BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Holmes – incident involving alleged doctor-on-doctor assault – interviewee commented on profession’s reaction to incident – three complaints – allegedly unbalanced, inaccurate and unfair to doctor and others

Findings
Standard 4 (balance) – unbalanced – Mr Ngaei’s viewpoint not advanced – reasonable efforts to obtain his views not made – upheld

Standard 5 (accuracy) – item contained inaccuracies – upheld

Standard 6 (fairness) – item unfair to Mr Ngaei – upheld

Standard 6 (discrimination) – item did not encourage discrimination against doctors – not upheld

Orders
$1,700 costs to complainant
$2,500 costs to Crown

This headnote does not form part of the decision.

Broadcast

[1] An item on Holmes broadcast at 7.00pm on 14 April 2004 described an incident involving George Ngaei, then the Clinical Director of General Surgery at Southland Hospital, who had allegedly been given a serious warning by his employer after attacking a registrar some months earlier.

[2] The programme detailed the allegations, and then interviewed Dr Pim Borren, a health economist from Christchurch, who spoke in general terms about whether the medical profession’s reaction to the incident had been sufficient and appropriate, and about whether aspects of patients’ rights and safety were raised by the incident.

Complaints

[3] Three complainants referred complaints about the broadcast to the Broadcasting Standards Authority.

Association of Salaried Medical Specialists

[4] The Association of Salaried Medical Specialists (ASMS) complained to Television New Zealand Ltd, the broadcaster, that the programme was “incompetent” and that by “failing to undertake basic preparation and research” breached broadcasting standards requiring balance, fairness and accuracy.

[5] The ASMS wrote:

This incompetence and failure to adhere to fundamental standards of balance, fairness and accuracy has damaged the reputation of Mr Ngaei and the reputation of all specialists, particularly general surgeons, who work in both provincial and metropolitan public hospitals.

[6] The ASMS considered that those who were responsible for the item were irresponsible in not consulting the ASMS about the background and/or substance of the matters covered, and in not consulting TVNZ’s own specialist health correspondent. The ASMS stated that, given that:

• the incident involving Mr Ngaei was “clearly an employment issue” and
• ASMS is the recognised union representing salaried senior doctors
• it was a “rudimentary requirement of proper preparation to seek advice and input from the Association.”

[7] ASMS said it was driven to make the complaint because it was “appalled by the display of incompetent and irresponsible journalism disclosed in the item”. It wrote:

The programme was little more than a collection of sweeping, uninformed, unsubstantiated and highly damaging accusations and comments; as a whole and in several specific respects the item was grossly unbalanced, unfair and inaccurate.

[8] Under Standard 5 (accuracy), the ASMS complained about the following alleged inaccuracies:

Because the incidents involved doctor to doctor issues the matter was out of the hands of the Health and Disability Commissioner

• The item failed to recognise the significance of the Commissioner’s decision not to investigate; that is, that the complaint was not within the Commissioner’s jurisdiction in that it did not involve a potential breach of the Code of Health and Disability Services Consumers’ Rights. The Commissioner concluded there were no issues of patient safety. The ASMS maintained that the item was unfair and inaccurate in going on to “insist that patient safety remained an issue”, which it did by stating that it had invited a Southland Hospital senior manager to appear to “ask her whether she could guarantee patient safety”.

Holmes was aware of a second alleged incident in which Mr Ngaei jabbed another registrar with a used needle

• In the ASMS’s view the implication that the second incident was a deliberate assault was misleading and therefore inaccurate. No evidence was presented in support of the implication, and it was not reported that “needle-stick” injuries are a “very common type of accident in medicine”.

Anonymous Southland DHB employee: the incidents have led to surgeons working together but not communicating

• In the ASMS’s opinion, this statement, followed by questions about whether patients could be safe in such an environment, was mischievous and inaccurate. The Health and Disability Commissioner had no concern that patient safety was being compromised, it wrote.

Dr Pim Borren – described as a “health economist”

• ASMS maintained that the item was misleading in that it failed to indicate whether or not Dr Borren was a medical doctor, and left open the strong possibility, given the nature of the questions to him, that he was. Dr Borren’s use of the word “we” later in the programme also left the impression he was part of the medical profession.
• The ASMS said it understood Dr Borren was not medically qualified. It wrote:

  In this regard Holmes was misleading and left an inaccurate impression that Dr Borren was an expert or at least more competent than any other member of the public to comment on the serious issues raised by the programme. Dr Borren was fed a series of questions which simply invited him to endorse the extravagant and emotional propositions made by Susan Wood. There was not a single challenge to any of his responses from the interviewer. He was asked about matters of fact and his responses were frequently inaccurate or misleading. He was not an expert and came across as a ‘stool pigeon’ to support the presenter’s misleading, inaccurate and emotional assumptions.

[9] The ASMS complained that the following statements made by Pim Borren were incorrect and provided reasons (in bullets) for its assertions:

If it happened in any other profession it would be cause for dismissal

• This was an “extraordinary and erroneous” claim which was “at best a generalisation and at worst a provocative exaggeration”. An employment law expert would have informed viewers that there are many cases of proven workplace assault that have not resulted in dismissal, and would have warned against “drawing hasty judgments on insufficient or inaccurate information.”

We don’t have access in New Zealand to basic information, such as operation success rates and patient satisfaction surveys

• The statement was “demonstrably inaccurate and untrue.” All DHBs are required to undertake patient satisfaction surveys, and have in place a rigorous process for dealing with patient dissatisfaction and complaints.
• The ASMS wrote:

  Once again Dr Borren is portrayed as an authority in an area in which he apparently lacks even basic general knowledge let alone particular expertise. He made no reference to internal peer review, clinical audit programmes and other professional processes that senior doctors are required to participate in, by their employers and their Colleges. Nor did he refer to or appear to be aware of the statistical and personal information that is readily available from the Medical Council, the Health and Disability Commissioner’s Office and the public records of the Medical Practitioners’ Disciplinary Tribunal about patient complaints and disciplinary proceedings against individual (and frequently named) doctors.

They [Southland Health] struggle to employ surgeons down there because they just can’t compete with world rates of pay

• Dr Borren’s comments exposed his “lack of knowledge and personal prejudice”. In fact, based on DHB data, on 1 July 2002 the average full-time equivalent salary in Southland was $133,379, the third highest rate of 21 DHBs and compared with the national average of $121,093. To the extent that international conditions of employment for medical specialists are superior, one would expect them to impact equally on provincial and metropolitan hospitals.

We absolutely have a system where perhaps the main centres that can pay more may get better doctors, better medical care

• Dr Borren had no clinical or professional expertise and produced no evidence to support his “very damaging accusations” that there is a three tier differential in the calibre of specialists and medical treatment: the rest of the world; larger New Zealand hospitals; smaller provincial hospitals. No balancing comment was provided by Holmes.
• Dr Borren’s comments ignored that New Zealand trained doctors are highly sought after internationally, and there is no evidence to suggest that specialists in smaller provincial hospitals are inferior. Many choose to work in smaller centres because of the attractive lifestyle, including ready access to the outdoors. Some specialists prefer the greater range of work available in smaller hospitals.

In [bigger centres] specialists are able to specialise rather than work in general surgery.

• This statement displayed “extraordinary ignorance” of surgical practice. Most hospitals, large or small, employ general surgeons, and general surgery is a specialty in itself. It would have taken “little investigatory work” to learn from the Medical Council that general surgery is a recognised specialty, and has the largest number of practitioners (257 in the year ended 31 March 2003) of the 10 or so surgical specialties.
• Dr Borren’s opinion was “false and insulting to the single largest group of surgical specialists in this country” and it was difficult to imagine how “anyone with a basic understanding of medical practice could have made such a blunder.”

Doctors involved in poor or unprofessional conduct are protected by their colleagues

• This “sweeping accusation” was based on “personal prejudice rather than credible evidence.” The incidents involving Mr Ngaei did not raise questions about his clinical competence or reliability or suggest erratic or unstable behaviour, and the implications to the contrary may have seriously damaged his reputation.

Why in this case would Southland DHB protect this guy?

• The presenter’s statement was disgraceful and defamatory, implying that he is unfit to practice and a menace to the Southland public.
• There was no evidence provided by the presenter or Dr Borren that doctors protected other doctors in Southland or elsewhere in New Zealand.

[10] ASMS complained that it had notified a Holmes producer about the errors of fact, but Holmes had failed to correct the errors and had inaccurately summarised the statement in the programme the next night.

[11] ASMS also maintained that the allegedly inaccurate statements might have unnecessarily alarmed viewers and undermined patients’ confidence in general surgeons and smaller hospitals.

[12] ASMS also alleged that TVNZ had failed to maintain its editorial independence and integrity, as its reporter had a clear conflict of interest, having previously presented a story about Mr Ngaei which was the subject of an upheld complaint to the Authority (Decision No: 1991-037). It wrote:

The appearance is that this Holmes item is the reporter’s long awaited vindictive response to his previous embarrassment at the hands of Mr Ngaei and the BSA in 1991.

[13] ASMS also considered that the integrity of the report was suspect, given:

• the item was broadcast while Mr Ngaei was in the Cook Islands
• the reporter’s efforts to contact Mr Ngaei appeared limited to a single message on his cell phone (although it said he had a publicly listed telephone number in the Cook Islands)
• the reporter did not contact ASMS, as Mr Ngaei’s union, or involve or consult TVNZ’s senior health reporter.

[14] As to Standard 4 (balance), ASMS noted:

• Holmes did not make reasonable efforts to contact Mr Ngaei, although he would not have been difficult to track down. It maintained that the programme should have been held over until Mr Ngaei was able to respond to the damaging allegations made against him.
• Holmes made no effort to contact ASMS, which was available to comment.
• Holmes made no effort to balance Dr Borren’s controversial and allegedly inaccurate statements.

[15] ASMS maintained that the programme was unfair to Mr Ngaei as it:

• misrepresented his status as a general surgeon as somehow not being a full specialist
• misrepresented the nature of the action taken against him being inappropriate protection involving collusion between doctors
• failed to give him a reasonable opportunity to respond
• failed to give his union an opportunity to respond
• did not refer to the fact that Mr Ngaei was remorseful about the incident, had immediately and voluntarily stepped down from his position as Clinical Director and had apologised personally and in writing to the registrar concerned who had accepted his apologies.

[16] ASMS maintained that the programme was unfair to other surgeons in provincial hospitals, particularly Southland as it:

• presented them as inferior surgeons who could not compete with big city or overseas surgeons
• failed to allow them or their union to put their point of view.

[17] ASMS considered that the item was unfair to it, as it gave the impression that it was not available to talk on the issues.

[18] ASMS complained that standards relating to accuracy, balance and fairness were breached with the presenter’s question to Dr Borren:

There is very much the appearance in this sort of, you know, doctors protecting their own; the old boys rank, you know the old boys’ club closing ranks?

[19] ASMS said that this question was put on the basis that the employer, the Health and Disability Commissioner, the Ministry of Health, a union with no involvement in the issue and the Medical Council declined to appear on the programme.

[20] ASMS maintained that there was no reasonable link between those individuals and organisations refusing to appear and the allegation about doctors protecting their own.

[21] ASMS noted that Dr Borren was asked to comment on this and said “there’s no question about that”. ASMS wrote:

The clear implication is that he had some expertise in this area but that it demonstrably not so.

Mr Ngaei

[22] In his formal complaint to TVNZ, Mr Ngaei “concurred with” the issues taken in the ASMS’s formal complaint (which was attached). Mr Ngaei further complained that:

• no attempt was made to obtain a response from him before the matter went to air
• the reporter had previously presented a story about Mr Ngaei which was the subject of an upheld complaint to the Broadcasting Standards Authority (Decision No: 1991-037), which raised “issues of bad faith”.

New Zealand Medical Association

[23] The New Zealand Medical Association (NZMA) complained to TVNZ that the item breached standards of accuracy, fairness and balance. It wrote:

Instead of treating the incident as an employment issue, the Holmes interview chose to focus on doctors’ competency and accountability (which are entirely different issues).

The interview was manifestly unbalanced and unfair, and essentially consisted of the expression of ill-informed and biased personal views. Ms Wood asked pejorative questions based on out-of-date and misleading stereotypes of the medical profession. Dr Borren, as a “health expert” would have been expected to demonstrate a reasonable knowledge about the medical profession and its accountability systems. He did not.

[24] NZMA maintained that no evidence was presented to support the arguments offered in the item. It wrote:

There was no factual information given about the accountability systems which are in place for the medical profession (which is subject to accountability processes, including statutory processes, which regulate their practice).

[25] NZMA considered that the presenter portrayed a stereotypically negative view of doctors, and Dr Borren’s answers reinforced this.

[26] NZMA noted that the apparent unwillingness of the people mentioned in the item as having declined to appear on the programme, was no basis for the “closing ranks” allegation made by the presenter and Dr Borren, and no evidence was provided in support of it.

[27] NZMA considered that other questions and answers reflected the item’s bias. It also said Dr Borren was vague about the accountability of doctors and the item suggested that the monitoring of doctors in New Zealand was inadequate and the profession colludes to protect incompetent doctors.
Standards

[28] TVNZ assessed the complaint under the following standards in the Free-to-Air Television Code of Broadcasting Practice:

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.

Guideline 5a

Significant errors of fact should be corrected at the earliest opportunity.

Guideline 5b

Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

Guideline 5c

Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

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.

Guideline 6g

Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

iii) in the legitimate context of a dramatic, humorous or satirical work.

Broadcaster's Responses to the Complainants

TVNZ’s response to the ASMS

[29] TVNZ’s complaints committee advised that it could not reconcile the information in the ASMS’s letter with the information it received from Holmes. It wrote:

While your letter states that the Association of Salaried Medical Specialists was not contacted in advance of the programme, the Holmes team insisted that it was.

[30] TVNZ said that after the broadcast Holmes received a telephone call from the ASMS saying that it was horrified by Dr Borren’s comments and would have come on had it known what he was going to say. It said Dr Borren’s comments were the expressions of genuinely-held opinion, and the failure of others to take part was not a reason why a legitimate interview should have been abandoned.

[31] Under Standard 5 (accuracy), in relation to the complaint about the item’s failure to recognise the significance of the Health and Disability Commissioner’s decision not to investigate, TVNZ noted that the presenter had in fact asked Dr

[32] Borren a question about the significance of this being a “doctor to doctor” issue.

[33] TVNZ noted that it was the role of the television interview to present the issue as it would strike a “man in the street”. It continued:

Clearly the publicly recorded incident involving Mr Ngaei must raise in the minds of ordinary citizens concerns about what such alleged behaviour means to them, as patients. While it was not explored in depth, the presenter did ask Dr Borren about the distinction between something being a ‘doctor to doctor’ issue, and the issue of the information a member of the public could expect to receive about a doctor he or she might encounter in the public health system.

[34] In relation to the needle jab, TNVZ said the programme did not state that the jabbing incident was deliberate. In the context of the Southland incident it was of public interest and significance, it added.

[35] TVNZ noted that the protection of anonymous sources was a fundamental principle of journalism, and that it was satisfied that the person concerned was in a position to know and make the reported comments, which were that person’s genuinely held expressions of opinion.

[36] TVNZ said it was satisfied with Dr Borren’s qualifications to speak. It said it understood that he was “a qualified doctor, and… a respected health economist” and:

Clearly the programme would have welcomed comments from some of the other authoritative sources invited, but in the circumstances believed it was proper and relevant that a person able to provide an overview be interviewed, especially as the topic raised questions about patients’ rights in the public health system. The comments you challenge were expressions of genuinely held opinion by Dr Borren and broadcasters are required to acknowledge the right of individuals to express such opinions (guideline 6d). Your association and others were invited to take part but declined to do so.

[37] As to ASMS’s complaint that TVNZ had failed to respond to its complaints of inaccuracy, TVNZ considered that the statement it broadcast the night after the initial broadcast had adequately summarised feedback Holmes had received about the programme.

[38] TVNZ also disagreed that it had broadcast material which was misleading or unnecessarily alarming to viewers. It said it believed that the issues raised were of genuine public concern and that the news media had an obligation to follow up on such areas of concern. It added that while the incident was a “doctor on doctor” matter, it raised legitimate questions of the rights of patients within the public health system.

[39] TVNZ did not believe the story threatened the editorial independence and integrity of the news service, noting that the story was already in the public domain, having been published in the “Southland Times”.

[40] As to balance, TVNZ rejected the ASMS’s view that Holmes did not make reasonable efforts to contact Mr Ngaei. It considered the attempts made to contact him were extensive, citing numerous calls made to Southland Hospital and noting that the hospital did not advise it that Mr Ngaei was out of the country.

[41] TVNZ also considered that it had made every effort to balance Dr Borren’s comments. It said that a number of relevant organisations, including ASMS, had been invited to participate but had declined.

[42] Turning to Standard 6 (fairness), TVNZ accepted that it was unfair to Mr Ngaei to fail to acknowledge that the reporter had been found to have breached broadcasting standards on a previous occasion in relation to a story about Mr Ngaei. It commented:

…it seemed that the reporter may have overlooked an event that occurred 13 years previously, but [TVNZ] felt he ought to have alerted the Executive Producer to what might be considered a potential conflict of interest. Had he done so, another reporter would likely have been assigned to the story.

It upheld this aspect of the complaint as a breach of Standard 6.

[43] TVNZ did not uphold any other aspect of ASMS’s complaints that the broadcast was unfair to Mr Ngaei or others.

[44] TVNZ did not agree that the opening statement posed by the presenter was inappropriate. It said:

It was important to advise at the outset that relevant spokespeople had been invited to appear on the programme but had declined to do so. Having done that, the question which must have been uppermost in the average viewer’s mind was “why won’t they appear?” That was the question put to Dr Borren, together with the “old boy’s club” observation that similarly must have struck any viewer of ordinary sensibilities.

TVNZ’s response to Mr Ngaei

[45] In its response to Mr Ngaei, TVNZ enclosed a copy of its response to ASMS’s complaint. It reiterated the following points made in the letter to ASMS:

• Holmes made “strenuous efforts to get hold of Mr Ngaei” before the programme was broadcast.
• It upheld the complaint that it was unfair to Mr Ngaei not to acknowledge that the reporter had a potential conflict of interest. It was noted that had the reporter told the Executive Producer of Holmes, a different reporter would have been assigned to the story.

TVNZ’s response to the NZMA

[46] TVNZ did not uphold the NZMA’s complaint.

[47] TVNZ noted that Holmes had understood from a reliable source that a report on the Ngaei incident was to be issued the following day. It explained that Holmes had prepared to discuss the incident and invited participation from a number of interested parties all of whom had declined to take part. When it became clear that the report was not going to be released the next day, those invited were asked again to come on the programme and discuss general issues raised by the incident. Again, all declined.

[48] TVNZ noted that it was not the role of news and current affairs programmes to censor what was said by interviewees and pointed to Guideline 6d in the Television Code, which provides that broadcasters should acknowledge the right of individuals to express their own opinions. In TVNZ’s view Dr Borren’s comments were genuinely-held opinions.

[49] TVNZ also noted that the failure of others to take part in the item should not be a reason to abandon a legitimate interview. In its view it had complied with the requirements of Standard 4 by extending opportunities to relevant parties to participate in the item. In addition, TVNZ did not consider that the interviewer was biased.

[50] In TVNZ’s opinion, the item had been presented as it would strike the “man in the street”, who would want some answers about what such an incident might mean in the area of broader patients’ rights.

[51] As to the “somewhat disparaging” remarks made about Dr Borren, TVNZ said it understood he was a “qualified doctor” and a “respected health economist” in a position to “take a step back in assessing New Zealand’s health systems – a role in which he has been used in the media as an expert commentator since at least 1993”.

[52] As to the presenter’s opening question, TVNZ said:

… it was clearly appropriate, given the general refusal by other groups to participate.

Further, TVNZ said it could not understand why the complainant considered the comment was pejorative, and noted that the interviewer could not be held responsible for the genuinely held opinions of her guest.

[53] As to standard 5 and 6, TVNZ stated that the remarks which NZMA found alarming, misleading or unfair were genuine expressions of opinion by Dr Borren.

Referrals to the Authority

ASMS’s Referral
[54] ASMS contended that TVNZ had not given its complaint due regard. It made the following points:

• It denied TVNZ’s assertion that ASMS had been contacted to participate on the programme.
• It alleged that Holmes gave the misleading impression that Dr Borren was a medical doctor and “by implication” was authoritative to comment on the issues put to him.
• ASMS stated that TVNZ had not addressed its concern that Dr Borren was used as an “expert” in areas where he had no expertise and sometimes showed “considerable ignorance”.
• TVNZ did not address the issue of why Holmes had not used TVNZ’s usual health correspondent.
• It reiterated that the “derogatory” reference to the “old boys’ club” was not reasonably applied.

Mr Ngaei’s Referral

[55] Mr Ngaei’s referral:

• denied that Holmes made strenuous efforts to contact him in relation to the programme
• questioned TVNZ’s claim that the reporter had overlooked the fact he had been the reporter in a prior broadcast about Mr Ngaei which was the subject of an upheld complaint to the Authority
• did not accept that Dr Borren was qualified to comment on the matters put to him.

NZMA’s referral
[56] In its referral NZMA:

• noted that Dr Borren is not a medical doctor and commented:
  
      Just because he was willing to appear on the programme did not make him a suitable
      person to talk about this topic.
  
  
• stated that neither NZMA nor ASMS was asked to appear
• reiterated that Dr Borren’s remarks and the presenter’s comments would have reinforced prejudices, rather than inform the “man in the street”.

Broadcaster’s Responses to the Authority

Response to ASMS

[57] TVNZ made the following observations:

• The programme did not identify Dr Borren as a medical doctor. He has three degrees including a PhD specialising in Health Economics and his particular field of interest is qualitative care and patient outcomes in the public health sector.
• Dr Borren did not comment specifically about Mr Ngaei – he spoke generally about public health issues from a user perspective.
• The Royal College of Surgeons, while declining to appear on the programme nevertheless acknowledged that there was a public interest in the story.
• It did not accept that Dr Borren’s comments were “not opinion based on authority”.
• The reason Holmes embarked on the story was because its editorial team considered that there were legitimate public interest issues that needed to be addressed.

Response to Mr Ngaei

[58] TVNZ made the following points in its response to Mr Ngaei’s referral:

• It reiterated that Holmes made reasonable efforts to contact Mr Ngaei and provided reasonable opportunity for him to participate in the programme.
• It repeated that TVNZ had upheld part of the complaint relating to the reporter’s radio broadcast about Mr Ngaei 13 years earlier.

Response to NZMA

[59] In response to NZMA’s referral, TVNZ accepted that Dr Borren was not a medical doctor, and repeated the points made in its response to ASMS about Dr Borren’s participation and the public interest in the item.

Complainants’ Final Comments

ASMS’s Final Comment

[60] ASMS:

• reiterated that it was not contacted to appear on the programme
• stated that TVNZ had ignored the issue it raised that organisations invited to participate were led to believe that the programme was about the Ngaei incident and declined to participate on that basis without knowing the full range of issues that would be discussed
• reiterated that Dr Borren “knew nothing about the story”
• commented that:

  it can never be in the public interest for items which are untrue, unbalanced and actuated by malice to be broadcast. The broadcast of items which breach broadcasting standards is by definition outside the public interest, since the public interest lies in the upholding of those standards. If indeed there were legitimate public interest issues to be addressed they were not addressed in the item, either by the piece from a reporter with a conflict of interest, or in the so-called interview based on leading questions to a person completely unqualified to comment on a situation of which he was in any case entirely ignorant.

NZMA’s Final Comment

[61] NZMA did not consider that TVNZ’s response to its referral altered its complaint. While it agreed that doctor accountability was a matter of public interest, it said:

That is why it was so disappointing that the subject was treated in such a flippant manner, and that important questions about how the health system works in relation to doctors’ performance remained unasked and unanswered.

The general public watching this interview would have been encouraged to form an erroneous impression of the subject, based on out-of-date stereotypes and prejudiced comments.

Authority's Determination

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

Standard 4 (Balance)

[63] Standard 4 (balance) requires that when a programme deals with a controversial issue of public importance broadcasters must make reasonable efforts or give reasonable opportunity to present significant points of view either in the same programme or in other programmes within the period of current interest.

[64] In the Authority’s opinion, the “controversial issues” discussed in the programme were:

• whether patient safety was at risk as a result of incidents like the alleged attack on a registrar by Mr Ngaei
• the sufficiency of doctor accountability.

[65] In relation to each of these issues, the presenter and Dr Borren advanced the view that patient safety was compromised by the way the incident had been handled and that doctor accountability generally was deficient. The programme demonstrably attacked Mr Ngaei’s reputation and did not offer any competing viewpoints. However, it was noted that efforts had been made to contact Mr Ngaei and that several organisations had been invited to appear and each had declined.

[66] The Authority does not consider that reasonable efforts were made by the broadcaster to present significant views on the controversial issues which were discussed. ASMS and Mr Ngaei complained that better efforts ought to have been made to request comment from each of them. The Authority considers that, given the damaging nature of the comments made by the presenter and Dr Borren about the incident involving Mr Ngaei, it was incumbent on the broadcaster to contact Mr Ngaei or a representative qualified to speak on his behalf to solicit views different to those advanced. Although it was noted in the programme that Southland Hospital, the New Zealand Resident Doctors’ Association, the Health and Disability Commissioner, the office of the Health Minister and the Royal College of Australasian Surgeons had all been contacted and had declined to appear in the programme, none of these organisations was appropriate to speak for Mr Ngaei about the specific employment issue discussed in the programme. The Authority considers that ASMS, as the union representing senior doctors, was one organisation which could have been approached to comment for Mr Ngaei.

[67] The Authority notes that it was provided with conflicting accounts from the parties about whether reasonable attempts were made to contact Mr Ngaei and ASMS. ASMS claimed that no approach had been made to it. TVNZ maintained that ASMS had been contacted, but did not provide any evidence to support this. There was also some dispute about what attempts had been made to contact Mr Ngaei and, if so, the whether the attempts were sufficient. TVNZ provided (apparently incomplete) telephone records which it said showed that a number of telephone calls had been made to Mr Ngaei. These records appear to show that two calls were made to Mr Ngaei’s cell phone and that calls to Southland Hospital had also been made before the programme went to air

[68] The Authority also notes that TVNZ submitted that it had contacted all the organisations which it had said in the item had been approached. The ASMS was not one of those mentioned as having been approached

[69] In the Authority’s view, the item did not present all significant viewpoints on the controversial issues it discussed and did not make reasonable efforts to obtain those views. Even erring in favour of TVNZ’s submissions on the conflicting evidence about TVNZ’s efforts to contact Mr Ngaei and ASMS, the Authority does not accept that reasonable efforts were made to contact Mr Ngaei. Accordingly, it finds that the programme was unbalanced and breached Standard 4.

Standard 5 (Accuracy)

[70] The complainants considered that the broadcast was inaccurate in a number of respects. For the reasons set out below the Authority upholds the following aspects of the complaints made by Mr Ngaei and ASMS:

• The reporter’s mention of a needle stick incident involving Mr Ngaei and another registrar in 2002 misleadingly implied it was a deliberate assault.
• Dr Borren’s statement that the main centres can pay more for doctors than regional areas was inaccurate.
• Dr Borren’s statement that Mr Ngaei’s actions would have been cause for dismissal in any other profession was inaccurate.
• It does not uphold any of the other aspects of the accuracy complaints.

Health and Disability Commissioner’s decision

[71] ASMS and Mr Ngaei complained that the item had failed to recognise the significance of the Health and Disability Commissioner’s decision not to investigate the incident because there were no issues of patient safety raised, and inaccurately stated that patient safety remained an issue at Southland Hospital. The Authority does not consider that the item was inaccurate in this regard. In its view, the item queried the significance of the Health and Disability Commissioner’s decision and also queried whether patient safety was at risk. Questions were raised, but no inaccurate statements were made.

Needle Stick incident

[72] The Authority considers that the item implied that the needle stick incident, which was referred to by the presenter as being a second incident involving Mr Ngaei and a registrar, was a deliberate assault. ASMS was asked to provide substantiating evidence to show that the assault was accidental. In response to this request it explained:

Mr George Ngaei has adamantly and expressly denied to us any such deliberate action as claimed by the Holmes programme. He is also adamant that the incident was an accident. No complaint or incident report has ever been made. This would normally occur in the event of such a serious incident, which would be unusual not to be witnessed in an operating theatre.

[73] The Authority accepts ASMS’s report on the incident and finds that the item was inaccurate in its portrayal of this incident as a deliberate attack. Accordingly, it upholds this aspect of the complaints made by ASMS and Mr Ngaei.

Question about how patients could be safe in an environment where doctors weren’t communicating

[74] The Authority considers that the item was not inaccurate in relation to the juxtaposition of an allegedly inaccurate comment made by an anonymous Southland DHB employee and questions about how patients could be safe in an environment where doctors were not communicating. In the Authority’s view the comments made by both the anonymous employee and the presenter were presented as their opinion rather than as points of fact. Accordingly, this aspect of the complaints made by ASMS and Mr Ngaei is not upheld.

Dr Borren as “expert”

[75] ASMS and Mr Ngaei each complained that the item implied inaccurately that he was an expert commentator in relation to the issues covered in the broadcast. The Authority does not agree. Although TVNZ stated in correspondence that it believed, initially, that Dr Borren was a medical doctor, no such claim was made or implied in the item. The item described Dr Borren as a health economist (which he is) and he purported to answer questions and give his opinions on that basis. The Authority does not uphold this aspect of the complaints.

Statement on employment law by Dr Borren

[76] ASMS and Mr Ngaei complained that Dr Borren inaccurately stated that, in any other profession, Mr Ngaei’s actions would have been cause for dismissal. The Authority accepts that Dr Borren’s statement was not correct. The Authority upholds this aspect of the complaints.

Lack of availability of basic accountability information

[77] The Authority was provided with a large volume of information by ASMS to show that accountability measures are in place in the medical profession, contrary to assertions made in the item. However, the information provided did not relate to the accountability of separately identifiable individual doctors. In the Authority’s view the comments about lack of accountability were made in the context of the ability of consumers to be able to check the track record of individual doctors in relation to success rates and patient satisfaction. In these circumstances, the Authority finds that the item was not inaccurate.

Lack of ability for Southland Hospital to compete with “world rates of pay”

[78] The Authority considers that this aspect of the complaints is based on a statement made by Dr Borren which is too ambiguous to require substantiation in the context of such an item lacking a specific focus. The Authority does not determine this aspect of the complaints by ASMS and Mr Ngaei.

General surgery not a specialisation

[79] The Authority considers that the inference that general surgery was not a specialisation was not made in the item. What Dr Borren actually said was that in bigger centres than Southland, specialists are able to specialise, rather than work in general surgery. In the Authority’s view, this statement conveyed to viewers that the scope for electing specialisations could be more limited in Southland. Accordingly, it does not uphold this aspect of the complaints by ASMS and Mr Ngaei.

Dr Borren’s statement that the main centres could pay more and therefore get better doctors and care

[80] The Authority considers that the item was inaccurate in relation to the statement of fact made by Dr Borren about relative New Zealand pay rates. ASMS provided comparative salary information to support its claim that the statement was inaccurate and the Authority accepts that Dr Borren’s assertion was wrong. It finds that the complaints by ASMS and Mr Ngaei were justified on this point and upholds this aspect of their complaints as a breach of Principle 5 (accuracy).

Dr Borren’s statement that bad doctors are protected by colleagues

[81] ASMS and Mr Ngaei complained that the item inaccurately stated that “doctors involved in poor or unprofessional conduct are protected by their colleagues”. The Authority notes that what was said in the item was

Susan Wood:    What happens to incompetent or unstable or erratic doctors, they continue
                       to be protected by their colleagues, is that what happens?

Pim Borren:      Yes, most of the time they do. It’s a very unusual thing. I mean in my view
                       it’s very unprofessional to protect poor treatment and poor work ethics by
                       doctors, but the doctors themselves believe that it’s unprofessional to
                       criticise their colleagues.

[82] In the Authority’s view, the apparent statement of fact made by Dr Borren – that doctors themselves believe that it’s unprofessional to criticise their colleagues – was not one which was capable of being verified. Accordingly, the Authority declines to determine this aspect of the complaints.

Failure to correct errors

[83] ASMS and Mr Ngaei complained that TVNZ breached Guideline 5a (“significant errors should be corrected at the earliest opportunity”) by failing to correct errors made in the item and by inaccurately summarising on the next night’s Holmes show a statement which ASMS had emailed to the programme after the original broadcast.

[84] The Authority has read the email from ASMS and the statement on Holmes and does not consider that the broadcaster breached Standard 5 (Guideline 5a). In its view the statement broadcast by the broadcaster was not misleading.

Item misleading and alarming/NZMA’s complaints

[85] ASMS and Mr Ngaei considered that the item had undermined patient confidence in general surgeons and smaller hospitals. The Authority does not uphold this aspect of the complaints as it does not consider that this was the effect of the item. In the Authority’s view, the item asked questions and offered opinions about matters relating to patient safety in a manner which fell well short of being misleading or alarming.

[86] Similarly, the Authority does not uphold the aspects of NZMA’s complaints which related to what NZMA considered were suggestions that:

• patients are at risk
• regional doctors are less competent
• the “old boys club” closes ranks to protect doctors.

In the Authority’s view, these general complaints about inaccuracy related to opinions rather than separately identifiable points of fact and the Authority finds that Standard 5 was not breached.

Editorial independence and integrity

[87] Finally, as to the claim by ASMS and Mr Ngaei that the item breached editorial independence and integrity, the Authority agrees with TVNZ that this was not the case and does not uphold this aspect of the complaints.

Standard 6 (Fairness/Discrimination)

[88] ASMS and Mr Ngaei submitted that the programme was unfair to each of them, and also to surgeons in provincial hospitals.

[89] The Authority notes that Standard 6 applies to people and organisations that are referred to in an item. ASMS was not referred to in the item and, accordingly, there is no basis to the claim that the programme breached Standard 6 in relation to it.

[90] However, the Authority is of the opinion that the item was unfair to Mr Ngaei. As noted above, the item demonstrably attacked Mr Ngaei’s reputation and the broadcaster did not make reasonable efforts to contact him or an authorised representative to answer the specific allegations against him. In these circumstances, the Authority considers that the item was unfair and breached Standard 6.

[91] In addition to the general complaint that the item was unfair, NZMA considered that a different aspect of Standard 6 had been contravened. It complained that the item encouraged discrimination against doctors, as it portrayed a stereotypically negative view of doctors, implying that the profession has few accountabilities and that incompetent doctors are protected.

[92] Guideline 6g states that broadcasters should avoid portraying people in programmes in a manner which encourages denigration of or discrimination against sections of the community on account of, inter alia, their occupational status. The Authority considers that the item fell well short of encouraging denigration of doctors, especially in light of its unspecific focus. As the threshold for breaching the guideline was not even approached, the Authority does not uphold this aspect of NZMA’s complaint.

[93] The Authority concludes that the item did not breach Standard 6, Guideline 6g.

Bill of Rights

[94] 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 complaints made by each of the complainants that the broadcast by Television New Zealand Ltd of an item on Holmes on 14 April 2004 breached Standard 4 (balance). It also upholds aspects of the complaints made by the Association of Salaried Medical Specialists and George Ngaei that the broadcast breached Standard 5 and Standard 6 of the Television Code.

It does not uphold any other aspect of the complaints.

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

[96] TVNZ submitted that:

• if an order were considered appropriate, TVNZ should write a personal apology to Mr Ngaei and place an advertisement in “The Southland Times”
• broadcasting a statement would be inappropriate due to the complex nature of the Authority’s decision.

[97] NZMA considered that a statement and an apology would be appropriate.

[98] Mr Ngaei’s counsel submitted that the BSA should order:

• TVNZ to pay $5,000 costs to the Crown and $2,000 “actual” costs to Mr Ngaei
• TVNZ to refrain from broadcasting advertisements for 24 hours on a Wednesday.

[99] Alternatively, it submitted that TVNZ should undertake to make a one-hour documentary about professional accountability and the responsibility of the media.

[100] ASMS considered that the Authority should require:

• the broadcast of a statement on Close Up at 7, to include a comment on Brent Fraser’s inappropriate role and to name Brent Fraser and the producer, but not Mr Ngaei
• $5000 costs to Mr Ngaei, and a charity of his choice
• TVNZ to screen a replacement “special documentary on the responsibility and accountability of professionals”
• TVNZ to be advised of the deficiencies in its internal communications between news and current affairs teams.

[101] The Authority has considered the submissions made by the parties. It notes that many of the submissions asked the Authority to make orders which are beyond its statutory powers to make. The Authority cannot direct that any costs be paid to Mr Ngaei other than his actual costs (see s 16 of the Broadcasting Act); it cannot order a broadcaster to make a payment to a charity; nor has it any power to require a broadcaster to commission a television programme.

[102] Taking into account the complexity of any broadcast statement that would adequately summarise the decision, while also acceding to Mr Ngaei’s requests that he not be named in any such statement, the Authority considers that the broadcast of a statement is not appropriate on this occasion.

[103] In the view of the Authority it is also inappropriate to make an order that TVNZ refrain from broadcasting advertising. While in the Authority’s opinion, this broadcast was clearly in breach of broadcasting standards, the breach was not of such seriousness to require an order of that magnitude.

[104] The Authority has considered other appropriate means by which to mark its concern at the breach of broadcasting standards. Had the complainant not submitted that a statement would be inappropriate, the Authority would have been minded to order publication of such a statement. Given that this option is not available, the Authority considers that the most appropriate way to mark its concern in the present case is through an award of costs to the Crown.

[105] In the Authority’s view, in all the circumstances of this case, an award of costs to the Crown in the amount of $2500 is appropriate.

[106] The Authority also considers that it is appropriate to partly reimburse Mr Ngaei for legal costs. His counsel provided evidence to the Authority that actual costs were in the region of $2540, although Mr Ngaei claimed only $2000 in his submissions on order. In the view of the Authority, recovery of two thirds of Mr Ngaei’s actual costs is appropriate.

[107] Accordingly, the Authority makes the following orders:

Orders

1. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant Mr George Ngaei costs in the amount of $1700, within one month of the date of this decision.

2. 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 $2500, within one month of the date of this decision.

These orders shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2004

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

Ngaei Complaint

1. George Ngaei’s Formal Complaint to Television New Zealand Ltd – 12 May 2004
2. TVNZ’s Response to the Formal Complaint – 14 June 2004
3. Mr Ngaei’s Referral to the Broadcasting Standards Authority – 25 June 2004
4. TVNZ’s Response to the Referral – 4 August 2004
5. Mr Ngaei’s Submission on Orders
6. TVNZ’s Submission on Orders

ASMS Complaint

1. Association of Salaried Medical Specialists’ Formal Complaint to Television New Zealand Ltd
   – 7 May 2004
2. TVNZ’s Response to the Formal Complaint – 16 June 2004
3. ASMS’s Referral to the Broadcasting Standards Authority – 4 August 2004
4. TVNZ’s Response to the Referral – 4 August 2004
5. ASMS’s Final Comment – 27 August 2004
6. ASMS’s Further Letter – 6 October 2004
7. ASMS’s Submission on Orders
8. TVNZ’s Submission on Orders

NZMA Complaint

1. New Zealand Medical Association’s Formal Complaint to Television New Zealand Ltd
   – 23 April 2004
2. TVNZ’s Response to the Formal Complaint – 16 June 2004
3. NZMA’s Referral to the Broadcasting Standards Authority – 15 July 2004
4. TVNZ’s Response to the Referral – 4 August 2004
5. NZMA’s Final Comment – 19 August 2004
6. NZMA’s Submission on Orders
7. TVNZ’s Submission on Orders