PROFESSOR CHARLOTTE PAUL AGAINST THE NEW ZEALAND LISTENER

Case Number: 2110

Council Meeting: MARCH 2010

Verdict: Not Upheld

Publication: The Listener

Ruling Categories: Comment and Fact
Advocacy
Headlines and Captions
Balance, Lack Of
Bias
Obligation to Publish
Right of Reply
Accuracy

The Press Council has ruled that the New Zealand Listener was entitled to take a position on one side of an important public issue as prescribed in Principle 7, Advocacy, of its Statement of Principles.

In her complaint to the Press Council Professor Charlotte Paul asserted that to meet standards of accuracy, fairness and balance the publication must first consult informed people of an opposite view and should change its position if necessary in the light of consequent debate.

The complaint is not upheld. The Press Council does not agree that advocacy should be constrained in the ways suggested.

Background
The New Zealand Listener's edition for the week beginning August 15, 2009, featured a reassessment of the findings of the well-known 1988 Cartwright inquiry into the treatment of cervical abnormalities at Auckland's National Women's Hospital.

“Cancer Scandal” the magazine announced on its cover, “The truth about the ‘Unfortunate Experiment’ – How Sandra Coney, Phillida Bunkle and the Cartwright Inquiry into a doctor's methods got it wrong.”

The article inside declared that a University of Auckland historian, Professor Linda Bryder, had discovered the Cartwright inquiry had erred in its fundamental conclusion, namely that the doctor, Herbert Green, experimented with the health of his patients by withholding the usual treatment for their condition.

Professor Bryder had written a book, about to be published, that would show Dr Green was “not myopic, misguided or chauvinistic, as he has been painted. She argues he made rational and acceptable clinical judgments aimed at protecting his patients from unnecessary surgery when possible....”

The item re-opened an old but still fierce debate between supporters and critics of Dr Green that had a re-run in the Listener's correspondence columns for several weeks.

Two medical advisers to the Cartwright Inquiry, Professors Charlotte Paul (the complainant) and Linda Holloway, jointly demanded a right of reply which was published in the issue of September 12.

Their vigorous criticism of Professor Bryder's research and conclusions was echoed in feature articles in the New Zealand Herald and Metro magazine.

On October 7 Professor Paul wrote to the editor of the Listener asking for an editorial to be published withdrawing the magazine's endorsement of the Bryder book and admitting that its conclusions could not be sustained.

The editor, Pamela Stirling, declined the request, reaffirmed her confidence in Professor Bryder's research and findings and cited the Press Council's principle 7 which upholds the right of a publication to “adopt a forthright stance and advocate a position on any issue.”

Professor Paul then complained to the Press Council.

The Complaint
Professor Paul submitted that advocacy must be subject to the demands of accuracy, fairness and balance (Principle 1) and the responsibility to distinguish between comment and fact (Principle 6). The Listener's treatment of the issue, she argued, failed on both counts.

It had “made no attempt to contact anyone knowledgeable about the inquiry or to check Bryder's assertions against the report of the inquiry.” It had taken a position that Bryder's views were ‘the truth’ and having taken a position on a matter of medical science, Professor Paul argued, “it also has taken on itself the responsibility of adjudicating the relative merits of different positions.”

By failing to adjudicate the issues in an unbiased way the Listener had shown a lack of balance and fairness, she said.

The failure may have been “because the journalist lacks expertise in these matters, but the Listener cannot have it both ways. Either they are simply reporting a variety of views which they are not competent to adjudicate among (in which case they must be fair to all parties) or they prefer one view as the truth and take a position to support it, in which case they must adjudicate.”

She made a number of specific complaints about the treatment of the right of reply given to her and Professor Holloway. They had been required to shorten their response and it appeared three issues after the original article.

Furthermore, Professor Bryder was given a right of reply to their reply, an opportunity not given to them.

She also complained that letters to the Listener critical of Professor Bryder's position were referred to Professor Bryder for a rebuttal.

The Editor's Response
Refusing the request for an editorial back-down, Pamela Stirling bluntly stated the Listener's position. “Plainly, by describing Bryder's conclusions as ‘the truth’, the Listener has accepted that we prefer her analysis....to that of the Cartwright inquiry. That is our call and we are entitled to make it,” she said.

In her submission to the Press Council the editor said it was the Listener's “considered opinion” that Professor Bryder's research was impeccably thorough and her findings credible and persuasive.

She stressed that the Listener was not a newspaper. It did not simply report news but was a forum for expression of opinion and informed commentary.

The Cartwright Inquiry was a subject well known to readers. Questions of fairness and balance had to be considered in the context of what was already well known. “Any reader would know that others may hold views which differed from those adopted by the Listener and may disagree strongly with the conclusions and opinions expressed by Professor Bryder in her book.”

The editor pointed out the Listener could not approach people for contrary views before the book was published and afterwards offered Sandra Coney and Phillida Bunkle a right of reply. Ms Coney declined; Ms Bunkle gave an interview that appeared in the August 22 issue.

Numerous and lengthy letters were published from Professor Paul and others. An 1800-word response from Professors Paul and Holloway was put on the Listener's website on August 31 and printed in the magazine that went on sale on September 6.

In response to the suggestion that advocacy carries a duty to adjudicate the consequent debate, the editor said, “The Listener is willing to revisit issues and reconsider them in the light of fresh information and analysis” and accused the complainant of “an unwillingness to contemplate contrary views or to permit even debate, let alone advocacy.”

The Decision
The complaint argues that when publications take a strong position of advocacy on an important public issue it is particularly important that they are factually accurate, fair and balanced in their treatment of the issue. The Council agrees.

There is no doubt in this case the Listener presented its material as fact, not opinion. The cover announced it had the ‘truth’ on the subject. The headline on the article was “Finally, the truth.” Subsequently, in response to the complaint, the editor described this as the Listener's “considered opinion.” While the Council believes the magazine was unwise to present its material categorically as the truth, it would be apparent to readers that it was the magazine’s opinion. Readers were told that new research had discovered serious errors in the work of the Cartwright Inquiry that undermined its conclusions. The article began by correcting a common misconception that Dr Green had put his patients into two groups for experimental purposes. Nonetheless, it noted that the Cartwright Inquiry had found Dr Green's withholding of treatment to be deliberately and improperly experimental

The crucial factual issue is whether Dr Green was acting within the bounds of medical knowledge at the time. The Cartwright Inquiry and the complainant say he was not. Professor Bryder and the Listener say he was.

Both sides have read some of the same medical papers and draw different conclusions. Professor Paul, an epidemiologist, questions an historian's ability to understand the material. The Press Council is not qualified to judge the accuracy of the interpretation preferred by the Listener.

The Council can only rule on the specific issues of fairness and balance. It does not agree the Listener ought to have checked Professor Bryder's findings against the report of the Cartwright inquiry and consulted those knowledgeable about it before proceeding to publish. It was reasonable to report the conclusions of a credentialed historian at face value.

It does not find it unfair of the editor to have insisted that Professors Paul and Holloway's 3000-word reply be reduced to 1800 words, which ran over three pages of the magazine and gave the complainant ample space to make telling points. The response was printed and placed on the magazine's website as soon as possible. The Council also finds it reasonable for the editor to have given Professor Bryder a right of reply to their article and to critical letters. This is common practice. Readers are naturally interested in what the criticised person has to say. It does not follow that critics need to be given a further opportunity. The last word is not necessarily decisive.

The Council is obliged to uphold the freedom of publications to take a position, and hold to it if they choose, against the weight of informed opinion. No publication operates in a vacuum. All are vulnerable to criticism of their material in other media and all can suffer if their conduct costs them credibility.

In this case readers were presented with a reappraisal of an important public inquiry that has had a powerful impact on New Zealand's medical ethics governing research and patients' information and consent.

The position taken by the Listener was countered by articles in other publications and the magazine gave opposing views fair treatment in its columns.

The complaint is not upheld.

Press Council members considering this complaint were Barry Paterson (Chairman), Pip Bruce Ferguson, Ruth Buddicom, Kate Coughlan, Sandy Gill, Penny Harding, Keith Lees, Clive Lind, John Roughan, Lynn Scott and Stephen Stewart.