Hickey and Television New Zealand Ltd - 2010-120
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Tim Hickey
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item reported on the experience and fears of one woman dealing with her mentally-ill ex-husband – woman described her ex-husband as dangerous – dealt with failures of the mental health system – allegedly in breach of accuracy and discrimination and denigration standards
Standard 5 (accuracy) – woman gave her opinions about her husband, did not make statements of fact about people with bipolar disorder in general – viewers would not have been misled – not upheld
Standard 7 (discrimination and denigration) – did not encourage discrimination against, or denigration of, people with bipolar disorder or mental illness – not upheld
This headnote does not form part of the decision.
 An item on Close Up, broadcast on TV One at 7pm on 7 July 2010, reported on the experiences and fears of one woman in dealing with her mentally-ill ex-husband.
 The item was preceded by two "coming up" teasers; one at the beginning of Close Up and the other before a commercial break. Both teasers contained footage of the distraught woman standing outside a burnt down house, made reference to mental health workers and said that the woman was "living in fear of her ex-husband". In the second teaser the woman was shown stating "they don't seem to understand that he is a risk to people and to himself".
 The item was introduced with the following statement from the presenter:
A Wellington woman fears her estranged husband will kill her if he's allowed out of Wellington Hospital's psychiatric unit before being properly treated. [The woman's] violent bipolar ex-husband has already been jailed once for attacking her but twice in the last fortnight he's been assessed and released by the DHB's mental health CAT team. And just hours after his second release, the house the pair jointly own burnt to the ground.
 This was followed by an interview with the woman, who described the events of the previous fortnight and her fears for her personal safety at that time. Describing her ex-husband, she said "I know that he is unpredictable when he is mentally unstable in this way. He is an extremely dangerous person." A reporter explained that she had separated from her husband three years earlier, "after he attacked her during a bipolar episode". The woman described the assault, and said that her ex-husband had breached protection orders and threatened neighbours.
 The item made several references to the "CAT team" without elaborating on its role. It was critical of the team's performance, stating that it had "let [the woman] down time and time again". The CAT team had assessed the ex-husband on a number of occasions, the reporter said, but had consistently found that he did not pose a risk and had released him back into the community. The reporter concluded the interview by stating that the woman had "run out of faith in the system".
 The Close Up presenter then conducted a live studio interview with forensic psychiatrist and Ministry of Health's director of mental health, Dr David Chaplow. The presenter introduced Dr Chaplow by stating:
He's responsible for the way the Mental Health Act is used both in the community and in every hospital in the country, so I asked if he understood why [the woman] felt let down by the system.
 During the studio interview, Dr Chaplow discussed the Mental Health Act and how it worked, and was questioned about the apparent failings of the Act and the mental health system; the woman's case was used as an example.
 Tim Hickey made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached standards relating to accuracy and discrimination and denigration.
 The complainant contended that the broadcast failed to explain the meaning of "bipolar" and argued that it was "used in conjunction with ‘dangerous'". Furthermore, he said, the item did not distinguish between the different types of bipolar disorder, namely "Bipolar Type I (where patients experience manic psychosis and can be dangerous to others) and Bipolar Type II (where manic psychosis is not present and sufferers are only a danger to themselves)."
 Mr Hickey noted that the item made repeated reference to the CAT team "without explaining what it stood for (Crisis Assessment and Treatment), much less its role". Similarly, he said, the item discussed the Mental Health (Compulsory Assessment and Treatment) Act 1992 "as if its provisions were common knowledge".
 In summary, Mr Hickey argued that the Close Up item failed to inform the public on basic facts regarding mental health treatment and law, despite having had "several opportunities" to do so.
 Mr Hickey nominated Standards 5 and 7 of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:
Standard 5 Accuracy
Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:
- is accurate in relation to all material points of fact; and/or
- does not mislead.
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
Broadcaster's Response to the Complainant
 TVNZ contended that the item subject to complaint focused on the experience and fears of one woman dealing with her mentally ill ex-husband. It said that the interview with Dr Chaplow contained a discussion around the details of her case and a wider discussion about the Mental Health Act.
 Looking first at the accuracy complaint, the broadcaster considered each of the points raised by the complainant.
The use of the term "CAT" team
 In TVNZ's view, the audience would not have been misled by the use of the term "CAT team", and it argued that it was not necessary for the acronym to be defined by reference to the Crisis Assessment and Treatment mental health team.
 The broadcaster said that the item established the CAT team as forming part of the DHB's mental health service, and argued that this was sufficient information to enable viewers to understand its role for the purposes of the broadcast. The CAT team was put into context from the outset, it said, because it was initially described as the "DHB's mental health CAT team" and because the item's introduction established that the husband was under the care of a psychiatric unit. It considered that viewers were given sufficient insight that it was a team of mental health workers.
 TVNZ argued that the role of the CAT team was further alluded to later in the programme when the reporter referred to the "DHB's CAT team" against a visual backdrop of hospital signage that said "Psychiatric Unit". Its use of the acronym was an example of standard television shorthand, employed on the basis that viewers would have understood the initial reference contained in the introduction, TVNZ said.
 For these reasons, the broadcaster did not consider that its use of the term CAT team was misleading or inaccurate in breach of Standard 5.
Bipolar Type I and Type II
 TVNZ considered the complainant's contention that the broadcast failed to distinguish the different types of bipolar disorder (Type I and II).
 The broadcaster said that the item focused on one woman, and the way in which her ex-husband's mental illness had impacted on her; it was not an in-depth discussion of the different categories of bipolar disorder. In the broadcaster's view, the type of bipolar disorder affecting the ex-husband was not a material point of fact when taken in the context of the item. TVNZ considered that "It was enough for the audience to know the ex-husband had bipolar disorder; the clinical details of the extent of his condition were not material to the item".
 Accordingly, TVNZ declined to uphold this part of the accuracy complaint.
Conjunction of "bipolar" with dangerous
 The broadcaster noted that the only reference to "dangerous" in the item came from the woman when she described her ex-husband. This was her personally held belief and was not presented as fact, TVNZ said. It argued that her use of the word "dangerous" was specific - it was limited to her perceptions of her ex-husband based on her past experiences, and did not extend to all people with bipolar disorder. Accordingly, the broadcaster declined to uphold this part of the complaint.
References to the Mental Health Act
 With regard to references made to the Mental Health Act during the studio discussion, TVNZ considered that Dr Chaplow's comments were "appropriate" and that he "adequately explained" the references to the Act. The broadcaster considered that viewers would have understood his points and said that it could not identify any errors of fact.
 For these reasons, TVNZ declined to uphold a breach of Standard 5.
 Turning to the Standard 7, TVNZ noted that the Authority had consistently defined denigration as blackening the reputation of a class of people. It also stated that, in light of the right to free expression contained in section 14 of the New Zealand Bill of Rights Act 1990, a high threshold had to be crossed before a breach of the standard. TVNZ contended that encouraging discrimination meant to encourage the different treatment of members of a particular group, to their detriment.
 The broadcaster argued that it could not identify any content in the item that reached the required threshold to either discriminate against, or denigrate, people with mental illness.
 Accordingly, TVNZ declined to uphold the Standard 7 complaint.
Referral to the Authority
 Dissatisfied with the broadcaster's response, Mr Hickey referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant accepted TVNZ's decision regarding the accuracy of its use of the term CAT team and its references to the Mental Health Act.
 However, Mr Hickey maintained that the item failed to adequately explain bipolar disorder, and reiterated his view that the term was used "in conjunction with ‘dangerous'". He noted that the term was used twice in the programme - once at the beginning of the item when the host stated that the woman's "violent bipolar ex-husband has already been jailed once for attacking her", and later in the programme when a Close Up reporter said that the ex-husband had "attacked [the woman] during a bipolar episode".
 Mr Hickey argued that without elaborating on the term ‘bipolar' or providing further information, the broadcast left the viewer with the impression that "'bipolar' people are inherently violent and dangerous". He argued that in order for the item to have been accurate and to have not misled viewers, it would have been necessary for it to explain the nature of bipolar disorder, which in his view, "was a commonly misunderstood condition". For example, he said, the item should have explained that bipolar disorder was a mental illness, and should have defined the two different types of bipolar disorder as outlined in his original complaint.
 The complainant contended that, although the item did not specifically say that "all bipolar people are dangerous", in his view, "the unqualified and undefined use of the word ‘bipolar' by both host and reporter were representations of fact". He objected to the use of the term as a "pejorative adjective", stating that the item referred to the woman's "violent bipolar ex-husband", when it should have referred to "her ex-husband, who suffers from bipolar disorder". Mr Hickey argued that, "The implication of moral culpability of a person suffering from a mental health condition was offensive."
 Furthermore, the complainant argued that the language and imagery used in the item was "sensationalist", was "accepted uncritically by both host and reporter, and was intended to be taken seriously".
 In summary, Mr Hickey said that the item:
- contained a high level of invective directed against people who suffered from bipolar disorder
- portrayed people who suffered from bipolar disorder as having inherent negative characteristics
- portrayed people who suffered from bipolar disorder in a highly offensive way.
 The complainant concluded by stating that the Close Up item "did little or nothing to advance viewers' knowledge of bipolar disorder, and was a gratuitous display of a private family matter".
 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.
Standard 5 (accuracy)
 Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.
 In his referral, the complainant maintained that the broadcast was inaccurate in two respects. First, because it used the term bipolar in conjunction with "dangerous", and second, because it failed to distinguish between the different types of bipolar disorder. Underlying these concerns was the complainant's assertion that the item's absence of explanation about the condition would have left viewers with the impression that all people with bipolar disorder were inherently violent and dangerous.
 With regard to Mr Hickey's first accuracy point, we note that guideline 5a to the accuracy standard states that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. We agree with TVNZ that the only reference to "dangerous" in the item came from the woman herself when she described her ex-husband. This description was clearly her personal opinion based on past experience, and was not presented as a statement of fact to which the accuracy standard applies.
 Turning to the complainant's second accuracy concern, we find that the item's failure to distinguish between the different categories of bipolar disorder would not have created an inaccurate or misleading impression for viewers. We note that the item focused on one man with bipolar disorder, and did not make any statements of fact about people with bipolar disorder in general which could have led viewers to believe that they would all behave in a similar way.
 For the above reasons, we find that the item was not misleading or inaccurate by reason of its failure to canvass the different categories of bipolar disorder, or by failing to expressly state that not all people with bipolar disorder are dangerous. Accordingly, we decline to uphold the Standard 5 complaint.
Standard 7 (discrimination and denigration)
 Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community. The Authority has consistently defined "denigration" as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks1). "Discrimination" has been defined as encouraging the different treatment of the members of a particular group, to their detriment (for example, see Teoh and TVNZ2).
 It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (see, for example, McCartain and Angus and The Radio Network3).
 We note that the item did not refer to all people with bipolar disorder as dangerous, either explicitly or by implication, and consider that it would not have created this impression for viewers. We consider that viewers would have understood that the woman was giving her personal opinion on how she perceived her ex-husband. Accordingly, we find that nothing in the Close Up item encouraged discrimination against, or the denigration of, people with bipolar disorder or mental illness in general. We decline to uphold the Standard 7 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
23 December 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Tim Hickey's formal complaint – 27 July 2010
2. TVNZ's response to the formal complaint – 19 August 2010
3. Mr Hickey's referral to the Authority – 14 September 2010
4. TVNZ's response to the Authority – 9 November 2010
1Decision No. 2006-030
2Decision No. 2008-091
3Decision No. 2002-152