNFA) and as manager
of Health and Herbs (a health food company), Mr Gary Mabey of Auckland
complained to Television New Zealand Ltd about an item called "Pills that can kill"
broadcast on 60 Minutes between 7.30–8.30pm on Sunday 18 September.
Mr Mabey listed a number of specific complaints.
1. The programme alleged that:
Dietary Supplements escape the stringent health ministry controls
covering other medicines and it's this situation that could have led to the
death of an Auckland woman.
Explaining that health foods were dietary supplements, not medicines, Mr
Mabey listed some of the controls and powers given to the Ministry of Health
by the Dietary Supplements Regulations 1985, issued under the Medicines Act
1981.
2. It was wrong for the item to claim that the pills which were meant to cure
almost killed as it was legally forbidden to state that dietary supplements could
cure any disease.
3. When the item reported that Dr Warren Stewart was not prepared to answer
questions about "Debbie", it failed to acknowledge that practitioner/patient
confidentiality would be breached by discussing a specific case. Furthermore,
there was no evidence presented from the Poisons Control Centre to support
the allegation that "Debbie" was being poisoned by the thyroid glandular
capsules.
4. The reference to "Debbie" as a recovering alcoholic did not mention which
prescription tablets she might have been taking or that, as an alcoholic, she might
have some degree of permanent liver damage.
5. Mr Mabey reported:
Dr Nick Cooper, who, we understand was not "Debbie's" regular Doctor
but a family friend, stated as fact, that she could have died. There was no
evidence presented that if she had died, it could have been proven to have
been the Thyroid capsules.
6. Dr Cooper had expressed concern that Nurse Kay was still operating her
practice but the item should have been reported that she was the subject of a
hearing before the Nursing Council although no ruling had been issued.
7. "Debbie's" description of Nurse Kay as a "charlatan" was possibly libellous.
8. The repeated question to Dr Stewart as to whether he was still doing business
with Nurse Kay was a company/customer matter.
9. Contrary to the reporter's statement that the herbal product Chaparral was
linked to hepatitis and liver cancer, recent research had failed to prove any
connection.
10. L-Tryptophan was incorrectly described as a chemical and research would have
revealed that the reported blood problems with it in the United States were
related to a contaminated batch.
11. Although Dr Jim Mann was described as New Zealand's "leading nutrition
expert"' he was unknown to the dietary supplement industry as such an expert.
Moreover, as a nutritionist and endocrinologist, he was not qualified to comment
on the manufacture of or legislative controls over dietary supplements.
12. Contrary to the reporter's comment, any revision of the Act or the Regulations
was unlikely to increase the safeguards.
13. Mr Mabey wrote:
The final statement "she for one will never use Dietary Supplements
again" indicates, by association, that there are problems with all Dietary
Supplements and manufacturers and does considerable harm to the whole
health food industry.
In conclusion, Mr Mabey said the NNFA had been advised, incorrectly, before the
broadcast that the programme would be "well balanced and constructive". Instead, it
lacked research and balance and, Mr Mabey stated:
This would be the worst case of "tabloid journalism" I have seen on 60 Minutes.
From my own perspective, I always considered 60 Minutes to be a factual
programme – regretfully it has become the "Hard Copy" of TVNZ. There
would appear to be more footage on the cutting room floor than in the
programme. We are aware that the filming done at Megavitamin was initiated
under false pretences of the Medicines Act review. We are also aware that a
considerable amount of the footage of Bob Boyd [of the Ministry of Health]
was edited out.
TVNZ's Response to the Formal Complaint – 25 October 1994
TVNZ advised that the complainant had been assessed by its Complaints Committee
under standards G1, G4 and G6 of the Television Code of Broadcasting Practice.
It proceeded to deal with each of the listed points using the numbering contained in
the complaint.
1. As the Medicines Act did not define dietary supplements as medicines, the
reporter was correct to state that supplements escaped the stringent controls
which applied to orthodox medicines. Nevertheless, the Ministry of Health was
involved in a review of the Act.
2. The statement that the pills taken by "Debbie" were meant to cure was an
accurate summary of "Debbie's" account of what she had been told when given
the pills.
3. Dr Stewart had not refused to answer questions about "Debbie" but, as the item
showed, questions were raised as to whether he could be held responsible for the
recipe prescribed by Nurse Kay. TVNZ said that Dr Cooper diagnosed thyroid
toxicity and that "Debbie's" suffering was alleviated when she stopped taking
the pills. It added that two analyses showed that the pills contained a high
concentration of thyroid extract and there were sufficient expert opinions to
establish the role of the thyroid extract in "Debbie's" illness.
4. Questioning whether reference to "Debbie" as a recovering alcoholic involved a
breach of confidentiality on Mr Mabey's part, TVNZ said that it had been
advised that she was "not on a cocktail of prescription drugs" and the comments
about liver damage were irrelevant. It wrote:
[Debbie's] illness was specifically ascribed by the doctor who examined
her thyroid toxicity. The only thyroid supplement she had taken was that
prescribed by the nurse who had wrongly diagnosed a thyroid deficiency.
5. Dr Cooper's comments, TVNZ pointed out, were based on his medical expertise
and his diagnosis was supported by independent medical and scientific sources.
6. The reporter, not Dr Cooper, commented appropriately about the Nursing
Council investigation of Nurse Kay at the end of the programme. Nurse Kay
had declined to be interviewed and TVNZ had not been contacted, as promised,
by her lawyer.
7. TVNZ regarded "Debbie's" remark about Nurse Kay as a "fair comment".
8. Noting that Dr Stewart had discussed with the reporter his dealings with Nurse
Kay until his wife chose to terminate the interview, TVNZ said that the
question was fair and correctly pressed.
9. &10. The Ministry of Health, TVNZ said, referred to its concerns about Chaparral
and L-Tryptophan and, given the quality of this source, it had not been
necessary to undertake further inquiries.
11. Referring to his specialities and expertise, TVNZ maintained that Dr Jim Mann
was the appropriate person to comment on the points raised with him.
12. As the review of the Medicines Act was not completed, TVNZ said that it had
based its comments about tighter controls on remarks from the Health
Ministry's Dr Boyd.
13. TVNZ noted that "Debbie" had expressed her determination never to use
dietary supplements again.
By way of conclusion, TVNZ noted that the interview with Dr Boyd – as with all the
interviews included in the programme – had been edited. Declining to uphold the
complaint, TVNZ concluded:
The [Complaints] Committee did not share your opinion that the view of the
NNFA needed to be included and it placed emphasis on the introduction which
stated that this was a "cautionary tale" about one woman, and her experiences
with one dietary supplement. While it doubtless and appropriately carried a
"let the buyer beware" message, the item concluded the single case, and all
relevant parties were approached to comment.
Mr Mabey's Referral to the Broadcasting Standards Authority – 31 October
1994
Dissatisfied with TVNZ's decision, Mr Mabey referred his complaint to the
Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. He
repeated the points raised in his complaint and expressed concern that TVNZ's
Complaints Committee had reached its decision without apparently perusing a
transcript of the broadcast.
1. Quoting the reporter's comment, Mr Mabey argued that the introductory
comment was a deliberate attempt to mislead the public into thinking there were
no controls on dietary supplements.
2. The item claimed that "Debbie" was "told" the pills would cure and no evidence
was presented, other than the unsupported comments from Dr Cooper, that she
was anywhere near death.
3. Dr Stewart acted correctly in not breaching patient confidentiality and the
experts at the Poisons National Information Centre were not consulted.
4. Pointing out that he was aware that "Debbie" was a recovering alcoholic because
she was so described during the item, Mr Mabey questioned the competence of
TVNZ's Complaints Committee who did not seem to be aware of what was
broadcast in the item. Liver damage, as every medical expert knew, was
commonly caused by alcoholism.
5. A professional hearing was set for December, Mr Mabey noted, to consider
both Dr Cooper's and Nurse Kay's involvement.
6. Mr Mabey insisted that Dr Cooper expressed concern that Nurse Kay was still
operating without censure. He questioned what version of the programme the
Complaints Committee had watched.
7. The reporter, not Dr Boyd, commented about Chaparral and L-Tryptophan. If
TVNZ had carried out appropriate research, it would have found no connection
between the former and hepatitis and liver damage. The item was also incorrect,
he added, to suggest a link between the latter and a blood disorder.
8. In whose opinion, Mr Mabey asked, was Dr Jim Mann a leading nutrition
expert? He added:
I challenge TVNZ to provide evidence of Dr Mann's formal training in the
area of Dietary Supplement knowledge and manufacture and that he is
"New Zealand's leading nutrition expert".
9. Objecting to TVNZ's interpretation that his comments were speculative, Mr
Mabey referred to the relevant documents and his discussions with Ministry of
Health Officials. He argued that TVNZ had adopted the approach as it was
"more sensational" than using Dr Boyd's actual words.
10. Mr Mabey disputed TVNZ's argument that the segments of the interviews
about the named supplements had apparently been summarised for broadcast,
observing:
I would strongly suggest that portions of the interviews that would have
thrown a different emphasis on the subject were actually edited out. This
is based on discussions I have had with Ruth Kay, Warren Stewart and the
NNFA has had with Dr Bob Boyd. It is very clear that the editing was
done to sensationalise the story rather than present hard, factual
information.
Mr Mabey argued adamantly that the NNFA should have been consulted as the trade
association which represented the health food industry. The item which had been
broadcast did not emphasise sufficiently that it was merely one case which did not
reflect on the whole industry.
By way of summary Mr Mabey was surprised that his complaint about the
inaccuracies had not been upheld. In addition, it was unfair – and one-sided – only to
use a partial case history. As a result, he argued that 60 Minutes had been discredited
as an accurate news source and he urged the Authority to censure TV2 and the
reporter for the inaccurate and insufficiently researched programme.
TVNZ's Response to the Authority – 25 November 1994
Explaining that the item, first, had dealt with one woman who had become seriously ill
when prescribed dietary supplements, and secondly, had asked why dietary
supplements were not subject to the same stringent regulation as orthodox medicines,
TVNZ said Mr Mabey's comments about its Complaints Committee were untrue.
1. Disagreeing with Mr Mabey's description of the review of the Medicines Act as
a "harmonising process", TVNZ said the item reflected the Ministry of Health's
belief that the present controls over dietary supplements were inadequate.
2. TVNZ maintained that the following statement as part of the studio
introduction was accurate:
Tonight, a cautionary story about how pills that were meant to cure,
almost killed.
3. As Dr Stewart was asked about "Debbie" in the context of the manufacture of
thyroid extract pills, no attempt was made to breach patient confidentiality.
4. TVNZ noted that "Debbie" acknowledged during the programme that she was a
recovering alcoholic but the remark about possible abuse of confidential patient
information was related to Mr Mabey's complaint that "Debbie" was on a
cocktail of prescription drugs. That comment, TVNZ said, was incorrect. It
continued:
Dr Nic Cooper confirms that there was no symptom of toxicity prior to
"Debbie" taking the thyroid pills. Toxicity developed while she was
taking the pills, and was alleviated when she stopped taking the pills.
There is a considerable difference between the woman at the heart of the
story volunteering information (her alcohol problem) to a reporter to
whom she has authorised disclosure under an assumed name, and Mr
Mabey (and others) obtaining information from an apparent medical
source. We note that in his referral Mr Mabey admits discussing the case
with Nurse Ruth Kay and Dr Warren Stewart.
The suggestion that the TVNZ Complaints Committee received a doctored
tape of "60 Minutes" is outrageous. It demonstrates an ignorance of the
seriousness with which TVNZ takes it statutory responsibilities in the
complaints area.
5. The outcome of the professional hearing about Nurse Kay, TVNZ commented,
had no relevance to the matters complained about.
6. Acknowledging that the programme did include Dr Cooper's observation that
Nurse Kay was still operating without censure, TVNZ argued that it was Dr
Cooper's opinion and an expression of concern about the time it had taken for
the enquiries to be completed.
7. Insisting that Dr Boyd was an authority on the two substances referred to,
TVNZ said the reporter was clearly quoting and alluding to Dr Boyd and his
dealings with Dr Stewart. TVNZ added:
Clearly the argument over these products between the men who are
charged with safeguarding public health at the Ministry, and those
represented by Mr Mabey is an ongoing one. The point made in the
programme was that Dr Stewart did not agree with Ministry requests and
decided to continue to stock his shelves with the products. It was Dr
Stewart's attitude to the requests (and what that indicated about
regulations governing the industry) as much as whether the Ministry was
right or wrong that the programme highlighted.
8. Commenting that it was tempted to ask how did Mr Mabey know that Dr
Mann was not the leading nutrition expert if Mr Mabey did not know him,
TVNZ said Dr Mann's "impressive credentials" were outlined in the
programme.
9. The reporter had carefully attributed to the Ministry of Health the comments on
the outcome of the review of the Act.
10. TVNZ maintained that the 60 Minutes item told a story clearly, accurately and
without sensationalism. It added:
To suggest that 60 Minutes should have placed more emphasis on
"Debbie's" being an isolated case, begs Mr Mabey's claim to have read
the script in detail. "Debbie's" story was obviously a matter of public
concern, and was shown on television because it was in the public interest
that her experiences should be recounted. That those experiences have
wider implications is obvious – but the programme carefully described it as
a "cautionary" story, and that is how it was told.
TVNZ concluded by noting that "Debbie's" story was thoroughly checked before
broadcast. The absence of comment from Nurse Kay was a matter of regret. TVNZ
rejected Mr Mabey's personal attacks on the 60 Minutes reporter and said the
complaint had been competently handled by its Complaints Committee.
Mr Mabey's Final Comment – 5 December 1994
Pointing out that he was complaining on behalf of his own company as well as on
behalf of the National Foods Association, Mr Mabey said his scepticism about
whether TVNZ had reviewed the programme was justified in view of its mistakes as
to the programme's contents. He then dealt with the matters point by point.
1. Enclosing a copy of the Minister's foreword to the discussion paper on the
review of the Medicines Act, he emphasised that no mention was made about
tighter controls on dietary supplements. The broadcast on the other hand, he
said, had made "a deliberate attempt to mislead the public" into thinking that
dietary supplements were not regulated.
2. Contrary to what TVNZ maintained, the reporter had clearly stated "Pills that
were meant to cure almost killed". As neither Dr Stewart nor Nurse Kay made
such a claim, the item had been untruthful.
3. Mr Mabey argued that definite attempts had been made to coerce Dr Stewart to
discuss "Debbie's" case and his business relationship with Nurse Kay.
4. Mr Mabey wrote:
It is common knowledge that "Debbie" was taking prescription drugs.
Indeed, he added, "Debbie" was shown during the broadcast handling some
bottles of pills which were not containers used by Megavitamins or any other
manufacturer of dietary supplements.
5. Mr Mabey commented:
The comment about the professional hearing does have a bearing. Usually
people are innocent until proven guilty. This was trial by the media,
without representation.
6. As official action had not been taken to date to stop Nurse Kay practising, there
seemed to be little concern. Further, the Nursing Council hearing had been
deferred until March 1995.
7. The Ministry of Health had the legal power to seize products if not withdrawn.
The reporter, not Dr Boyd, made some untrue statements about Chaparral and L
Tryptophan.
8. However well-known in his own field, Mr Mabey maintained that Professor
Mann was unknown to the dietary supplements industry. He was therefore not
qualified to speak on it.
10.[sic] Describing TVNZ's attitude as arrogant, Mr Mabey was astounded that it
believed that the industry would welcome the "cautionary tale". He said:
The only justification for 60 Minutes not contacting the NNFA is that
they were concerned that actual "facts" would get in the way of their
cautionary tale".
He added:
Let me assure you that this programme has had a serious effect on the
whole Dietary Supplement industry in New Zealand and reflected on the
integrity of us all.
By way of conclusion, Mr Mabey said the programme did not make it clear that
"Debbie" was an isolated case. It had been designed to show as the reporter's final
comment indicated, that dietary supplements should all be treated as dangerous. If, as
TVNZ maintained, a large team had prepared the programme:
... how did they get it so very wrong, miss many valid points and not conduct
proper research into the Dietary Supplement industry or even present accurate
information on the current legislation.
Noting:
The programme has had a devastating financial effect on both Megavitamin
Laboratories and Ruth Kay. Neither parties have been found guilty of any
wrong doing at this time and have the support of the NNFA and various other groups
and associations.
Mr Mabey asked:
There are many areas of concern about this programme and all I ask is that you
view the programme very carefully and hopefully make some recommendations
to prevent a similar occurrence.
TVNZ's Response to Mr Mabey's Final Comment – 20 December 1994
Explaining that it did not usually respond to a complainant's final comment, TVNZ
said that some points in Mr Mabey's letter nevertheless called for further
clarification. It used the numbering contained in Mr Mabey's letter.
1. TVNZ contended that the foreword which explained the process of review,
rather than the specific areas to be reviewed, had no relevance to the complaint.
2. Arguing that the comment objected to was a factually correct summary of the
patient's opinion in the item's introduction – and not part of the report itself –
TVNZ said that Mr Mabey's complaint blurred this distinction.
3. Dr Stewart had not been coerced to do anything.
4. Despite what might be "common knowledge" among the practitioners with
whom Mr Mabey worked, TVNZ expressed amazement that an issue involving
patient confidentiality had apparently been a matter of discussion between Mr
Mabey and Nurse Kay. It added:
There is an enormous difference between a patient volunteering
information about her condition, and a practitioner or doctor providing
prescription details without the authorisation of the patient.
5–9. TVNZ did not wish to comment further on these matters.
10. TVNZ commented:
TVNZ is astonished that "60 Minutes" should be the subject of what is
clearly an orchestrated discussion from those within the industry who feel
(wrongly in our view) that the item has cast a slur over all their
reputations.
It said that it would not be a party to revealing irrelevant medical details although Mr
Mabey, through innuendo, cast doubt on the quality of the item. TVNZ continued:
It was perfectly right and proper to pursue this story. It revealed an
unsatisfactory situation which the public at large had a right to know. Any
decision which suggests otherwise must raise serious questions about the
freedom of the press in this country - a freedom many New Zealanders accept
unquestionably, but which must be jealously guarded at all times if democracy is
to be meaningful.
The "60 Minutes" team acted throughout with care and integrity, and we invite
the Authority to consider the views of the many medical experts in this story
who have offered their support for "Debbie" because of their obvious concerns
for the safety of the public.
Further Correspondence
In view of the differing views about Chaparral and L-Tryptophan and the references
by both the complainant and TVNZ to the Ministry of Health, the Authority decided
to seek the views of the Ministry's Dr Boyd.
In his reply dated 21 December 1994, Dr Boyd began:
I must make it clear that TVNZ had done a considerable amount of research
before coming to me about this programme and I would not like the impression
left that Genevieve Westcott was being used to present a Ministry of Health
line in her enquiry. This has already been suggested to me by some people
representing the natural therapy practitioners, industry and consumers.
With reference to Chaparral, he wrote:
Chaparral is a herb. An association between taking Chaparral and liver
abnormalities has been reported. The Ministry is unaware of any evidence
proving that chaparral was not a possible cause of liver damage.
There are no medicines in New Zealand sold with chaparral as an active
ingredient. It was sold as a food in dietary supplement products. Because the
risks appeared to outweigh the benefits of having this product as a food, the
Ministry, through its Foods Administration Section asked manufacturers to
remove chaparral from food products.
Explaining that L-tryptophan as used in dietary supplements was produced
synthetically, Dr Boyd reported:
When the Ministry received reports of over 1000 cases of illness in patients
overseas who had taken higher doses of L-tryptophan products it again carried
out a risk assessment and asked manufacturers and distributors to stop selling
and promoting dietary supplements containing the higher doses. L-tryptophan
remained available when recommended for lower daily intakes and as a medicine.
Although there appears to have been an association between the disease
eosinophilia-myalgia syndrome (EMS) and a changed method of synthesis in the
plant of the major supplier, the most recent comment from the World Health
Organisation is that it is not absolutely certain that this was the cause. The
disease was of blood cells and muscle tissue, not just blood.
It is certainly correct that Dr Warren Stewart and his company were the only
manufacturers and distributors to refuse to comply with the Ministry request to
restrict dietary supplements to a lower dose at the time.