BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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This decision was successfully appealed in the High Court:
CIV 2007-485-2060  PDF46.29 KB

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Complaint under section 8(1)(c) of the Broadcasting Act 1989
3 News – interviewed a woman who was a committed patient under the Mental Health (Compulsory Assessment & Treatment) Act 1992 and receiving electroconvulsive therapy – woman said that she wanted the treatment to stop – item reported the view of the psychiatric hospital that the woman “was not well enough at the time of the interview to have given informed consent to it” – allegedly in breach of privacy

Findings
Standard 3 (privacy) and privacy principle 1 – disclosed private facts about woman – woman not capable of giving informed consent – no public interest in disclosing the private facts – upheld

Order
Section 16(4) – payment of costs to the Crown $1,500

This headnote does not form part of the decision.

Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 12 February 2007, was introduced as follows:

A Dunedin woman who’s been given electric shock treatment in a psychiatric hospital, has made a public plea for her doctors to stop. [JS] is a committed patient under the Mental Health Act, and all decisions about her treatment are in the hands of clinicians. However last night she told 3 News she didn’t want shock treatment, but was being forced to have it.

[2]   The reporter said JS, a patient at the Ashburn Clinic in Dunedin, was “bipolar and manic depressive”, and was one of 300 New Zealanders receiving electric shock treatment (ECT). The reporter stated that she was only allowed out of hospital to attend church, and had taken that opportunity to be interviewed by 3 News.

[3]   JS was interviewed by the reporter and she stated that she did not wish to receive ECT. She also revealed that she had tried to kill herself twice because she was scared of the treatment and was “having night horrors and night sweats”.

[4]   JS’s lawyer, Noel Raynor, was interviewed in the item and commented that “a controversial therapy should not be forced upon a patient” and patients should continue to have the right to refuse the treatment.

[5]   The item included a statement from the Ashburn Clinic, presented visually and verbally, which said:

We would like to make it clear that it is the formal, clinical view of the Ashburn Clinic that this patient was not well enough at the time of the interview to have given informed consent to it.

[6]   The reporter noted that JS’s husband supported her treatment, and did not want her to go public. He was shown in the item attempting to stop the interview with JS from proceeding.

Referral to the Authority

[7]   Dr Stephanie du Fresne, the Medical Director at the Ashburn Clinic, lodged a privacy complaint with the Authority under s.8(1)(c) of the Broadcasting Act 1989. She noted that JS was currently detained at the clinic under section 30 of the Mental Health (Compulsory Assessment & Treatment) Act 1992. Dr du Fresne contended that JS’s privacy had been breached because although she had consented to being interviewed, that consent was not valid.

[8]   The complainant observed that JS’s husband was present at the time of the interview and had attempted to stop the interview. He had also contacted the broadcaster prior to the programme and had asked for the interview not to be screened. She wrote:

He is her next of kin, has visited her regularly throughout her treatment, and knows the discrepancy between her current state and her well state better than her lawyer or the broadcaster but it seems his view was disregarded, as was our advice about her capacity to give or withhold consent to publicity at the time.

[9]   Dr du Fresne enclosed a copy of an email sent by JS’s husband to the broadcaster, and a copy of her own letter to 3 News. These had both been sent prior to the broadcast and had implored CanWest not to screen the interview.

[10]   In a further letter, the complainant clarified that she was the Responsible Clinician for JS, and had seen and assessed her on the afternoon of 11 February in the company of her husband and a senior nurse, prior to the interview.

Standards

[11]   Standard 3 and privacy principles 1, 5 and 8 are relevant to the determination of this complaint. They provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles

1.  It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

5.  It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. A guardian of a child can consent on behalf of that child.

8.  Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

Broadcaster’s Response to the Authority

[12]   At the outset, CanWest agreed that JS was identifiable in the broadcast, and it accepted that a person’s mental health status would ordinarily be regarded as a private fact for the purposes of privacy principle 1. However, it found that the disclosure of private facts was not objectionable. JS was shown in the item and was coherent and capable of expressing herself clearly, CanWest said, and her lawyer supported her decision to speak about her treatment. It added:

As a mental health patient she does not give up her right to freedom of expression. Her rights to communicate are specifically preserved within the provisions of the Mental Health legislation and codes.

[13]  Based on its finding that the disclosure was not offensive, CanWest stated that it would not uphold the complaint. However, should the Authority take a contrary view, the broadcaster went on to consider whether JS had given informed consent to the disclosure. It noted that her clinical practitioner was of the view that she was not capable of giving informed consent, but that she was shown “emphatically asking for her story to be told and her lawyer supported her in this”.

[14]  CanWest contended that, for the purposes of broadcasting standards, “informed consent” was not a medical term of art. It could not possibly be, it wrote, because the standards were interpreted and applied not by clinicians, but by journalists. Dr du Fresne’s opinion was merely “part of the mix” for the news editor’s decision making process, not the complete answer.

[15]   The broadcaster said that the news editor had carefully considered the position, understanding that JS was speaking against the wishes of her husband and her doctor, but with the support of her lawyer. Mindful of JS’s right to speak about her own situation, the decision was made to allow the item to go to air. CanWest noted that the reservations and views of JS’s husband and doctor were included in the item. It added:

To allow a person subject to a serious or “controversial” treatment not to speak out because of an objection raised by the practitioner delivering the treatment and her husband, who supports the treatment being administered, would be to deny JS a fundamental and basic human right and to unreasonably curtail both her and the media’s right to freedom of expression that would, in this committee’s view, be inconsistent with the operation of a free and democratic society.

Complainant's Final Comment

[16]   In her final submission, Dr du Fresne referred to CanWest’s suggestion that the capacity for informed consent should be determined by journalists. She accepted that at times journalists may need to make a judgment about the presence or absence of a mental disorder. However, the complainant said, in this situation the Ashburn Clinic had taken action to ensure the broadcaster had access to expert advice about the patient’s lack of capacity to give informed consent. Furthermore, her husband independently gave the broadcaster advice from his perspective as someone entirely conversant with the patient in her well and unwell state of mind.

[17]   With respect to the support given by JS’s lawyer, Dr du Fresne wrote that lawyers who represent patients with mental disorders were:

...employed by the patient to present the patient’s views, whether or not those views are significantly influenced by the presence of mental illness. Lawyers in this situation may therefore be asked to present views which are based on delusional beliefs, or significant disorders of mood, or seriously impaired judgment. They are not asked to represent the patient’s best interest, nor to make clinical judgments about the presence or absence of mental disorder or the capacity of the patient to give informed consent to any particular process.

[18]   Referring to several aspects of the Mental Health legislation, Dr du Fresne said it seemed clear that Parliament did not intend that people whose views might be significantly affected by mental disorder should be exposed to publicity. The complainant maintained that JS’s privacy had been breached, and asked the Authority to consider suppressing her name in its determination.

Further Information from the Broadcaster

[19]   CanWest noted that JS had legal advice and the support of her lawyer before she approached 3 News. Therefore it said there could be no suggestion that she was exploited or that the broadcaster had any agenda other than to allow her to tell her story. It reiterated that there was “no loss of the right to express your viewpoint when you are committed”.

[20]   In the broadcaster’s view, the item was a careful and accurate piece of journalism which supported JS’s right to express her point of view while at the same time ensuring that viewers understood the reservations expressed by her caregivers and family about her decision to “go public”.

Further Information from the Complainant

[21]   Dr du Fresne reiterated her point that Parliament clearly wanted people with mental disorders to be protected when their judgment about how and to whom they communicated was impaired. She also stated that she was clear about the distinction between the capacity to consent to treatment (which was part of the determination of committal) and the capacity to consent to publicity. Dr du Fresne contended that determining both “capacities” separately was part of the role of a responsible clinician when a patient with a mental disorder was detained under the Mental Health Act.

Authority's Determination

[22]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

[23]   The Authority notes CanWest’s argument that JS had the right to freedom of expression, and she had been shown emphatically asking for her story to be told. The Authority acknowledges her right to freedom of expression. However, its task is to determine whether the broadcaster has infringed an equally important right – JS’s right to privacy. The broadcaster’s own freedom of expression is limited by an individual’s statutory right to privacy that is granted by the Broadcasting Act 1989. Therefore, JS’s right to freedom of expression is no defence to this complaint.

[24]   The Authority is of the view that it is appropriate to consider Dr du Fresne’s complaint under privacy principle 1. When the Authority deals with a complaint that an individual’s privacy has been breached, it must first consider whether the individual was identified by the broadcast. There is no dispute that JS was identified in the broadcast.

[25]   Second, the Authority must determine whether the programme broadcast private facts about JS. The news item disclosed that JS:

• was a committed patient under the Mental Health Act
• was bipolar and manic depressive
• was receiving ECT
• had tried to kill herself twice and was “having night horrors and night sweats”

[26]   In the Authority’s view, an individual’s mental health status and treatment, and the fact that they have made suicide attempts, is information which is inherently private. The Authority is in no doubt that the programme disclosed private facts about JS for the purposes of privacy principle 1.

[27]   Third, privacy principle 1 requires that the disclosure of those private facts must be highly offensive to an objective reasonable person. In determining whether it was highly offensive to disclose JS’s mental health status and treatment, the Authority observes that there is stigma surrounding mental illness. This was acknowledged in a national discrimination survey conducted by the Mental Health Foundation¹ which found that “people tend to believe and act on the common stereotypes of people with experience of mental illness as being incompetent or dangerous”. The survey also found that:

People [with mental illness] report discrimination in all aspects of their lives from employment and housing to discrimination from friends and family and the community. This discrimination results in people feeling excluded from many activities of daily living.

[28]   Taking this into account, the Authority concludes that the disclosure of JS’s mental illness and treatment would be highly offensive to the objective reasonable person. Therefore it finds that privacy principle 1 was breached.

[29]   It is a defence to a privacy complaint that the individual whose privacy was infringed gave his or her informed consent to the disclosure. The Authority turns to consider whether JS gave informed consent to the breach of her privacy.

Privacy principle 5

[30]   The Authority accepts Dr du Fresne’s view that JS was not capable of giving informed consent to the disclosure of private facts about her. As JS’s treating clinician and a forensic psychiatrist, Dr du Fresne was the person best qualified to assess JS’s capacity for giving consent to the interview and the broadcast.

[31]   The Authority understands that a broadcaster may, in some circumstances, be required to make difficult judgment calls about whether a person is capable of consenting to a breach of their privacy. However, in circumstances where the broadcaster was advised by a forensic psychiatrist and treating clinician that the individual was not in a position to give informed consent, the Authority considers that it was not appropriate to ignore that advice and proceed with the broadcast. Although JS appeared to be “coherent and capable of expressing herself”, the broadcaster should have accepted that it was not better able to assess JS’s capacity to give consent than her treating clinician.

[32]   Accordingly, the Authority finds that JS did not give informed consent to the disclosure of private facts about her. It now turns to consider the public interest defence.

Privacy principle 8

[33]   CanWest has a defence to the privacy complaint if the disclosure was in the “public interest”. A matter that is in the public interest is defined as one of legitimate public concern, as opposed to being a matter of general interest or curiosity to the public.²   

[34]   The premise of the item complained about was that JS, a committed patient, was receiving ECT against her will. The item also revealed the nature of her mental illness and the fact that she had attempted to commit suicide on two occasions. In the Authority’s view, it was not a matter of legitimate public concern that JS was receiving ECT without her consent. It notes that committed patients can be given ECT without their consent only if a psychiatrist appointed by the Mental Health Review Tribunal has given a second opinion stating that the course of treatment is in their interests. Furthermore, clinicians will generally make the decision about whether ECT is in the interests of the patient after discussing the options with family and considering any advance statements of the patient that may be relevant.³      

[35]   In the Authority’s view, it would be a matter of legitimate public interest if the broadcaster had uncovered some evidence that this legal framework had not been adhered to in JS’s case. However, this was not the case. JS was independently assessed by two clinicians, who had consulted with her family, and they had determined that ECT was in her best interests. Although JS did not consent to the treatment, her doctors had determined that she was unable to do so due to the nature of her mental illness. In the Authority’s view, there was no legitimate public interest in disclosing private information about JS in circumstances where the proper processes had been followed.

[36]   Accordingly, the Authority finds that CanWest has no defence to the breach of JS’s privacy. It upholds the Standard 3 complaint.

Bill of Rights

[37]   For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of an item on 3 News on 12 February 2007 breached Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

[38]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

Submissions on Orders

[39]   Dr du Fresne submitted that the Authority should order CanWest to broadcast a statement summarising its decision and the reasons why it was upheld. This would ensure that the principle of privacy for mentally unwell patients received publicity, she said.

[40]   CanWest submitted that the Authority should not make any orders on this occasion. It maintained that the item did not amount to a breach of JS’s privacy, and stated its concern that the Authority had found a breach of privacy without consulting JS or her lawyer. In the broadcaster’s view, this was a “fundamental breach of natural justice” which would be exacerbated by any statement referring to the complaint.

[41]   CanWest attached a letter from JS’s lawyer for the Authority’s information. Mr Raynor said that JS had been discharged from the Mental Health Act and did not regret participating in the broadcast.

Authority’s Response to CanWest’s Submissions

[42]   The Authority considers it appropriate to respond to CanWest’s arguments before proceeding to determine whether any order should be made on this occasion.

[43]   First, the Authority is not persuaded by the fact that JS is no longer a committed patient and does not regret participating in the broadcast. The question of whether JS consented to the breach of her privacy must be determined at the time of the broadcast, not several months afterwards. At the time of the broadcast, JS was a committed patient. Her treating clinician, the complainant, said she was not capable of consenting to the broadcast.

[44]   Second, the Authority considers that it was not required to contact JS or her lawyer in determining this complaint. The Authority remains of the view that Dr du Fresne, a forensic psychiatrist and JS’s treating clinician, was the person best qualified to advise the Authority on JS’s capacity to consent at the time of the broadcast. It observes that, had this complaint been lodged by a person unconnected to JS, the Authority would have sought Dr du Fresne’s opinion on the question of consent.

[45]   For these reasons, the Authority is not persuaded by CanWest’s submissions and it continues to determine the question of orders.

Authority’s Decision on Orders

[46]   The Authority does not consider it appropriate to order a broadcast statement on this occasion. JS has received name suppression, and therefore any statement would not identify her. The Authority considers that it would be of no benefit to the complainant or to the public to order the broadcast of a statement in these circumstances.

[47]   The Authority is of the view that an order of costs to the Crown is warranted. It acknowledges that the question of mental health status and consent is a difficult area for broadcasters and journalists. However, on this occasion, the broadcaster had received advice from Dr du Fresne prior to the broadcast that JS was not capable of consenting to the interview. In these circumstances, the Authority considers that an award in the amount of $1,500 is justified.

Signed for and on behalf of the Authority

Joanne Morris
Chair
14 August 2007

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1            Dr Stephanie du Fresne’s referral to the Authority – 14 February 2007
2           Further letter from Dr du Fresne – 27 February 2007
3           CanWest’s response to the referral – 26 March 2007
4           Dr du Fresne’s final comment – 2 April 2007
5           Further information from CanWest – 17 April 2007
6           Further information from Dr du Fresne – 23 April 2007
7           Dr du Fresne’s submissions on orders – 22 June 2007
8           CanWest’s submissions on orders – 19 July 2007

¹http://www.mentalhealth.org.nz

²Hosking v Runting PDF317.33 KB [2005] 1 NZLR 1 (CA), paragraph [30]

³Electroconvulsive Therapy Annual Statistics For the period 1 July 2003 to 30 June 2005, see http://www.moh.govt.nz