BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item about a ten-year-old boy who the reporter said was on the waiting list to have “tumours” removed from his body – outlined difficulties the boy’s mother had experienced dealing with his surgeon – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – programme did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) – inaccurate to state that the boy had more than one tumour – TVNZ failed to ensure that one of its sources was reliable – programme misled viewers by failing to inform them that surgeon had ensured the boy’s ongoing care – upheld

Standard 6 (fairness) – complainant was not given a reasonable opportunity to respond to allegations in the item – upheld 

Orders
Section 13(1)(a) – broadcast statement
Section 16(1) – costs to the complainant $6,750
Section 16(4) – costs to the Crown $2,500

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on 1 August 2006, was introduced as follows:

The waiting list is a fundamental and controversial part of the health system. You're on the list for your operation and you wait. But how much power do doctors and specialists have to remove you from the waiting list for reasons other than medical ones, and would you actually know?

Tonight in Christchurch, a ten-year-old boy is waiting for an operation to remove tumours from his body – tumours that are causing him excruciating pain. A row between his surgeon and his mother has resulted in threats being made about the waiting list and the boy's place on that list.

[2]   The programme said that a tumour had been found in the boy’s leg, and then subsequently “more tumours were found on [his] elbows and collar bone”. The boy, AB, went to see Christchurch surgeon Rhett Mason and was placed on his waiting list with about nine months to wait until surgery.

[3]   The item stated that AB’s mother, MB, had been told “there was only a one percent chance of the tumour becoming malignant”, that she wanted to know more, and that MB felt Mr Mason had dismissed her concerns. MB said about Mr Mason that “he speaks at me and he just turns and leaves the room”. The reporter asked MB whether she felt Mr Mason was “playing the odds” with her son’s condition, and MB replied that she did.

[4]   Close Up reported that MB had sought a second opinion from “a family friend, an orthopaedic specialist based in Taiwan”, who said that the possibility of malignancy could not be ruled out and advised that the tumour be removed “without delay”. Stating that AB’s pain was becoming worse, the item said that MB had decided to go to her local MP’s office and then wrote to Mr Mason directly stating that she had done so. Close Up reported that MB had felt threatened by Mr Mason’s reply which said (in part):

In view of his ongoing symptoms, I am happy to increase his priority on my paediatric operating list.

I would strongly recommend you do not continue to pursue your local MP to support [AB]’s case. The politicians in this government are responsible for the current waiting list fiasco, I therefore have an extremely negative reaction to any letters I receive from MPs and these patients are invariably returned to the bottom of the list.

[5]   Following further correspondence, the item stated that Mr Mason had written to AB’s general practitioner stating “I believe that my professional relationship with AB’s mother has failed beyond retrieval and the only appropriate course of action is to transfer him to another consultant’s care”. AB’s pain had become so bad, the reporter said, that he was now using a wheelchair.

[6]   At the conclusion of the item, the presenter said:

And if you’re wondering why we haven’t heard from Mr Mason, we first contacted him a week ago. We can’t tell you what his response was; he insisted that our discussions be confidential. When we spoke again yesterday, Mr Mason promised to give us a written statement. We agreed we would read the entire statement word for word. Now unfortunately that hasn’t materialised.

The good news is that a few days ago [AB] saw another specialist and has again been put on the waiting list for surgery.

[7]   On the next episode of Close Up on 2 August, the presenter gave an update on the story and said that they had received a statement from Mr Mason. The presenter said:

He told us that the current waiting list environment is enormously frustrating for surgeons as well as patients.

“While I regret that any offence was taken by my letter, and understand [MB]’s concerns as a loving parent, I feel it is inappropriate for a politician to be approached in order to place pressure on a clinician to bump up a patient on the waiting list, a decision which must be based entirely on clinical need”.

Mr Mason says it would be unfair on other children with more urgent conditions were he to succumb to such political pressure. He also says a second specialist has placed [AB] on the waiting list at exactly the same level of priority as he had given him.

Complaint

[8]   Through his lawyer, Rhett Mason made a formal complaint about the item to Television New Zealand Ltd, the broadcaster, alleging that it was unbalanced, inaccurate and unfair. Mr Mason outlined the background to the broadcast and his contact with the Close Up producer. He stated that:

• He received a phone call from the producer on 15 July but was busy and about to leave Christchurch on a trip. He asked the producer to phone him on 31 July.
• He had an off-the-record conversation with the producer on 31 July and was given no indication about when the story would be broadcast. He asked the producer to call him again at his surgical rooms on 1 August, and told the producer that he would prepare a written statement to fax through that day when he had the fax number.
• On 1 August, the producer did not telephone him at his rooms. At about 6pm, he opened a text message from the producer stating:
  “Rhett if this suits could you please fax your statement to me on [fax number] or I would be happy to have it collected. Thank you [producer].”
• As he was not aware of any urgency, he thought he would contact the reporter the next day and fax his statement through at the same time. At about 7pm, his secretary phoned and told him that the story was going to be on Close Up. Some time after the programme, he opened another text message from the reporter which had been sent at 6.40pm. It said:
  
        "Rhett will you be issuing a statement as per our discussion. We go to air in half
         an hour or so. We will need something very soon if it is going to make deadline."

[9]   Mr Mason expressed surprise that the producer had chosen to contact him by text message, as he said it had been agreed that the producer would telephone him at his rooms. The complainant explained that he was a very infrequent user of text messaging. The day after the programme, Mr Mason stated that he had forwarded a statement listing the “numerous inaccuracies” in the programme and telephoned the producer to ensure he had received it. He noted that the Close Up programme on 2 August had included only a small portion of his statement.

[10]   Mr Mason alleged that it was “grossly unfair” and in breach of Standard 6 for the producer not to advise him when the programme would be broadcast, and then to contact him by text message instead of phoning him as agreed. Mr Mason noted that the producer had spoken to AB’s new surgeon, Mr McKie, on the morning of 1 August and had told Mr McKie that he did not believe MB’s story. In these circumstances, he said, there was an “absolute obligation” to verify MB’s account.

[11]   The complainant contended that the presenter’s closing remark that his statement had not “materialised” was also unfair. Objective viewers would undoubtedly have drawn an inference unfavourable to him, Mr Mason said, as the statement implied that his “conduct was indefensible and therefore despite his promise he chose not to provide an explanation”.

[12]   In Mr Mason’s view, the programme lacked balance because he was not given an opportunity to make a statement. It was unreasonable, he said, to unilaterally change the agreed mode of contact to a text message without notifying him.

[13]   Mr Mason then turned to identify specific passages from the transcript which he alleged were in breach of programme standards.

“How much power do doctors and specialists have to remove you from the waiting list for reasons other than medical ones, and would you actually know?”

[14]   The complainant argued that this passage set the tone for the programme, inferring that he had removed AB from the waiting list and left him “hanging mid air”, and had dealt with him in an arbitrary manner. In fact, Mr Mason wrote, he had arranged for AB to be transferred to a new specialist (Mr McKie) and AB had then been placed on Mr McKie’s waiting list at exactly the same level. He had “transferred [AB]’s care to Mr McKie in an appropriate and professional manner”.

“…an operation to remove tumours from his body…tumours that are causing him excruciating pain”

[15]   Mr Mason objected to the programme’s repeated use of the word “tumours”. AB did not have “tumours”, he said, but had a single osteochondroma – a benign bony lump – on his tibia. In the complainant’s view, it was very emotive to describe the lesion as a tumour because it was neither cancerous nor malignant.

[16]   Furthermore, Mr Mason contended that it was inaccurate to refer to “tumours” plural, as AB only had one lesion. This was confirmed by the correspondence between himself, MB, AB’s general practitioner, and Mr McKie.

A row between his surgeon and his mother has resulted in threats being made about the waiting list and the boy’s place on that list.

[17]   The complainant asserted that there had never been a “row” between him and MB. Their discussions had always been cordial, and when he had last seen AB the consultation had lasted about 40 minutes in which he addressed each of the concerns raised by MB in a letter to him on 18 May 2006.

[18]   Mr Mason also refuted the claim that he had threatened AB’s place on the waiting list. He noted the passage from his letter on 23 May which said, “I am happy to increase [AB’s] priority on my paediatric operating list”.

MB’s statement that “we saw a house surgeon called Joshua and he said we’re very concerned about what we see on the x-rays and we know by the type of tumour we see that there are more of them and what we need to do is find them”.

[19]   The complainant said that Dr Josh Kempthorne was a registrar, and Dr Kempthorne did not believe that he had used the word “tumour” as this was not a word he would use to describe such a lesion. Dr Kempthorne had told MB that the lesion was benign, Mr Mason wrote, and that it would not need to be removed unless there was a problem. Furthermore, as could be seen from Dr Kempthorne’s letter to AB’s general practitioner, he had not said there were more lesions on his elbows or collarbone, rather that the “prominent medial epicondyles” and “possibly boney protuberance” only needed to be addressed if they were symptomatic. He also had not said “we are very concerned” because, as evident from his reporting letter, he was not concerned nor did he make reference to the possibility of there being “more of them”.

“More tumours were found on [AB]’s elbows and collar bone”

[20]   Mr Mason repeated his argument that this was inaccurate. He referred to his letter of 26 May to AB’s general practitioner which noted that:

One of my registrars who x-rays several other areas of the body, ie, right clavicle, both elbows and right middle finger in search of further osteochondroma and these x-rays are all clear.

[21]   The complainant said that he had included this information in his statement to the Close Up producer on 2 August, and had told the producer verbally on 31 July.

“Length of wait, about nine months”

[22]   By the time the programme went to air, Mr Mason observed, AB had been on the waiting list for approximately four months. Given his diagnosis of a single bony benign lesion – and compared to other children who had disabilities such as cerebral palsy or spina bifida – this was a relatively short wait.

“…been told that there was only a one percent chance of the tumour becoming malignant”

[23]   Mr Mason stated that he had never said there was only a one percent chance of the tumour becoming malignant; in his letter to MB he had said there was a “less than 1% chance”. In fact, he was not aware of any occasion when such a lesion had become malignant, and the combined Orthopaedic Oncology Team had never seen or read of a reported case where an osteochondroma had become malignant.

“MB was also confused over…what sort of tumour it was”

[24]   This statement would have been confusing to viewers, Mr Mason wrote, due to the programme’s inconsistent references to “tumours” or a single “tumour”. It was also difficult to understand, he said, how MB could have been confused about what sort of tumour it was when he had explained it to her at two consultations and all of the correspondence referred to an “osteochondroma”.

“But when [MB] tried to ask Mr Mason about her concerns she says she was dismissed”

[25]   Mr Mason contended that the correspondence showed that he had not been dismissive; rather, he had taken time to explain the condition and address MB’s concerns. In light of the inconsistencies between MB’s story and the correspondence, he questioned what steps the producer had taken to verify MB’s version of events.

MB’s statement that “…[Mr Mason] speaks at me and just turns and leaves the room”

[26]   Mr Mason noted that, due to the layout at the hospital, after a consultation he would always leave an examination room before a patient and go to the next patient in the next room. In that context only was it correct to say that he “turns and leaves the room”.

[27]   To state that he was dismissive and uncaring, the complainant said, was a “very serious slur on his reputation and demonstrably incorrect”. He always ensured that there were no outstanding issues before leaving a patient.

MB’s statement that “…who is to say that [AB]’s not in that 1 or 2%. I have asked Rhett Mason to explain and he hasn’t, how he’s come to the conclusion that this tumour is benign”.

[28]   The claim that he had failed to explain his conclusion that the lesion was benign was untrue, Mr Mason said, and could be refuted from an objective review of the correspondence. He noted the following passage from his letter to MB on 23 May:

In less than 1% of cases these conditions can indeed become malignant. [AB] does not exhibit any signs or symptoms consistent with this nor do his x-rays give the slightest suggestion of this.

Reporter’s question “Do you feel he’s playing the odds?” and MB’s answer “Yes, I do and I don’t…I don’t think anyone’s got the right to play the odds and especially not with my son or anyone else’s really”.

[29]   In the complainant’s view, it was very serious to state that a highly experienced and respected consultant orthopaedic surgeon was “playing the odds” in his management of a 10-year-old boy. This statement had the potential to destroy his reputation, he said, and far from playing the odds he had determined that the lesion was benign after conducting the appropriate medical investigations.

[30]   Mr Mason noted that Mr McKie supported his diagnosis and treatment plan, and there was no credible evidence to suggest he was playing the odds.

“[MB] sought a second opinion from a family friend, an orthopaedic specialist based in Taiwan…his advice: the tumour be removed without delay”.

[31]   Mr Mason made several points in respect of the Taiwanese specialist’s letter which, he said, revealed that his advice was incorrect.

“That elicited this response from Rhett Mason – sent not to the [family] but to their GP”

[32]   The intended inference from this passage was that the complainant had somehow acted unprofessionally or inappropriately in responding to the GP rather than directly to the family. On the contrary, Mr Mason wrote, it was unusual for a consultant to correspond directly with a patient. Furthermore, the letter had in fact been copied to MB. This was misleading, he said.

“The good news is that a few days ago [AB] saw another specialist and has again been put on a waiting list for surgery”

[33]   The complainant argued that this passage was misleading because it failed to point out that AB seeing another specialist was the direct result of his referral by Mr Mason to Mr McKie.

Close Up – 2 August 2006

[34]   Mr Mason maintained that the follow-up programme on 2 August failed to provide any balance to the previous story, and had failed to correct the inaccuracies identified by him.

Standards

[35]   TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[36]   At the outset, TVNZ contended that it was not AB’s medical condition that was of broad public interest, but it was Mr Mason’s response to MB when she “exercised a fundamental right of a citizen in a democracy in seeking advice from her MP about concerns she had with the waiting list”. The story was not, it said, about the rights or wrongs of the medical diagnosis or Mr Mason’s skills. In TVNZ’s view, the introduction made this clear.

[37]   With respect to whether Mr Mason knew the date of the broadcast, TVNZ insisted that the producer had told him it would air on 1 August during their conversation on 31 July. There had been no invitation to have another conversation, it said, and no mention of a fax.

[38]    Looking at the events on 1 August, TVNZ wrote:

The [complaints] committee heard that the day before the broadcast, the producer specifically asked Mr Mason whether he should contact Mr Mason through his PA, or his mobile phone. The surgeon confirmed “on my mobile”. Texting is an entirely regular and acceptable way of communicating by cell phone, especially when trying to contact medical professionals who are often with patients or in surgery.

[39]   TVNZ considered that the Close Up programme had correctly outlined AB’s condition in language the majority of viewers would understand. It emphasised that the programme was not about the rights and wrongs of the diagnosis, but the content of Mr Mason’s letter to MB on 23 May.

[40]    In terms of balance, the broadcaster contended that Close Up had offered Mr Mason a face-to-face meeting to establish his response, a recorded interview, or the opportunity to submit a written statement. It noted that the standard allowed balance to be provided “within the period of current interest” and that portions of Mr Mason’s statement were read on Close Up the night after the broadcast.

[41]    TVNZ did not consider that it should have known there was only one tumour. It referred to MB’s letter to her GP on 9 May in which she said Dr Kempthorne had “informed me that there were tumours on his elbows and his collarbone”, and also the Taiwanese specialist’s notes which said “I could also feel bony masses on both elbows…I understand from [MB] that it is thought there was also a tumour on [AB]’s collarbone and the reports I have viewed confirm this”.

[42]   The broadcaster disagreed that the use of the word “tumour” was emotional. The word had been used to describe AB’s condition by medical people, it said, and was better understood by laypeople than osteochondroma.

[43]    Referring to the complainant ’s concerns about MB’s statements in the item, TVNZ maintained that her remarks were clearly presented as her recollection of what went on, and her opinions about what she had been told. Her comments were relevant, it wrote, because they indicated the level of anxiety felt by MB which prompted her to visit her MP.

[44]The broadcaster noted that the item had said “[MB] says she was dismissed” when she tried to ask Mr Mason about her concerns. It had simply reported her statement, rather than agreeing or disagreeing with it. The point was, TVNZ said, that MB felt she had been unfairly treated by Mr Mason. Nowhere had the programme said that Mr Mason was “dismissive or uncaring”.

[45]    The item had not suggested that AB still had nine months on the waiting list from the date of the broadcast, TVNZ said, but had said that his waiting time had been nine months from the date of his appointments with Mr Mason.

[46]   TVNZ felt that the question “do you feel that he’s playing the odds” was not inappropriate. It noted Mr Mason’s comment in a letter to MB that a blood test for AB would be a poor use of resources because the chances of a blood test showing an abnormality was one in a thousand. With such figures being bandied about, it said, it was relevant to ask MB whether she felt Mr Mason was playing the odds.

[47]    The broadcaster also felt that the presenter’s closing remark that AB had now seen another specialist was accurate.

[48]    Looking at the programme on 2 August, TVNZ said that it was not a “follow-up” programme but a continuation of the previous night’s story, presenting Mr Mason’s right of reply which Close Up had hoped for the previous day.

[49]   Turning to the standards, TVNZ maintained that Standard 4 (balance) was not breached. It wrote that Mr Mason had been given reasonable opportunities to respond in time for the 1 August broadcast, and then his comments were presented on 2 August. It also found no inaccuracies in breach of Standard 5 (accuracy).

[50]In terms of Standard 6 (fairness), TVNZ wrote:

If a highly-regarded orthopaedic surgeon decides freely to write to a patient’s mother, objecting to her taking her concerns and complaints to a local MP, and includes an implied threat to push her son down the waiting list if such contacts continue, it should come as no surprise that it will be picked up by a responsible news service.

[51]   The broadcaster argued that Mr Mason’s response was a matter of public interest and it was not unfair to draw attention to his remarks. It declined to uphold the complaint.

Referral to the Authority

[52]   Dissatisfied with TVNZ’s decision, Mr Mason referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. Responding to TVNZ’s argument that the programme focussed on hospital waiting lists, he noted that the majority of the item had focussed on AB’s condition, his diagnosis and his prognosis. He wrote:

The picture that was painted was of a young boy, riddled with tumours, in excruciating pain, confined to a wheelchair, who had an unfavourable prognosis if surgery was not carried out “without delay”. And that therefore [my] conduct was unacceptable and inexcusable. This took over four of the seven pages of transcript; more time was given to management and diagnosis than the waiting list issue.

[53]  Mr Mason contended that if AB’s condition was not as serious as implied in the programme, his place on the hospital waiting list was subject to entirely different considerations.

[54]    The complainant argued that the programme had sought to paint him in as bad a light as possible. Despite MB’s initial comment that she had heard he was “the best surgeon in Christchurch”, Mr Mason believed that the item described him as “dismissive, rude, uncaring, unsure of the diagnosis and unwilling to discuss it, incompetent, a surgeon who was prepared to ‘play the odds’ when the life of a young boy was at stake, and a surgeon who was prepared to drop his young patient from the waiting list without putting in place any contingency plans”.

[55]  In Mr Mason’s view, TVNZ was arguing that because the focus of the programme was not on the rights or wrongs of the diagnosis, it was not essential to portray issues relevant to diagnosis and management accurately. This, he said, could not be correct. He was concerned that Close Up was not in possession of all the relevant information and medical records prior to the broadcast. These showed that AB had only one bony lump, it was not malignant and was at no risk of becoming so, the condition was not life threatening and there was no reason to operate “without delay”. Further, the records showed that Mr Mason had arranged for AB’s referral to Mr McKie, who agreed entirely with Mr Mason’s diagnosis and management.

[56]  With respect to the Taiwanese surgeon, Mr Mason said it was extraordinary that TVNZ had relied on his letter as the sole basis for discrediting the diagnosis and management of two New Zealand orthopaedic surgeons. He wrote:

I do not know what, if any, enquiries or investigations TVNZ made in respect of Mr Wei-Liang Wang. TVNZ should be required to provide details of these. Obviously it would be essential for TVNZ to satisfy itself as to Mr Wang’s credentials, experience and expertise given the extent to which the producer/reporter relied on his “opinion” as the basis to contradict and criticise [me].

[57]   The complainant said that Mr Wang was not on the Taiwanese register of Orthopaedic Surgeons, nor any other medical register in Taiwan. He also noted that Mr Wang’s opinion was not on official letterhead, there was no address and nothing to indicate his qualifications. In Mr Mason’s view, this raised serious questions as to whether he had any medical training or qualifications.

[58]   The complainant rejected any suggestion that the Close Up producer had told him the item would be broadcast on 1 August, and said that his conduct was consistent with not knowing this. This could be corroborated by his wife, his secretary and his sister (a One News reporter).

[59]   Mr Mason contended that it was not possible to sever the criticisms of a respected orthopaedic surgeon from what TVNZ claimed was the focus of the story. Reasonable viewers would have considered this to be a story in its own right, he said, as

...the diagnosis and management aspect of the story was very much emphasised and was an integral if not major part of the story. The short point is that there was no story unless [AB] could be shown to be in a desperate medical state.

[60]   If AB's condition had been described correctly, Mr Mason contended, the reasonable viewer would have understood that there were many young children who were seriously sick on the waiting list and that AB’s condition was such that it did not warrant him being given priority over these other children. In Mr Mason’s view, it was extraordinary that TVNZ rejected his statement that there was only one osteochondroma because all of the medical reports (based on physical examinations and x-rays) confirmed this.

[61]   The complainant asserted that viewers should also have been told that Mr McKie concurred with the diagnosis and management plan, and that AB’s position on the waiting list did not change at all through the transfer.

Broadcaster’s Response to the Authority

[62]   TVNZ acknowledged that the Authority would be left with a “he said, she said” scenario in respect of whether Mr Mason had been told about the date of the broadcast, but it stood by its previous statements.

Complainant’s Final Comment

[63]  Mr Mason advised that his wife, sister and secretary were happy to provide affidavits setting out the relevant facts at issue. He maintained that TVNZ should be required to provide details of the steps it took to satisfy itself as to Mr Wang’s existence, expertise and credibility.

Further Information Requested by the Authority

Information from TVNZ

[64]   The Authority asked TVNZ to provide:

• Any documents that established when the decision was made to broadcast the item on 1 August. 
• Copies of documents relating to AB’s medical condition (including information from his medical file) which TVNZ received prior to the broadcast. 
• Details of any expert medical advice received by TVNZ relating to AB’s case.
• Details of the steps taken by TVNZ to establish the credentials and expertise of the Taiwanese specialist referred to in the programme.

[65]   In response, TVNZ expressed its concern that the Authority was impinging on “long-established press freedoms, and basic principles involving the protection of sources”. It stated that there were no documents which established when the decision was made to broadcast the item, but maintained that Mr Mason had been aware that Close Up was preparing the story several weeks in advance.

[66]   TVNZ wrote that it was not prepared to provide details of the medical records of a private individual. AB’s records had been provided to Close Up in confidence, it said, and it would be wrong for TVNZ to pass them on to the Authority. Similarly, any views from independent doctors which may or may not have been gathered in the preparation of the story “would represent confidential source material”.

[67]   With respect to the Taiwanese specialist, the broadcaster maintained that the specialist’s letter had been “presented as part of the mother’s honest opinion”, and had been reported as such. TVNZ contended that there was a limit to how far it could go to establish the specialist’s credentials.

[68]   The Authority also requested that TVNZ provide an affidavit from the producer who contacted Mr Mason prior to the story, to give his recollection of whether he had told Mr Mason when the story would be broadcast. TVNZ provided affidavits from the producer of Close Up and the reporter who worked on the item complained about.

[69]   The producer said that he had “indicated” to Mr Mason that the broadcast would go to air on 1 August, and that Mr Mason had agreed to provide a written statement for broadcast. The reporter said that he had listened to the conversation between the producer and Mr Mason, and that the producer had clearly told Mr Mason that Close Up intended to run the story that night. Both agreed that Mr Mason had asked to be contacted by his mobile phone on 1 August to make arrangements for his statement to be faxed through.

Information from the complainant

[70]   The Authority asked for affidavits from Mr Mason, his wife, his secretary and his sister, outlining their recollections of the events leading up to the broadcast. It also requested a copy of the statement prepared by Mr Mason on 31 July, and a copy of his second statement which was partially broadcast on 2 August.

[71]   Mr Mason maintained that the producer had given no indication that the story would be broadcast on 1 August. His wife, sister and secretary provided accounts of the events on 1 August, and they all stated that Mr Mason’s behaviour that day was consistent with him not being aware that the story was going to air that night. The complainant provided the Authority with copies of the two statements he had prepared.

Further Information from the Broadcaster

[72]   Responding to the affidavits supplied by the complainant, TVNZ stated that it wished to draw the Authority’s attention to “some discrepancies” between the affidavits and the original complaint. First, it noted that Mr Mason’s affidavit placed him on the way out of his surgical rooms when he received the fax number from the producer, and it contended that he could easily have faxed his statement at that time. Second, it referred to the affidavit from Mr Mason’s sister which stated that he did not use text messages and “struggles to open them on his phone”. This, it said, sounded odd given that Mr Mason managed to open the producer’s text message.

[73] Third, TVNZ pointed out that Mr Mason’s secretary had typed his statement by mid to late afternoon, and he had received the fax number before 6pm. That he had chosen not to send the statement, it wrote, was not the fault of Close Up. TVNZ also said it found it curious that Mr Mason carried his cellphone when operating, but not when seeing patients.

[74]   Lastly, the broadcaster observed that Mr Mason’s secretary had implied she had checked the cellphone regularly. Therefore, it contended, she would have seen that a text message had been sent to his phone before 5.45pm.

Further Information from the Complainant

[75]   Mr Mason categorically denied that he had been aware, during his phone call with the producer at 6pm on 31 July, that the story was intended for broadcast that evening. It was “bizarre” to suggest that there would be such a conversation one hour before the programme was to be broadcast, he said. Mr Mason reiterated that he was also never aware that the story was going to be broadcast on 1 August.

[76]   Referring to the reporter’s statement that, by 6pm on 1 August, both he and the producer were growing concerned that it was not going to be possible to provide Mr Mason’s side of the story, the complainant questioned why they had not telephoned him. He also disagreed with several other statements made in the producer’s and reporter’s affidavits.

[77]   With respect to TVNZ’s statement that he had read the producer’s text message before 6pm and could easily have faxed his statement, Mr Mason agreed that he could have done so. However, he wrote, the reason he had not sent the statement was because he was “completely unaware of any urgency” and did not know the story was to be broadcast in one hour’s time.

Authority's Determination

[78]   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 6 (fairness)

Summary

[79]   The Authority upholds Mr Mason’s Standard 6 (fairness) complaint. For the reasons outlined below, the Authority finds that Mr Mason was not given a reasonable opportunity to respond to the allegations made against him in the item. Despite TVNZ’s argument that the item focused on the inappropriate nature of Mr Mason’s letter to MB, the Authority finds that the programme took a wider focus which included Mr Mason’s management of AB’s case, and also his personal conduct. The programme included several statements by MB which presented her opinion that Mr Mason was dismissive and uncaring. Furthermore, he was not given an opportunity to respond to the implication that he was potentially taking unnecessary risks with AB’s life – “playing the odds” – or the suggestion that he had refused to continue treating AB without taking any steps to ensure his ongoing care.

[80]   Because Mr Mason was not given an opportunity to respond to these matters, the Authority upholds his complaint that he was treated unfairly. It now turns to deal with each allegation of unfairness individually.

Opportunity to respond

[81]   Mr Mason argued that he was unfairly treated because he was not told when the programme would be broadcast, and therefore he was unable to submit his statement to Close Up before the programme went to air. The Authority requested affidavits from all relevant parties (see paragraphs [68] to [71]) in order to determine whether Mr Mason was told that the story was to be broadcast on 1 August. Having read this material, the Authority can only conclude that each party genuinely believes their own version of events. Mr Mason maintains that he was unaware the story would be broadcast, and TVNZ is equally adamant that it had indicated its intention to broadcast the story that evening.

[82]   That being the case, the Authority focuses on whether Mr Mason was given a reasonable opportunity, in all the circumstances, to respond to the allegations made in the item broadcast on 1 August. It concludes that he was not.

[83]   In the Authority’s view, the programme was critical of Mr Mason’s diagnosis and care of AB. It also left the impression that Mr Mason was dismissive and arrogant in his dealings with AB’s mother, and had failed to explain his diagnosis to her. In these circumstances, the Authority considers that it was paramount that TVNZ include Mr Mason’s perspective on the allegations being made.

[86]  TVNZ has accepted that the Close Up producer arranged to telephone Mr Mason on his cellphone to advise him where to fax his statement. However, having made that arrangement, contact was then made via two text messages. The first text, including the fax number, was sent at 1.30pm and was received by Mr Mason at approximately 5.45pm; the second text reached Mr Mason’s phone at 6.40pm and he did not open it until after the broadcast. The Authority notes that there was no indication or sense of urgency in the producer’s first text to Mr Mason; it simply said “Rhett if this suits could you please fax your statement to me on [fax number] or I would be happy to have it collected”.

[85]   The Authority finds it difficult to understand why, if the producer and reporter were becoming concerned that they were going to be unable to provide Mr Mason’s side of the story (as the reporter states in his affidavit) at 6pm that day, they did not telephone Mr Mason. Instead, another text message was sent, despite the fact that there had been no suggestion that Mr Mason would be contacted in this manner.

[86]   In the Authority’s view, TVNZ did not make reasonable efforts to ensure that Mr Mason had a reasonable opportunity to present his rebuttal to the serious allegations that were made in the programme. In this respect, it concludes that the broadcast was unfair to him, and it upholds this aspect of the complaint as a breach of Standard 6.

Omission of information

[87]   Mr Mason argued the item was unfair to him because it failed to report that he had referred the boy to another surgeon who had agreed entirely with his diagnosis and treatment plan. The Authority agrees that the programme was unfair in this respect. While the subsequent Close Up item on 2 August did explain that a second specialist had placed AB at the same level of priority on the waiting list, it did not explain to viewers that it was Mr Mason who had ensured AB’s ongoing care by referring him to a new specialist.

[88]   The Authority finds that this fact was important to viewers’ evaluation of Mr Mason’s conduct, and therefore it concludes that the omission of that information contributed to the breach of Standard 6.

Reporter’s question “Do you feel he’s playing the odds?” and MB’s answer “Yes I do, and I don’t think anyone’s got the right to play the odds and especially not with my son or anyone else’s really”

[89]   Mr Mason argued that accusing him of “playing the odds” was a very serious statement with the potential to destroy his reputation. The Authority agrees that the reporter’s question, knowing what MB’s answer would be, contributed to the overall unfairness to Mr Mason. The Authority notes that AB’s diagnosis and treatment plan has been supported by his current surgeon, Mr McKie, and there is no evidence that Mr Mason was taking any risks with AB’s life as suggested by the reporter’s question. In the Authority’s view, this segment added to the critical impression that the item left about Mr Mason. Accordingly, it considers that the reporter’s question contributed to the breach of Standard 6.

Presenter’s comment that Mr Mason had “promised to give us a written statement. We agreed we would read the entire statement, word for word. Unfortunately, that hasn’t materialised”

[90]   Mr Mason argued this was unfair because it implied that he had chosen not to provide an explanation as his conduct was indefensible. Although the Authority finds that the statement was not of itself unfair to the complainant, the Authority does consider that it contributed to the negative impression that the programme left about him. Viewers would have been left thinking that Mr Mason had failed to deliver on his promise to provide a statement, when in fact he had prepared a statement but was unaware of any urgency in sending it. In the Authority’s view, the presenter’s statement contributed to the breach of Standard 6.

Reporter’s comment “That elicited this response from Rhett Mason – sent not to [MB and AB] but to their GP”

[91]   Mr Mason argued that this statement implied that he had acted unprofessionally by sending the letter to AB’s GP. In fact, he had copied the letter to MB and AB, and it was unusual for a consultant to correspond directly with a patient.

[92]   As above, the Authority finds that this statement was not of itself unfair, but it contributed to the impression left by the programme that Mr Mason was dismissive and unprofessional in his dealings with MB and AB. Because Mr Mason was not given an opportunity to respond to these criticisms, the Authority has found that the item was unfair to him, and it considers that this statement contributed to the breach of Standard 6.

Reporter’s statement “But when [MB] tried to ask Mr Mason about her concerns she says she was dismissed” and MB’s statement “Rather than feel like I could sit and discuss [AB]’s condition with him he speaks at me and he just turns and leaves the room”

[93]  Guideline 6d specifically acknowledges the right of individuals to express their own opinions. The Authority finds that MB was entitled to put forward her view that Mr Mason had been dismissive and unwilling to discuss AB’s condition with her. However, because Mr Mason was not given an opportunity to respond to MB’s critical remarks, the Authority considers that the inclusion of these statements was unfair and contributed to the breach of Standard 6.

Presenter’s closing comment that Mr Mason had “insisted our discussions be confidential”

[94]   The Authority finds that the presenter’s closing comment was not unfair to Mr Mason. Irrespective of whether he intended for his next conversation with the producer to be on the record, Mr Mason acknowledges that he did insist that his previous conversations with Close Up were confidential. The Authority declines to uphold this part of the complaint.

Standard 5 (accuracy)

[95]   The complainant has identified several alleged inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority upholds three aspects of the accuracy complaint. First, it concludes that the programme was inaccurate when it stated that AB had “tumours” – implying more than one. Second, it finds that the programme was misleading by failing to inform viewers that Mr Mason had ensured AB’s ongoing care. Third, it finds that TVNZ did not ensure that one of its information sources – the Taiwanese specialist – was reliable.

[96]   The Authority now considers each allegation in turn.

References to “tumours”

[97]   Mr Mason contended that using the word “tumour” to describe an osteochondroma was inaccurate, emotive and would have misled viewers into thinking AB had cancer. The Authority considers that it was not inaccurate to use the word tumour when referring to AB’s condition. It notes that the complainant has provided a letter from an orthopaedic surgeon at Starship Hospital confirming AB’s diagnosis and stating that the lesion was a “benign tumour”.

[98]   The Authority also disagrees that reasonable viewers would have been left with the impression that AB had cancer. While it agrees with Mr Mason that many viewers would associate the word tumour with cancer, the Authority notes that the programme made it clear that AB’s osteochondroma was not malignant. For instance, the reporter stated that AB’s mother was told “there was only a one percent chance of the tumour becoming malignant”, and MB shared her concerns that Mr Mason had not explained his conclusion that the tumour was benign. Overall, the Authority finds that viewers would have understood that AB did not have cancer, and it declines to uphold this part of the complaint.

[99]   Mr Mason also argued that AB did not have “tumours” plural, but had one osteochondroma on his leg. He noted the following statements in the item:

“…an operation to remove tumours from his body – tumours that are causing him excruciating pain”
“More tumours were found on Matt’s elbow and collar bone”
“and be told he’s got these tumours”

[100]   Based on these statements, the Authority agrees that viewers would have been left with the impression that AB had more than one tumour. It has reviewed Mr Mason’s reporting letter to AB’s general practitioner which states that x-rays of his elbow and collar bone were clear, and it notes that AB’s diagnosis has been confirmed by his current orthopaedic surgeon. In these circumstances, the Authority finds that the programme’s references to “tumours” were inaccurate. It finds that Standard 5 was breached in this respect.

Presenter’s remark “The good news is that a few days ago AB saw another specialist and has again been put on a waiting list for surgery”

[101]   Mr Mason argued this was misleading because it failed to point out that AB had seen another specialist as a direct consequence of his referral to Mr McKie. In the Authority’s view, the phrases “good news” and “has again been put on a waiting list” gave the impression that AB had seen a new surgeon independent of, and despite, Mr Mason’s conduct.

[102]   The Authority finds that it was important for viewers to understand that Mr Mason had made appropriate arrangements for AB’s ongoing care, as this would have contributed to the overall impression that the programme left about Mr Mason. Accordingly, it agrees that the above statement was misleading by omission. Therefore it upholds this part of the complaint as a breach of Standard 5.

Reliability of sources – Taiwanese specialist

[103]   Mr Mason has argued that the Taiwanese specialist referred to in the programme was not on the Taiwanese register of orthopaedic surgeons or any other medical register in Taiwan. Referring to guideline 5e to Standard 5, Mr Mason complained that TVNZ had not taken reasonable steps to ensure that its information sources were reliable.

[104]    The Authority observes that the reporter said in the programme:

[MB] sought a second opinion from a family friend, an orthopaedic specialist based in Taiwan. He says there are definite signs that the possibility of malignancy cannot be ruled out. His advice: the tumour be removed without delay.

[105]   The Authority asked TVNZ to provide details of the steps it took to establish the credentials and expertise of the Taiwanese specialist. In response, the broadcaster submitted that the letter from the Taiwanese specialist was “presented as part of the mother’s honest opinion”. The Authority disagrees with this suggestion. The opinion from the Taiwanese specialist was introduced and presented by the reporter, not by AB’s mother, thereby lending it credibility.

[106]   The Authority is of the view that TVNZ presented the Taiwanese surgeon as an authority whose view should be taken seriously, and Close Up gave no indication to viewers that his opinion should be given any less weight than Mr Mason’s. Because it presented the opinion of the Taiwanese specialist as being authoritative and credible, the Authority considers that TVNZ should have taken steps to ensure that the specialist was a reliable source.

[107]   TVNZ has contended that there is “a limit to how far TVNZ can go to establish” the credentials of a source such as this. However, in the Authority’s view, when a broadcaster is unable to satisfy itself that an individual and the information he is providing is credible, it should not present that material to viewers as an unchallenged statement of fact. On this occasion, the complainant has noted that the opinion was not on official letterhead, there was no address, and there was nothing to indicate the qualifications or expertise of the Taiwanese man. Despite a specific request to do so, TVNZ has not provided the Authority with any information to indicate that it took steps to ensure that the Taiwanese man was a reliable source.

[108]   In these circumstances, the Authority concludes that TVNZ failed to comply with the requirements of guideline 5e and Standard 5 (accuracy). It upholds this part of the complaint.

Reporter’s statement that “A row between his surgeon and his mother has resulted in threats being made about the waiting list and the boy’s place on that list”

[109]   Mr Mason complained that this statement was inaccurate because he and MB did not have “a row”, and their discussions were always cordial. The Authority is of the view that viewers would have understood that the term “row” was a colloquial and shorthand way to describe the friction between MB and Mr Mason over AB’s care; it did not imply that there had been a heated argument. It does not uphold this part of the complaint.

[110]   The Authority also declines to uphold Mr Mason’s complaint that it was inaccurate to state he had made “threats” about AB’s place on the waiting list. In Mr Mason’s letter to MB, he recommended that she did not contact her local MP again and said:

I therefore have an extremely negative reaction to any letters I receive from MPs and these patients invariably are returned to the bottom of the list.

[111]   In the Authority’s view, it was not inaccurate to characterise Mr Mason’s letter as being a threat that he would return AB to the bottom of the waiting list if his mother had any further contact with her local MP. It finds that Standard 5 was not breached in this respect.

MB’s statement “We saw a house surgeon called Joshua and he said we’re very concerned about what we see on the x-rays and we know by the type of tumour we see that there are more of them and what we need to do is find them”

[112]   Mr Mason argued that this was an inaccurate description of MB’s encounter with Dr Kempthorne, and he has provided the Authority with a copy of Dr Kempthorne’s notes which were made following the consultation.

[113]   The Authority agrees that Dr Kempthorne’s notes do not support MB’s statement about what he told her during their consultation. However, it considers that viewers would have understood that MB was simply putting forward her version of the exchange.

[114]   In the Authority’s view, MB was entitled to recount her interpretation of events, and viewers would have assessed the likely precision of her recollection while taking into account that she had received the information as an anxious mother who was concerned about the seriousness of her son’s condition. Because MB was not making a statement of fact to which the accuracy standard applies, the Authority declines to uphold this part of the complaint.

[115]   For the record, the Authority considers that Mr Mason’s concerns in this respect have been dealt with appropriately in its consideration of the fairness standard above.

Reporter’s statement that AB was “put on Mr Mason’s waiting list; length of wait, about 9 months”

[116]   Mr Mason argued that this implied the boy had 9 months to wait from the date of the broadcast. The Authority disagrees. It notes that the complete statement from the broadcast was that “after two further appointments [AB] was put on Mr Mason’s waiting list; length of wait about 9 months”. The statement made it clear that AB had nine months to wait from the date of his third appointment with Mr Mason, not nine months from the date of the broadcast. Accordingly, the Authority finds that Standard 5 was not breached in this respect.

Reporter’s statement that [MB] “had been told there was only a one percent chance of the tumour becoming malignant”

[117]   Mr Mason complained that this statement was inaccurate because he had actually told MB in writing that there was a “less than 1%” chance of the lesion becoming malignant. In fact, he said, he was not aware of any occasion when such a lesion had become malignant. In the Authority’s view, the reporter’s statement was not inaccurate. In terms of giving viewers an accurate understanding of the risk AB faced, the Authority considers that there is insufficient difference between “only a one percent chance” and “less than 1%” chance for it to conclude that viewers would have been misled. Therefore it does not uphold this part of the complaint.

MB’s statement “I have asked Rhett Mason to explain and he hasn’t, how he’s come to the conclusion that this tumour is benign”

[118]   In the Authority’s view, MB’s statement was not presented as a statement of fact about whether Mr Mason had explained AB’s condition. It was clearly distinguishable as MB’s opinion that Mr Mason had not explained to her his conclusion that AB’s tumour was benign. As it was not a statement of fact to which the accuracy standard applies, the Authority finds that Standard 5 was not breached.

Failure to include relevant information

[119]   Mr Mason argued the item was misleading because it failed to state that AB’s new surgeon agreed entirely with his diagnosis and treatment plan. The Authority agrees that this was relevant and important information which was not included in the 1 August broadcast. However, it notes that the 2 August episode of Close Up included a portion of Mr Mason’s statement which read:

He also says a second specialist has placed [AB] on the waiting list at exactly the same level of priority as he had given him.

[120]   Guideline 5a provides that significant errors of fact should be corrected at the earliest opportunity. In the Authority’s view, this same principle applies to the omission of relevant information. Because the broadcaster included the information above in its follow-up story the next evening and remedied its omission, the Authority considers that Standard 5 was not breached in this respect.

Standard 4 (balance)

[121]   Standard 4 requires that balance be provided when controversial issues of public importance are discussed. In the Authority’s view, the programme complained about did not discuss such an issue. While the wider issue of surgeons influencing hospital waiting lists was mentioned in the introduction, the item itself focused solely on the individual case of AB. In this respect the Authority finds that the balance standard did not apply. However, it considers that Mr Mason’s concerns in this respect have been adequately addressed in its consideration of Standards 5 and 6 above.

Bill of Rights

[122]   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 of an item on Close Up  by Television New Zealand Ltd on 1 August 2006 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[123]   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.

[124]   Mr Mason submitted that the Authority should order:

• A broadcast statement at the commencement of Close Up either on a Tuesday or Wednesday, including an apology.
• A “significant award” of legal costs pursuant to s16(1). He provided invoices for legal costs totalling $18,863.87.
• Costs to the Crown in the amount of $5,000.

[125]   TVNZ submitted that any orders should reflect the fact that the issues were not “cut and dried”. It also suggested that Mr Mason did not need to instruct a solicitor to make his complaint. It submitted that publication of the decision was sufficient.

[126]   The Authority has considered the submissions from both parties. It is of the view that it is appropriate to order TVNZ to broadcast a statement containing a comprehensive summary of its decision. However, the Authority declines to impose an order requiring TVNZ to broadcast an apology to Mr Mason. Although the allegations made against Mr Mason in the programme were serious in terms of his professional reputation, the Authority has ordered apologies only rarely and in exceptional circumstances. It does not consider that an apology is warranted in this case.

[127]   In terms of legal costs, the Authority has considered Mr Mason’s submissions with reference to its advisory opinion on costs awards. It refutes TVNZ’s argument that Mr Mason did not need to instruct a solicitor. In determining whether to order a contribution towards legal costs, the Authority does take into account the relatively straightforward complaints process. However, the Authority considers that it is not unreasonable for a complainant to be concerned about protecting his personal and professional reputation and to seek legal advice in pursuing his complaint.

[128]   The Authority’s policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances. In determining “reasonable costs” in this case, the Authority has had regard to the:

• the complexity of the factual background in this case
• the number of issues raised
• the number of substantive submissions that needed to be made
• the fact that the Authority required the production of affidavits
• the long time span of the complaint.

[129]   Having considered these factors, the Authority is of the view that $15,000 would be a reasonable amount of legal costs. It does not, however, consider that one-third of this amount adequately reflects the circumstances of this case. The nature of the allegations in the broadcast would have affected Mr Mason’s personal and professional reputation, thereby affecting his commercial interests. In the Authority’s view, an appropriate award of legal costs in this case would be 45% of Mr Mason’s reasonable costs, or $6,750.

The Authority also finds that an order of costs to the Crown is warranted to mark the departure from broadcasting standards on this occasion. The Authority has upheld three aspects of Mr Mason’s accuracy complaint, and found that he was not offered a reasonable opportunity to respond. In these circumstances, it considers that TVNZ should pay costs to the Crown in the amount of $2,500.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during Close Up on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision.
  

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $6,750, within one month of the date of this decision.

3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
14 August 2007

Appendix

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

2.           Rhett Mason’s formal complaint – 28 August 2006
3.           TVNZ’s decision on the formal complaint – 28 September 2006
4.           Mr Mason’s referral to the Authority – 27 October 2006
5.           TVNZ’s response to the Authority – 27 November 2006
6.           Mr Mason’s final comment – 14 December 2006
7.           TVNZ’s response to the Authority’s request for information – 8 March 2007
8.           Affidavits provided by TVNZ – 22 March 2007
9.           Affidavits provided by Mr Mason – 4 April 2007
10.         Further information from the broadcaster – 16 April 2007
11.          Further information from the complainant – 23 April 2007
12.         Mr Mason’s submissions on orders – 26 June 2007
13.         TVNZ’s submissions on orders – 13 July 2007