Clauses Noted: 1, 3, 8, 10
Publication: Evening Standard
Mr John Pope complained to the Press Complaints Commission on behalf of Northwick Park Hospital, Middlesex, that information for an article headlined “Dying man is dragged from A&E by nurses” published in the Evening Standard on 27 November 2001 was obtained in breach of Clause 11 (Misrepresentation) and Clause 9 (Hospitals) and that the article intruded into a patient’s privacy in breach of Clause 3 (Privacy) and was inaccurate in breach of Clause 1 (Accuracy) of the Code of Practice.
The complaints were rejected.
The article reported that relatives of a patient called Jamnadas Kapadia had called for a public inquiry after he was ‘dragged’ out of the Accident and Emergency Department of the hospital in a straight-backed chair just hours before dying. It added that there was CCTV footage of the sequence of events leading up to Mr Kapadia’s death and that a reporter from the newspaper, ‘posing as a family friend’, had seen the footage. This footage, the newspaper claimed, showed the blasé manner in which Mr Kapadia and his wife were treated by the hospital’s staff. The article detailed the family’s complaints about this treatment and said that the hospital had launched two separate internal inquiries into the matter. A later edition of the paper included a fuller statement from the hospital.
The complainant said that the family had made allegations of clinical negligence against the hospital and that in the course of framing their complaint had been allowed by the hospital to see the footage. The family requested that in further meetings a ‘family friend’ be allowed to watch the CCTV footage, but the hospital had no plans to show the footage again and only complied on the insistence of the deceased’s son. The hospital explained to the family that the video was difficult to edit.
The complainant said that it was inaccurate to say that the family had been subjected to the indignity of seeing the footage when it was shown at their insistence. He disputed elements of the newspaper’s interpretation of the video footage, saying that the chair on which Mr Kapadia was sitting was a reclining chair with wheels and not an ordinary straight-backed chair; that another patient did not receive preferential treatment; and that Mr Kapadia was not taken into the car park but into a reception area.
The complainant also said that another patient - the ‘white woman’ mentioned in the article - might have been identifiable and that this was an intrusion into her privacy. He complained that the journalist who had accompanied the family had not identified himself as a journalist to a relevant hospital executive before entering non-public areas and had, by virtue of pretending to be a family friend, obtained information through subterfuge. He said that the story could have been obtained through other means, which was demonstrated by the fact that a journalist was in touch with the hospital’s Head of Communications because the newspaper was already aware of the story. He concluded by saying that the public interest might have been compromised by the coverage, contending that the inquiries that the hospital had initiated might have been prejudiced by the reporting.
The newspaper replied that it had been approached by the Kapadia family because of concerns about the way in which Jamnadas Kapadia had been treated. The video was central to their concerns and it was essential that the reporter viewed it himself rather than simply take the family’s word for it. He did not identify himself as a family friend as he was not invited to identify himself at all. It was not inaccurate to say that the family were subjected to the indignity of seeing Mr Kapadia’s final hours played out at double speed as this was what happened. The journalist stood by his description of what he had seen on the video and the report that Mr Kapadia had been taken to a car park was based on the family’s account. In any case, this was hardly relevant: the point was that he had been wrongly discharged. The newspaper denied that it had published any information that could lead to the identification of the other patient mentioned in the piece. The paper said that the considerable public interest in reporting this matter was demonstrated by the fact that the hospital had accepted it made an error and changed its procedures, and deemed the incident so serious that it launched two separate inquiries. The newspaper offered to publish the outcome of these inquiries and the findings of the coroner.
The complainant denied that there was any need for a breach of Clause 9 or Clause 11 as the hospital had accepted that the story was in the public interest and would have provided any further information - including details about the type of chair used - upon request. In any case, details of the case would have been put into the public domain at the time of the inquest.
The Commission dealt first with the complaint under Clause 1. First, given that the complainant had not disputed that the video had been rewound and forwarded in front of the family the Commission found no breach in the newspaper’s description of its screening. Clearly the family found it undignified. In the Commission’s view it was irrelevant who had asked for the screening in the first place. Second, it seemed to the Commission that each of the parties would have had a different interpretation of what the video had shown and, as the journalist was recording his interpretation of events, the Commission found no breach of the Code regarding the description of its contents. Given the extent of the common ground between the parties about what had happened and the context of the piece - which, after all, concerned the death of a man - the Commission saw no grounds for censuring the newspaper. However, it was pleased by the paper’s constructive offer to publish the outcomes of the inquiries into the incident.
The Commission then turned to the complaint under Clause 3 regarding the alleged intrusion into the privacy of another patient. While this was essentially a third party complaint made without the authority of the patient concerned, the Commission had no hesitation in recording that there was no breach of the Code on this point. There was no picture of the woman, no identifying features in the article - other than the fact that she was white and female - no clue as to her illness and no details about her treatment. In no sense could the brief reference to this anonymous woman be considered to breach the Code.
Turning to the complaints under Clauses 9 and 11, it was clear that the journalist had not identified himself to a relevant hospital executive and had, by pretending to be a friend of the family’s, viewed the CCTV footage by misrepresenting his identity. The newspaper had suggested that he had not pretended to be a family friend but the Commission noted that the article itself had said that “an Evening Standard reporter, posing as a family friend, has also seen parts of the films”. There were therefore breaches of these two clauses. However, the Code makes clear that they can both be breached if there is a sufficient public interest in doing so.
The Commission considered that there was. The Kapadia family had serious allegations about the manner in which Jamandas Kapadia had been treated before he had died, and the newspaper was investigating these claims in the public interest and at the instigation of the family. The Commission took into account, but not did not rely entirely, on the strong feelings of the family who wanted the newspaper to see the video in order to corroborate their claims. In any case, the hospital had rightly accepted that there was a strong public interest in the matter and had launched two separate inquiries. While the hospital had said that it was co-operating with the newspaper and that there was no need for subterfuge, the Commission noted that it had not suggested that the CCTV footage would have been available to the newspaper. Indeed, the Commission considered that, in making the point that the video was shown under the terms of the Data Protection Act and only after the journalist had signed a form to confirm that an explanation about these terms had been give, the complainant had suggested that the footage would not have been generally available to the press. As the CCTV footage was the primary evidence for the serious allegations, the Commission considered that the newspaper had correctly judged that an element of subterfuge was necessary and considered that the public interest justified the breaches of Clauses 9 and 11.
The Commission wished to make clear that public interest exemptions to Clause 9 are likely to remain rare. It will continue to expect a very strong public interest defence from newspapers that breach this clause.
Taunton and Somerset NHS Trust v The Mirror, Report 54
<< Go Back