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The Du Fresne refrain

18 April 2008

The High Court has further clarified medical privacy and informed consent, reports Justin Graham.

In the area of privacy, almost everyone agrees that medical information about a person is sufficient to trigger a reasonable expectation of privacy.  Naomi Campbell successfully relied on that expectation all the way to the House of Lords for the Daily Mail’s use of photographs of her at Narcotics Anonymous meetings, which, she said, had hindered her recovery from drug addiction (Campbell v MGN Ltd [2004] 2 AC 457). 

There is significant judicial sympathy for the unwarranted disclosure of private medical information about a person, mainly because such a disclosure may not just cause embarrassment, but actually detrimentally affect a person’s physical and mental well-being. 

TVWorks Limited v Du Fresne

Very recently, Justice Simon France of the High Court has added his voice to this line of authority in the case of TVWorks Limited v Du Fresne (13 March 2008, High Court, Wellington CIV 2007 485 2060). 

The matter started out in 2007 as a complaint to the Broadcasting Standards Authority (BSA) by the medical director of a clinic caring for the medically unwell about a news item on the television news featuring an interview with a committed patient who had undergone compulsory electroconvulsive therapy (ECT).  The medical director argued that the patient had no capacity to provide informed consent to the interview.  The broadcaster said the woman concerned seemed lucid and appeared to understand the implications of the interview. 

The BSA upheld the complaint, and TV3, the broadcaster concerned, appealed to the High Court.  The judgment of Justice Simon France provides useful insights on three key issues. 

Third party privacy

The first is the issue of ‘third party privacy’.  The medical director was not the person interviewed.  The subject of the interview had given no evidence and had not been consulted about her feelings over the interview.  The BSA had been prepared to accept the medical director’s view on her patient’s incapacity.  The High Court, however, thought that the BSA should have declined even to consider the complaint. 

Although probably correct, that finding is a blow to the BSA, which is used to receiving and considering complaints from all and sundry – that is part of the “watchdog” function the BSA exercises.  However, it is now clear that in the area of privacy, the complaint must come from the actual individual (or his or her guardian) featured in the broadcast. 

For medical professionals, this will add to the burden of representing a patient’s interests (in either BSA complaints or urgent pre-broadcast situations) because it will now be necessary to secure a guardian or family member’s consent to provide evidence about incapacity (most of which would usually be confidential) and preferably to obtain evidence directly from the patient. 

Informed consent

The next issue the Court considered is what will amount to informed consent in these situations.  Without providing an exhaustive definition, and recognising that the rules would need to be flexible for more serious cases, the Court stated that in this case the patient would need to have known:

  • that she was being interviewed
  • that the interview would involve disclosing her name, and
  • that the interview was going to be shown on national television as part of the news. 

However, Justice Simon France recognised the inherent difficulty in applying these factors, which is knowing at the outset whether the person has the capacity to appreciate the ramifications of such a check list.  Unfortunately, guidance on that issue must await “a case where it matters”, as the Court put it at [22]. 

Public interest defence

The third key issue was whether the broadcaster could have invoked a public interest defence if the first two issues went against it.  The answer was a resounding “no”.  The Court was clearly of the view that if the disclosure was non-consensual, then no amount of public interest would justify it.  The rationale for this goes back to the statement at the outset: medical privacy is clearly deemed more important than other forms. 

Even so, it is hard to fathom why the public interest would not even be arguable in a broadcast generating discussion about the use of compulsory ECT on mental patients.  That is probably a bridge too far; it seems more appropriate that such a defence would have been unsuccessful in the balance rather than that it was a complete non-starter.  The final jibe to the BSA was a criticism from the Court for having its lawyer present and arguing in support of its decision.  The Court’s position is understandable, but clearly the BSA had an important interest at stake here: in what circumstances it may accept and consider a privacy complaint about a broadcast.  It was in the BSA’s interests in exercising its functions for its catchment area to be as wide as possible.

Summary

In terms of what to take from the decision, the following are the key points:

  • A privacy complaint must be brought by, or on behalf of, the person about whom there has been a public disclosure.  If that person needs representation, there should still be an effort to obtain evidence from that person about the impact of the publication or broadcast. 
  • The media can ensure a person is giving informed consent by making the person aware that he or she is being interviewed, that it will involve disclosure of the person’s name, and of the circumstances in which the interview will be published or broadcast.  Whether the person has the capacity to appreciate what he or she is consenting to is still a live issue, and if in doubt, the media should take advice. 
  • The failure to obtain informed consent when publishing private information about a person’s medical history is nigh on indefensible.  
  • On appeals to the High Court, specialist tribunals may appear to assist the Court, but should rarely advocate in favour of the decision they have made. 


This article first appeared in NZLawyer magazine.

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