Date: 26 March 2007

DECISION OF TV3 STANDARDS COMMITTEE

Complainant:

Dr Stephanie du Fresne

 
The Standards Committee has now considered your formal complaint regarding a 3 NEWS interview about The Ashburn Clinic broadcast 12 February 2007.
 
Your complaint has been considered with reference to Standard 3 of the Free-to-Air Television Code of Broadcasting Practice.

The Programme

 
This 3News item included an interview with Julie Simmonds – a committed patient under the Mental Health Act who wanted to publicly protest her electric shock treatment at Ashburn Clinic.  She explained she was receiving electric shock treatment against her will.

Your Complaint

 
You are the medical director of the clinic and you claim that Julie Simmonds was not well enough to provide informed consent to be interviewed.  You expressed this view to the broadcaster prior to the interview being broadcast and Julie Simmonds husband also requested the broadcaster not to screen the interview material.  You have provided to the BSA confirmation that you were the clinician responsible for her treatment.
The Relevant Standards
 

Standard 3 Privacy

 
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

• 1       It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.
• 4       The protection of privacy includes the protection against the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable individual, in circumstances where the disclosure is highly offensive to an objective reasonable person.
• 5       It is a defence to a privacy complaint that the individual whose privacy is allegedly infringed by the disclosure complained about gave his or her informed consent to the disclosure. A guardian of a child can consent on behalf of that child.
• 8       Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

The committee considered this complaint by reference to the Privacy Principles set out above.  In all privacy complaints the committee must first decide whether the person whose privacy has allegedly been interfered with is identifiable in the broadcast.  No issue with identification arises here.
 
The next issue is whether the item disclosed private facts about Julie Simmonds.  The committee accepts that mental health status would ordinarily be regarded as private.
 
Then the committee considered whether in the circumstances the disclosure of these private facts was offensive and objectionable.  On balance the committee does not consider the disclosure was objectionable.  Julie Simmonds was shown in the item, she was coherent and capable of expressing herself clearly, she was represented by counsel who supported her decision to speak about her treatment – she was adamant that she wanted her story told.   As a mental health patient she does not give up her right to freedom of expression.  Her rights to communicate are specifically preserved within the provisions of the Mental Health legislation and codes.  The committee does not consider 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 committee then went on to consider whether principle 5 applies.  Did Julie Simmonds give informed consent to the disclosure?  Her clinical practitioner says she was not capable of giving informed consent.   However, she is shown emphatically asking for her story to be told and her lawyer supported her in this.
 
For broadcasting standards purposes “informed consent” is not a medical term of art – it could not possibly be as the standards must be interpreted and applied not by clinicians but by journalists.  The considered opinion of the complainant (no doubt accurate within the health arena and for the purposes of the Mental Health Act) while “part of the mix” for the news editor’s decision making process is not the complete answer. 
 
Here, the news editor carefully considered the position - understanding that the interview subject was speaking against the wishes of both her husband and her doctor but with the support of her lawyer.  After careful consideration of those circumstances and mindful of Julie Simmonds’ right to speak about her own situation the decision was made to 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 in the item.
 
To allow a person subject to a serious or “controversial” treatment not to speak out about it because of an objection raised by the practitioner delivering the treatment and her husband, who supports the treatment being administered, would be to deny Julie Simmonds a fundamental and basic human right and to unreasonably curtail both her and 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 free and democratic society.
 
For all those reasons the Committee finds no breach of the privacy standard.

The Decision

 
The Standards Committee has not identified any breach of the relevant standards and accordingly declines to uphold this complaint.
 
Standards Committee