BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under s.8(1)(a) of the Broadcasting Act 1989
Holmes – item about Tauranga surgeon Dr Ian Breeze found guilty of professional misconduct – item described bowel operation which resulted in death of patient as “botched” – patient’s wife interviewed – relatives of other patients interviewed – allegedly breached good taste and decency – allegedly inaccurate, unfair, unbalanced

Findings
Standard 1 (good taste and decency) – “botched” is vernacular – not upheld

Standard 4 (balance) – matters raised by complainant not required for balance – not upheld

Standard 5 (accuracy) – not inaccurate – not upheld

Standard 6 (fairness) – matters raised by complainant not required for fairness – not upheld

This headnote does not form part of the decision.

Broadcast

[1] Tauranga surgeon Ian Breeze was the subject of an item broadcast on Holmes on TV One on 2 December 2003.

[2] The item reported that in August 2003 the Medical Practitioners Disciplinary Tribunal had found Dr Breeze guilty of professional misconduct, after what the presenter and the reporter described as a “botched” bowel operation which had resulted in the death of a patient in 1999. The item reported that since the death of that patient, Lionel Crowley, the Health and Disability Commissioner had received five additional complaints about Dr Breeze.

[3] Mr Crowley’s wife Shirley Crowley was interviewed during the item. Family members of two other patients were also interviewed. It was reported that the Commissioner had not upheld their complaints, but that he was now looking at reopening both files.

Complaint

[4] Mrs S L Thirlwall complained to Television New Zealand Ltd, the broadcaster, that the item breached good taste and decency, and was not balanced, fair or accurate.

[5] Mrs Thirlwall complained that the tone of the item was “accusatory”, and that the word “botched” implied “shoddy, casual practice” and was “very emotive”. She considered that the presenter had “usurp[ed]” the role of the disciplinary tribunal by not “clearly explaining [its] actual findings”. Mrs Thirlwall stated that the Medical Practitioners Disciplinary Tribunal had not found Dr Breeze guilty of the “most serious charge”.

[6] Mrs Thirlwall wrote:

Mr Breeze is a family man with children still at school in Tauranga who are likely to be significantly affected by backlash from this programme and its tone and style. I felt very uncomfortable as if I was watching a distasteful blood sport in viewing this item.

[7] Mrs Thirlwall complained that the item presented “only one side of the story”. Referring to “information circulating” about “other medical problems” Mr Crowley may have had, and to a newspaper article which “mentioned faeces in the bowel”, Mrs Thirlwall complained that Mrs Crowley had not been adequately questioned about Mr Crowley’s medical condition and the circumstances surrounding the operation. Mrs Thirlwall wrote that if Mrs Crowley was to be

supported by TVNZ in destroying the reputation of a trained New Zealand surgeon and by association his family, she should be prepared to be open about the details of her husband’s case.

[8] Mrs Thirlwall wrote that she imagined that Dr Breeze “might well be driven to leave the profession after this programme”, and that the wider public would be disadvantaged by the loss of an experienced professional with many satisfied patients.

[9] To be balanced and fair, Mrs Thirlwall considered that the programme should have: asked a cancer expert to describe the problems with bowel cancer; asked an expert about Dr Breeze’s service and record in comparison with others; reminded viewers of the risks and complications of bowel cancer surgery; and mentioned Dr Breeze’s positive achievements.

Standards

[10] TVNZ assessed the complaint under Standards 1, 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. They provide:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Standard 4 Balance

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

Standard 5 Accuracy

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

Standard 6 Fairness

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

Broadcaster's Response to the Complainant

[11] TVNZ advised Mrs Thirlwall:

Having viewed a recording of the item, the [complaints] committee wondered whether you had, perhaps, overlooked the important role the news media plays as community watchdog. It seemed to the committee that if, in the community, there is a surgeon who has already been found guilty of professional misconduct by the [Medical Practitioners Disciplinary Tribunal] and was now being further investigated by the [Health and Disability Commissioner], the news media (including Holmes) clearly had a role in investigating this matter as one of public interest and concern.

[12] Under Standard 1, TVNZ stated that it was not tasteless or indecent to use the word “botched”. Noting that the dictionary defined “botch” as “to carry out (a task) badly or carelessly”, TVNZ stated that the Tribunal’s findings of professional misconduct suggested that the operation on Mr Crowley had involved carelessness. TVNZ wrote:

Television frequently uses the language of conversation, the vernacular, and the word “botched” did not, in the opinion of the [complaints] committee, represent a breach of standard 1.

[13] TVNZ did not agree that the presenter had usurped the role of the Medical Council, the Medical Practitioners Disciplinary Tribunal, or the Health and Disability Commissioner. Rather, TVNZ stated, the item provided background to the professional investigations so that their findings would make sense to the public.

[14] Under Standard 4, TVNZ stated that every effort had been made to present “significant points of view” in the item. Dr Breeze’s lawyer had been approached requesting an interview with Dr Breeze or someone who could speak on his behalf and, as reported at the end of the item, the requests were declined. TVNZ stated:

[I]t would not be right for a broadcaster to abandon a legitimate news item simply because one party with a relevant point of view declines to participate. If that were to be the rule any controversy of public interest could be shut down by those on one side of the controversy refusing to take part. The invitation for Mr Breeze to appear on Holmes remains open.

[15] In relation to Mrs Thirlwall’s suggestion that a cancer expert should have been interviewed, TVNZ noted that the item was not about Mr Crowley’s operation, which the Tribunal had already investigated. TVNZ stated:

The item was about medical misadventure and the worrying and growing number of complaints against one surgeon.

[16] Under Standard 5, TVNZ advised the complainant that it had found nothing untruthful or inaccurate in the item.

[17] Under Standard 6, TVNZ did not agree that the item set out to “destroy the reputation of a trained New Zealand surgeon.” The broadcaster wrote:

[The item] set out, in the public interest, to lay out what is known about a surgeon who has already been disciplined for professional misconduct and who faces further investigation by the [Health and Disability Commissioner]. The committee found it hard to understand why you might believe that such matters as these should not be in the public arena, or that the New Zealand public should be kept in the dark about it. If anyone is responsible for destroying the reputation of Mr Breeze, it is surely Mr Breeze himself – not the news media?

[18] TVNZ did not uphold the complaint.

Referral to the Authority

[19] Mrs Thirlwall referred her complaint to the Authority, stating that she was “uneasy about the stance of this programme and the presentation of material”.

[20] In relation to the use of vernacular language, Mrs Thirlwall queried whether there were any guidelines, noting that “vernacular language often prompts an emotional response and can mar impartial presentation.”

[21] Mrs Thirlwall raised further questions about the circumstances surrounding Mr Crowley’s operation, and wrote that she and other discerning viewers would have liked to have known a lot more.

[22] Mrs Thirlwall stated:

TVNZ said that it had approached Mr Breeze and his lawyer but does not make it clear whether totally independent and qualified individuals were asked to discuss surgical risks in relation to the success/failure rate of cancer operations. Bowel cancer is very tricky and I have also heard via people who knew Mr Crowley that he was quite ill. By omitting facts the impression was given that the case was a straightforward one and the implication that Mr Crowley would be alive this far down the track should have been subject to greater scrutiny in the debate.

[23] Mrs Thirlwall wondered if media publicity may have triggered the other complaints referred to in the item.

[24] Mrs Thirlwall concluded that she agreed that the medical profession should be accountable, but that she did not believe the media should “go beyond the bounds of what I perceive as common decency and natural justice in relation to a specific individual.”

Authority's Determination

[25] The members of the Authority have viewed a tape of the programme complained about and read the correspondence listed in the Appendix. They have also read the Medical Practitioners Disciplinary Tribunal’s report in which it found Dr Breeze guilty on three counts of professional misconduct. The Authority determines the complaint without a formal hearing.

Preliminary matters – Focus of the item

[26] Mrs Thirlwall took issue with the word “botched” to describe Dr Breeze’s bowel operation on Mr Crowley. She also complained that the item did not clearly explain the reasons for the Tribunal’s finding of professional misconduct against Dr Breeze.

[27] Before dealing with these matters, the Authority wishes to make clear that it agrees with TVNZ that the item was not primarily about either Mr Crowley’s operation, or the disciplinary findings. Rather, in the Authority’s view these two matters formed the backdrop for, and gave context to, the focus of the item, which was:

• that there were ongoing concerns and a growing number of complaints about a surgeon who had been found guilty of professional misconduct; and
• two complaints about Dr Breeze to the Health and Disability Commissioner, which the Commissioner had not upheld, where the Commissioner was considering reopening the files.

[28] The Holmes item correctly reported that Dr Breeze had been found guilty on three counts of professional misconduct “regarding his treatment of Lionel Crowley”. It described Dr Breeze’s operation on Mr Crowley as “botched”. The Authority notes that the Tribunal’s guilty findings related to Dr Breeze’s conduct surrounding Mr Crowley’s post-operative care (rather than the operation itself). The Authority considers, however, that the two are so intimately connected that to describe the operation as “botched” was not incorrect.

Standard 1 (Good Taste and Decency)

[29] Mrs Thirlwall considered that the word “botched” breached good taste and decency. The Authority notes that Standard 1 is concerned with the broadcast of language and behaviour which are contrary to current norms of decency and taste. The Authority agrees with TVNZ that “botched” is the language of conversation – the vernacular – and that it does not breach community standards of good taste and decency.

[30] The Authority does not agree with Mrs Thirlwall that the presenter “usurped” the Tribunal’s role. In the Authority’s view, in the context of the item the presenter and the reporter accurately and adequately reported the Tribunal’s findings. Mrs Thirlwall couched this aspect of her complaint as a breach of good taste and decency. The Authority notes that, even if there had been a “usurping” of the Tribunal’s role, for the reason given in paragraph [29] concerning the purpose of Standard 1, it would not be a matter of “good taste and decency”.

[31] The Authority finds that the item did not breach Standard 1.

Standard 4 (Balance)

[32] Standard 4 requires that when controversial issues of public importance are being 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 in the current period of interest. Mrs Thirlwall complained that the programme told “one side of the story” only. To be balanced, she contended, the programme should have:

• given more information about Mr Crowley’s medical condition and the circumstances surrounding the operation;
• asked a cancer expert to describe the problems with bowel cancer;
• asked an expert about Dr Breeze’s service and record in comparison with others;
• reminded viewers of the risks and complications of bowel cancer surgery; and
• mentioned Dr Breeze’s positive achievements.

[33] In the Authority’s view, the controversial issue of public importance being discussed was not Mr Crowley’s operation or the Tribunal’s findings but, as TVNZ stated, the “worrying and growing number of complaints against one surgeon”. The item was not about bowel cancer or the risks and complications of bowel cancer surgery, nor was it about Dr Breeze’s work history generally. Therefore, the Authority considers that none of the points raised by Mrs Thirlwall was necessary to provide balance to the story.

[34] Nonetheless, Standard 4 required TVNZ to make reasonable efforts to obtain Dr Breeze’s point of view on the matters raised in the story. The Authority notes that the item reported that Dr Breeze’s lawyer had been contacted before the broadcast, and that Dr Breeze was away and would not be available for comment. TVNZ advised the complainant that “several approaches” had been made to Dr Breeze’s lawyer requesting an interview with the surgeon or, failing that, with someone who could speak on his behalf. It advised the complainant that both requests had been denied, but that the invitation for Dr Breeze to appear on Holmes remained open.

[35] The Authority considers that TVNZ made reasonable efforts to obtain Dr Breeze’s comments, and it declines to uphold the aspect of the complaint that the broadcast breached Standard 4.

Standard 6 (Fairness)

[36] As a person referred to in the broadcast, Dr Breeze was entitled to be dealt with justly and fairly. Mrs Thirlwall considered that fairness required that the matters listed in paragraph [32] above should have been included in the broadcast.

[37] For the same reasons as given in its discussion of the balance aspect of the complaint at paragraph [33], the Authority does not consider that those points were required in order for the item to be fair to Dr Breeze. It finds that the item did not breach Standard 6.

Standard 5 (Accuracy)

[38] The Authority was unable to find anything in the item which could be described as untruthful or inaccurate. It declines to uphold this aspect of the complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
6 May 2004

Appendix

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

1. Mrs S L Thirlwall’s Complaint to Television New Zealand Ltd – 6 December 2003

2. TVNZ’s Response to the Formal Complaint – 19 January 2004

3. Mrs Thirlwall’s Referral to the Broadcasting Standards Authority – 11 February 2004

4. TVNZ’s Response to the Authority – 23 February 2004