BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item on the standard of care in rest homes in New Zealand – producer went undercover as a caregiver for five days in a rest home on Auckland’s North Shore – presenter and undercover producer raised a number of concerns regarding the quality of care being provided in the rest home – allegedly unbalanced, inaccurate and unfair 

Findings
Standard 4 (balance) – owners provided with an adequate opportunity to respond to allegations – broadcaster made reasonable efforts to provide significant viewpoints on the controversial issue discussed – not upheld 

Standard 5 (accuracy) – undercover producer’s opinions and impressions not statements of fact – decline to determine whether undercover producer contracted an MRSA infection from rest home – not upheld

Standard 6 (fairness) – legitimate use of covert filming – in the public interest to broadcast the material – item treated all individuals and organisations taking part or referred to fairly – not upheld  

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on 19 January 2009, discussed the standard of care being provided by rest homes in New Zealand. To obtain an example of the quality of care being provided, a producer went undercover as a caregiver in a North Shore rest home for five days. With an on-screen graphic saying “Undercover: Rest Home Reality Check”, the presenter introduced the item by saying:

We begin with a subject which concerned so many of you last year, the care of our loved ones in rest homes. How can we really know what’s going on? Well, to find out, we put one of our producers undercover as a carer.  After five days working there she left far from impressed and more than a little worried after contracting a super-bug.

Another worrying aspect, just how easy it was for her to get work looking after vulnerable people. No references, no checks on her background.

[2]   The next segment of the item showed the programme’s producers sitting around a table devising the undercover operation and one of the producers, Kate, agreeing to go undercover. One of the producers stated, “There was an incident in the middle of last year, [at a rest home] in Auckland, where the elderly lady was found gagged in her room.  A voiceover from the reporter then said:

And out of that shocking case of abuse health authorities vowed to get tough, putting several homes under statutory management including [name of rest home subject to undercover operation] on Auckland’s North Shore.

[3]   The reporter introduced Kate via voiceover, stating:

She’s unskilled, untrained, has never had anything to do with the welfare of the elderly. Yet today, she could be caring for your frail mum or dad, beloved family members you’ve entrusted to supposed professionals.  

[4]   The reporter then spoke about the undercover producer’s efforts to secure a job at the rest home, saying:

Certainly no worries there, a quick meeting with the rest home owner and Kate’s through the door on an unpaid trial for five days. Remarkably, no need for identification, references or even a CV.

[5]   The next segment of the item included footage from Kate’s video diary, in which she summed up her experiences after each day’s work. After the first day, she said that “it actually is a nice facility, they’ve got nice rooms, it smells nice and it’s clean”. However, she went on to say that the home was “terribly short-staffed” and that the food was “absolutely disgusting”.

[6]   Each day, Kate became increasingly despondent with the situation at the rest home, outlining various concerns she had about how the home was being run and the treatment of residents. This footage was interspersed with the shots of the producers and Kate back around the table discussing other rest home-related issues, as well as other undercover footage taken by a second producer sent to the home on the pretext of looking for a place for her elderly mother.

[7]   The second undercover producer’s footage included a recording of a conversation with a staff member at the rest home. The footage consisted mainly of feet shots and did not identify the staff member concerned. During this footage, the following exchange took place between the second undercover producer and the staff member:

Producer:           It’s just all those horror stories last year with the elderly.
Staff member:    Well you get that, but people over-inflate things you know. We had two
                          pressure sores that got investigated.   
Producer:           Oh, so they come down quite hard?
Staff member:    Oh, they do yeah.
Producer:           I guess it’s a good thing to have?
Staff member:    We didn’t kill anyone. North Shore Hospital are killing people and not doing
                         things properly the whole time, but nothing happens to them.

[8]   Also interspersed between footage of the undercover producer’s daily video diary, was footage of a discussion between a dietitian and a chef about the rest home’s food. They provided their professional opinions on the taste, look and nutritional value of the food. Both of them were highly critical of the food’s taste and nutritional value.

[9]   The final video diary revealed that the undercover producer had contracted the “super-bug” MRSA, and believed that she had done so while working at the rest home. Following this, the programme returned to the studio and a live discussion was held in which the presenter stated:

Now, [name of rest home] was taken out of statutory management in August last year after a month’s supervision. Since our investigation, we’ve learnt the home has been sold to a non-profit Christian organisation which takes over in a few weeks.

But we invited the present owner on to the programme tonight to discuss Kate’s concerns. She declined, saying our producer had got the work on false pretences and she wanted to consult a lawyer before responding. We have left the invitation open for tomorrow night.

[10]   Returning from an advertisement break, the presenter stated:

Before the break you saw the results of our undercover examination inside a rest home. No ID checks, virtually no training, lack of staff and food, well you saw the food. Now as I said, the owner of [name of rest home] declined our invitation to come on, but here to discuss what we found I’m joined from Taupo by Rose Wall from the Ministry of Health and here in the studio from Age Concern, Jennie Michel.

[11]   A discussion between the presenter and the interviewees took place focusing on the wider issues of rest home care including the Health and Disability Sector Standards that rest homes are expected to comply with, difficulties with staff training, food, the success or otherwise of the recent statutory management period of the rest home reported on, and a brief discussion about super-bugs.

[12]   The presenter concluded the item by saying:

Now look we are running out of time, but one point I want to make, there are a lot of good rest homes around, there are a lot of people in the industry who look after and do care...

Now if you’ve got concerns about other rest homes around New Zealand or wish simply to comment on our story please contact us.

[13]   During the following night’s episode of Close Up, the presenter stated:

We’ve had a huge response to last night’s story on our undercover operation in a North Shore rest home.

Firstly, we have finally had a response from [the rest home] management. Now, they have called our investigation an invasion of privacy, but say they are confident in the quality of their home. They’ll continue to carry out what they say are strict checks on the backgrounds of employees and they insist that during the time our producer was in the home staffing levels were appropriate. They also say that their food addresses the nutritional needs of the elderly.

Meanwhile, the Waitemata District Health Board today visited the home and said it was investigating ‘as a matter of urgency’. The DHB said it was very concerned by the issues raised in our story and thanked us for the investigation.

[14]   The presenter then referred to comments sent to the programme by viewers and the Nurses Union. The item ended with the presenter saying that the programme would continue to investigate the issue.

[15]   On 22 January 2009, three days after the original report, Close Up again referred to the rest home it investigated. The presenter stated:

Now, a quick update on our undercover rest home investigation. An interesting development today from the Waitemata District Health Board regarding [the rest home].

Now, they had this to say, ‘Following the Close Up programme, a transitional manager supplied by the home’s new owners [name of trust] will take over responsibility for the management of [the rest home] from today. The new manager will be employed by, and report to, Waitemata DHB until 18 February this year when [name of trust] take over ownership of the rest home’.

[16]   The presenter stated that the Waitemata District Health Board (WDHB) would continue to investigate the allegations raised by Close Up. He then went on to talk briefly about the producer’s progress after contracting the super-bug and the feedback they had received from viewers about the original item.      

Complaint

[17]   AP and JM Turley made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was unbalanced, inaccurate and unfair.

[18]   With respect to balance, the complainants said that the undercover producer had no previous experience in the care of the elderly, “yet presented her material as if she was an expert”. They noted that no figures had been provided of “how many residents she came in contact with, the health or condition of the individuals she cared for or the tasks she was expected to perform (other than showering an elderly person), or the degree of supervision she was provided”.

[19]   The complainants noted that “no mention was made of the fact that Kate was orientated by a senior caregiver and buddied with her for the entire time she was at [the rest home]”. They stated that the undercover producer was given no individual responsibility for tasks performed and that the opportunity should have been provided to hear from the rest home caregiver who supervised her.

[20]   The Turleys pointed out that the undercover producer had obtained entry to the home on the understanding that she was gaining work experience, not employment, and argued that this was not the impression conveyed to viewers by the programme.

[21]   The complainants argued that the item had sensationalised the comments made by the rest home’s staff member about official responses to incidents at North Shore Hospital and the rest home being treated differently and that this had added to the item’s lack of balance.

[22]   The Turleys noted that the producers had not interviewed residents, the majority of whom, they argued, were “very happy with the care they received”. They also noted that, while the item opened with Kate stating the rest home seemed clean and did not smell, there was no attempt to show the home’s facilities, rooms, qualified staff or the activities residents could be involved in.

[23]   The complainants argued that the comments made about the home’s food were particularly unbalanced. They said that Kate had not explained that she had asked management for some food to take home as she was facing financial hardship. The food was leftovers, they said, but the programme presented the food as if it was a typical serving. They argued, “Having a so-called nutritionist or expert make judgment on the food, as if it was representative of what was served regularly at the rest home, was again sensational and unbalanced reporting”. The complainants pointed out that no attempt had been made to provide the details of menus for a month, fortnight or even a week.

[24]   The Turleys said that they knew a number of people associated with residents at the home had written letters to Close Up stating their displeasure with the item and contended that the contents of these letters should have been included in subsequent reports on the home. They noted that mention had been made in the item broadcast the following day that the management was sorry for allowing an unqualified person access to the home and that the home felt the nutritional needs of its residents were being met. However, they contended that “neither of these statements, as presented, provided a full or balanced view of the situation”.

[25]   The complainants noted that the item had not mentioned that the District Health Board had completed a full audit of the home just a fortnight before the undercover producer went there.

[26]   The Turleys contended that the experts interviewed from the Ministry of Health and Age Concern were not able to verify the information presented about the rest home as factual and as such, balance was not provided by their participation.

[27]   Turning to accuracy, the complainants argued that the item’s material, as presented, was incomplete and inaccurate. With respect to the MRSA super-bug, they said that the programme had suggested that a number of patients at the home had the bug, that other residents had not been told of it and that the producer had contracted the bug while at the rest home.

[28]   The Turleys said that the item had not explained that the five residents who had caught the bug had done so while at local hospitals, and that the producer had been instructed by a registered nurse on hand washing procedure when dealing with infected people. They noted that the programme failed to mention that there was signage at the home warning staff and others that a resident was sick with the bug, and that hand washing stations were strategically positioned in areas around the home. They also argued that there was no proof that the producer had contracted the MRSA bug while working at the home.   

[29]   The complainants argued that the producer’s allegations of under-staffing were inaccurate and that they understood that records existed which could prove their contention.

[30]   The Turleys considered that the item had suggested ill-treatment of residents by staff and they disputed that allegation. They noted that the producer had found the showering of a resident who suffered from dementia upsetting. The complainants stated that a qualified member of staff had been present and that “an unqualified and inexperienced person masquerading as a caregiver might find the work unpleasant and upsetting because of her lack of understanding of behavioural problems common for elderly people suffering from dementia”. They argued that the producer’s description of showering the resident, without providing the context, was inaccurate, unbalanced and sensational journalism.

[31]   With respect to fairness, the complainants contended, “The points we have made above illustrate how unfairly the staff, management and many residents of [the rest home] have been treated by TVNZ over this programme”. They said that the “undercover nature of the programme” was “particularly galling”, that Kate’s reports were sensational, rather than factual, and that background research into sensitive topics such as the MRSA bug was lacking.                    

Standards

[32]   TVNZ assessed the complaint under Standards 4, 5 and 6 and guidelines 4a, 4b, 5d, 6a, 6b and 6c of the Free-to-Air Television Code of Broadcasting Practice. These provide:

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.

Guidelines

4a   Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

4b   No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

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 5d

Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

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.

Guidelines

6a   Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b   Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6c   Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

Broadcaster's Response to the Complainant

[33]   TVNZ said that, in the first programme of 2009, Close Up reported on the standard of rest home care in New Zealand, following a series of Close Up items on this topic in 2008. It stated that the public interest in the story was a relevant consideration to aspects of the complaint, specifically to balance and fairness.

[34]   The broadcaster considered that the standard of rest home care in New Zealand had recently been, and continued to be, a matter of significant public interest. The programme, it said, followed a series of Close Up items investigating the care of the elderly in rest homes. The item had been sparked, in part, by the abuse of a woman whose mouth had been taped shut in an Epsom rest home, to which a whole episode of Close Up had been devoted. TVNZ stated that it had received a “flood of emails”, many of which outlined serious issues of abuse.

[35]   TVNZ went on to say:

In the face of so many alleged cases of neglect and abuse, it was decided the only practical way to establish the truth and get past the issue of ‘he says-she says’ was to go undercover and put one of the Close Up team into a rest home as a worker, to have an objective, unimpeded insight from within the system.

[36]   The broadcaster stated that it did not undertake covert filming lightly, but there were times when there was no other way to obtain vital information. It said that it had criteria that had to be satisfied before it would give reporters permission to undertake covert filming and that these were, “that it is in the public’s interest, the material is indispensible and unobtainable by more open means or there is a prima facie case that the event to be recorded is anti-social”. It considered the rest home investigation met all three criteria.

[37]   TVNZ said that the WDHB had received several complaints about the home’s standard of care and that, as a result, the WDHB appointed a temporary manager and developed an action plan to improve the quality of care being provided at the home. It stated that the particular rest home was chosen because of its history and ongoing concerns expressed to Close Up about its standards of care. These concerns, it said, related to the rest home’s degree of compliance with the Health and Disability Services’ set of Standards that applied to all service providers, including rest homes. It said that examples of possible non-compliance included:

• the producer not needing to provide any identification, references or a CV
• a lack of orientation, lack of a care plan or briefing about residents
• under-staffing
• the taste and quality of meals
• a lack of warning or advice about the risks of contracting MRSA (until day four)
• a lack of adequate training or supervision for showering
• a resident with a leaking nappy
• rough handling and an uncaring manner towards residents.

[38]   The broadcaster said that the observations made by its undercover producer raised “serious questions as to the extent of compliance with these standards, particularly around appointment, induction, orientation, service provider levels, nutrition and infection control management and education, and service provision”. Further, it said “this is undoubtedly a matter of real public interest, particularly given the level of recent intervention and apparent close monitoring at the rest home”.

[39]   TVNZ noted that following the case of an elderly woman having tape placed over her mouth at an Auckland rest home, health authorities put several rest homes under statutory management and an important aspect of the public interest in the programme was the effectiveness or otherwise of that response.

[40]   Turning to Standard 4 (balance), the broadcaster considered that the item had discussed a controversial issue of public importance. It said the programme’s presenter had made it clear to viewers that the owners of the rest home had been invited to appear on the programme and that they had declined the invitation.

[41]   TVNZ said that Standard 4 allowed for balancing material to be broadcast within the period of current interest. It pointed out that on 20 January (a day after the original item) Close Up broadcast a follow-up item on the rest home story that included comment from the home’s management in response to the previous night’s broadcast. It also noted that another follow-up item was broadcast on 22 January reporting on WDHB’s response to the initial broadcast and that it had included positive feedback received from viewers about their experiences with rest home care.

[42]   The broadcaster considered that it was appropriate to include the views of Ms Wall from the Ministry of Health and Ms Michel from Age Concern in the original item.

[43]  Turning to the specific points made by the complainants under balance, TVNZ argued that the item had not presented the material from its undercover producer as the material of an expert. It said that “from the outset, Close Up made it clear to viewers that Kate had no experience in the care of the elderly”. It contended that the fact that Kate was unskilled in care for the elderly formed part of the premise for the story: that unskilled workers could get work readily in rest homes. TVNZ also argued that it was made clear at the beginning of the item that Kate was on an “unpaid trial”.

[44]   The broadcaster argued that the nature of covert filming meant that the various suggestions made by the complainants would not have worked. For example, Kate could not interview residents in the home with a camera crew to get their perspective.

[45]   With respect to the comments made about the food, TVNZ stated that, “Kate denies the allegation that the food presented to the [nutritionist and chef] was left-over food”. It argued that the meals that had been obtained were actual meals served to the residents at the home.

[46]   The broadcaster argued that, “appropriate viewpoints were sought by the programme and those viewpoints were adequately presented within both the initial broadcast and the current period of interest”. It declined to uphold the complaint that the item was unbalanced. 

[47]   With respect to Standard 5 (accuracy), TVNZ said that, at the conclusion of the original item, the presenter reminded viewers that “we showed you just one snapshot of one rest home”. It said the material presented by Kate in the daily video diaries was not presented as the material of an expert, but rather as the daily impressions of somebody inexperienced and new to rest home care.

[48]   With regard to the MRSA super-bug, the broadcaster argued that the relevant point was that Kate had not been warned about MRSA until day four at the home. It said that Kate had told it, “I was not informed that MRSA was an issue and what precautions I should take. On my first day I was feeding a woman with MRSA but wasn’t told about it being an issue until day four”. TVNZ said that Kate had explained to it that on her final day, a registered nurse at the home had told staff that up to six residents had MRSA and they should get tested. It said Kate went to the doctor and the result of the test was positive, but that the doctor had told her that he could not say for certain that she was infected at the rest home. The broadcaster said that, while it was possible that Kate had MRSA prior to going to the rest home, it “was a very remote possibility” and the likelihood was that she contracted the super-bug at the rest home.

[49]   TVNZ contended that the point of discussing MRSA was to highlight the wider issue of the home’s level of compliance with the Health and Disability Service Standards. Similarly, it said Kate’s comments about the home being short-staffed and the showering of a resident raised questions about compliance with the Service Standards.

[50]   The broadcaster argued that the comments contained in Kate’s video diaries were accurate descriptions of the days she spent at the rest home. It noted that, following the item, the WDHB launched an investigation into the issues raised and had concluded that, “while policies and procedures were in place, they were not adhered to in all instances identified on the Close Up programme”.   

[51]   TVNZ said that the owners of the rest home were given the opportunity to dispute the points raised, but no records were provided to counter Kate’s claims. It declined to uphold the accuracy complaint.

[52]   With respect to fairness, the broadcaster said it was satisfied that the public interest issues raised in the programme were a sufficient defence to the complaint. It argued that Close Up had received a large amount of correspondence about neglect in rest homes and, had a camera crew turned up to the rest home, “it was likely to get a laundered view of the internal workings of the home”. Going undercover, it said, was the only way it felt it could obtain an objective unimpeded insight into the system.

[53]   TVNZ considered that the use of covert filming was justified in the circumstances and that it did not constitute a breach of Standard 6. It reiterated the fact that an invitation was extended to the owners to appear on the programme, which they had declined.      

Referral to the Authority

[54]   Dissatisfied with TVNZ’s response, the complainants referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[55]   The Turleys said that the proprietor of the rest home had interviewed staff after the item was broadcast and had provided the following particulars:

• The undercover producer first inquired about employment as a caregiver on the morning of 19 December 2008, but was told that no vacancies existed.
• The producer came back in the afternoon and approached the manager asking for work experience. The manager informed the producer that no such opportunities existed, but that if the opportunity arose she would be contacted. The manager asked the producer to provide her CV, but the producer told her she did not have one and had been working in Ireland for the past 10 years.
• Notwithstanding management’s refusal to provide work experience, the producer turned up on Wednesday 7 January and presented herself to a registered nurse on duty claiming to have organised work experience with the owners.  
• The registered nurse immediately placed the producer under the supervision of a senior caregiver and instructed the caregiver to conduct a preliminary orientation.

[56]   The complainants argued the producer’s claim that she did not receive an orientation or warning about MRSA was untrue. They said that, later on during the first afternoon, the producer was given another orientation by a registered nurse and “was given a preliminary reference to the issue of resistant bacterial infections such as MRSA”. They contended that on the second day, a further briefing was given to the producer that explicitly outlined issues regarding MRSA.

[57]   The Turleys said that the undercover producer, due to her inexperience, would have had no idea about the appropriate level of staffing. They stated that there were records of staffing levels for the period the undercover producer was there, which showed staffing levels “were well above the requirements”.

[58]   The complainants said that the Ministry of Health had conducted a certification audit and found that the rest home complied with all standards including nutrition and care. With respect to the food, they argued that “the two meals taken could in no way be representative of the full range of meals provided by the home”, and that its meals were certified by a qualified dietitian.

[59]   Turning to MRSA, the Turleys argued that, “medical advice suggests it is unlikely that a person could contract MRSA after five days working in a rest home and this could be detected by a test in such a short period of time”.

[60]   The Turleys supplied the Authority with an article from the Listener dated 7 February 2009, which was critical of the programme. They concluded by saying that the general allegations made by TVNZ were intrusive and damaging to the residents, their rights of privacy and sense of integrity.                

Broadcaster’s Response to the Authority

[61]   TVNZ noted that the complainants’ letter of referral introduced new material and provided greater detail than it had received in the Turleys’ original formal complaint. It considered that its response adequately addressed the issues raised in the original formal complaint.

[62]   The broadcaster pointed out that, since its formal response to the complainants, the Health and Disability Commissioner had released reports concerning three historical complaints relating to the rest home. It said that the reports confirmed that serious issues regarding the care of the residents had previously existed in the rest home.   

Authority's Determination

[63]   The members of the Authority have viewed a recording of the broadcast complained about and the follow-up items and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (balance)

[64]   Standard 4 requires that balance be provided when controversial issues of public importance are discussed in news, current affairs and factual programmes. On this occasion, the Authority considers that the item did discuss a controversial issue of public importance – whether the standard of care being provided in New Zealand rest homes, and the official monitoring of rest homes, was adequate.

[65]   In the Authority’s view, the rest home subject to the undercover operation was used as an example to illustrate the wider issue of the adequacy of care in and the monitoring of rest homes in general.  

[66]   The complainant argued that significant viewpoints were not presented on a number of issues during the programme. The Authority turns to deal with each point individually below.

Failure to obtain comment from residents and supervisor

[67]   The Turleys believed that the broadcaster should have sought comment from residents at the rest home and the caregiver who supervised and orientated the undercover producer. The Authority notes that the owners were invited to respond to the allegations and therefore were given a reasonable opportunity to explain their position. This included the ability to provide comment from satisfied residents. As a result, the Authority declines to uphold this aspect of the Standard 4 complaint.    

Whether item conveyed Kate was on an unpaid trial

[68]   The Authority disagrees with the complainants’ argument that the item did not make it clear to viewers that the undercover producer had not been employed by the home. The item specifically stated that the producer was on an “unpaid trial” at the rest home and the producer herself referred to “work experience” in her video diary. In the circumstances, it considers that the item made it clear to viewers that the producer had not been employed by the rest home.  

Manner in which staff member’s comments were shown to viewers

[69]   With respect to the complainants’ argument that the item sensationalised the covert recording of the staff member’s comments regarding the different official responses to incidents at North Shore Hospital and the rest home, the Authority notes that the item merely included what the staff member had actually said. There is no evidence to suggest that the comments were distorted or sensationalised as claimed by the Turleys. The Authority declines to uphold this aspect of the balance complaint.

Rest home’s food

[70]   Turning to the programme’s comments about the food served at the rest home, the Authority notes that the parties’ arguments are in direct conflict. While the Turleys say that the food shown in the programme was an unbalanced representation of the type of meals served at the home, the Authority considers that the item did not present the two meals as the only meals being served at the home. Furthermore, even if they were leftovers, as the Turleys suggest, the complainants do not deny that the food was served to residents. In any case, the Authority notes that the owners were given an adequate opportunity to respond to the programme’s criticisms and state their case with respect to the quality of the food they were providing. In these circumstances, the Authority declines to uphold this aspect of the Standard 4 complaint.

Letters from residents

[71]   The Turleys argued that a number of residents at the rest home wrote to Close Up stating their displeasure with the programme and that these letters should have been included in subsequent broadcasts. In the Authority’s view, the owners were given a reasonable opportunity to put forward positive statements from residents who were happy with the quality of care and food being provided to them. As a result, it declines to uphold this aspect of the balance complaint.

Ministry of Health certification audit

[72]   The complainants said that the item should have mentioned that the rest home had recently been subject to a Ministry of Health certification audit which found the rest home complied with all the required standards. The Authority considers that, while this fact may have been of interest to viewers, it was not vital, as it did not prove the home was providing adequate care at the time the undercover producer was there.

[73]   Further, the Authority again points out that the owners were provided with an opportunity to respond to all allegations and to provide any information they felt was relevant, but which was not included in the original item. It declines to uphold this aspect of the Standard 4 complaint.

Interviews with representatives from Ministry of Health and Age Concern

[74]   With respect to the complainants’ contention that the people interviewed from the Ministry of Health and Age Concern did not provide balance, the Authority considers that their inclusion was appropriate to address the wider controversial issue under discussion. It declines to uphold this aspect of the balance complaint.

Presentation of undercover producer’s material

[75]   With respect to the Turleys’ contention that the producer’s material was presented as if she was an expert, the Authority notes that the reporter said Kate was “unskilled, untrained, has never had anything to do with the welfare of the elderly”. It considers that the item did not present the producer’s material as that of an expert and that the item clearly informed viewers that she was inexperienced in caring for the elderly. Accordingly, the Authority declines to uphold the complaint that the item breached Standard 4.

Standard 5 (accuracy)

[76]   Standard 5 requires news, current affairs and factual programmes to be truthful and accurate on points of fact.

Impression conveyed about rest home’s management

[77]   The complainants argued that the item had left viewers with an inaccurate impression that the rest home’s management had not informed all the residents that some people at the home had contracted an MRSA infection. The Authority notes that the item did not state that other residents living at the rest home, who did not have MRSA, were not told that some residents were ill with the super-bug; it simply asserted that Kate had only been told on day four of her experience. Accordingly, the Authority finds that Standard 5 was not breached in this respect.

Information given to producer about MRSA

[78]   With respect to the Turleys’ contention that the item failed to mention the undercover producer had been informed of the risks surrounding MRSA and that the home had taken preventative measures, the Authority notes that the reporter did not say she knew nothing about the risks, but that she felt she was informed about the issue too late, and without sufficient detail. In the Authority’s view, this was not a statement of fact to which the accuracy standard applied; it was clearly presented as Kate’s opinion. The Authority declines to uphold this aspect of the Standard 5 complaint.    

Producer’s contraction of MRSA

[79]   The Turleys argued that the item was inaccurate because it suggested that the undercover producer had contracted an MRSA infection while at the rest home. TVNZ argued that it was more likely than not that she had. The Authority has not been provided with any evidence with which to establish whether or not Kate contracted an MRSA infection at the home. In these circumstances, the Authority declines to determine this aspect of the accuracy complaint.

Allegations of under-staffing

[80]   Turning to the complainants’ argument that the producer’s remarks about the home being under-staffed were inaccurate, the Authority finds that the comments were clearly presented as the producer’s impressions of what she had observed during her time at the home. In the Authority’s view, these comments were not statements of fact, but statements of opinion which were not subject to the accuracy standard. It does not uphold this part of the complaint.

Ill-treatment of patients

[81]   As above, the undercover producer’s comments about the ill-treatment of patients reflected her opinions about and impressions of what she had observed during her time at the rest home. They were not statements of fact to which the accuracy standard applied.

[82]   Accordingly, the Authority declines to uphold the complaint that the item breached Standard 5.

Standard 6 (fairness)

[83]   Standard 6 requires that broadcasters deal justly and fairly with any person or organisation taking part or referred to in a programme. With respect to Close Up’s hidden camera investigation, the Authority notes guideline 6c of the fairness standard states:

Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

[84]   In the Authority’s view, there are two aspects to its consideration of whether guideline 6c was adhered to: the revelations made by Kate in her video diary, and the actual hidden camera footage.

[85]   Looking at the first aspect, the Authority is in no doubt that the broadcaster used misrepresentation and deception to gain entry into the rest home in order to obtain the information that was revealed in the Close Up programme. The undercover producer lied to the rest home’s management about why she was there, and who she was.

[86]   However, the Authority accepts that the broadcaster could not obtain this information by any other means. Further, it considers that, due to the rest home’s history, the broadcaster had a justifiable basis for going into the home and that the use of deception on this occasion was in the public interest as a means to secure an unlaundered view of how well the home was operating.

[87]   The Authority also finds that broadcasting the undercover producer’s findings enabled viewers to evaluate for themselves whether the home was providing residents with an adequate level of care.  Accordingly, it concludes that, due to the high level of public interest in the issue and the fact that the material could not be obtained by other means, the broadcaster did not contravene the fairness standard by broadcasting the findings of the undercover producer.           

[88]   Second, turning to the broadcast of the covert footage, the Authority notes that the footage mainly showed the feet of those people who were talking. With respect to the staff member who was covertly filmed and recorded by the second undercover producer, the Authority finds that this footage enabled the audience to evaluate the attitude taken by the rest home’s staff towards official responses to issues such as neglected bedsores on residents. In these circumstances, the Authority finds that it was in the public interest, and therefore not a breach of Standard 6, for the broadcaster to include the covert footage and recording in the item.

[89]   With respect to the other fairness issues raised by the complainants, the Authority concludes that the rest home was given an adequate opportunity to respond to all matters and allegations raised in the item. Accordingly, the Authority declines to uphold the complaint that the item breached Standard 6 (fairness).

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 June 2009

Appendix

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

1.          AP and JM Turley’s formal complaint – 7 February 2009
2.         TVNZ’s response to the formal complaint – 10 March 2009
3.         The Turleys’ referral to the Authority – 3 April 2009
4.         TVNZ’s response to the Authority – 22 April
5.         TVNZ’s final comment – 4 May 2009