BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary [This summary does not form part of the decision.]

An item on Sunday reported on a proposal by PHARMAC to decline funding for a drug needed to treat a rare blood disorder. The Authority did not uphold the complaint that the item was unbalanced and portrayed PHARMAC as ‘irresponsible and heartless’. The item was transparently an advocacy piece presented from the perspective of people who opposed PHARMAC’s proposal, in particular a New Zealand man suffering from the disorder who desperately needed the drug. The item emphasised that the high cost of the drug was the main reason behind PHARMAC’s proposal, and it contained a fair summary of a statement provided by PHARMAC to the programme.

Not Upheld: Controversial Issues

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Introduction

[1]  An item on Sunday reported on a proposal by the Pharmaceutical Management Agency (PHARMAC), to decline funding for Soliris, a medication for treating paroxysmal nocturnal hemoglobinuria (PNH), a rare blood disorder. It contained interviews with two New Zealanders with PNH, and two medical professionals. The item was broadcast on 8 September 2013 on TV ONE.

[2]  Ross Quayle made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item put forward a ‘single, extreme’ viewpoint that ‘life is priceless’, and portrayed PHARMAC as ‘irresponsible and heartless for not making this drug available at public expense’.

[3]  The issue is whether the broadcast breached the balance standard, as set out in 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.

Nature of the item and freedom of expression

[5]  Sunday is a New Zealand current affairs programme reporting on local and overseas issues. The item subject to complaint, which focused on a decision by New Zealand’s medical funding body, was introduced in the teaser as follows:

Tonight on Sunday: how would you feel? You’re seriously ill, there is a cure, but they won’t pay for it… But it costs too much… available worldwide… but not here… What price is life? ...

[6]  The presenter’s opening remark posed the following question:

How much is your life worth? It’s priceless, right? Well, actually, no. There’s a tiny and desperate group of Kiwis… who face death from a rare disease called PNH. Now, they could be saved by a new and highly effective medical treatment, but PHARMAC, the funding body, doesn’t want to pay for it. Why is that? The price tag: $600,000 per person, per year.

[7]  The first part of the programme contained an interview with a man described as ‘one of eight Kiwis’ suffering from PNH. He commented, ‘I guess the feeling certainly is that PHARMAC are telling us that, you know, “you’re not worth it, your life isn’t worth saving” – that’s the feeling that we’re getting’. A haematologist commented that Soliris was a ‘superb therapy’ and that New Zealand needed to be ‘realistic’ and ‘come to terms’ with the fact that ‘drugs that are very effective for relatively rare disorders unfortunately cost a lot of money’. He told Sunday that ‘PHARMAC’s refusal to fund Soliris may have led to the death of one New Zealand woman’.

[8]  The second part of the programme contained an interview with a woman living in London, described as an ‘expat Kiwi’, who ‘fears that if she quits London for New Zealand… PHARMAC will let her die’. The woman said, ‘As a New Zealander, I always imagined that I would… have the option to go home… but if I go home I will potentially die without this drug’. An English professor commented that the $600,000 price tag on Soliris was relative, saying, ‘Do you fund Leukaemia… [which] can cost… hundreds of thousands of pounds? ... [or in] paediatric intensive care units, we often spend half a million pounds on a child… is that acceptable? ...Where do you draw the line?’

[9]  We recognise that Sunday, and this particular item, carried public interest and high value in terms of freedom of expression. It is important that New Zealanders are made aware of proposals by our public medical funding body, and that individuals are given a voice to air their concerns about decisions that for them mean the difference between life and death. Such broadcasts encourage debate on important issues.

[10]  This value must be balanced against the potential harm likely to accrue to PHARMAC, the focus of the criticism, and to the viewing public who were allegedly misinformed by the failure to properly present PHARMAC’s position.

Was the item unbalanced in breach of Standard 4?

[11]  The balance standard (Standard 4) 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. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.¹

[12]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.²

[13]  The focus of the item was the reaction of PNH patients and medical professionals to PHARMAC’s proposal, in a consultation paper, to decline funding for Soliris. Decisions by New Zealand’s health funding body, including this proposal, are often controversial, attracting conflicting views and opinions. As are decisions generally regarding our public health system and the prioritisation of public money. Such decisions are of importance and concern to members of the New Zealand public. We therefore accept that the item discussed a controversial issue of public importance.

[14]  The complainant argued that the item attacked PHARMAC’s proposal, and ‘no reference was made to the fact that it is PHARMAC’s job to make decisions of this kind’. The cost of the treatment was ‘glossed over’, he argued. The item was clearly framed as coming from the perspective of PNH sufferers, meaning there was a lesser requirement to provide balance, TVNZ said; the item focused on one man and his personal experiences and thoughts on PHARMAC’s proposal to not fund the treatment he required.

[15]  Guideline 4b to the balance standard lists a number of factors that should be considered when assessing whether a broadcaster has fulfilled its obligations under Standard 4. It states that an assessment of whether a reasonable range of views has been allowed for takes account of some or all of the following:

• the programme introduction;
• the approach of the programme (e.g. taking a particular perspective);
• whether viewers could reasonably be expected to be aware of views expressed in other coverage.

[16]  The obligation on a broadcaster to provide balance is not derogated from by guideline 4b, but rather allows a departure from strict compliance with the requirements of Standard 4. These factors help to determine the level of balance required, by informing the Authority on how viewers would reasonably have perceived or understood the programme, and whether they were likely to have been deceived or misinformed by the omission or treatment of a significant perspective.

[17]  We agree with TVNZ that the Sunday item was transparently presented from the perspective of people who opposed PHARMAC’s proposal, and in particular a New Zealand man suffering from PNH who desperately needed the drug. The introduction clearly framed the item as coming from this perspective, with emphasis on the ‘price of life’ and ‘a tiny and desperate group of Kiwis… who face death from a rare disease’ (see paragraph [6]).

[18]  The next issue is whether reasonable efforts were made or reasonable opportunities given to provide balance, to a sufficient extent given the angle of the item. Guideline 4b recognises that the requirement for a broadcaster to provide balance may be lessened if the item is clearly approached from a particular perspective, as this item was. Usually it will be sufficient for an item which is obviously focused on one perspective, to acknowledge the controversy or debate and the existence of other perspectives, without discussing those perspectives in detail.

[19]  We disagree with the complainant that the cost of the treatment – PHARMAC’s primary reason for declining funding – was ‘glossed over’. In fact the cost was emphasised a number of times during the item, as follows:

• ‘…PHARMAC, the funding body, doesn’t want to pay for [the drug]. Why is that? The price tag: $600,000 per person, per year.’ (introduction)
• ‘…to PHARMAC, this 33-year-old father may be too expensive to keep alive’ (reporter)
• ‘But there’s a catch: the cost of these two phials of Soliris – making just one dose – is over $20,000, and the asking price to keep [name] alive for one year: up to $600,000 – a price PHARMAC so far is not prepared to pay’ (reporter)
• ‘Waikato specialist, Doctor [name] says Soliris is only expensive because it costs hundreds of millions of dollars to develop.’ (reporter)
• ‘I think we have to be realistic that drugs that are very effective for relatively rare disorders unfortunately cost a lot of money.’ (doctor)

[20]  Further, we consider that most New Zealand viewers would have some appreciation of PHARMAC’s role, and of the fact that decisions about funding in the health sector are difficult, with cost being a key factor. Funding is inevitably prioritised and rationed, such that some illnesses cannot be afforded funded or subsidised treatments. In this sense, the opinions and impressions of PHARMAC that viewers took away from the item would not have been misinformed.

[21]  In terms of opportunities given, TVNZ said that PHARMAC was advised of the nature of the story and invited to do an interview but declined, instead providing a statement which was referred to in the item. We requested from TVNZ a copy of PHARMAC’s statement, to assess whether its position was fairly and adequately presented in the item. Having reviewed the statement, which was relatively brief and in generic terms, and primarily related to the submissions process, we are satisfied that it was. In addition to the comments highlighting the cost of the treatment, PHARMAC’s position was presented in the item as follows:

• ‘In May, PHARMAC published a proposal declining to fund Soliris on the basis of cost. They called for public submissions in response…’ (reporter)
• ‘Sunday approached PHARMAC for an interview on their proposal to decline funding for Soliris. They declined to appear, saying public submissions are still under review.’ (reporter)
• ‘PHARMAC has received more than 300 submissions on its proposal not to fund the drug. It says it is a difficult and important decision and that it will consider those submissions. This, it says, will take time.’ (reporter, summarising statement)

[22]  We are satisfied that reasonable efforts were made to provide balance, taking into account that the item was transparently an advocacy piece, presented from the perspective of people who opposed PHARMAC’s proposal to decline funding.

[23]  Accordingly, we decline to uphold the complaint under Standard 4.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
1 April 2014

Appendix

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

1                 Ross Quayle’s formal complaint – 19 September 2013

2                 TVNZ’s response to the complaint – 15 October 2013

3                 Ross Quayle’s referral to the Authority – 18 October 2013

4                 TVNZ’s response to the Authority – 31 January 2014

5                 Ross Quayle’s final comment – 10 February 2014

6                 Further information from TVNZ including PHARMAC statement – 19 March 2014

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

²For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009).