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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 | Comments Off on HC overturns BSA privacy decision