Here is the actual ruling on 26 March 2007 by TV3 of New Zealand squashing a complaint by the doctor who had given Julie Simmonds forced electroshock. The doctor, Dr. Stephanie du Fresne, claimed that it was TV3 that was violating Julie’s rights by airing her story! TV3 found that the doctor’s claim was “inconsistent with the operation of a free and democratic society.”
Date: 26 March 2007
DECISION OF TV3 STANDARDS COMMITTEE
Dr Stephanie du Fresne
The Standards Committee has now considered your formal complaintregarding a 3 NEWS interview about The Ashburn Clinic broadcast 12February 2007.
Your complaint has been considered with reference to Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.
This 3News item included an interview with Julie Simmonds – a committedpatient under the Mental Health Act who wanted to publicly protest herelectric shock treatment at Ashburn Clinic. She explained she wasreceiving electric shock treatment against her will.
You are the medical director of the clinic and you claim that JulieSimmonds was not well enough to provide informed consent to beinterviewed. You expressed this view to the broadcaster prior to theinterview being broadcast and Julie Simmonds husband also requested thebroadcaster not to screen the interview material. You have provided tothe BSA confirmation that you were the clinician responsible for hertreatment.
The Relevant Standards
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters areresponsible for maintaining standards consistent with the privacy ofthe individual.
- 1 It is inconsistent with an individual’s privacy to allow thepublic disclosure of private facts, where the disclosure is highlyoffensive to an objective reasonable person.
- 4 The protection of privacy includes the protection against thedisclosure by the broadcaster, without consent, of the name and/oraddress and/or telephone number of an identifiable individual, incircumstances where the disclosure is highly offensive to an objectivereasonable person.
- 5 It is a defence to a privacy complaint that the individualwhose privacy is allegedly infringed by the disclosure complained aboutgave his or her informed consent to the disclosure. A guardian of achild can consent on behalf of that child.
- 8 Disclosing the matter in the ‘public interest’, defined as oflegitimate concern or interest to the public, is a defence to a privacycomplaint.
The committee considered this complaint by reference to the PrivacyPrinciples set out above. In all privacy complaints the committee mustfirst decide whether the person whose privacy has allegedly beeninterfered with is identifiable in the broadcast. No issue withidentification arises here.
The next issue is whether the item disclosed private facts about JulieSimmonds. The committee accepts that mental health status wouldordinarily be regarded as private.
Then the committee considered whether in the circumstances thedisclosure of these private facts was offensive and objectionable. Onbalance the committee does not consider the disclosure wasobjectionable. Julie Simmonds was shown in the item, she was coherentand capable of expressing herself clearly, she was represented bycounsel who supported her decision to speak about her treatment – shewas adamant that she wanted her story told. As a mental healthpatient she does not give up her right to freedom of expression. Herrights to communicate are specifically preserved within the provisionsof the Mental Health legislation and codes. The committee does notconsider that the disclosure was objectionable.
On that basis the committee does not uphold this complaint no question of consent arises.
However, in case the Authority takes a contrary view, the committeethen went on to consider whether principle 5 applies. Did JulieSimmonds give informed consent to the disclosure? Her clinicalpractitioner says she was not capable of giving informed consent. However, she is shown emphatically asking for her story to be told andher lawyer supported her in this.
For broadcasting standards purposes “informed consent” is not a medicalterm of art – it could not possibly be as the standards must beinterpreted and applied not by clinicians but by journalists. Theconsidered opinion of the complainant (no doubt accurate within thehealth arena and for the purposes of the Mental Health Act) while “partof the mix” for the news editor’s decision making process is not thecomplete answer.
Here, the news editor carefully considered the position – understandingthat the interview subject was speaking against the wishes of both herhusband and her doctor but with the support of her lawyer. Aftercareful consideration of those circumstances and mindful of JulieSimmonds’ right to speak about her own situation the decision was madeto allow the item to go to air. It was not a decision taken lightly,the reservations and views of her husband and doctor were included inthe item.
To allow a person subject to a serious or “controversial” treatment notto speak out about it because of an objection raised by thepractitioner delivering the treatment and her husband, who supports thetreatment being administered, would be to deny Julie Simmonds afundamental and basic human right and to unreasonably curtail both herand the media’s right to freedom of expression in a manner that would,in this committee’s view, be inconsistent with the operation of a freeand democratic society.
For all those reasons the Committee finds no breach of the privacy standard.
The Standards Committee has not identified any breach of the relevantstandards and accordingly declines to uphold this complaint.