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HC overturns BSA privacy decision

By Steven | March 16, 2008

Last August, the BSA upheld a complaint from Dr Stephanie du Fresne, the medical director of a mental health clinic, about an interview with one of her committed patients conducted without the clinic’s knowledge. TV3 News interviewed the woman about her electric shock treatment, which she didn’t want. The story revealed that she was bipolar and manic depressive. She said she suffered night terrors and had attempted suicide twice because of fear of the treatment. Her husband supported the treatment, and was seen on the programme trying to stop the interview. But the woman seemed lucid and in control; she overrode her husband.

There’s no doubt the programme revealed private, personal details about her, and that without informed consent, the broadcast of such details was highly offensive. But did she give informed consent? TV3 said yes. She seemed to know what she was doing. Her lawyer supported her. There was some evidence that, even after her release, she did not regret the interview. “Informed consent” was a judgment to be formed by journalists, not doctors. It felt that the patient had the right to speak out against her treatment.

Dr Du Fresne said no. The clinic’s medical judgment was that she was not capable of giving informed consent. They told TV3 this when they became aware of the upcoming broadcast. TV3 got no second opinion. It ran the story, but broadcast Dr Du Fresne’s view about her incapacity.

Du Fresne complained to the BSA, which upheld the complaint:

The Authority understands that a broadcaster may, in some circumstances, be required to make difficult judgment calls about whether a person is capable of consenting to a breach of their privacy. However, in circumstances where the broadcaster was advised by a forensic psychiatrist and treating clinician that the individual was not in a position to give informed consent, the Authority considers that it was not appropriate to ignore that advice and proceed with the broadcast. Although JS appeared to be “coherent and capable of expressing herself”, the broadcaster should have accepted that it was not better able to assess JS’s capacity to give consent than her treating clinician.

But the High Court disagreed. (The case isn’t online yet). Simon France J found:

1. It was a breach of natural justice to determine the complaint without reference to the patient. The BSA found she wasn’t capable of consenting, though she seemed to do so. Upshot, I think: if a “third party” privacy complaint raises the prospect of an adverse finding about the person affected, that person needs at the very least to be given a chance to comment before the finding is finalised. This may apply more generally to other complaints that raise issues about non-parties.

2. In fact, in these circumstances, the BSA should have declined to hear the complaint, because it necessitated an inquiry into a third party’s mental health status. Is this limited to the (fairly narrow) facts of this case? Or might it suggest a rather wider principle about the BSA needing to decline jurisdiction when it may need to make adverse findings about someone who has not chosen to complain? The judge does say that there may be cases where third parties can complain about privacy breaches.

3. The general test for informed consent is whether a person has “an awareness of being interviewed, of knowing the true context of the interview, and of being aware of the purposes to which the interview is to be put.” In general, this does not require an appreciation of the ramifications of broadcast, including what publicity it might generate, or how it might impact on the interviewee’s health. Still, “more might be required in a specific case, and this may indeed be such a case” (particular care may need to be taken to ensure mental health patients’ understanding is real and sufficiently complete). The judge suggests that this interpretation of the notion of informed consent is required for consistency with the NZ Bill of Rights Act, but provides no more detailed reasoning about this.

4. It wasn’t clear what test the patient’s clinical team were applying for “informed consent”. (This is a bit rich, I think, given that Simon France J himself hasn’t said what the test requires in cases like this! Still, he finds that the question would need to be determined in light of fuller argument and better evidence, including proper evidence about what the patient thought and understood at the time.)

5. Public interest will never be a defence to the failure to get informed consent to the release of such personal information.

6. The case is not to be taken as an endorsement of TV3’s conduct. In particular, there was plenty of time for it to work through the clinic’s concerns as there was no urgency in the story.

7. As a general rule, the BSA should not usually appear in court and make submissions in defence of its decision. (This is probably right as a matter of law. But no other judge has expressed this concern in BSA cases, and it will mean that there will usually be no-one arguing the other side in BSA appeals.)

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act, Privacy tort | 3 Comments »

3 Responses to “HC overturns BSA privacy decision”

  1. Jeremy Smith Says:
    April 8th, 2008 at 1:55 pm

    It’s always concerned me that third party complainants can go straight to the BSA on a privacy complaint, and the BSA must deal with the complaint. This doesn’t apply in other categories.
    A way round this would require broadcasters to respond to third party privacy complaints in the first instance.

  2. Steven Says:
    April 8th, 2008 at 4:36 pm

    Jeremy, you seem to have raised two issues here. The first is that privacy complaints can be taken directly to the BSA instead of directing them to broadcasters first. You’re right that this doesn’t apply to the other categories like fairness and accuracy. But it does apply to all privacy complaints, not just those by third parties. Among those that have to go to the broadcaster first are some grounds that may impact complainants directly (eg balance) and some that are more like third party complaints (eg law and order). I’m not sure you’re suggesting any differently. I think the idea is that privacy violations affect people in unique ways, and so they require a faster and more punitive remedy (you can get damages for privacy breaches but not for any of the other standards).

    I’m not really sure this difference is justified, either. It may hark back to the earlier Broadcasting Act where there were special processes for individual fairness and privacy complaints. As far as I can tell, the usual effect of the new regime is for privacy complainants to screw up: they go straight to the BSA and lose the opportunity to argue under the fairness standard, which is much wider and may well succeed where the more technical privacy one doesn’t.

    The other issue you raise is about third parties – a complainant can complain about a breach of someone else’s privacy (though they can’t get damages for it). The broadcasters don’t like these third party complaints, and there’s an argument that the Broadcasting Act shouldn’t be interpreted to support them (particularly in light of section 6 of the Bill of Rights Act). On the other hand, the Broadcasting Act does draw a distinction between “complainants” and “individuals” whose privacy has been violated, suggesting that a complainant may complain that some other individual’s privacy has been violated. This argument isn’t a king hit. The difference could be there to allow parents to complain on behalf of children, for example.

    Too much information?

  3. Jeremy Smith Says:
    April 9th, 2008 at 6:06 pm

    My impression over the years is that a significant number of privacy complaints really relate to fairness or balance, and that the complainants probably realise they can go straight to the BSA through the “privacy route”.
    Hard to prove of course, but I don’t think some of them would have bothered if they had to go to the broadcaster first.
    And as you say, some of these cases would be more fully discussed under fairness.

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