BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about an item on Sunday documenting a woman’s final months before her assisted death. The complainant alleged the broadcast breached the balance standard as it included no discussion of palliative care or alternative viewpoints regarding assisted dying. The children’s interests standard was also impliedly raised in the complaint. The Authority found the balance standard did not apply as the item did not constitute a discussion of the issue of assisted dying. The children’s interests standard was not breached as the context of the programme and signalling of content meant it was suitable to be broadcast in its timeslot.

Not Upheld: Balance, Children’s interests

The broadcast

[1]  An episode of Sunday broadcast on 15 May 2022 included an item about Esther Richards’ final months living with a terminal disease before her assisted death. The item was introduced by the host as follows:

There are two certainties in life. We're born and we die. Until recently, we had no legal say over either. But six months ago, that changed. Euthanasia is a highly charged subject, but since we legalised it, 92 people have chosen to die. In a remarkable insight Esther Richards invited us to walk alongside her in her final months of life and her death. Just a warning. This is a sensitive subject. As we step with Esther into the final taboo.

[2]  During the introduction the host was standing in front of a display reading ‘Esther’s Story’. After this we meet the subject of this story who introduces herself as follows:

Hi. I’m Esther, I'm 58 years old. I am dying of cancer. And by the time you see this, I won't be here… I know this is going to be hard for some people to see, but this is my story and my journey and my choice. 

[3]  The item included interviews with Esther, as well as her family and friends, on a variety of topics including assisted dying, with the following relevant quotes:

Host:             …she fought for the legislation. Why was the End of Life Choice Bill so important to you?

Esther:          Because I believe in the person's right to choose. Simple. Dying is not a choice, we're not choosing to die. We're choosing not to suffer as we die.

Host:             The End of Life Choice Bill divided the country. It still does. Could the disabled and elderly be pressured? What about better palliative care funding? And many Christians rail against it, though not this Christian. [To Esther] Did you have to have a reckoning with your faith?

Esther:          Yeah, I did a lot of praying. But funny thing was, when I did it, I felt peaceful doing it. I felt like I was doing the right thing.

[4]  At the end of the story, the host advises that following the programme she would speak to an expert live on Facebook about New Zealand’s End of Life Choice legislation.

The complaint

[5]  Right to Life Inc complained the broadcast breached the balance standard of the Free-to-Air Television Code of Broadcasting Practice. They stated:

Balance

• ‘Palliative care makes an important contribution to helping people to die with dignity and pain control. Palliative care was completely ignored in this story.’
• ‘The government has an excellent “suicide prevention strategy” which has the objective of eliminating suicide in New Zealand. This story glamorised suicide and undermined the government’s “suicide prevention strategy.”’

Other comments

• ‘I believe that the Sunday programme should not have been viewed by children as it was promoting the violence of suicide. New Zealand has one of the highest rates of youth suicide in the OECD and I believe that it was reprehensible to screen this story without any parental warning. This story should have been screened after 8.30 pm to avoid harming children.’
• ‘The theme running through this story was that it is my life and my choice. This is incorrect, our lives belong to the Creator who has given us stewardship over our lives. He has also given us the fifth commandment, “thou shalt not kill,” we ignore this at our peril.’

[6]  On referral the following key points were raised:

• ‘I do not accept the broadcaster’s claim that as this story followed one person and her decision making it is not required to include a discussion of palliative care as she did not require or want the intervention/help. I contend that it was absolutely critical to provide viewers with information on the fact that Esther did not require or want palliative care. Assisted dying is promoted in the community as the solution for terminally ill patients when palliative care is alleged to be unsuccessful in controlling intense pain. I believe that many viewers would have assumed that Esther had received palliative care which had failed to control the intense pain. By ignoring palliative care it is promoting doctors killing their patients with a lethal injection or assisting in suicide as a substitute for palliative care and the preferred option. It is cheaper to kill patients than to provide care. The right to die will soon become a duty to die.’
• ‘I do not accept the Complaints Committee’s claim that this programme would not encourage vulnerable people in our community to seek assisted suicide or a lethal injection from a doctor.’
• ‘The Mental Health Foundation has the following on its web site: “Research demonstrates that certain kinds of suicide reporting can increase suicidal behaviour in vulnerable people.”’¹

[7]  The complainant raised the following key points in relation to the children’s interests standard being implied:

• Assisted dying is relevant to youth suicide because assisted dying is just a euphemism for suicide.
• The World Medical Association, and many New Zealanders, oppose assisted dying as immoral and unethical.
• The programme promoted assisted dying to children as rational, commendable and acceptable, making it inappropriate for them to view.

The broadcaster’s response

[8]  TVNZ did not uphold the complaint:

Balance

• ‘The story was concerned with Esther’s personal decision to end her own life, legally, and the consequences and practicalities of that decision. We do not agree that Esther’s personal circumstances are a controversial issue of public importance in the sense envisioned by this Standard.’
• ‘Further, while we agree that the End of Life Choice Bill was a controversial issue of public importance and this was recognised in the programme, we are not persuaded it is still such an issue now that it has been passed into law. In any event, the issue of voluntary euthanasia has been well canvassed over many years, and it is reasonable to expect that viewers would be aware of the main perspectives that exist in relation to the issue.’
• ‘As this story followed one person, and her decision making, it is not required to include a discussion of palliative care, as she did not require or want this intervention/ help, this is a programme about Esther.’

[9]  TVNZ raised the following key points in relation to the children’s interests standard being implied:

• The complainant is familiar with the complaints process and would have specified this standard if they intended their compliant to relate to this.
• Sunday is aimed at adult viewers.
• The Authority has consistently recognised that children are unlikely to watch unclassified news programmes without adult supervision.
• News broadcasts including Sunday often include mature topics, and stories and images of disturbing events.
• It rejected the complainant’s argument that assisted dying for the terminally ill is the same or comparable to suicide of an otherwise physically healthy person due to other factors, such as mental illness.
• ‘While Esther’s story is at times moving we do not agree that it [is] one which is inappropriate for children to view with the guidance of a parent or adult.’
• The item was preceded by a warning and clearly signalled the topic to be discussed, allowing viewers to make informed decisions for themselves and their children.

Jurisdiction – scope of complaint

[10]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.²

[11]  While the original complaint did not explicitly rely on the children’s interests standard, its wording raises issues relevant to this standard. We do not consider that the other standard raised adequately captures the key concerns of the complainant in this area. On this basis, analysis under the children’s interests standard is reasonably necessary in order to properly consider the complaint. We therefore consider a complaint under the children’s interests standard can be reasonably implied.

The standards

[12]  The balance standard³ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁴

[13]  The children’s interests standard⁵ requires broadcasters to ensure children can be protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes sexual or violent content or themes, offensive language, social or domestic friction and dangerous, antisocial or illegal behaviour – where such material is outside audience expectations of the station or programme.⁶

Our analysis

[14]  We have watched the broadcast and read the correspondence listed in the Appendix.

[15]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.⁷

Balance

[16]  The balance standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁸

[17]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’. A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁹

[18]  The item dealt with a woman’s final months leading up to her assisted death. The Authority has previously found that assisted dying constitutes a controversial issue of public importance.¹⁰ While the End of Life Choice Act 2019 has been law in New Zealand for some time now, this does not mean it is no longer controversial. The story itself acknowledges assisted dying remains a ‘taboo’ topic. On this basis, this issue still constitutes a controversial issue of public importance.

[19]  We must also consider whether the issue of assisted dying was ‘discussed’ during the programme. The story was a human interest piece focused on Esther’s perspective, rather than the wider debate regarding assisted dying. The broadcast does include brief comments on issues such as palliative care, pressure on the elderly, pressure on Esther caused by the programme, religious perspectives and the passing of the End of Life Choice Act. However, we do not consider the brief comments sufficient, in this context, for the broadcast to constitute a ‘discussion’ of the assisted dying issue. On this basis, the balance standard does not apply.

[20]  In any event, broadcasters, as a matter of freedom of expression and editorial discretion, are entitled to present matters from particular perspectives or with a particular focus.¹¹ This broadcast clearly had a particular point of view, as the focus was the perspective of one person and her close family and friends on her upcoming assisted death. The programme did not purport to be a balanced examination of the arguments for and against assisted dying.¹²

[21]  In addition, assisted dying has been a controversial issue in New Zealand for years, with televised debates and many perspectives presented in print and broadcast media on the issue.¹³ New Zealand also held a referendum on the End of Life Choice Act in October 2020 which generated significant attention for the various perspectives on assisted dying.¹⁴ Audiences can reasonably be expected to be aware of these perspectives already.¹⁵

Children’s interests

[22]  The context in which the content occurred and the wider context of the broadcast are relevant to assessing whether a programme has breached the children’s interest standard:¹⁶

• The nature of the programme: Sunday is a news and current affairs programme, with a focus on in-depth stories and investigations.¹⁷
• The target and likely audience: The programme is unclassified and is broadcast at 7.30pm on Sunday evenings. The programme has a wide target audience, but focuses on serious stories¹⁸ and is not targeted at children. The Authority has consistently found that children are unlikely to watch news and current affairs programmes unsupervised, and there is an expectation that parents exercise discretion when viewing these programmes with their children.¹⁹
• Audience expectations: As with all news and current affairs programming, challenging content is expected to be broadcast sometimes to reflect the world we live in. The programme signalled that the upcoming story was going to involve assisted dying and gave a warning to viewers.

[23]  The Mental Health Foundation has provided guidelines for reporting and portrayal of suicide (though these are not specific to assisted dying).²⁰ This guidance refers to legal requirements for journalists under section 71 of the Coroners Act 2006.²¹ However, section 71 specifies it is not applicable to assisted dying under the End of Life Choice Act.²² The requirements relevant to reporting on assisted dying are in section 36 of the End of Life Choice Act and we are satisfied the broadcast complied with those.²³

[24]  In addition, during the broadcast, the method of assisted dying was not discussed, the story provided the context of Esther’s terminal illness, and language associated with suicide was minimised. As recognised in the Authority’s 2022 Code of Broadcasting Standards in New Zealand, broadcasters may choose to include helpline information where matters of this nature are aired (though this is an editorial choice).²⁴

[25]  Overall, we consider this item was within audience expectations for the programme and the timeslot. In our view, audiences had sufficient information about it to enable them to protect the interests of children in their care. Accordingly any potential harm is not of a threshold requiring limitation of the broadcaster’s right to freedom of expression.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
8 November 2022

Appendix

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

1  Right to Life Inc’s formal complaint to TVNZ – 25 May 2022

2  TVNZ’s decision on complaint – 16 June 2022

3  Right to Life’s referral to the Authority – 13 July 2022

4  Right to Life’s further comments – 18 July 2022

5  TVNZ’s confirmation of no further comments –19 July 2022

6  TVNZ’s further comments on children’s interests standard – 16 September 2022

7  Right to Life’s further comments on children’s interests standard – 23 September 2022

8  TVNZ confirming no further comments on children's interests standard – 4 October 2022

¹ Mental Health Foundation “Research demonstrates that certain kinds of suicide reporting can increase suicidal behaviour in vulnerable people” <mentalhealth.org.nz>
² Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
³ Standard 8, Free-To-Air Television Code of Broadcasting Practice
⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁵ Standard 3 of the Free-To-Air Television Code of Broadcasting Practice
⁶ Guideline 3a
⁷ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ As above
¹⁰ See, for example: Right to Life New Zealand and MediaWorks TV Ltd, Decision No. 2018-033 at [8]; Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at [12].
¹¹ Edwards and Television New Zealand Ltd, Decision No. 2022-021 at [13]; Guideline 8c
¹² Guideline 8c
¹³ Hannah Martin “End of Life Choice referendum: The arguments for and against legalising euthanasia” Stuff (online ed, 28 July 2020); Michael Neilson “Euthanasia Debate: Former terminally ill woman believes Kiwis will back End of Life Choice bill”  New Zealand Herald (online ed, 13 November 2019); Hannah Martin “Euthanasia referendum: Where prominent Kiwis stand on the End of Life Choice Act” Stuff (online ed, 12 October 2020); David Seymour and Dion Howard “End of Life Choice Bill: A case for and against” New Zealand Herald (online ed, 12 November 2019); Simon Collins “1000 Kiwi doctors sign letter against euthanasia” New Zealand Herald (online ed, 23 June 2019); Name withheld “A doctor's view: 'I do not support legalising assisted dying'” Stuff (online ed, 1 February 2016)
¹⁴ Hannah Martin “Euthanasia referendum: End of Life Choice Act officially passes with 65% majority” Stuff (online ed, 6 November 2020)
¹⁵ Guideline 8c
¹⁶ Guideline 3c
¹⁷ Facebook “Sunday TVNZ” <facebook.com/SundayTVNZ>
¹⁸ TVNZ “Sunday” <tvnz.co.nz>
¹⁹ Francis and Television New Zealand Ltd, Decision No. 2021-045 at [17]; Lowry and Television New Zealand Ltd, Decision No. 2018-051 at [9]. See also Larsen and Television New Zealand Ltd, Decision No. 2012-055
²⁰ Mental Health Foundation “Research demonstrates that certain kinds of suicide reporting can increase suicidal behaviour in vulnerable people” <mentalhealth.org.nz>
²¹ Coroners Act 2006, s 71
²² Coroners Act 2006, s 71(4)
²³ End of Life Choice Act 2019, s 36 prohibits publication of the method by which medication was administered, the place where it was administered and the name of the person that administered it.
²⁴ Guideline 1.8