BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
60 Minutes – item reported on a young man who died of meningococcal disease after being assessed and sent home by medical professionals – reporter interviewed the Chief Executive of Northland District Health Board about the circumstances surrounding the man’s treatment – allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Standard 5 (accuracy) – item did not create a misleading impression as to the doctor’s qualifications but clearly stated that he was a “doctor” and “senior trainee” close to sitting his exams – did not create a misleading impression by omitting information about the risks associated with lumbar punctures – the decision not to administer the test earlier was based on a misdiagnosis of the man’s condition as opposed to the perceived risks of the procedure – not inaccurate to report that the man died from meningitis – not upheld

Standard 6 (fairness) – NDHB’s viewpoint was included in the item through the interview with its CE – item did not create an unfairly negative representation about the conduct of those involved in the man’s treatment – not upheld

Standard 4 (controversial issues) – individual story was used to illustrate alleged failures in our public health system in battling meningitis – this amounted to a discussion of a controversial issue of public importance – significant viewpoints on this issue were included in the item – not upheld 

This headnote does not form part of the decision.

Introduction

[1]  An item on 60 Minutes entitled “Turned Away” was broadcast on TV3 at 7.30pm on 25 September 2011. The item reported on an 18-year-old man, Ben Brown, who died of meningococcal disease after being misdiagnosed by medical professionals. The reporter interviewed Ben’s family and the Chief Executive (CE) of the Northland District Health Board (NDHB) about the circumstances surrounding Ben’s treatment. In particular, the CE was questioned about the doctor who saw Ben at Whangarei Hospital and his decision not to administer a lumbar puncture earlier, despite the fact Ben displayed all of the symptoms for meningitis except one.

[2]  NDHB made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item was inaccurate and misleading and that the interview with its CE was unbalanced and unfair. It requested that a correction be broadcast on 60 Minutes outlining and upholding the substance of its complaint.

[3]  The issue is whether the item breached Standards 4 (controversial issues), 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The nature of the programme and freedom of expression

[5]  At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[6]  The item “Turned Away” was a serious investigative report into the case of Ben Brown, who died of meningococcal disease after he was assessed and sent home by medical professionals at a White Cross Medical Centre and Whangarei Hospital. It outlined the facts of the case including the symptoms experienced by Ben and the treatment he received. NDHB is currently undertaking an external review into Ben’s treatment which is also the subject of a complaint to the Health and Disability Commissioner (the Commissioner).

[7]  We consider that the type of speech engaged in the item was of high value. It highlighted the dangers associated with meningococcal disease in terms of its rapid onset and equivocal symptoms. It also investigated alleged inadequacies in our public health system and in particular the management of patients in our emergency departments (EDs). The item contributed to the advancement of knowledge, both in terms of equipping the audience with the information necessary to recognise the symptoms of meningitis, and with regard to highlighting the need for medical professionals to exercise extreme caution and vigilance in assessing patients with these symptoms. There was a high level of public interest in the item, which the courts have suggested is an indicator that the speech is socially important.¹

[8]  Taking into account the nature of the item and the high value of the speech engaged on this occasion, we consider that a strong justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

[9]  With these principles in mind, we proceed to consider the broadcasting standards alleged to have been breached.

Was the item inaccurate or misleading?

[10]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

[11]  NDHB argued that the item was inaccurate and misleading in three main respects. We have addressed each of these separately.

Doctor’s qualifications

[12]  The complainant argued that the item was misleading as to the qualifications of the ED doctor involved in Ben’s case. It considered that the average viewer would have been left with the impression that he was a medical student with little experience, when in fact he was a qualified doctor with many years experience in general and emergency medicine, and was about to sit his final exams to become an emergency medicine consultant.

[13]  We disagree that the item misled viewers in this respect. It did not suggest that the doctor was not a qualified medical practitioner; rather, all that was said was that he was not fully qualified as an emergency medicine consultant, which, as conceded by the complainant, was correct. In fact, the reporter explicitly referred to the “doctor” and “senior trainee” who treated Ben. For example, at the start of the interview with the CE, the reporter stated by voiceover:

The Head of Emergency says that meningitis is one disease that every doctor is scared of, as so many symptoms overlap with other illnesses. That being the case, why put that responsibility on a doctor who, 60 Minutes has heard, is a senior trainee in emergency medicine? [our emphasis]

[14]  In addition, we consider that the CE was provided with a reasonable opportunity to include her viewpoint on the doctor’s qualifications and that this was sufficiently included in the item. NDHB argued that its CE was interrupted during the interview so that she could not clarify that the doctor was about to sit exams which would qualify him as a consultant. However, it is our view that despite these interruptions, the CE was still able to express her position. We note the following exchange:

CE:            This person was only several weeks away from sitting his final exams...

Reporter:    But he hadn’t sat the exams.

CE:            That’s correct, but that would be the standard approach that we take. It is the
                 standard approach that’s accepted by the  Australasian College of Emergency
                 Physicians. We are an accredited training hospital for those purposes.

Reporter:    So it is an acceptable practice for someone who isn’t quite qualified to be the
                  only doctor to see a patient who might have meningitis?

CE:            In this case, the patient presented with a range of symptoms. Not of all which he
                 believed were present and indicative of meningitis and it’s our approach with our
                 very senior trainee physicians that they are able to see patients on their own.

[15]  The CE was therefore able to articulate the point that the doctor was a “very senior trainee” who was very close to sitting his exams. Viewers were informed that this was the standard approach taken throughout Australasia. We also note in this respect that the reporter expressly acknowledged that the doctor “isn’t quite qualified”, which was far from suggesting he was a medical student with little experience, as alleged by NDHB.

[16]  For these reasons, we do not consider that the item created a misleading impression as to the doctor’s qualifications. The purpose of questioning the CE on this point was not to cast doubt on whether the doctor who discharged Ben was properly qualified, but to examine whether it was appropriate that he was the only one to have seen Ben, or alternatively whether Ben should have been seen by someone more senior or more experienced. We consider that this was a valid point to raise, given the finding of the Commissioner in relation to another case highlighted in the programme, that the doctor who treated the patient in that case had failed to seek help from senior colleagues.

[17]  Accordingly, we decline to uphold this part of the accuracy complaint.

Delay in administering the lumbar puncture

[18]  NDHB argued that the item’s assessment of the delay in administering a lumbar puncture to test for meningitis breached standards of accuracy. In particular, it referred to the reporter’s statement:

By the time [Ben] was finally tested for meningococcal disease it was too late – a $950 test which a Ministry of Health official describes as ‘easy to perform with minimum practice’.

[19]  The complainant argued that it was misleading to state that the test was “easy to perform” without balancing the comment with an outline of the implications involved in administering that test. It contended that its Clinical Head of the ED had clearly explained to 60 Minutes that it was not a routine procedure, was uncomfortable for the patient and carried serious risks such as paralysis and infection.

[20]  TVWorks provided comment from the programme producer, who stood by the item’s statement that the test was “easy to perform with minimum practice’” on the basis that it was a near-verbatim paraphrase of an emailed comment from the Principal Advisor of Communicable Diseases at the Ministry of Health (MOH).

[21]  In terms of the comments from the Clinical Head of the ED, the producer noted that these were made off-camera in discussions after the interview with the CE. It noted that he also stated in that discussion, “the doctor who saw Ben clearly didn’t feel that [the lumbar puncture] was warranted”. It emphasised that this was consistent with what was said by the CE in the broadcast interview, noting that, when questioned about the decision not to administer a lumbar puncture, she replied that it was considered unnecessary at the time, and did not state that it was deemed too risky.

[22]  In our view, the statement that a lumbar puncture was “easy to perform with minimum practice” was clearly attributed to the MOH official and we agree with TVWorks that it amounted to an expert opinion garnered from an appropriate source.

[23]  In this case, the decision not to administer a lumbar puncture earlier appeared to be based on the misdiagnosis of Ben’s condition, meaning that the test was deemed unwarranted at that stage. The CE was given the chance to address this point in the interview and she accepted that the decision may not have been the right one. We note the following exchange:

CE:           In this particular case, from what we have reviewed so far, the registrar still did not believe
                that enough of the symptoms were present to warrant a lumbar puncture.

Reporter:  Was that decision wrong?

CE:           Well the external review will give us more information about that.

Reporter:  But I suppose the result in the end indicates that it was wrong.

CE:           In hindsight, it would appear that we could have made a different decision, but again it’s
                difficult. [our emphasis]

[24]  Although the discussion with the head of the ED occurred off-camera, we have been provided with a transcript of his comments, as follows:

From a clinician’s point of view, the easiest thing in the world is to do a lumbar puncture, but for the patient having a lumbar puncture is unpleasant... it’s uncomfortable, and not infrequently people develop very severe headaches and infrequently, but occasionally, people develop meningitis as a result of the lumbar puncture and suffer nerve injury in their spinal nerves.

So we do a lumbar puncture if we think it’s justified in the patient’s interests, so... if you thought somebody needed a lumbar puncture you would do it but the doctor who saw Ben clearly didn’t feel that that was warranted and in Ben’s best interests, knowing as he would – having done many before – that it’s an unpleasant test. [our emphasis]

[25]  On this basis, we agree with the broadcaster that it is clear from what was said by the CE in the interview and by the head of the ED off-camera, that the reason Ben was not given a lumbar puncture was because it was considered unnecessary at the time. Neither of them said, in relation to Ben’s case, that the test was considered too risky.

[26]  In these circumstances, we find that it was not misleading to refer to the MOH official’s view that the test was “easy to perform” without making reference to the risks associated with lumbar punctures, and in particular the specific risks outlined by the head of the ED.

[27]  We also note that following the broadcast, the MOH provided 60 Minutes with a statement explaining the risks associated with the test, and in good faith, the programme immediately posted this statement on its website and read part of it in a feedback segment the following week.

[28]  Accordingly, we decline to uphold this aspect of the Standard 5 complaint. 

Cause of death

[29]  In its referral, NDHB argued that the item inaccurately stated that the cause of death was meningitis, when this was only the “suspected” cause of death as it was still awaiting the coroner’s findings.

[30]  TVWorks argued that it had sufficient grounds to say that Ben died of meningitis. This included a statement issued by NDHB following Ben’s death, which said that a laboratory test confirmed he was infected by meningococcal C; the CE’s statement during the interview that Ben was diagnosed with meningitis and that the diagnosis was missed; and an internal report from NDHB which stated, “Death in hospital of previously fit young man... after admission to hospital and confirmed diagnosis of meningococcal meningitis.” (TVWorks’ emphasis)

[31]  In our view, the obvious conclusion from these sources was that the cause of death was meningitis, and the broadcaster had a more than reasonable basis for the statement in the item.

[32]  We decline to uphold this part of the accuracy complaint.

Was the item unfair to any individual or organisation taking part or referred to in the item?

[33]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[34]  An underlying objective of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.³ This incorporates the value of ensuring that those criticised have a chance to defend themselves and that viewers are provided with sufficient information to enable them to make up their own minds and form their own impressions.

[35]  NDHB argued in its original complaint that aspects of the programme were unfair, though it did not explicitly identify which individuals or organisations it considered had been treated unfairly. In its referral, it reiterated its concerns about the alleged impression created about the qualifications of the ED doctor involved in Ben’s case, and alleged that the CE had been interrupted during her interview. It also argued that the programme implied that there was something “unusual” or “deficient” about the practice followed in Ben’s case at Whangarei Hospital, which was unfair.

[36]  TVWorks considered that the questions put to the CE with regard to the doctor’s qualifications were fair, and that the CE provided relevant information that was broadcast in a way that had significance. It contended that the overall impression created by the story was fair.

[37]  As discussed above, we do not consider that the item created a misleading impression about the doctor’s qualifications, or that it was necessary in the interests of fairness to refer to the risks associated with lumbar punctures given the facts of this particular case and the statements from MOH and the head of the ED that were provided to the broadcaster.

[38]  Given the tragedy from which the investigation stemmed – where Ben was discharged without having been diagnosed with meningococcal disease, a disease which led to his death – it was legitimate to ask whether he should have been seen by someone more senior than the doctor who discharged him. We agree with TVWorks that this was particularly pertinent given that in another case highlighted in the programme, the Commissioner found that the doctor who treated the patient had failed to seek help from senior colleagues.

[39]  In addition, the item did not name the doctor who treated Ben, or provide any other details which may have led viewers to identify him. TVWorks stated that this was out of fairness to the doctor and to respect his privacy.

[40]  We consider that NDHB was provided with an adequate opportunity to express its position through its CE, and that this was sufficiently included in the broadcast interview. The CE was the head of a public organisation charged with providing a service to the community; the types of questions put to her were fair and appropriate.

[41]  The story dealt responsibly with the questions surrounding Ben’s treatment and we agree with the broadcaster that it sensitively acknowledged the weight of the responsibility felt by all DHB staff and ED doctors in particular. The item included the following comments:

• “We have two-and-a-half thousand staff in this DHB and every one of them comes to work every day to do the very best they can and when we fail, when things like this happen, it has an effect on everybody. We’re part of this community as well.” (CE)
• “...it is one hell of a responsibility, working in emergency medicine... where every decision can have such a significant impact. Of course many lives have been saved by doctors who’ve correctly diagnosed meningococcal disease – this year alone there have been more than 70 cases around the country.” (reporter in final voiceover)

[42]  For these reasons, and taking into account the principles of freedom of expression and the importance of the particular speech engaged here (see paragraphs [5] to [8] above), it is our view the item dealt fairly with the individuals (the doctor and the CE) and organisations (Whangarei Hospital and NDHB) taking part and referred to in the broadcast. We consider that the item was a straightforward report that sought to expose what went wrong in Ben’s case, and did not create unfairly negative representations about the conduct of those involved in his treatment. Further, we reiterate our view that the complainant was provided with an adequate opportunity to defend itself, as well as the other individuals and organisations referred to.    

[43]  Accordingly, we decline to uphold the Standard 6 complaint.

Did the programme include significant viewpoints on the issue under discussion?

[44]  Standard 4 (controversial issues) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[45]  The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.⁴ The standard only applies to programmes which discuss “controversial issues of public importance”, and therefore this objective is of vital importance in a free and democratic society.

[46]  In its referral, NDHB contended that TVWorks did not make reasonable efforts or give reasonable opportunities to present significant points of view regarding the practice and risks associated with lumbar punctures. It reiterated that information provided by the head of the ED outlining the risks involved in the procedure was ignored. TVWorks accepted that the story overall discussed a controversial issue of public importance, but considered that the risks associated with a lumbar puncture in themselves did not amount to such an issue as they were not the subject of ongoing public debate.

[47]  In our view, the focus of the item was the death of a young man from meningitis as a result of a misdiagnosis at a White Cross Clinic and Whangarei Hospital. Ben’s story provided an individual illustration of the way in which Whangarei Hospital dealt with this disease. The report also included brief interviews with the parents of two other children who died from meningitis after being sent home from Whangarei Hospital. The parents questioned the ED procedures and systems in place at the hospital and the adequacy of its ED staff. The report noted that in one of these cases, the Commissioner found that the doctor who treated the patient had failed to seek help from senior colleagues.

[48]  In this respect, we find that the item, in investigating an alleged problem with our public health system, amounted to a discussion of a controversial issue of public importance. We agree with TVWorks Ltd that significant points of view on this issue were provided in the programme, as it included an interview with the CE of NDHB who was questioned specifically about the misdiagnosis and how it occurred. 

[49]  We agree with the broadcaster that lumbar punctures and their associated risks were not the focus of the item and did not, in the context of this programme, amount to a controversial issue of public importance which required the presentation of alternative views. Rather, the reference to the diagnostic test in the item was merely one aspect of Ben’s story, which was used as an example of how the health system was challenged in its dealings with meningitis. In the context of the item as a whole, we do not consider that the omission of any reference to the risks associated with lumbar punctures would have affected viewers’ understanding of the wider issues discussed in the item. In any event, we note that TVWorks Ltd posted additional information provided by the MOH regarding these risks on its website and 60 Minutes referred to this information in a feedback segment the following week.

[50]  Accordingly, we consider that viewers were provided with sufficient information to enable them to arrive at an informed and reasoned opinion, as required by the standard. We therefore decline to uphold the Standard 4 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 March 2012

Appendix

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

1                  Northland District Health Board’s formal complaint – 17 October 2011

2                 TVWorks’ response to the complaint – 16 November 2011

3                 NDHB’s referral to the Authority – 21 November 2011

4                 TVWorks’ response to the Authority – 11 January 2012

5                 NDHB’s final comment – 9 February 2012

6                 TVWorks’ final comment – 24 February 201

¹See, for example, Tipping J in Hosking v Runting, [2003] 3 NZLR 385 (CA) PDF317.33 KB

²Bush and Television New Zealand Ltd, Decision No. 2010-036

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴Commerce Commission and TVWorks Ltd, Decision No. 2008-014