BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – consultation fee for general practitioner when there is an ACC contribution – practice to reduce fee to patient – opinion given that not to do so may amount to using finance as a barrier to treatment which is unethical – untrue – unfair

Findings
Standard G1 – statement incorrect – uphold

Standard G4 – not unfair in context – no uphold – no order

Appeal
Consent order – appropriateness of no order(s) being imposed remitted back to the Authority

Findings on Reconsideration
No order appropriate

This headnote does not form part of the decision.

Summary

[1] An item on Fair Go examined the case of a rugby player who went to a medical practitioner because of an injury. It was reported that ACC contributed $26 to the doctor for each consultation, but he had not reduced his fee for the player. A doctor from ACC said it may well have been unethical for a doctor to use finance as a barrier to treatment. The item was broadcast on Fair Go on TV One at 8.00pm on 1 August 2001.

[2] The doctor who charged the full consultation fee, Dr David Hingston, complained to Television New Zealand Ltd, the broadcaster, through his solicitors, that the comment about ethics and financial barriers was inaccurate and defamatory as the player had been appropriately treated.

[3] In response, TVNZ said that the comment was the expression of an opinion, and Dr Hingston had been given a number of opportunities to respond. It declined to uphold the complaint.

[4] Dissatisfied with TVNZ's decision, Dr Hingston referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[5] In Decision No: 2001-225 which issued on 17 December 2001 the Authority upheld the complaint that the item was inaccurate, but declined to uphold the complaint that the item was unfair to Dr Hingston. On the basis that the full item corrected the impression left by the inaccuracy, the Authority declined to impose an order.

[6] Dr Hingston appealed on the basis that the Authority, in considering a complaint not made by the appellant (of a breach of standard G4 of the Television Code of Broadcasting Practice) and in not imposing an order, had taken irrelevant factors into account and had given undue weight to a matter which was not the subject of a complaint, and had given insufficient weight to the complaint before it. In summary, it was the appellant's contention that these errors of commission and omission resulted in a failure on the part of the Authority to consider the appropriate consequences in upholding a breach of standard G1.

After full reconsideration of the breach of the accuracy requirement in the item, and giving particular attention to the seriousness of the breach, the Authority again declines to impose an order.

Decision

[7] The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[8] Fair Go is a consumer advocacy programme. An item broadcast on 1 August 2001 examined the case of a rugby player who visited the complainant – a general medical practitioner – with a sports injury. The complainant charged a $43 consultation fee. The rugby player expected that this fee would be reduced as the ACC contributed $26 for a consultation involving an injury. However, he was charged the full consultation fee of $43.

[9] The item included the views of some professional organisations, including that of Dr David Rankin of the ACC. Dr Rankin said:

We believe the doctor may well have breached an ethical obligation to make service, appropriate service, available to this claimant, by using finance as a barrier to access that treatment.

The Complaint

[10] Dr Hingston, through his solicitors, complained to TVNZ that Dr Rankin's statement was untrue and defamatory. He complained that it breached standard G1 of the Television Code of Broadcasting Practice.

[11] Dr Hingston sought a retraction and an apology.

The Standards

[12] In addition to the standard nominated by the complainant, TVNZ advised him that it intended to assess the complaint under standard G4. These two standards require broadcasters in the preparation and presentation of programmes:

G1  To be truthful and accurate on points of fact.

G4  To deal justly and fairly with any person taking part or referred to in any programme.

The Broadcaster's Response to the Complainant

[13] First, TVNZ pointed out that, under its formal complaint process, it was not addressing the alleged defamatory nature of the comment.

[14] Turning to the complaint, TVNZ said it considered that the sentence cited from Dr Rankin had been quoted out of context. TVNZ provided a full transcript of Dr Rankin's comments as follows:

The General Practitioner charged a fee that was clearly not commensurate with what his colleagues are charging and therefore we believe it was not a reasonable fee. We believe the doctor may well have breached an ethical obligation to make service, appropriate service, available to this claimant, by using finance as a barrier to access that treatment.

(Question: How concerned is the ACC by this example?)

Our biggest concern is that a payment of that size clearly creates a barrier to accessing appropriate treatment and if people aren't getting access to appropriate treatment early on the injuries get ignored, they get worse, and then we have a huge bill to pay picking up the damage later on.

[15] TVNZ contended that Dr Rankin was explaining the principle involved in ACC contributing to the consultation fee for injuries. It continued:

Viewers had already been told that [the rugby player] could afford to pay the consultation fee – the question being examined was whether it was right that in circumstances where an ACC subsidy was available, patients should be charged the full consultation fee. The programme stated quite clearly that [the player] "came to Fair Go because of the principle involved".

[16] Further, TVNZ maintained that Dr Rankin was expressing an opinion. He was entitled to do so, it added, in accordance with the New Zealand Bill of Rights Act 1990, and standard G3 of the Television Code. Standard G3 of the Television Code requires broadcasters:

G3  To acknowledge the right of individuals to express their own opinions.

[17] TVNZ noted that Dr Rankin and two other professional organisations had expressed opinions, while the complainant had not done so. However, TVNZ added, it was aware that the complainant had been approached for comment on six occasions. It observed:

It would be quite wrong [TVNZ] believes, for any inquiry in the public interest (and this certainly fell into that category) to be abandoned simply because a central figure refused to participate. Such a policy would mean that debates on issues of importance could easily be stifled simply by a key figure refusing to contribute.

[18] Dealing with the standards, TVNZ said it considered that the item was neither inaccurate nor untruthful, nor that the complainant had been treated unfairly. It declined to uphold the complaint.

The Referral to the Broadcasting Standards Authority

[19] When his solicitors referred the complaint to the Authority, Dr Hingston reiterated his view that Dr Rankin's comment was untrue. He pointed out that the patient had received appropriate medical services and that finance was not a barrier for him. In addition, the item had not produced any evidence that any patient had been denied access to treatment because of Dr Hingston's charges.

The Broadcaster's Response to the Authority

[20] In its report to the Authority, TVNZ emphasised that Dr Rankin expressed a genuinely-held opinion about the situation he was describing. Further, TVNZ said, Dr Hingston was given every opportunity to appear on the programme, but had declined to do so.

The Complainant's Submission to the Authority

[21] In their submissions, Dr Hingston's solicitors emphasised that as the rugby player had received appropriate medical services, Dr Rankin's comment was untrue when he said:

We believe the doctor may well have breached an ethical obligation to make service, appropriate service, available to this claimant, by using finance as a barrier to access that treatment.

[22] The submission also pointed out that the complaint alleged a breach of the accuracy requirement in standard G1, not the fairness requirement in standard G4.

[23] In response to TVNZ's contention that the quote had been taken out of context, the solicitors argued that the statement referred to Dr Hingston and the specific patient. If it had been a statement of principle, they continued, it should not have linked Dr Hingston to the specific incident.

[24] The submission also pointed out that TVNZ was required to be accurate as to the facts whether or not Dr Hingston chose to appear on the programme. It added that Dr Hingston had not been advised of Dr Rankin's statement. It also noted that Dr Hingston had not sought to prevent TVNZ from broadcasting the programme.

[25] The submission argued that TVNZ knew that Dr Rankin's opinion was false and inaccurate and:

TVNZ claims it has not been able to find anything that it knew to be inaccurate or untruthful. Then they in the very next sentence of their decision set out the very reasons why Dr Rankin's statement was inaccurate and untruthful in relation to Dr Hingston and [the specific patient]. TVNZ knew that [the patient] could pay the bill, that he was not complaining of the treatment given and that finance was not a barrier to him.

The Broadcaster's Response to the Submission

[26] TVNZ expressed the view that Dr Hingston had mixed up the message with the messenger. It had reported Dr Rankin's statement accurately, and stated that it was not TVNZ's role to guarantee what people said was accurate. It concluded:

In this case we submit that G1 is breached only if the programme inaccurately reported what Dr Rankin as the expert (the representative of ACC) had to say.

By the same token, TVNZ's obligation to Dr Hingston – had he agreed to appear – would have been to ensure that his comments were accurately reported. TVNZ did not have that opportunity because Dr Hingston declined to participate.

The Complainant's Final Comment

[27] Through his solicitors, Dr Hingston contended that TVNZ knew that Dr Rankin's comments were not correct as the patient had not been denied services because of cost. Nevertheless, despite this, the "expert's" comments included a reference to Dr Hingston.

[28] If the Authority accepted TVNZ's claim that it was merely reporting Dr Rankin accurately and thus did find a breach of standard G1, the solicitors suggested that the Authority obtain the full interview with Dr Rankin in order to ascertain whether TVNZ had mislead Dr Rankin about the facts, or broadcast his comments when it knew his understanding of the facts was wrong.

The Broadcaster's Response to the Complainant's Final Comment

[29] TVNZ denied "absolutely" that Dr Rankin was not given the facts prior to the interview. It also rejected the allegation that it had chosen its own "expert" advising that Dr Rankin was a "top ranking professional" at ACC and responsible for overseeing funding for doctors. TVNZ stated:

Fair Go had no advance knowledge of what opinion and answers Dr Rankin would provide. For all the programme knew he might have defended Dr Hingston – the interview would have been just as useful either way.

The Complainant's Final Response

[30] Dr Hingston's solicitor emphasised that the complaint was concerned with the broadcast of an incorrect comment by Dr Rankin which TVNZ knew was incorrect.

The Authority's Initial Determination

[31] On 17 December 2001, the Authority made the following decision (No: 2001-225)

The item about a rugby player whose consultation fee was not reduced to take account of the ACC contribution, contained comment from Dr David Rankin of the ACC, who said:

We believe the doctor may well have breached an ethical obligation to make service, appropriate service, available to this claimant, by using finance as a barrier to access that treatment.

The Authority finds that this statement is factually incorrect and in breach of standard G1. Contrary to what Dr Rankin said, finance was not a barrier to treatment of the rugby player whose complaint Fair Go was investigating. Moreover, the rugby player advised during the item that he had no complaint about the treatment he had received.

While the complaint about inaccuracy is upheld, the Authority does not consider that Dr Hingston was treated unfairly. The item made the point that General Practitioners were entitled to set their own fees and that ACC cases were often complex and time-consuming. Dr Hingston was aggrieved that the isolated aspects of the item could give the impression that his practice imposed financial barriers to treatment. However, the full item as broadcast made clear that this had not occurred. Indeed, by the end of the item, it was distinctly possible that Dr Rankin's comment, to which Dr Hingston took justifiable objection, was meant to a hypothetical one, if somewhat clumsily expressed.

The Authority concludes that the item breached the accuracy requirement in standard G1, but not the fairness provision in standard G4.

In reaching this decision, the Authority records that it has considered whether the broadcaster's right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990, is unjustifiably infringed. The Authority is satisfied that its decision to uphold an aspect of this complaint is made under its empowering legislation. The Authority is also satisfied that the exercise of its power on this occasion does not unduly restrict the broadcaster's right to express itself freely. Indeed, it considers that the upholding of this complaint is reasonable and demonstrably justified owing to the inaccuracy of the comment, while still giving effect to the intention of the Broadcasting Act. In coming to this conclusion, the Authority has taken into account all the circumstances of this complaint and the nature of the error.

In addition, the Authority observes that to find a breach of the standard G4 aspect of the complaint would be to interpret the Broadcasting Act 1989 in such a way as to place too great a limit on the broadcaster's statutory freedom of expression in s.14.

[32] Having upheld the complaint that the item breached standard G1 of the Television Code of Broadcasting Practice, the Authority declined to impose an order. It wrote:

Having upheld a complaint, the Authority may make an order under ss. 13 and 16 of the Broadcasting Act 1989. The Authority has upheld the complaint that one comment in the item was factually incorrect. As noted above, Dr Hingston was aggrieved that the error could give the impression that his practice imposed financial barriers to treatment. Nevertheless, as the Authority records, the full item made clear that this had not occurred. In these circumstances, the Authority does not consider that an order is warranted.

Appeal

[33] Dr Hingston filed an appeal against Decision No: 2001-225 on the basis that it contained an incorrect aspect at the conclusion of the summary (on page 2), and that no order was imposed. Dr Hingston argued that the Authority, in declining to make an order, took irrelevant factors into account and gave insufficient weight to relevant ones.

[34] The error contained in the summary was corrected by an Erratum to Decision No: 2001-225, dated 28 February 2002, issued to the parties and to all subscribers of the Authority's decisions.

[35] Following discussions between the parties, a consent Memorandum was filed in the High Court, dated 4 April 2002 remitting the matter back to the Authority. The Consent Order required the Authority:

… to consider if any order should be made in respect of the breach of Standard G1 (and not taking into account any consideration of Standard G4).

Further Submissions

[36] Before the Authority considered the complaint again, Dr Hingston's solicitors asked for an opportunity to present further submissions, although the consent memorandum did not provide for this facility.

[37] In view of the emphasis on natural justice in the Broadcasting Act, the Authority agreed to accept written submissions. However, on the basis that counsel had agreed before the consent memorandum was signed that no further submissions would be made, TVNZ expressed considerable annoyance at the Authority's action.

[38] The Authority then agreed that it would consider whether it should accept submissions on the appropriateness of an order and, only if it agreed to do so, would it then consider submissions on the substantive points.

[39] Having considered the appropriateness of receiving and considering further submissions, the Authority decided that it would accept submissions relating to the issue of whether or not an order should be imposed.

[40] In his submission on the substantive issue, Dr Hingston stressed that the complaint from the outset had been one concerned about accuracy. TVNZ, Dr Hingston noted, had included the issue of fairness. Dr Hingston pointed out that the Authority had found the item to be inaccurate, and:

To accuse a doctor of unethical behavior is a very serious matter.

He argued that, "at the very least", TVNZ should publish a retraction, and pay a reasonable amount of his costs.

[41] TVNZ described the standard G4 aspect of the complaint, as "a red herring". It pointed to the finding in the original decision which stated:

As noted above, Dr Hingston was aggrieved that the error could give the impression that this practice imposed financial barriers to treatment. Nevertheless, as the Authority records, the full item made clear that this had not occurred. In these circumstances, the Authority does not consider that an order is warranted.

TVNZ maintained that no penalty was called for.

The Authority's Determination

[42] The Authority's task is to decide whether it should impose an order. Its task is to rule on this point solely on the basis that the broadcast had been assessed under the accuracy requirement in standard G1 and a breach determined. Under ss. 13 and 16 of the Broadcasting Act, the Authority, having decided that a complaint is justified, may impose a number of orders. The complainant has submitted that an order for costs under s.16 and an order to broadcast an approved summary of the decision under s.13(1)(a) should be made on this occasion.

[43] The Authority wishes to make clear from the outset that, in upholding a complaint, it has a discretion whether or not to impose an order. Figures indicate that in the year 2000–2001, complaints were upheld in 41 decisions, and orders imposed in 68% of the cases – and not imposed in 32% of them. In the year 1999-2000, orders were imposed in 49 of the 72 decisions upheld – 69%. In both years, the Authority judged that close to one third of complaints which were upheld did not justify the imposition of an order.

[44] The seriousness of the breach is the principal criterion which guides the Authority in deciding whether to impose an order and the nature of the order. The Authority issued its first complaint determination in January 1990, and has issued nearly 2000 decisions since then. It believes that it has, over a period of 13 years, established a useful bank of precedents which give valuable assistance in deciding whether to impose an order on an upheld complaint.

[45] Turning to Dr Hingston's complaint, the Authority agrees without hesitation that it is a serious matter to accuse a doctor of unethical behavior. In the item on Fair Go, the ACC spokesperson, in a discussion about Dr Hingston, said it might be unethical for a doctor to use finance as a barrier to access to treatment. The Authority upheld the complaint that the comment was inaccurate, because finance certainly was not a barrier to the treatment of the rugby player whose complaint Fair Go was investigating.

[46] The item was concerned about the proportion of the ACC contribution which is retained by the medical practitioner. The item explained that doctors usually reduce their fee in view of the ACC contribution. However, Dr Hingston charged his usual fee, which the patient interviewed on Fair Go considered unreasonable in these circumstances.

[47] It is relevant that the item made clear that the patient had been treated and the Fair Go presenters confirmed explicitly that there was no complaint about Dr Hingston's treatment. The complaint was only about the patient's concern that, in view of the ACC contribution, the fee had not been reduced. This concern was advanced as a matter of principle by the patient. Spokespeople for professional organizations pointed out that Dr Hingston's action was a matter of discretion for the medical practitioners.

[48] In view of the clear focus of the item on the application of the ACC contribution, the Authority does not accept that the item as a whole concluded that Dr Hingston was unethical. Indeed, the item made clear that Dr Hingston had not imposed a financial barrier to treatment. Accordingly, the Authority does not accept that the factual error made by the ACC spokesman who suggested that there was a financial barrier to treatment in this instance, was a central focus of the overall item which requires the broadcast of a statement on air to remedy the situation.

[49] Having viewed the item again, and having considered the submissions, and taking into account the seriousness of the breach as the principal criterion in deciding whether or not to impose an order, the Authority again determines that no order is warranted for the inaccuracy in the Fair Go item broadcast on 1 August 2001.

[50] The Authority believes that to impose an order on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons above, the Authority, having determined that the broadcast of an item on Fair Go by Television New Zealand Ltd on 1 August 2001 breached standard G1 of the Television Code of Broadcasting Practice, decides not to impose an order under ss.13 and/or 16 of the Broadcasting Act 1989.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
13 June 2002

Appendix

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

1. Dr Hingston's Solicitors' Complaint to Television New Zealand Ltd – 29 August 2001
2. TVNZ's Initial Response – 29 August 2001
3. Dr Hingston's Solicitors' Reply – 7 September 2001
4. TVNZ's Response to the Formal Complaint – 21 September 2001
5. Dr Hingston's Solicitors' Referral to the Broadcasting Standards Authority – 3 October 2001
6. TVNZ's Response to the Authority – 11 October 2001
7. Dr Hingston's Solicitors' Request to the Broadcasting Standards Authority to make submissions – 12 October 2001
8. Dr Hingston's Solicitors' Submission – 19 October 2001
9. TVNZ's Response – 25 October 2001
10. Dr Hingston's Solicitors' Final Comment – 31 October 2001
11. TVNZ's Response to the Complainant's Final Comment – 8 November 2001
12. Dr Hingston's Solicitors' Second Final Comment – 13 November 2001
13. Papers associated with the Appeal
14. Consent Memorandum remitting Appeal back to the Authority – 4 April 2002
15. Dr Hingston's Request to Appear before the Authority – 9 April 2002
16. TVNZ's Opposition to further submissions – 15 April 2002
17. Dr Hingston's Submission on Substantial Matter – 16 April 2002
18. Dr Hingston's Submission on Appropriateness of Further Submission – 22 April 2002
19. TVNZ's Submission on Appropriateness of Further Submissions, and on Substantial Matter –
    23 April 2002