Drury and Daisley and TV3 Network Services Ltd - 1996-130, 1996-131, 1996-132
- J M Potter (Chair)
- A Martin
- R McLeod
- L M Loates
- C J Daisley
- Nick Drury (2)
Programme20/20: "A Mother's Journey"
BroadcasterTV3 Network Services Ltd
Events surrounding the suicide of a 16 year old boy were investigated in a 20/20 programme broadcast on 8 April 1996 at 7.30pm. During the item, extracts from an interview with the psychologist to whom the teenager was referred were shown, and it was reported that the interview had been obtained by the use of a hidden camera.
Mr Drury, the psychologist, and Mr Daisley both complained to the Authority that the use of the hidden camera breached Mr Drury's right to privacy because it involved filming him without his consent or knowledge. Mr Drury also complained to TV3 Network Services Ltd, the broadcaster, that the programme contained factual inaccuracies, did not deal with him justly and fairly, and lacked balance and impartiality.
TV3 responded that it was in the public interest to investigate the allegations of past sexual misconduct and lack of professional competence against Mr Drury, and the reasons for his dismissal by Lakeland Health. It did not believe his privacy was breached because the filming was done in an office which was visited by members of the public and there was no question of trespass. It noted that Mr Drury had talked to the reporter by telephone prior to the interview and had admitted being the subject of complaints and being censured by his employer. In TV3’s view, given the nature of the complaints against him, the decision to use the hidden camera was justified.
With respect to the standards complaints, TV3 denied that it had treated Mr Drury unfairly or failed to be objective or impartial.
For the reasons below, the Authority upholds the complaints that Mr Drury's privacy was breached, and that aspects of the programme breached standards G4, G6, G7 and G19 of the Television Code of Broadcasting Practice. It orders TV3 Network Services Ltd to pay compensation to Mr Drury in the amount of $1500 and to broadcast a brief summary of this decision.
The members of the Authority have viewed the item complained about and have read the correspondence (summarised in the Appendices). As is its practice, the Authority determines the complaints without a formal hearing.
Allegations of professional incompetence, and past sexual misconduct, were made against a Rotorua psychologist, Nick Drury, in an item on 20/20 broadcast by TV3 on 8 April 1996 between 7.30-8.30pm. The item focused on the treatment given to a young man (David) in Mr Drury's care who committed suicide. David's mother expressed strong doubts about the quality of the care given to her mentally ill son, and questioned Mr Drury's competence to deal with patients with psychiatric disorders.
The mother of another former patient (who had also committed suicide) reported that her daughter had been sexually abused by Mr Drury when she was under his care some 12 years previously. It was also reported that, because of his misdemeanours, Mr Drury had at one time been placed under supervision by Lakeland Health, and had been denied full membership of his professional society. Allegations were also made about the role of Lakeland Health in David's treatment, and in particular, about its failure to monitor more closely Mr Drury's professional practice. In Mr Drury's view, these matters could not be discussed while there was an action before the
Employment Tribunal. It was on that basis that he declined to comment.
Although Mr Drury had declined to be interviewed, the item included extracts from an interview obtained by using a hidden camera when the reporter and David's mother confronted Mr Drury in the lounge of his home/office.
By way of background, TV3 explained that the item "A Mother's Journey" chronicled the efforts of an Auckland woman to piece together the circumstances surrounding the suicide of her 16 year old son. Questions were raised about the treatment he received from Mr Drury, a psychologist employed by Lakeland Health, about the role of Lakeland Health in supervising Mr Drury, and about allegations of misconduct against Mr Drury by other patients.
To Mr Drury's assertion (recorded below) that he was not able to speak to 20/20 because the matters were before an Employment Tribunal, TV3 advised that it had established that the three cases before the Tribunal were complaints of a sexual nature and, according to a lawyer who was acting for Mr Drury at the Tribunal, the case of the young man's suicide was not one of the issues being considered. It noted that the cases had been sufficiently serious that Lakeland Health had dismissed Mr Drury.
Mr Drury and Mr Daisley complained to TV3 Network Services Ltd, the broadcaster, that the use in the item of an interview obtained with the use of a hidden camera breached Mr Drury's privacy. Mr Drury maintained that although he had earlier informed the reporter that he was constrained from speaking publicly because of an employment case he was taking against Lakeland Health, his employer, she deceived him and took advantage of his compassion by coming to his home (which is where his office is located) with David's mother and asking to speak to him. He emphasised that he had been filmed without his permission, and that as a result of the broadcast of the item he had suffered health problems. He also expressed concern that matters which were broadcast might negatively influence the Employment Tribunal adjudicator with respect to his wrongful dismissal claim.
Mr Daisley also complained about the use of the hidden camera, suggesting that it could be taken for granted that Mr Drury had not consented to be filmed, that he had not been informed that the film had been taken, that he had not given consent to the broadcast of the film, and that having obtained the footage, it was possible that it could be used again without Mr Drury's consent.
In Mr Daisley's view, it was a matter of courtesy that individuals could not be photographed without their consent unless they were subject to a police investigation or had been convicted of an offence. Anticipating the broadcaster's "public interest" defence, Mr Daisley argued that such a claim was false and that the broadcaster's criteria for determining newsworthiness were whether the item was "good television" and whether it would improve the ratings.
Mr Daisley asserted that TV3 should be censured for its actions. He also suggested that there should be a prohibition on the practice of filming, without their consent, any individual who had not been convicted of a criminal offence. In his view such restrictions were necessary to protect innocent people from the intrusiveness of the media.
In addition to his privacy complaint, Mr Drury also complained that the item contained factual inaccuracies, did not deal with him justly and fairly and failed to show balance, impartiality and fairness. He sought a full retraction, an apology and financial compensation for the damage done by the programme.
The Privacy Complaint
TV3 assessed the complaint against the relevant privacy principles developed by the Authority applicable at that time when dealing with privacy complaints. The first principle reads:
(i) The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities
TV3 maintained that because David's mother willingly divulged information about her son's medical history, and because the mother of one of the sexual abuse victims consented to the allegation of sexual misconduct being made public, the facts disclosed about the patients did not constitute a breach.
With respect to principle (i), the Authority observes that the facts about the two patients, revealed by each of their mothers, are not the subject of the complaint. It then examines the facts revealed about Mr Drury. The item referred to Mr Drury's management of the young man's case, and questioned his professional competence and clinical practice. It also referred to an incident in 1984, involving a teenage girl, which was described by her mother as "sexual abuse" and which resulted in a note being placed on Mr Drury's personnel file, allegedly for two years. Reference was also made to recent instances of sexual harassment, which had resulted in Mr Drury's dismissal from Lakeland Health; and to his being denied full membership of his professional society.
In the Authority's view, those are private facts. It then examines whether the facts disclosed are highly offensive and objectionable to a reasonable person. It concludes they are not because of the over-riding context of public interest and therefore that principle (i) was not breached. However it takes into account that the information disclosed was potentially prejudicial to Mr Drury, and to his professional reputation and it considers that issue under the principles enumerated below.
Next it considers the complaint under principle (ii) which reads:
(ii) The protection of privacy also protects against the public disclosure of some kinds of public facts. The "public" facts contemplated concern events (such as criminal behaviour) which have, in effect, become private again, for example through the passage of time. Nevertheless, the public disclosure of those public facts will have to be highly offensive to a reasonable person.
The Authority applies this principle to the revelation of facts about an incident which occurred in 1983/4 that resulted in Mr Drury being censured, and a report being entered on his personnel file. The incident involved a teenager who, according to her mother, was subject to sexual abuse by Mr Drury when she was his patient. A friend of the young woman revealed that an incident had occurred in a spa pool.
Mr Drury pointed out that the claim had in fact alleged sexual harassment, not sexual abuse, and denied the charge. He acknowledged that a note had been put on his file but stated that he had been assured it would be removed two years later. Under those circumstances, he concluded at the time, it was preferable to let the matter rest. He considered there was no justification for TV3 to disclose details of that incident now, and to invite viewers to speculate that the current accusations of sexual harassment therefore had foundation. He described the current allegations as ludicrous.
Accepting that it could be argued that the allegation of sexual misconduct against Mr Drury amounted to the public disclosure of a public fact which had become private again through the passage of time, TV3 argued that nevertheless the facts had become public again when it was revealed that Mr Drury had recently been dismissed by Lakeland Health for improper conduct of a sexual nature. It maintained that his past was relevant to the events of the present.
The Authority agrees that the facts concerning the 1983/4 incident had, because of the passage of time, arguably become private again. A majority concludes that principle (ii) was breached because the incident in the past had no relevance to the issue being investigated – the clinical treatment of a 16 year old boy and the particular facts of his case. It also considers it unfair to raise a matter which, according to Mr Drury, should have been expunged from his record.
A minority disagrees. It considers that the past incident had some bearing on the issue of Mr Drury's competence and history of difficulties with his employer, both of which had relevance to the story.
TV3 applied principle (iii) when it examined the use of the hidden camera. That principle states:
(iii) There is a separate ground for a complaint, in addition to a complaint for the public disclosure of private and public facts, in factual situations involving the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion. The intrusion must be offensive to the ordinary person but an individual's interest in solitude or seclusion does not provide the basis for a privacy action for an individual to complain about being observed or followed or photographed in a public place.
It noted that the camera was used in Mr Drury's office, a place where the public may visit, and that there was no question of trespass. Further, TV3 observed, he talked freely and there was no suggestion his comments were "off the record". It suggested that had a print journalist visited the office and then published the conversation from memory, there would be no question of an invasion of privacy.
The Authority notes that Mr Drury had declined to comment on-camera on the basis that relevant issues were still before the Employment Tribunal and the adjudicator had expressly requested that they not be discussed in the media. He offered to speak to TV3 once the hearings were over.
In the Authority's view, the visit to Mr Drury's home interfered with Mr Drury's interest in solitude. Although Mr Drury invited David's mother and the reporter to come inside, he did not invite the camera. He had already expressly refused an on-camera interview and that was known to the reporter, thus any claim that there was no suggestion of his being "off the record" is spurious. The Authority concludes that the use of the hidden camera was an intrusion into Mr Drury's privacy and was offensive to the ordinary person. It notes the exemption when the filming occurs in a public place but points out that an office, although visited by members of the public, is not a public place. It upholds the complaint that principle (iii) was breached.
In response to the argument that a print journalist would not be accused of invasion of privacy if they published the conversation from memory, the Authority notes that an individual's response to a television journalist as opposed to a print journalist is likely to be different and, when no camera is in evidence, an individual would not expect the conversation to be recorded on film. The Authority does not consider the print analogy to be relevant or sustainable. Also, it notes that standard R34 of the Radio Code of Broadcasting Practice expressly prohibits taping a conversation without consent, a point which the Authority addresses in its conclusion.
Next, TV3 assessed the item against principle (iv) (since renumbered vi) which reads:
(iv) Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual's claim for privacy.
Mr Drury argued that the defence under principle (iv) did not apply because there was no public interest to be served in broadcasting the hidden camera footage. He believed that he had successfully conveyed to the reporter the importance of permitting the clinical investigation to proceed before reporting on the matter and expressed his concern and disappointment that the item was broadcast prior to the resolution of the Employment Tribunal matters, arguing that the broadcast could well prejudice his chance to be reinstated, if it was proved that he had been wrongfully dismissed. In his view, the public was not well served by having its confidence in mental health professionals undermined, especially when it was not justified.
It was TV3's view that the matter was in the public interest and, it argued, that view as confirmed by the interest taken in the item by others of Mr Drury's patients who came forward after the programme to complain about their treatment. It considered many of Mr Drury's private patients would have been interested to know the allegations made against him, and noted that since the broadcast three other former patients had approached 20/20 expressing concern about his professional conduct.
TV3 noted that Mr Drury had spoken to the reporter by telephone prior to the hidden camera interview and had admitted being the subject of complaints and being censured but turned down the request for an on-camera interview.
It referred the Authority to Decision No:138/93 dated 29 October 1993 in which the Authority considered the public interest defence. There the Authority wrote:
The matter was an issue of important public interest. Information about the questionable practice of immigration consultants generally was included in the item...(Mr ...) was not prepared to admit that he used questionable practices. Although the "plant" would have been able to give evidence of such practices, the use of electronic eavesdropping was indispensable to the report on the practices of the consultants named in the item, and, moreover, seemingly the only way to obtain Mr ...'s incontrovertible admission of the specific matters...
As noted above, in view of the District Court decisions the Authority accepted the behaviour disclosed by the surreptitious recording was not criminal. Nevertheless, in view of the continuing widespread interest in immigration, the Authority readily accepted that the behaviour disclosed would definitely be widely viewed as anti-social.
TV3 asserted that this extract from Decision No: 138/93 showed that the public interest defence could be relied upon to justify the use of a hidden camera, provided there were good reasons. On this occasion, it contended that the only means available to obtain Mr Drury's response to the questions as to why he had suggested the young man come off his medication, and why he had not referred him to a psychiatrist as he had been instructed, was to use the hidden camera. It also considered it important to record Mr Drury's reaction to the allegation made by his former patient, particularly as he was now the subject of fresh complaints of a sexual nature. TV3 maintained that it would have been difficult to tell the stories without pictures.
The Authority observes that the hidden camera sequence did not reveal an answer to either of the first questions, and that it was able only to register Mr Drury's surprise at being confronted about the previous case. Further, the Authority is unable to accept that the need for pictures would ever be an imperative that over-rode an individual's right to privacy in circumstances such as these, when the filming was done with a hidden camera and on private property.
As to whether the hidden camera's use was in the public interest to the extent that it over-rode the programme makers' obligations under the Privacy Principles, the Authority also concludes that under these circumstances it was not. Neither does it accept that the precedent decision (No: 138/93) is analogous. Mr Drury's demeanour in the hidden camera sequence showed his discomfort when confronted but this did not illustrate anything unpredictable or unusual in his character or conduct; neither did it connote guilt. However it succeeded, through a combination of the intrigue inherent in the filming technique, and the unusual camera angles dictated by the location of the hidden camera, in creating a visual impression that could only contribute to an adverse impression of Mr Drury.
TV3 considered, it wrote, that "many of Mr Drury's private patients would have been interested to know the allegations made against him." The Authority notes that employment disputes such as Mr Drury's with Lakeland Health are dealt with in private hearings, one reason for which is to avoid prejudicial publicity. The Authority notes that "in the public interest" is by no means the same thing as satisfying the public's curiosity. It does not regard this latter justification, either, as valid.
The Authority is prepared to accept that this was, as postulated, a story in the public interest, concerning an apparent failure in the mental health system, and allegations of deficiencies in one professional's practice leading to his possible role in the death of at least one patient. Because it was in the public interest, Mr Drury forfeits his rights to protection of private facts about himself where they relate to his professional conduct.
However, because the item centred around one individual, the Authority considers there were particular responsibilities to be fair to him, including respecting his right to remain silent. It does not accept that – public interest notwithstanding – covert filming was acceptable in this case, and justified over-riding Mr Drury's right to privacy.
The Authority concludes that the use in the broadcast of extracts from an interview obtained by the use of a hidden camera breached s.4(1)(c) of the Broadcasting Act 1989.
The Standards Complaint
Mr Drury contended that TV3's principal justification for the story was based on two erroneous assumptions: first, that there was only one valid method of treatment for a person with a psychotic disorder, and secondly, that his professional competence had been called into question as a result of a number of complaints from clients.
By way of background, he explained the different treatment paradigms, drawing a distinction between the "medical model", which favoured the use of medication to control symptoms, and the "autonomy approach" which encouraged the patient to take responsibility for the problem themselves. The latter approach, which used family therapy as a tool, was the one practised by Mr Drury. He noted that the efficacy of the two approaches was widely debated in medical circles and that his preference for the autonomy approach had alienated him from a number of practitioners and had been a source of controversy in the local medical community. Mr Drury explained that complaints about him had arisen in that atmosphere of controversy.
The programme, Mr Drury asserted, developed its thesis that professional incompetence had been a causative factor in David's suicide. Mr Drury complained that that conclusion was not only unfair, but was based on a number of inaccuracies. He alleged that the programme breached standards G1, G3, G4, G5, G6, G7 and G19 of the Television Code of Broadcasting Practice. The first six standards require broadcasters:
G1 To be truthful and accurate on points of fact.
G3 To acknowledge the right of individuals to express their own opinions.
G4 To deal justly and fairly with any person taking part or referred to in any programme.
G5 To respect the principles of law which sustain our society.
G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.
G7 To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.
The other standard reads:
G19 Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.
The matters which Mr Drury alleged breached the standards are considered below.
The programme was introduced by the presenter who described David as a schizophrenic. Reference was made to schizophrenia on other occasions during the programme. Mr Drury complained that since no formal diagnosis of schizophrenia had been made, it was factually incorrect to label David thus. Mr Drury agreed there was consensus that David was displaying signs of a behavioural disorder, but pointed out that the psychiatrist to whom David was referred after Mr Drury was removed from the case, described David as suffering from a behavioural disorder rather than from psychotic or marginally psychotic behaviour.
In its response, TV3 acknowledged that while there had been no formal diagnosis of schizophrenia, the psychiatrist in Auckland who had previously treated David had concluded that David was developing a psychiatric disorder, in his opinion, schizophrenia. Since that diagnosis had been made when David was 14 years old, TV3 claimed it was logical to assume that 2 years later his condition had worsened.
In addition, TV3 advised that it was informed that the family claimed David was displaying classic symptoms of schizophrenia while he was living in Rotorua, including hearing voices, seeing things that weren't there and "more or less hallucinating" when he came off his medication.
The Authority emphasises that it does not have the expertise to enter into the debate about the nature of David's illness and nor does it wish to. However, it believes that because the label of schizophrenia carries connotations of a serious mental disorder, broadcasters should be cautious about using the term without attributing the diagnosis to a medically qualified source. The Authority understands from reports it has sought from TV3 that David's diagnosis was difficult, complicated by his abuse of drugs and alcohol, and that while it was hinted that a serious psychotic disorder existed, in the nature of schizophrenia, no clinician had been prepared to make a formal diagnosis to that effect. The Authority also understands that it was David's mother's view that it was likely that his illness had developed to schizophrenia.
The Authority accepts that David's condition warranted professional intervention and treatment. It notes that when David moved to Rotorua, he was referred to the Mental Health Unit of Lakeland Health, which allocated the case to Mr Drury for individual and family counselling, and that his case notes included an annotation that Mr Drury was to arrange an appointment with a psychiatrist to review David's medication. The Authority notes, from reports it has sought from TV3, that the initial referral was made to a psychologist, not a psychiatrist, because that was considered appropriate in the circumstances, and the reference to the psychiatrist was for the purpose of reviewing the medication. It also notes that the referral avoided any reference to schizophrenia. It therefore considers that because the label schizophrenia carries implications of a serious mental illness, adverse inferences could be drawn about Mr Drury's treatment method which were unfair to him. The diagnosis of schizophrenia was unproven, historic, and at best debatable, yet viewers were left with the conclusion that a definitive diagnosis had been made. This would readily lead viewers to the conclusion that Mr Drury's treatment of the case was inept.
2. Informed Consent
Mr Drury attested that in his view David was capable of making a decision as to whether to refuse treatment. He objected to the inclusion in the programme of an expert who was asked to give his opinion about informed consent in a hypothetical situation when the person was not of sound mind. Mr Drury argued that it had not been established that David was incapable of making a decision about his medication. Mr Drury considered the issue of informed consent should have been explained, especially as he had provided the reporter with a submission he had written for the Mason Inquiry which explained the difference in the treatment approaches.
TV3 conceded that the question as put "was not ideal", but believed that it was beyond the scope of the programme to examine the issue of informed consent.
The question of whether David was capable of giving consent to the method of treatment is not something the Authority is competent to evaluate. However the Authority decides that as the treatment programme was based on the patient's being capable of giving consent, it was unfair to imply, by asking the expert a hypothetical question about a situation in which the patient was not capable of giving consent, that David also was not capable of giving consent. In its view, the question to the expert unfairly led viewers to conclude that David did not have the capacity to understand his treatment programme and, while the Authority does not have evidence as to whether David was capable of making decisions, it believes that when such a serious assertion is made, it should be qualified by reference to the specific case, rather than being discussed in general terms. It concludes that the reference to the expert of a hypothetical situation was unfair to Mr Drury because first, it was not based on the facts of this case, and secondly, he did not have an opportunity to correct any discrepancy.
3. Method of Treatment
Mr Drury complained that it was a gross distortion of the facts to describe, as David's mother said he did, his method of treatment as one he had used with alcoholics for 20 years. Mr Drury pointed out first, that he had not been in practice for 20 years, and secondly, that he had very little to do with alcoholics. He had, he explained, tried to illustrate his treatment programme to David's aunt and uncle by drawing a parallel with the approach used by Al-Anon when dealing with family members of alcoholics. That method, the family therapy approach, involved the cooperation of the family to provide an environment in which the patients took responsibility for their own health.
TV3 responded that David's mother clearly recalled a phone conversation in which Mr Drury had talked about allowing David to come off his medication and that it was an approach he had used for 20 years with alcoholics. TV3 accepted that it was difficult to establish what Mr Drury had said, but maintained that the item went to reasonable lengths to be fair to Mr Drury and further, that it was beyond the scope of the programme to dwell on the issue of family therapy.
Since the point is disputed, the Authority is unable to conclude whether David's mother's recollection of the conversation was an accurate summary of Mr Drury's views. It understands however, that David's mother was more sympathetic to the medical approach taken with David up till that point than the family therapy treatment model. In the Authority's view, given the analogy with the treatment of alcoholics claimed by David's mother in the programme, it would have been fair to Mr Drury for the item to have explained the family therapy method of treatment. As presented, the Authority is inclined to agree with Mr Drury that it appeared as if he was pursuing an idiosyncratic method of his own invention.
4. Mr Drury took David off his medication
Mr Drury denied that he had suggested David stop taking his medication. That conclusion, he reiterated, was one drawn by David's mother who believed that David required medication in order to improve. He emphasised that he had never suggested non-compliance to his patients, although he did concede that he might passively allow medication to run its course. He pointed out that in David's case, he had suggested to David's aunt and uncle that if they could not persuade David to come in for treatment, his medication might run out and then his symptoms might become more discernible. Mr Drury reported that David more or less continued to take his medication and that it did not run out until about the time when Mr Drury was ordered off the case.
TV3 pointed to the recollections of David's aunt and uncle who, it said, were adamant that he was ordered off his medication by Mr Drury. In addition, it reported that David's mother was told the same. TV3 also referred to Lakeland Health's reports into David's death which concluded that Mr Drury had given advice about medication "beyond his expertise".
Since the point is disputed, the Authority is unable to conclude whether the suggestion that Mr Drury advised David to come off his medication, as recalled by David's mother, was accurate. It notes that prescribing medication was outside Mr Drury's competence and that he was responsible for liaising with a psychiatrist to review the medication which apparently, he did not do. It accepts that Mr Drury subscribed to the family therapy method of treatment which eschewed controlling symptoms by use of drugs but it also notes that Mr Drury was not given an appropriate opportunity to answer the allegation that he had interfered with the drug therapy. It notes also that ordering David off medication is inconsistent with Mr Drury's own account of his style of patient management. The Authority also refers to the report, requested from TV3, in which the psychiatrist to whom David was referred (after Mr Drury was taken off the case) reported when he first saw David that although there was evidence to suggest that he was developing a psychotic illness, he did not consider there was hard enough evidence to recommend the recommencement of the medication, which David was apparently very reluctant to take. It was only after talking to David's mother and receiving a full history of David's condition that the psychiatrist recommended that David go back onto neuroleptic medication for its preventative effects.
The Authority concludes that because other factors were relevant – David's reluctance to take the medication and to keep appointments, that the medication did not run out until after Mr Drury was taken off the case, and that the family therapy method of treatment was not explored – the point was arguable, and it was therefore unfair to state categorically the mother's view that Mr Drury had taken David off his medication without countering such statement with a brief explanation of family therapy as evidenced in written material provided to TV3 by Mr Drury.
Mr Drury denied that as a result of the complaint he was removed from the case and suspended. He pointed out that he was taken off the case on 17 July but was not suspended until 24 August (about a week after David committed suicide) and that the suspension was in relation to other complaints.
TV3 responded that it was satisfied with the accuracy of its facts, adding that later in the story it was reported that Mr Drury was fired because of complaints of a sexual nature involving three other patients.
The Authority is inclined to agree with Mr Drury that an adverse conclusion can be drawn about his handling of David's case which was unfair to him. It is apparent from the facts that the criticism of his dealing with David's case resulted in his removal from that case, but that the suspension was in relation to the other cases which involved sexual matters. However it believes this is a relatively minor point.
Mr Drury denied that he had been reprimanded for his poor clinical records. He explained that his practice was in the Narrative mode of therapy and that his case notes consisted of a letter to the client after appointments discussing the conversation they had had.
TV3 pointed to the clinical audit provided by Lakeland Health, dated 24 August 1995, which was critical that there were no formal assessment notes, no formulation of diagnosis and no recorded treatment plan. According to the report, the paucity of case records had been highlighted in previous supervision reports on Mr Drury.
The Authority observes that this was clearly a source of conflict between Lakeland Health and Mr Drury, and further, that Mr Drury's method of record-keeping was probably at odds with prudent accepted practice. It considers it is of relevance to raise the issue because it had a bearing on the way David's case was managed and Mr Drury's imprecision in recalling details of his case management.
7. David was seen once in three months
An adverse conclusion could be drawn from this statement, Mr Drury contended. The three month period began on the date of David's referral to Lakeland Health. It did not take account of the waiting lists and the delay until David's first appointment. Nor did it take account of David's reluctance to keep appointments, or that David's aunt and uncle had been seen by Mr Drury as a legitimate part of Mr Drury's family treatment programme.
TV3 stood by its report that David had been seen only once in the three month period from when the case was referred until the time Mr Drury was removed.
Although it was factually accurate to state that David had been seen only once in three months, the inference which could be drawn is, in the Authority's view, unfair because it leads the viewer to an oversimplistic conclusion that Mr Drury was negligent.
8. Footage at the door
The visuals which accompanied a voiceover reporting the lack of cooperation given by Lakeland Health included a shot of Mr Drury retreating into his home and closing the door, and the comment that he was "just as elusive".
That footage, filmed with a hidden camera, was in fact filmed as the reporter and David's mother were leaving Mr Drury's home, having been invited inside and having had a conversation with him, which was also recorded.
TV3 did not deny that the sequence was as Mr Drury described, but considered it legitimate to convey that Mr Drury had been unwilling to be interviewed on camera.
The film of Mr Drury at his door was the viewer's first sight of him and appeared to confirm the report in the voiceover that he was elusive. In the Authority's opinion, the editing of the tape was deceptive because it falsely conveyed an impression that Mr Drury was avoiding answering the allegations against him which it appeared were then being put to him. It concludes that the editing of the tape breaches standards G7 and G19 because it deceived viewers into believing that Mr Drury refused to speak to the reporter.
In fact, as the remainder of the hidden camera footage showed, he had invited the reporter and David's mother inside and answered some of their questions. In addition, he cooperated with the programme makers by providing written material which explained the family therapy philosophy, and was interviewed by telephone.
9. The 1984 incident
Mr Drury claimed that the events surrounding the 1984 complaint of sexual abuse towards a 16 year old female patient had been grossly exaggerated. He was adamant there was no mention of a spa pool or of genital touching at the time the complaint was made and denied that the event occurred as described. He emphasised that the complaint was an allegation of sexual harassment, not of sexual abuse, and contended that it was unfair for TV3 to introduce the material without giving him an opportunity to provide his side of the story.
Although it accepted that the detail concerning the 1984 complaint may not have been exactly as described, TV3 maintained that the substance was accurate and had been confirmed by two people who investigated the matter at the time.
A majority of the Authority questions the relevance of introducing the 1984 incident when it had no relationship to the management of David's case. It also considers that the footage relating to this incident could establish a link in the minds of viewers between the alleged incident and the subsequent suicide of the young woman patient involved some years later. It believes that such an inference is unfair to Mr Drury.
The minority disagrees and considers it was relevant, in a story which questioned Mr Drury's professional judgment, to highlight previous misdemeanours and errors of judgment and to illustrate that Mr Drury, because of his unorthodox methods of treatment and his apparently problematic relationship with some patients, might have been something of a maverick in the local medical community. However, it questions the prominence given the 1984 complaint when it contained no obvious parallels with David's case.
10. Role of Lakeland Health
Noting TV3's reliance on reports prepared by Lakeland Health which blamed him for David's death, Mr Drury charged that those reports had been prepared after he had been suspended and then dismissed from Lakeland Health and were neither objective nor impartial. Further, he contended, although the programme suggested some blame for David's suicide rested with Lakeland Health in its failure to supervise Mr Drury adequately, the implication remained that it was his incompetence which was responsible for the death.
TV3 emphasised that the story did raise issues about the role of Lakeland Health and did not direct blame to Mr Drury alone. However, it noted, the Ministry of Health, which investigated the report, appeared satisfied with Lakeland Health's version of events.
The Authority notes that this was a complex story which raised issues about accountability. It was Lakeland Health's Mental Health allocation team which made the decision to refer David to a family therapist, and to Mr Drury in particular, rather than to a psychiatrist and, although it was noted on the case notes that David was to be referred to a psychiatrist to review the medication, the referral emphasised individual and family counselling.
When Mr Drury was removed from the case, David was referred to a psychiatrist. The Authority has read the psychiatrist's report, received on request from TV3, and notes that David was put back on medication (of a different kind) after his second visit to the psychiatrist. That report also provided a more detailed history of David's behavioural problems and his reluctance to take medication. It concluded by noting that David's suicide might have been avoided had the coordinated treatment plan not been disobeyed, had an earlier appointment been arranged with a psychiatrist and had Mr Drury had not interfered with the taking of medication. However, the report ended, suicide might have eventuated however well the case had been handled because it was not an uncommon event in a schizophrenic illness, which, the writer believed at that time, was the most likely diagnosis.
The psychiatrist who saw David after Mr Drury was removed from the case, while critical of Mr Drury's failure to follow the coordinated treatment plan, was not convinced that was the cause of David's suicide.
The Authority believes the programme should have explored Lakeland Health's role in David's outcome, since it had planned the course of treatment and made the decision for David to work with a family therapist, whose methods of practice were apparently known to the Mental Health Unit. Also, it was its emergency team which decided David was not in a dangerous mental state a few days prior to his suicide.
The Authority also considers that the programme in implying that the blame for the outcome lay ultimately with Mr Drury, was not fair or balanced.
11. Hidden Camera
The use of the hidden camera to record an interview with Mr Drury was referred to above in the privacy complaint.
The Authority considers the use of the hidden camera not only breached Mr Drury's privacy, but was also unfair to him. It refers to the correspondence where Mr Drury explained that while he was willing to provide information by telephone, he was unwilling to be interviewed on camera. His principal concern was that some of the matters raised were being dealt with in the Employment Tribunal and publication would breach the express request of the adjudicator and further, might jeopardise his chance for reinstatement.
The Authority repeats the point made above that the information gleaned from the hidden camera interview provided little new information and the broadcast of extracts from it merely served to highlight an adverse impression about Mr Drury. That impression, it concludes, was unfair.
The use in the item of extracts obtained by a hidden camera highlights some ethical questions which the Authority now considers. It refers to the guiding principles in the BBC Producers' Guidelines concerning the gathering of information by the use of concealed recording equipment. Those guidelines highlight the individual's right to privacy, yet recognise that journalists must be allowed to investigate and establish matters which it is in the public interest to know about. The use of surreptitious recording of people not in public view – and especially in their homes – is only sanctioned, under those guidelines, where prima facie evidence exists of crime or significant anti-social behaviour by those to be recorded. Such recording would only be used when an open approach would be unlikely to succeed and the material is necessary for the programme. Based upon those guidelines, the Authority concludes that the BBC would have been unlikely to sanction the hidden camera footage which was broadcast about Mr Drury. There was no evidence of crime or significant anti-social behaviour; an open approach had been successful insofar as Mr Drury had responded by telephone and had merely declined an on camera interview until the Employment Tribunal issues had been resolved; and the material gleaned was arguably not vital for the programme.
There are no ethical guidelines in the Television Code of Broadcasting Practice to safeguard individuals whose conversations are recorded surreptitiously, although, as noted above, the Radio Code contains the following standard:
R34 No telephone conversation with a member of the public is to be broadcast without that person's permission. When statements by a member of the public are intended to be "on the record" for the purposes of news and current affairs or community comment; the person should be advised if a conversation is to be recorded for possible broadcast.
It is the Authority's intention to discuss with television broadcasters the desirability of introducing a set of guidelines, along similar lines to those of the BBC, to clarify when the use of a hidden camera may be justified.
The Authority notes that this is a case in which TV3 was operating under significant restraints. Lakeland Health would not comment, and Mr Drury explained his reasons, too, for deferring cooperation until after his employment status was resolved.
Clearly, this was a frustrating situation, and it was in this context that the decision was made to resort to covert filming in an effort to enhance the story visually. However, the Authority is unable to accept that the need for visual exposition justifiably over-rode Mr Drury's right to withhold comment.
The Authority is mindful that the thrust of the programme was against one individual whose judgment was in question. The programme's conclusions could have a devastating effect on his life. Had Mr Drury's behaviour been criminal and ongoing, this might have provided justification for the course TV3 followed. But the programme advanced no thesis or evidence to this effect.
There was, however, one area in which both parties agree Mr Drury did not withhold cooperation. This was in relation to his modus operandi as a therapist. The Authority is inclined to agree with Mr Drury that the wisdom or otherwise of his actions could only be understood in the context of his declared therapeutic style, as a conflict between this and a conventional psychiatric model lay at the heart of the matter. Failing his actual presence on the programme, this was the only way a viewer would have of understanding the context of his behaviour.
The Authority does not, then, accept TV3's argument that describing and to some extent evaluating the different therapeutic models was "outside the scope" of the programme. In fact, it would seem to have been pivotal, and its omission contributed to the unfairly unfavourable picture painted of Mr Drury's professional conduct.
It is significant that TV3 also did not include information it possessed about David's personal history which might have indicated to viewers how uniquely vulnerable he was, and what a serious management problem he had presented for some years. This would have helped explain both his mother's heightened anxiety, and the problem professionals faced in dealing with him.
Further, the question of "informed consent" was relevant to David's case management: again, the Authority cannot agree with TV3 that it was outside the programme's scope. As David was not certifiably insane (according to the psychiatrist's notes) he was assumed to be competent to be active in his own case management. The Authority notes that even had he continued with accepting the need for the drugs a psychiatrist prescribed, he could not be forced to take them, whatever treatment model he was considered to be following.
The programme was called "A Mother's Journey". It declared itself as setting out to tell one woman's story about her son's suicide and how it happened. In the course of researching the programme, a past accusation of sexual misconduct against Mr Drury was reported, and it was revealed that the female victim had suicided some years later. The Authority acknowledges that past instances of questionable behaviour may have a justifiable place in stories such as this, although a majority does not believe that it was appropriate in this case to include the detail of the 1984 incident. A minority accepts the relevance of recalling the past incident but does not believe the prominence accorded to it was fair to Mr Drury.
Returning to the matter of covert filming, the Authority considers that the broadcast of extracts created an atmosphere of intrigue that contributed overwhelmingly to a damaging impression of Mr Drury. It notes that two distinct decisions were made in this instance: the first, to use a hidden camera, and the second, to incorporate that footage in the finished programme. Had the programme makers used the hidden camera solely as a research tool, its use would no doubt have never come to the Authority's attention. However, the footage which was included was so prejudicial that it is unlikely that any balancing factor could have compensated adequately.
While many of the points at issue between Mr Drury and TV3 may be debatable, it is relevant that they are argued against a background of covert filming, and the decision to withhold information that could well have ameliorated the damaging impression given of Mr Drury.
The programme focused on events in the last few months of David's life, and attempted to answer his mother's questions and doubts about the quality of professional care David received after he moved to Rotorua some five months before he committed suicide.
David's previous medical history was alluded to, and in addition to describing him as a schizophrenic, his mother referred to David's worsening mental state, and recounted a violent incident when he threatened to kill her. Her principal concern about the treatment regime in Rotorua was that she believed Mr Drury, the psychologist to whom David was assigned by the Mental Health Allocation team, had taken David off his medication. In her view, medication was essential to stabilise his condition, and she believed Mr Drury was responsible for David's death because he interfered in an area in which he was not qualified, and had ignored the advice on David's case notes to refer him to a psychiatrist to review the medication.
David's mother's view was apparently supported by expert testimony from an Auckland psychologist, unconnected with David's case, who gave his opinion that when a person was not of right mind to make a decision whether to take medication, they should not be allowed to "walk away".
The programme implied that Mr Drury's management of David resulted in the tragic outcome, and that conclusion was reinforced when the programme reported apparent concerns about Mr Drury's professional competence by former patients and included an interview with the mother of a young woman who had been Mr Drury's patient in 1984 and had later committed suicide. Reference was also made to current complaints of a sexual nature against Mr Drury and these were reported as being the specific reason why Mr Drury had allegedly been dismissed by Lakeland Health.
The Authority makes no decision on whether the accusations against Mr Drury are justified and acknowledges the relevance of David's mother's point of view. Clearly, Mr Drury was something of a maverick among his colleagues and his views were, according to his own testimony, responsible for professional enmity and conflict in the local medical community.
The Authority considers it would have been relevant to the management of David's case to question why a psychologist who was known to shun the medical paradigm was allocated a case where a review of medication was advised. It would also have been relevant, in the Authority's view, to understand the differences between the two competing methods of treatment – the medical model which relied on medication, and the autonomy model which used family therapy to engage the patient in their own treatment. It cannot accept TV3's claim that this was outside the programme's scope.
Rather, it believes it was essential. It was unclear to what extent Lakeland Health supported Mr Drury's views, or had confidence in him. The allocation team's briefing notes show that David was referred to Mr Drury for family counselling, and included a note which required referral to a psychiatrist for review of the medication. Whether this informal note attached to David's file was to be regarded as an instruction to Mr Drury is not clear.
The Authority is aware that TV3 was in possession of a number of reports about the management of David's case. Those reports provided detailed information about the case history, the chronology of events and the supervisory role of Lakeland Health. They support the conclusion that both the overall management of the case, and Mr Drury's particular management, were justifiably open to question.
The Authority is also aware that the events surrounding the controversy over David's treatment were mirrored in the professional conflict between the approach to treatment of psychologists and psychiatrists and ongoing conflict within the local medical community. These were matters which it considers were relevant in answering some of the questions about David's case.
Overall the Authority concludes that it was relevant to question the management of David's case and Mr Drury's role, but it was unfair to do so without either resenting answers from Mr Drury to the allegations against him or presenting factors in the story which would more fairly explain his professional behaviour.
The Authority decides that Mr Drury's right to privacy was violated by the use of the hidden camera and upholds the complaint that privacy principle (iii) was breached, and a majority upholds the complaint that privacy principle (ii) was breached. The majority decides that the defence under principle (iv) is not applicable.
With respect to the standards breaches, it decides to subsume the standard G1 complaint (truth and accuracy) under standards G4 (fairness) and G6 (balance). It upholds the complaints that the matters discussed under points numbered 1, 2, 3, 4, 5, 7, 10 and 11 above breached standards G4 and G6. A majority upholds the complaint that the matter discussed under point 9 breached standards G4 and G6. The Authority also upholds the complaint under point number 8 that standards G7 and G19 were contravened.
For the reasons set forth above, the Authority upholds the complaint that aspects of the 20/20 programme entitled "A Mother's Journey" broadcast by TV3 Network Services Ltd on 8 April 1996 between 7.30-8.30pm breached s.4(1)(c) of the Broadcasting Act 1989.
Having upheld a privacy complaint, the Authority may impose an order under s.13(1)(d) of the Broadcasting Act 1989. Because of the seriousness of the breach, the Authority imposes the following order:
For the reasons set forth above, the Authority orders TV3 Network Services Ltd to pay compensation to Mr Drury in the amount of $1500.
The Authority also upholds the complaint that aspects of the programme numbered under points 1, 2, 3, 4, 5, 7, 8, 10 and 11 above breached standards G4, G6, G7 and G19 of the Television Code of Broadcasting Practice. A majority of the Authority upholds the complaint that the aspect discussed under point 9 above breached standards G4 and G6.
Having upheld a complaint, the Authority may impose an order under s.13(1)(a) of the Broadcasting Act 1989. In view of the seriousness of the breach, the Authority imposes the following order with respect to the standards complaint:
Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders TV3 Network Services Ltd to broadcast a brief summary of this decision, approved by the Authority, arising from the complaint about the item broadcast on 20/20 on 8 April 1996. That statement shall be broadcast on a 20/20 programme within one month of the date of this decision.
Signed for and on behalf of the Authority
10 October 1996
Mr Drury's Complaint to the Broadcasting Standards Authority – 1 May 1996
Nick Drury of Rotorua complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcast of an item on 20/20 on 8 April 1996 at 7.30pm breached his privacy.
In particular he objected to the use of the hidden camera which, he claimed, presented him as elusive. By way of background to the filming, he explained that he had told the reporter that he could not discuss the case in which the young man committed suicide (the focus of the 20/20 investigation) because the matter was subjudice, being the subject of an Employment Tribunal case for wrongful dismissal against his employer, Lakeland Health. However, he noted, the reporter came to his home with the mother of the young man. Because the mother was so distressed, he invited them inside.
Mr Drury stated that the reporter would have known that he could not speak about his clients without proper waivers of confidentiality and considered it galling for her to describe him as "equally elusive" when he had asked her to return when the Tribunal case was over. He wrote:
However the whole thing was highly deceptive, and took advantage of my compassion, and filmed me without my permission at a time when I was legally constrained from being able to say much.
Since the programme, Mr Drury stated that his hair had started to drop out in large clumps. He indicated that he strongly suspected the Employment Tribunal would rule in his favour that his dismissal was wrongful and that Lakeland Health had conducted an inadequate investigation. He was also confident that when the issues went before the Psychologists Board, he would be found exempt from wrongdoing. He asked:
If that does happen, and 20/20 have destroyed my professional credibility, what redress is there for me?
Mr Drury enclosed copies of letters to TV3 and to the Privacy Commissioner.
TV3's Response to the Authority – 21 June 1996
First TV3 recalled the facts which were the basis for the story on 20/20. It noted that it raised questions about the treatment of a patient and the psychologist who was responsible for his care. It suggested that there had been other complaints about Mr Drury's professional competence and that he had been dismissed by Lakeland Health as a result of complaints of a sexual nature.
TV3 also noted that a significant part of Mr Drury's complaint was based on his view that he was not legally able to talk to 20/20 while certain matters were before the Employment Tribunal. It added:
The [Complaints] Committee has established that these matters deal with three complaints of a sexual nature by former patients of Mr Drury.
It noted that the case examined by 20/20 was not an issue before the Tribunal.
TV3 then examined the complaint, first by looking at the information gathered by the hidden camera and relating that to the relevant privacy principles.
TV3 noted that the issues discussed related to the treatment and death of a young man and the allegation of sexual misconduct against a 16 year old. It pointed out that the mothers of the two young people gave consent to revealing details of medical history and, in the case of the young woman's mother, of making public the sexual abuse allegation. Noting that neither case was before the Employment Tribunal, TV3 did not accept Mr Drury's claim that he could not speak to 20/20 because the matters were subjudice. It suggested that Mr Drury used that as an excuse not to answer the questions raised by the allegations.
TV3 accepted that it could be argued that the disclosure of Mr Drury's sexual misconduct could amount to the public disclosure of a public fact which had become private again through the passage of time, but it believed that because Mr Drury had recently been dismissed for sexual misconduct, matters which had occurred in his past were again relevant.
TV3 pointed out that the hidden camera filming occurred in an office used by members of the public, and there was no question of trespass. It noted that Mr Drury was aware who he was speaking to and there was no question that his remarks were to be considered as "off the record". It also suggested that had he been visited by a print reporter who then published a conversation from memory, there would be no question of an invasion of privacy.
Principle iv (now renumbered vi)
TV3 maintained that the matter was in the public interest, and that many of Mr Drury's private patients would be interested to know the allegations against him. It noted that Mr Drury had admitted being the subject of complaints when he spoke to the reporter by telephone but had declined an on-camera interview. Because it was difficult to tell the story without pictures, TV3 advised that a decision was made to visit him with a hidden camera. It added that since the story was broadcast, three other former patients had approached 20/20 expressing concern about Mr Drury's professional conduct. It referred to Decision No: 138/93 dated 29 October 1993, in which the Authority found on the facts in that case that it was in the public interest to use surreptitious filming. TV3 wrote:
The [Complaints] Committee argues that on this occasion, the hidden camera was the only way to obtain Mr Drury's incontrovertible response to the specific matters – why had Mr Drury suggested that David Foord come off his medication and why had Mr Drury not referred David to a psychiatrist as he had been instructed to do? A serious allegation had been made about him with regard to the woman "Belinda" and it was considered important that his reaction [to] that allegation should be sought, especially as he was now the subject of fresh complaints of a sexual nature.
TV3 concluded by stating that it rejected Mr Drury's complaint.
Mr Drury's Final Comment – 9 July 1996
Mr Drury responded first to TV3's summary of the facts behind the case, arguing that it oversimplified the circumstances of his dismissal. He noted that the PSA had taken a grievance on his behalf to the Employment Tribunal for wrongful dismissal, seeking reinstatement as a remedy. Mr Drury suggested that the likelihood of his reinstatement was lessened because of the story, even if it was found he was wrongfully dismissed, because his employer would be able to argue that public confidence in the mental health system would be undermined by his reinstatement.
Mr Drury emphasised that there was a complete media ban on all details relating to his case. To TV3's claim that the Employment Tribunal was dealing with three complaints of a sexual nature, Mr Drury stated that that too was an oversimplification. He pointed out that, contrary to TV3's assertions, the David Foord suicide case was part of the hearing, although the principal focus was on the false allegations of sexual harassment, the release of confidential documents regarding the "Belinda" case which were supposed to have been removed from his file years ago, and a number of other allegations. He alleged that the programme defied the media ban.
Regarding the "Belinda" case, Mr Drury advised that at the investigation in 1984 he had denied the charge sexual harassment. When it was decided he would receive a written warning which would sit on his file for two years, he accepted that was a better solution than to escalate the matter further. However, Mr Drury reported, the report was still on his file in 1994 and in the middle of the investigation into the allegations of sexual harassment in 1995, the 1984 documents were passed to the PSA. In his view, that raised questions about the source of TV3's information.
Mr Drury maintained that his treatment of David Foord was clinically correct and in his opinion, Lakeland Health was culpable for the suicide.
Responding to TV3's application of privacy principle (i), Mr Drury emphasised that he had made clear to the reporter his willingness to speak once the hearing before the Employment Tribunal was over and that his reluctance to speak was not just an excuse.
To the response under principle (iii), Mr Drury suggested that it was the release of the 1984 documents which set off a chain of events which led to the allegations in 1995. In his view, there was no justification to disclose the alleged incident which occurred in 1983. He then commented on the current claims of sexual harassment for which he was dismissed, describing the claims as "ludicrous".
He then responded to TV3's contention that the filming occurred in his office, which was a place visited by members of the public. He pointed out that the room in which he was filmed was his lounge, and that his office was in a separate part of the house, accessed by a different entrance. Mr Drury advised that when confronted by the mother and reporter at his door, he invited them in. He believed what he said would be "off the record" because of his previous conversation with the reporter. To TV3's point that there would be no invasion of privacy had a print journalist published the conversation from memory, Mr Drury responded that in his expectation, the absence of a television camera would signify that a television journalist was not "on record".
He added that he assumed the reporter would later question the mother as to her feelings about the meeting and that he believed one of the reasons she had brought the mother to his home was to enable him to explain his method of treatment of her son and thus help her deal with her grief. He indicated that as a result of his earlier conversations with the reporter he had been led to believe that she understood the approach he had taken in the treatment of the young man. He wrote:
However as the conversation unfolded it became apparent that neither of them were particularly interested in what I had to say, and both appeared set on delivering a number of statements at me, with no opportunity for me to respond. Once Mrs Harvey had finished making her statements she promptly left, which left me wondering if this had been of real benefit for her. Then Ms Westcott proceeded to bring up the 1984 complaint and a number of allegations which were simply not true.
He reported that the conversation finished with his offer to appear on camera once the Tribunal hearing was over.
Mr Drury argued that principle (v) was breached because his address was disclosed without his consent when a shot of the outside of his house, which included the number on the letterbox, was shown.
With respect to principle (iv), Mr Drury maintained that it did not apply. He reiterated that he had offered to appear on-camera, after the hearing, contrary to TV3's assertion that he refused to appear.
He noted that a common feature to all three clients at the centre of the sexual harassment claims was that they had a borderline personality disorder. He expressed confidence that he would be cleared of all the charges after a proper investigation. Mr Drury also emphasised his concern that the reporting of the allegations would jeopardise the outcome of the Employment Tribunal hearing and, even if it was found that he was wrongfully dismissed, he would not be reinstated because of the negative publicity which the item caused.
Mr Drury's Complaint to TV3 Network Services Ltd – 24 April 1996
Nick Drury of Rotorua complained to TV3 Network Services Ltd that the item broadcast on 20/20 on 8 April 1996 breached a number of broadcasting standards. He complained that the programme vilified him and implicated him in the deaths of two young people.
He complained that there were at least eight separate occasions on which information presented was factually inaccurate and at least two occasions on which information was edited in such a way as to create an incorrect inference.
He objected to the use of the hidden camera to invade his privacy unnecessarily and create the impression that he was evasive. Mr Drury also claimed that he was not treated justly and fairly by the reporter because she ignored his insistence that he was unable to respond to any accusations because of the legal constraints of his case before the Employment Tribunal. Finally, he claimed that the programme failed to show balance, impartiality and fairness in its dealings with a number of issues. In his view, standards G1, G3, G4, G5, G6, G7 and G19 of the Television Code of Broadcasting Practice were breached.
He sought a full retraction, apology and financial compensation for the damage done by the programme.
In a second letter, dated 6 May 1996, Mr Drury elaborated on his complaint. He noted that a great deal of the information provided was highly sensitive and thus could not be broadcast or published. His complaint was under the points numbered below:
1. Mr Drury pointed to a factual error in the introduction to the item when it stated that David was a schizophrenic. He did not believe there was any evidence that a formal diagnosis had been made, although David was displaying the early signals of schizophrenia. He referred to the case notes made by another doctor which stated that he was suffering from a behavioural disorder.
2. The error was repeated when the reporter said "A visit to an Auckland psychiatrist revealed David was developing a psychotic illness. Most likely schizophrenia." Actually, Mr Drury pointed out, the psychiatrist wrote: "It would seem to me from the information available David is developing a psychotic illness." [Mr Drury's emphasis]
3. The reporter stated that Mr Drury saw David only once in the next three months. Mr Drury said he first saw David on 19 May (David had postponed an earlier appointment) and was taken off the case on 17 July. He pointed to the referral note which stated that the case was only semi-urgent and suggested that the case was in fact seen very quickly considering the average waiting times.
4. Turning to the reporter's question to Dr Fred Seymour about informed consent, Mr Drury argued that it was a leading question. In Mr Drury's view, David was capable of making a decision when he saw him. Mr Drury added that he was quite sure no professional would have committed David. He also noted that two nights before David committed suicide he was seen by the Psychiatric Emergency Team who also did not find him committable. Therefore, Mr Drury concluded, David had the right to make an informed consent decision to refuse treatment. Mr Drury added that this was a contentious issue, and one on which he had made a submission to the Mason Inquiry. A copy of that submission had, he noted, been sent to the reporter.
5. By stating in the programme that Mr Drury had seen David only once and instead talked to his uncle and aunt, Mr Drury believed the reporter implied he was not treating the case properly. In his view, the remark showed ignorance about the method of family therapy and ignored the fact that David was refusing treatment. He noted that the approach was having some success and that David even managed work for a short time during the period Mr Drury was involved in the case. None of this was referred to in the programme.
6. Describing the family therapy approach as one which was similar to the method used with alcoholics was, Mr Drury asserted, a gross distortion of what he actually said. He had explained the family therapy approach as being one where the family alters the environment in order to invite the individual to treatment. He pointed out that he had provided the reporter with some literature explaining the approach taken, noting that family therapy method of treatment was not as well known as the medical model of treatment in psychiatry. Mr Drury contended that the family therapy approach had not been dealt with fairly and in a balanced and impartial manner.
7. With respect to the claim by the uncle and aunt that Mr Drury took David off his medication, Mr Drury responded:
At no time did I make such a recommendation – as I told Ms Westcott but which she presumably decided to edit out. What I did point out to Simone and Patrick [aunt and uncle], and is consistent with the first statement made by Patrick in this segment of questioning is that if we were not successful in inviting David to treatment his medication would run out. I also said that any disorder he is suffering from would be far more obvious if that happened, but this was a less than desirable option.
Mr Drury added that he had even proposed that if David still refused to take his medication, he would come to the home and attempt to engage him in therapeutic conversation by inviting him to be present while Mr Drury and the aunt and uncle talked about him.
8. Mr Drury agreed it was correct that only a GP or psychiatrist could advise on medication, but noted that he could advise on the motivation to take the medication.
9. Mr Drury noted that even if he had recommended that David go off his medication (which he did not), David still continued to take it, albeit reluctantly.
10. According to Mr Drury the amount of medication David took was little more than an aid to get some sleep. It was a very low dose and could hardly be expected to have strong anti-psychotic effects. Mr Drury asked why therefore was medication being made such an issue.
11. Mr Drury pointed out that after he had been taken off the case, David was seen by a psychiatrist who did not see fit to renew the medication.
12. Mr Drury questioned the reporter's evidence for the statement made that going back on medication was almost as dangerous as coming off. He repeated that it was not him but the psychiatrist who took him off the medication.
13. According to Mr Drury the claim that Lakeland Health had instructed him to refer David to a psychiatrist was a misrepresentation of the facts. The notes on the referral were a suggestion only, he contended.
14. The programme stated that David's mother wrote to Lakeland Health about Mr Drury and he was immediately removed from the case and suspended. Mr Drury said that was factually incorrect: he was taken off the case on 17 July and was not suspended until 24 August – after David committed suicide. He added that his suspension was not just for this case, but was also in relation to other complaints.
15. Regarding the comment on the programme that health professionals wouldn't talk about the case, Mr Drury pointed out that they could not talk because of an Employment Tribunal hearing over his dismissal and an order by the Tribunal not to discuss anything to do with the case.
16. Mr Drury asserted that the film footage of him at the front door of his home made him appear elusive and reluctant to talk to the reporter. In fact that piece of film was shot as he was saying goodbye to the reporter after he had invited her in to his home.
17-18. To the allegation that Lakeland Health produced four reports which blamed Mr Drury for David's suicide, Mr Drury responded that in order to have been dealt with fairly, questions should have been asked about the context in which those reports were written.
19. The fact that David was under a psychiatrist when he died was glossed over, as was the fact that the Psychiatric Emergency Team visited David just before he died and assessed that he was out of danger.
20. The statement that he had been reprimanded before for keeping poor clinical records was, Mr Drury wrote, a factual error.
21. The report stated that Mr Drury was censured and placed under supervision in the late 1980s. Mr Drury said that was not correct. He was censured but not placed under supervision for attempting to do therapy with someone who had not consented to treatment.
22. The report said that Mr Drury had been subject of a number of complaints. He complained that this was an exaggeration of the facts and the only previous incident was in 1984, for which he was censured, and some current complaints which he believed would turn out to be unwarranted.
23. Mr Drury contended that the matters regarding the 1984 complaint had been grossly exaggerated. There was no mention of a spa pool or genital touching at the time. He denied such an event occurred and maintained he should have been given an opportunity to answer the claim.
24. Mr Drury argued it was unfair to create the impression that the incident was responsible for Belinda's suicide.
25. Noting that he had been punished for the complaint 13 years ago, Mr Drury argued that it was unfair that he was being punished again by being publicly humiliated.
26. Mr Drury suggested that some matters before the Tribunal were possibly leaked to the reporter. He regarded that as a serious breach.
27. The programme stated that Mr Drury had been the target of complaints by other psychologists. He responded that was news to him.
28. The programme stated that he was fired by Lakeland Health because of complaints of a sexual nature involving three patients. Mr Drury said that was a matter in front of the Employment Tribunal and there was an order banning details of it being reported.
29. Mr Drury reported that he was 99% confident the Tribunal would find in his favour.
The remaining matters in his referral Mr Drury asked to be treated with confidence.
Mr Drury concluded:
In effect you have destroyed my career. I would suggest to you that you make a public apology and retraction for what you have presented. That you publicly offer me a very large financial compensation. And that you publicly announce the suspension of Genevieve Westcott for a period of time whilst you investigate as to why she got it so wrong. I would also ask that you publicly apologise to my family and clients for the unnecessary grief you have brought them.
TV3's Response to the Formal Complaint – 12 July 1996
TV3 described the programme as one which chronicled the efforts of a mother to piece together the circumstances surrounding the death by suicide of her son. It raised questions about Mr Drury's treatment of him and about the role of Lakeland Health in supervising Mr Drury. It stated that Mr Drury had been dismissed as a result of complaints of a sexual nature. TV3 responded under the points enumerated by Mr Drury.
1-2. TV3 advised that it was inclined to share Mr Drury's view that there was no documented evidence that anyone had made a formal diagnosis of schizophrenia. It noted that an Auckland child psychologist had told David's mother that in his view, David was developing a psychotic disorder, in his opinion, schizophrenia. That diagnosis was made when David was 14 and, in TV3's view, it was logical to assume that two years later his condition had worsened.
TV3 also reported that David's aunt believed that while he was living in Rotorua, he exhibited some classic symptoms of schizophrenia.
It considered the overall impression given of David's health was fair and accurate.
3. The period of three months was from the time Lakeland Health referred the case to Mr Drury on 18 April until he was removed on 17 July.
4. TV3 acknowledged the phrasing of the question to Dr Fred Seymour about informed consent was not ideal but believed that the issue was dealt with fairly. It believed it was beyond the scope of the programme to examine the issue of informed consent.
5. TV3 did not accept that the reference to "the treatment he was proposing" referred to some future treatment. It was clear that it referred to ongoing treatment. It believed it was beyond the scope to examine family therapy.
6. TV3 considered the story went to reasonable lengths to be fair to Mr Drury and his method of treatment.
7. TV3 advised that Patrick and Simone were adamant that Mr Drury recommended that David be taken off his medication. In addition, David's mother said that she was told the same. It noted that Lakeland Health's report observed that Mr Drury had given advice on medication "outside his area of expertise".
8. Regarding differences in approaches to treatment, TV3 considered that was outside the scope of the programme. TV3 added that a consultant psychiatrist advised that his investigation revealed that Mr Drury had given advice to stop the medication.
9. TV3 noted that it was obvious David was without medication for some time.
10. With respect to the dosage of the medication, TV3 advised it did not have the expertise to debate the matter. It referred to part of the interview with Simone which was not broadcast where she commented that once David was off the medication he lost all motivation.
11. The psychiatrist did in fact renew the medication, but not at the first visit.
12. Dr Fred Seymour, a clinical psychologist, provided the information that going back on the medication was as dangerous as coming off.
13. TV3 considered there was little doubt that Mr Drury was instructed to refer David to a psychiatrist. It referred to the clinical audit done by Lakeland Health which stated that the instructions to Mr Drury were specific, and were not carried out.
14-15. TV3 was satisfied as to the accuracy of the facts regarding Mr Drury's suspension.
16. To Mr Drury's objection to being described as "elusive", TV3 responded that his unwillingness to talk on camera justified the description.
17-18. TV3 noted that the story raised issues about the role of Lakeland Health and did not rest the blame entirely on Mr Drury.
19. TV3 believed it was obvious to viewers that he had been removed from the case.
20. TV3 stood by its statement regarding Mr Drury's practices, referring to the audit done by Lakeland Health which was critical of his record-keeping.
21. It advised that it was satisfied that "inappropriate treatment" was an accurate description of the reason why Mr Drury was censured and disciplined.
22. TV3 maintained that it was accurate to state that it had discovered a number of complaints from others of Mr Drury's patients.
23. It accepted that the exact nature of the 1984 complaint may not have been as described, but maintained that the substance was accurate.
24. Regarding Belinda's suicide, TV3 responded that it made strenuous efforts to ensure that no suggestion was made that Mr Drury contributed to the suicide.
25. With respect to raising the issues 13 years later, TV3 advised it was considering that point in relation to the privacy complaint.
26. It assured Mr Drury that Lakeland Health had not provided any information about the 1984 complaint.
27. TV3 advised that its staff were told by at least three psychologists that they had concerns about Mr Drury's professional conduct over the years.
28. Regarding the complaints by other patients, TV3 responded that was a matter best dealt with by the Employment Tribunal. It was satisfied that the story did not report the proceedings of the court itself.
29. TV3 contended that the matters raised regarding the other complaints were relevant to the story.
30. TV3 maintained that it was accurate to state that pressure from Donna Harvey on Lakeland Health resulted in a charge being laid with the Psychologists Board.
In conclusion, TV3 advised that it declined to uphold any aspect of the complaint. Expressing its sympathy for David and his family and for Mr Drury, it added that it believed the situation to be of Mr Drury's own making. It did not accept that Mr Drury's career had been destroyed by the programme. In fact, it asserted, it was destroyed by a series of professional errors of judgment by Mr Drury himself and was a matter for Mr Drury to pursue with his employer.
Mr Drury's Referral to the Broadcasting Standards Authority – 28 July 1996
Dissatisfied with TV3's response, Mr Drury referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
Beginning with an overview, Mr Drury observed that TV3's principal justification for the story was based on two assumptions: first that there was only one paradigm of treatment for a person with a psychotic disorder and secondly that there were a number of complaints about his professional competence. As neither of those assumptions were correct, Mr Drury maintained that there was no justification for TV3 to vilify him in that way that it did.
By way of background, Mr Drury explained the different treatment paradigms, drawing a distinction between the "medical model" and "the autonomy approach". The latter was the approach he used in his practice and it encouraged the client to control the problem themselves. Mr Drury noted that the efficacy of the two approaches was widely debated in medical circles and that he had alienated a number of medical practitioners because of his views. He explained that complaints about him arose in this atmosphere of controversy.
Mr Drury responded to the points numbered above.
1. He noted that TV3 agreed that it was factually incorrect in stating that David had schizophrenia. In its defence, TV3 had said it was logical to assume that 2 years later David's condition would have worsened and he would have developed the disorder. Mr Drury said that was not necessarily the view of Family Therapists who believed that a change in social environment and other intervention had the potential to arrest the so-called deterioration. Mr Drury repeated that there was no formal diagnosis of schizophrenia.
2. Mr Drury repeated that the Auckland doctor simply said David seemed to be developing a psychotic disorder. No diagnosis had been made.
3. Acknowledging that there was three months from when David was referred and his removal from the case, Mr Drury said it would have been fair to point out that some of that time delay was because of waiting lists and because David refused to seek treatment. The comment that he had only seen David once in three months implied some negligence on Mr Drury's part which was not justified.
4. Mr Drury did not agree the issue of informed consent was dealt with fairly. He noted that TV3 seemed to acknowledge it had put the question to Dr Seymour in a biased form.
5. Regarding the phrase "treatment he was proposing", Mr Drury maintained that implied some future treatment and not treatment currently being given. To TV3's argument that the Family Therapy approach was outside the scope of the programme, Mr Drury responded that had that approach been examined it would have been clear that the treatment was consistent with that method.
6. Mr Drury maintained that the programme implied that he had developed a method of treatment himself, one which he had used with alcoholics. Mr Drury retorted that not only had he not worked with alcoholics, but the treatment was an accepted method of Family Therapy.
7. The claim that he had taken David off medication was, Mr Drury asserted, contentious. He noted that TV3 claimed that Patrick and Simone were adamant that was the case. Quoting the exact interchange in the script, Mr Drury noted that the conversation did not confirm that he told them he would take David off the medication. He had told them if David did not start therapy, his medication would run out and his symptoms may be more discernible. Mr Drury added that those who took the medical approach to treatment considered medication compliance important, while other practitioners, such as himself, might allow matters to run their course. He noted that David continued to more or less take his medication, so this was never an issue.
8. Mr Drury did not accept it was beyond the scope of the programme to comment on differences in treatment approaches. He believed in this case it was essential.
9. Mr Drury noted that David's medication ran out about the time he was ordered off the case and he was off medication between then and when he saw Dr Gibb.
Mr Drury added that Patrick and Simone had agreed to his course of therapy, even though Patrick knew that his sister (David's mother) did not agree with the approach.
10. Mr Drury reported that he raised the issue of dosage to draw attention to the fact that the medication issue was blown out of proportion. He wrote:
Had I not been withdrawn from the case when I was I would have been able to intervene had there been any deterioration in David's condition once this very low dose of medication ran out. But, by the actions of Lakeland Health, I was prevented from doing so, This needed to be stated in the programme for there to have been balance and fairness.
11. Agreeing that Dr Gibb prescribed medication at a later date, Mr Drury suggested that might have been as a result of a phone call from David's mother and concerns about David's behaviour raised by Simone.
12. Mr Drury expressed surprise about Dr Seymour's contention that going back on medication was as dangerous as coming off. He was not familiar with clinical literature to support this. If it was so, then the responsibility lay with Dr Gibb, not him. He noted that it was he who was blamed.
13. Regarding the "instruction" to refer David to a psychiatrist, Mr Drury said that was an unfair representation of the situation.
14. Regarding the suspension, Mr Drury repeated that the facts were inaccurately stated and inaccurately sequenced and it was no excuse for TV3 to say it got the facts right later in the story.
15. He repeated that the subjudice order meant that staff could not speak, rather than would not.
16. With respect to the claim that he was being elusive, Mr Drury reiterated that he told the reporter he would speak once the Tribunal hearing was complete. The footage shown did not match the voice over in the scene at his home.
17-18. As to where the blame for David's death lay, Mr Drury said that Lakeland Health was only implicated insofar as it had not adequately supervised him. The implication, he continued, was that he was still to blame. Mr Drury expressed concerns about Lakeland Health's management of the case.
19. Mr Drury pointed out that a psychiatrist was in charge of the case at the time of the suicide. He asked why the programme did not investigate his responsibility.
20. To the claim about his poor clinical records, Mr Drury gave a lengthy response which highlighted differences of opinion between him and his supervisor over his method of therapy (the narrative approach). Mr Drury maintained that it was inaccurate to state that he had been reprimanded before for keeping poor clinical records.
21. Mr Drury repeated that he had not been censured and disciplined for a complaint in 1988/89, but only censured. He agreed that in that case he had breached the informed consent ethic.
22. Mr Drury maintained that it was an exaggeration to say that there were a number of complaints about him. He pointed to the 1984 complaint and the 1988/89 "censuring". To say that three former clients had complained since the programme did not, he argued, give grounds for saying that on the programme.
23. Repeating that the 1984 complaint was inaccurately depicted, Mr Drury noted that the complaint was about sexual harassment, not sexual abuse. In his own defence he pointed out that he denied the charge at the time but was convinced that to defend it would result in adverse publicity. Thus he accepted that the notes about the complaint would be in his file for two years and then removed. He contended it was unfair that the material was presented without him having an opportunity to provide his side of the story.
24. Mr Drury repeated that the impression left by the programme was that he had contributed to the deaths of two young people.
25. Privacy matters.
26. Mr Drury stood by his contention that material about him was leaked by someone from Lakeland Health.
27. He contended that there were no complaints about him by other psychologists because such complaints have to go through official channels and there had been none. He rejected the comment that he was no stranger to controversy and had been the target of other complaints.
28. Regarding matters before the Employment Tribunal, Mr Drury contended that it was stipulated that no matters before the Tribunal were to be published. In his view, TV3 breached that requirement.
29. Mr Drury maintained that the details of the 1984 case were not relevant to the current one. He stated that it was unfair to imply that he had been dismissed for sexual harassment.
30. Mr Drury agreed with TV3 that the case was before Lakeland Health because of pressure brought by David's mother. However, he added, he had also complained to Lakeland Health about the management of the case.
In conclusion, Mr Drury repeated that the programme had largely destroyed his career. He considered his chances of re-employment, should the Tribunal find against reinstatement, very slim. He added that his two sources of private referrals had indicated they could no longer make referrals until the matter was cleared up.
Mr Drury appended the submission he made to the Mason Inquiry to give a deeper understanding of the implications of differences in treatment approaches.
In a brief note dated 2 August, Mr Drury suggested the programme also breached standard V7 of the Television Code of Broadcasting Practice.
TV3's Response to the Authority – 22 August 1996
TV3 elaborated on some of the points above.
1. It repeated that the programme did not confirm David as a schizophrenic but gave an impression of a deteriorating state of mental health. In its view, the impression given was fair and accurate.
4. Regarding the issue of informed consent, TV3 considered the matter was dealt with fairly, although it acknowledged that the phrasing of the question to Dr Seymour was not ideal.
5. TV3 did not accept that the phrase "the treatment he was proposing" referred to some future treatment. In the context of the voiceover, it was clear the reference was to ongoing treatment. It repeated that it was beyond the scope of the programme to investigate in detail family therapy and other issues raised by the complainant.
6. According to TV3, David's mother reported a conversation with Mr Drury about allowing David to come off his medication and that it was an approach he had used for 20 years with alcoholics. When she challenged Mr Drury about the treatment plan, he was given an opportunity to respond. TV3 considered the programme had dealt with him fairly.
7. TV3 repeated that Patrick and Simone were adamant that Mr Drury recommended that David be taken off his medication. David's mother said in a phone conversation with Mr Drury on 30 June she was told the same.
8. It was beyond the scope of the programme to investigate differences in approach to treatment.
9. It was obvious that David was off his medication for some time. Simone reported she was concerned about David's behaviour and his medication had "almost" run out by 29 June.
10. TV3 believed the issue of medication was dealt with fairly and that changes in David's behaviour were as a result of coming off the medication.
11. The medication was renewed, but not at the first appointment with Dr Gibb. He waited while he sought the case history. According to the notes, David was willing to take it and at a subsequent appointment was put back on anti-psychotic medication.
12. An independent expert stated that it was just as dangerous to go back on medication as to come off and the person should be supervised closely.
13. There was little doubt Mr Drury was "instructed" to refer David to a psychiatrist.
14. TV3 was satisfied that the details of other complaints were accurate.
15. Repeats above
16. Repeats above
17-18. The blame did not rest entirely with Mr Drury. TV3 pointed out that the Health Ministry investigated David's death and was satisfied with Lakeland Health's version of events.
19. It was obvious to viewers that Mr Drury was removed from the case and an urgent appointment had been made for David to see the psychiatrist.
20. TV3 stood by its statement about Mr Drury's poor record keeping.
21. The information that Mr Drury had been censured and disciplined was from a member of the Psychologists Board who sat on the committee hearing the complaint about Mr Drury.
22. Regardless of the Employment Tribunal's decision, TV3 considered it accurate to say that it had discovered a number of complaints about Mr Drury.
23. Accepting that the exact nature of the 1984 complaint was not as described, TV3 advised that nevertheless the substance was accurate. It pointed to evidence from the former superintendent of Rotorua Hospital and of a former psychotherapist who confirmed the incident was of a sexual nature and took place at a pool.
24. TV3 repeated that it was satisfied the programme did not lead viewers to conclude Mr Drury was responsible for Belinda's suicide.
25. Privacy matters
26. TV3 reassured Mr Drury that Lakeland Health did not provide any information about the 1984 complaint.
27. TV3 advised that at least 3 psychologists expressed concerns about Mr Drury's professional conduct over the years.
28. Regarding publication of matters which were before the Tribunal, TV3 contended that was a matter for the Tribunal.
29. The story did not say that Mr Drury was guilty of offences he was accused of. The matters were relevant to the story as a whole.
30. TV3 believed that it was accurate to say that David's mother brought pressure to bear on Lakeland Health and as a consequence it was laying a charge before the Psychologists Board.
Mr Drury's Final Comment – 27 August 1996
Mr Drury maintained that he was the victim of an employment dispute in the mental health area at Lakeland Health. He pointed out that there were many areas where there was a potential for conflict between different disciplines. In his view, that had occurred with the management of David's case.
He then turned to the numbered paragraphs in TV3's response.
1. Mr Drury challenged TV3's notion that a disorder such as schizophrenia was a deteriorating disorder. He referred the Authority to a text which challenged this widely held myth.
2. Mr Drury argued that TV3's depiction of David as a diagnosed schizophrenic was factually incorrect as no diagnosis had been made.
3. Mr Drury accepted that the three months referred to the time from when David was referred until he was taken off the case. However, Mr Drury pointed out, it would have been fairer to point out that he did not have involvement with the case for the entire three months.
4. Mr Drury disagreed with TV3's interpretation of Dr Seymour's comments that it was not appropriate to shift responsibility to the patient. He repeated that the whole point of family therapy was to shift responsibility and that in his view, the issue of informed consent should have been examined.
5. Mr Drury repeated that the use of the word "proposing" gave the impression that he was proposing a method of treatment in the future. He recorded at least five sessions with Patrick and Simone over a 12 week period.
6. He reported that he had spoken to David's mother at least twice on the phone. With respect to his record keeping, Mr Drury also reported that he had been asked to defend his method of writing letters after each appointment as to whether that satisfied the requirements of the Psychologists Board Code of Ethics. However, he contended the principal point was that the family therapy method needed to be discussed for there to be balance, fairness and impartiality.
7. Regarding the withdrawal of medication, Mr Drury asserted that it was unfair to listen only to David's mother's view. He pointed to a section of the transcript which showed Patrick's response to the question about stopping the medication. Mr Drury maintained it was unfair not to report that he had offered to meet David at his home if David was unwilling either to come to his office, or to see a doctor.
8. Audit bias again.
9. Mr Drury noted that David's medication was due to run out about the time of the last scheduled appointment. As he had been removed from the case, he claimed he could not therefore take responsibility for David's behaviour.
10. Arguing that the issue of the importance of the medication had been escalated, Mr Drury suggested that an independent person might have put it into perspective. He added that the increase in symptoms when the medication ceased could have been as a result of a number of causal factors.
11. Mr Drury suggested that it should have been reported that the psychiatrist who saw David after Mr Drury was taken off the case prescribed a different medication than David had been on before, especially as the expert (Dr Seymour) had contended that a time of change of medication was a period of potential danger.
12. To the expert's suggestion that coming off a drug was a high risk time, Mr Drury responded that in order to assess that a statement had to be made about the relative strengths of the drug he was on and the new one.
13. Regarding the "instruction" to refer David to a psychiatrist, Mr Drury responded:
If the logic of family therapy had been presented it would have been clear that I was attempting to get David to see a psychiatrist, albeit at his own request.
14-15. Mr Drury repeated that the details of his suspension were reported incorrectly.
16. Mr Drury denied he was elusive. He explained he was willing to talk when the Employment Tribunal matter was completed.
17-18. Mr Drury suggested there were political reasons for not questioning Lakeland Health's audit of his management of the case.
19. He advised that he had since learned that the Psychiatric Emergency Team did not visit the weekend before David died, but did make two phone contacts with his uncle.
20. Mr Drury asserted it was factually incorrect to say he had been reprimanded for the way he kept notes.
21. To the report that he had been censured and disciplined, Mr Drury asserted that it was inaccurate to suggest those were two different acts and also pointed out that it was the hospital, not the Psychologists Board which placed him under supervision.
22. To the assertion that he had been subject of a number of complaints, Mr Drury responded that there were two, one in 1984 and the other in 1987. The current ones were before the Employment Tribunal and had not been substantiated. He asserted that TV3 was guilty of creating a false impression.
23. Mr Drury repeated that the substance of the 1984 complaint as reported was not accurate. He contended it was unfair not to give him an opportunity to present his side.
27. Mr Drury reported he had contacted many psychologists who had worked for Lakeland Health in the last five or six years and all denied they had said anything to TV3 which expressed concern at his conduct.
He contended that it was therefore inaccurate to state that he had been the target of complaints by other patients and other psychologists.
28. He repeated that the adjudicator at the Employment Tribunal requested that details were not to be published.
29. Mr Drury suggested that the complaints before the Tribunal were only relevant in that they justified mentioning the 1984 complaint.
30. Mr Drury concluded by stating that it was not David's mother who brought pressure to bear on Lakeland Health, but TV3. He suggested that TV3's failure to acknowledge its own power attested to its blindness to misuse that power also.
Finally, Mr Drury concluded that TV3 was guilty of breaches of standards G1, G3, G4, G5, G6, G7, and G19 of the Television Code of Broadcasting Practice. He also suggested that the programme breached standard V7 because it told how David killed himself and also detailed an earlier attempt.
At the Authority's request, on 30 August 1996 TV3 provided the Final Report to the Manager of Mental Health, Dr Gibb's report to the Manager of Mental Health Services and a report from the Head of Psychiatry to the Manager of Mental Health Services. Copies of those reports were sent to Mr Drury.
CJ Daisley's Complaint to the Broadcasting Standards Authority – 13 April 1996
Mr Daisley of Rotorua complained to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that TV3's broadcast of a 20/20 programme on 8 April 1996 at 7.30pm breached the privacy of the psychologist, whose conduct was investigated in conjunction with the suicide of two of his patients.
The item concerned the psychologist's alleged misconduct and the action of his employer, Lakeland Health. Film was shown of the mother of a mentally disturbed young man who had committed suicide meeting Nick Drury, the psychologist at his home.
In Mr Daisley's view, it was underhand to take the film with a hidden camera. He considered that it was therefore obvious that:
a) Mr Drury did not consent to be filmed and may not have even been asked if he could
b) Mr Drury was not told after the interview that the film had been taken.
c) Mr Drury was not advised that the film was to be shown on national television and
therefore his consent was not obtained for the screening.
d) The film is now stored in the company's archives and might be used again without
Mr Drury's consent.
Mr Daisley considered that Mr Drury's privacy had been violated. He added:
It is a matter of courtesy in a civilised country that an individual may not be photographed, filmed or recorded without their consent unless:
a) the individual is subject to investigation by police who have powers of
surveillance given by legislation.
b) the individual has been convicted of an offence and publication of name and
photography is an aspect of the punishment.
c) the individual is warned that he/she may be photographed or filmed (in a shop or
a bank for instance).
Mr Drury has not been tried or convicted of any offence bearing on the subject of the television program.
Mr Daisley maintained that the television company should be censured for its action. He believed the principle should be clearly stated and advertised that no television company may film an individual who has not been convicted of an offence without their consent. (He included suspected criminals and friends and relatives of victims and accused during or after court trials.)
He was concerned that the innocent should be protected from the intrusiveness of the media companies.
He suggested that it was false for broadcasters to claim the matter was in the public interest and that instead they were driven by whether the item would make good television and improve the company's ratings.
Mr Daisley concluded by stating that he had no connection with Mr Drury and held no view on his professional conduct. He also stated that he had no dealings with Lakeland Health and was not employed in any area which had any bearing on the subject of the item.
TV3's Response to the Authority – 17 May 1996
TV3 reported that the programme "A Mother's Journey" chronicled the efforts of a woman to piece together the events surrounding the suicide of her 16 year old son. It noted that questions were raised about the treatment provided by the psychologist, Mr Drury, and about Lakeland Health's supervision of his work. TV3 pointed out that a number of complaints had been made about his professional competence and his behaviour towards his patients. It observed that he had since been dismissed by Lakeland Health as a result of complaints of a sexual nature.
TV3 advised that it had assessed the complaint first by looking at the information gathered by the hidden camera and relating that to the relevant privacy principles, and secondly, by judging the use of the hidden camera against those same privacy principles.
Principle i - (Protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.)
TV3 noted that the issues discussed in the interview related to the treatment and death of a patient and to an allegation of sexual misconduct by another patient. It noted that the mothers of both complainants consented to the information being revealed.
Principle ii - (Protection against public disclosure of some kinds of public facts...such as criminal behaviour which have, in effect, become private again...Nevertheless the public disclosure of public facts will have to be highly offensive to the reasonable person.)
TV3 accepted that it could be argued that the allegation of sexual misconduct amounted to the public disclosure of a public fact which had become private again through the passage of time. However it considered that the facts became public again when its inquiry revealed that Mr Drury had recently been dismissed by Lakeland Health for improper conduct of a sexual nature.
Principle iii - (There is a separate ground for complaint...involving the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion. The intrusion must be offensive to the ordinary person...)
TV3 maintained the principle did not apply when looking at the information gathered by use of the hidden camera. This point is elaborated on below.
Principle iv - (Discussing the matter in the "public interest"... is a defence..)
TV3 argued that the matter was in the public interest, and reported that view was confirmed when other patients of Mr Drury came forward to complain about the way they had been treated. It considered that since Mr Drury now took private patients, many people would be interested in the allegations made against him.
TV3 then turned its attention to the use of the hidden camera.
It maintained that principles i and ii did not apply.
With respect to principle iii, TV3 noted that "an individual's interest in solitude or seclusion does not provide the bases for a privacy action for an individual to complain about being observed or followed or photographed in a public place." It pointed out that the camera was used in an office visited by members of the public and that there was no question of trespass. It noted that Mr Drury talked freely and there was no suggestion his remarks were "off the record". TV3 suggested that had a print journalist published the substance of such a conversation, there would be no question of an invasion of privacy.
Turning to principle iv, TV3 noted that Mr Drury had talked at length to the reporter prior to the hidden camera interview when he had admitted being the subject of complaints and being censured, but turned down a request for an on-camera interview. In TV3's words:
Faced with the difficulty of telling the story without pictures and being aware that Mr Drury was still a practising psychologist, a decision was made to visit him with the hidden camera.
The visit lasted approximately 30 minutes. During that time, as mentioned above, Mr Drury did not indicate that either Donna Harvey (the mother) or Genevieve Westcott were unwelcome. He knew of Ms Westcott's position as a 20/20 reporter and there was no suggestion his comments were off the record.
The Committee is of the view that, given the complaints, historical and recent, against Mr Drury his particular interests in solitude or seclusion were negated.
TV3 maintained that principle v did not apply.
It declined to uphold the complaint.
Mr Daisley's Final Comment – 30 May 1996
In his final comment, Mr Daisley emphasised his principal concern was the use of the hidden camera. He did not agree that the end result justified the means.
Regarding principle (iii) and TV3's argument that the covert filming took place in an office, Mr Daisley responded that it was his impression that it was in Mr Drury's home, and therefore since the reporter and David's mother were not patients, it was fulfilling its domestic function at the time.
To TV3's point that Mr Drury talked freely and there was no suggestion his comments were off the record, Mr Daisley responded that that was because he did not know he was being filmed.
Mr Daisley concluded by stating that he considered privacy principle (iii) applied in this case and expressed his hope that if the complaint was upheld TV3 should give an unequivocal assurance that this method of covert filming of individuals would not be used again.