Appeals Panel Decision: National Health Laboratory Service vs TimesLive

NATIONAL HEALTH LABORATORY SERVICE                                  APPELLANT

AND

[1]     We take the nature and history of the matter from the opening paragraph of the Chairperson Decision dated 1 September 2015 in which leave to appeal was granted.  National Health laboratory Service (“appellant”) lodged a complaint with the Office of the Press Ombudsman in respect of a story published by both TimesLive (“respondent’) and The Times on 20 April 2015, with the heading “Medical test results ‘can’t be trusted’”.  The sub-head read: “There has been an exodus of senior management and skilled staff at the National Health Laboratory Service, leading to fears of its collapse”

[2]     The following were the main complaints.

2.1    that the reportage was untruthful, inaccurate, out of context, unbalanced, prejudicial etc.  For example, it took the statement of a doctor at one centre to be applicable to all centres.

2.2    That it incorrectly stated that the results were not reliable.

2.3    The headline was presented as a fact.

2.4    Heading not a reasonable reflection of the content.

2.5    Comment was not sought.

2.6    The story exaggerated and distorted the number of staff that resigned despite the fact that the journalist was informed that applicant did not lose 1000 staff members.

2.7    Wrongly stated that applicant’s chairperson had been pushed.

2.8    Failed to mention that quality measures were in place to ensure reliable results.

[3]     In his Ruling dated 277 July 2015 the Press Ombudsman dismissed all the complaints.  Leave to appeal against the Ruling was granted to the appellant, but only in respect of 4 complaints, which were therefore the only points to be considered by the Appeals Panel; These were:

3.1    The complaint relating to the respondent’s statement that “more than 1000” members of staff had resigned within a particular year.  The appellant denied this, and contended that this was an exaggeration.

3.2    That Dr Perez, who was the chair of the board of the appellant, had been pushed to leave.  The appellant contends that the doctor resigned, and was not pushed.

3.3    Respondent’s statement that a “senior doctor at a Gauteng hospital said the number of errors in the results of National Health Service tests had ‘rocketed’..”  Appellant disputed the accuracy of this statement; secondly, appellant argues that respondent failed to mention the fact that respondent’s laboratories applied certain quality assurance measures, about which appellant had informed respondent prior to the publication of the story.

3.4    That the statement referred to in 3.3 above was, in any case, an unwarranted generalization: appellant has about 260 laboratories all over the country, whereas respondent spoke to a doctor at only one laboratory in Gauteng.

[4]     Before dealing with the matter further, it is important to contextualize the dispute.

4.1    In the words of the respondent itself, the appellant “is responsible for providing medical laboratory services for all patients using state health facilities – 80% of the population.  It tests for TB, HIV, Ebola and all cancers. Internationally recognised research into the development of HIV vaccines is done at labs belonging to the service”.  Appellant confirms this, and states in its heads of argument, that it “serves 80% of South Africa’s population, vast majority of which consist of those who are not in a socio-economic position to can afford private healthcare but have to rely on the services of the NHLS”.

4.2    Two points emerge from the above:

4.2.1      The appellant’s core business is the conducting and production of quality test results.

4.2.2      It is an important national scientific centre, on whose services 80% of the population rely for tests in relation to various diseases.

4.3    The appellant has about 260 laboratories through the country and in many provinces.

4.4    It was stated by the appellant, and not disputed by the respondent, that at each laboratory, at least at Charlotte Maxenge and Tshwane Academic Hospitals, no less than 150 tests, of a different nature, are carried out per day.  If one extrapolates this to the rest of the laboratories in the country,  one comes, conservatively, to several hundreds of tests per day.

4.5    The appellant submitted, in its application for leave to appeal, that it is an internationally recognized and accredited institution.

4.6    It was submitted for the appellant during the hearing that some overseas sponsors, who donate large sums of money to the appellant, began asking questions in light of the statement complained about, as also other allegations, all of which implied that applicant was degenerating.

4.7    The appellant is a public institution, subsidized by taxpayers.  Its activities, and how it functions, is a matter of public interest and the media are entitled to write about it.  This much is also recognized and accepted by the appellant.

4.8    Regarding the complaints as per paragraphs 3.1 and 3.2, whereas appellant complained that the respondent did not in its report put appellant’s version as per information supplied, respondent denies receipt of such a response.  In this respect, there are also disputes, and even confusions, about who spoke to who, when; or who sent or did not send some emails to who.  We therefore approach the matter on the basis that each party is telling the truth; namely, that the appellant did send its report, and that the respondent did not receive it.

[5]     Against the above background, we now proceed to consider the complaints as set out in paragraphs 3.1 to 3.4 above.

[6]     Regarding the complaint in paragraph 3.1 above; namely, that more than 1000 of the staff resigned.  A document handed to us only states that a nett loss of staff was 371.  It did not identify as to how many had resigned.  It is therefore unhelpful in resolving the issue of the number of resignations.  Even if it had been received by the respondent, it would not have been an answer to the question as to how many resigned.  Appellant has to date not given such information.  The benefit of doubt should therefore be given to the respondent.

[7]     Regarding the complaint in paragraph 3.2 above; namely, that Dr Perez, Chair of the board, was “pushed”.  Appellant denies this; it says Dr Perez resigned.  Ms Lankalibalelo, for the appellant, stated that appellant could not, prior to publication, have in any event disclosed the reasons for the resignation as certain internal protocols had to be observed first before such a public disclosure (of the reasons).  It is clear, therefore, that even if the response was received, it would not have disclosed reasons for the resignation, nor has any reason been given to date.  The respondent says it relied on inside sources.  Here again we are minded to give the benefit of doubt to the respondent.

[8]     Regarding the complaint in paragraphs 3.3 and 3.4 above, namely; the rocketing of errors in the test results, and that the statement unduly generalizes.  The two can conveniently be dealt with together.

8.1    The respondent quotes a senior doctor at a Gauteng academic hospital as its sources for saying errors in test results have “rocketed”.  During argument before us, Mr Mahlangu, for the respondent, said that doctors (without giving the number) at other laboratories in Kwa-Zulu Natal and the Free State were also consulted.  This is not what appears in the story; only one doctor appears to be relied upon.  Appellant argues that the respondent should have researched this aspect further; had it done so, it would have found, and therefore mentioned, that there were both internal and external quality assurance measures to ensure the accuracy in the test results.  Appellant’s argument is sound.  There are at least 260 laboratories in the country, and several hundreds of tests carried out each day.    There certainly appears to be some problems at the appellant’s laboratories, at least some of them.  But there is no justification for the statement, as also its generalized nature.  It is our view that this was in breach of article 2.2 of the Press Code, which requires news to presented in a balanced manner, etc. There was no need to rush the publication.  It is our view that the respondent contravened article 2.1 of the Press Code in that it failed to ensure an accurate and fair report.

8.2    Also of great importance to our finding is the fact that the respondent concedes that amongst the questions emailed to the Department of National Health, under which appellant falls, there was no question about the quality of the results of the tests.  This means that appellant was not given the opportunity to respond to these allegations, which it denies.  Appellant contends that had it been the opportunity to do so, it would have disputed this, and also stated the various quality assurance measures which are in place to ensure the accuracy of the results of the tests.  It would have been left to the readers to make their own judgment.  The appellant complains that the allegation of inaccurate results is a serious matter because it impacts negatively on its core business. As already mentioned, is an institution on which 80% of the population depends.  It contends that the allegations will undermine its effort to fight amongst others HIV, TB and would also harm its international standing.

We hold that the respondent, by failing to afford the appellant the opportunity to comment, has also breached article 2.5 of the Press Code, which states: “A publication shall seek the views of the subject of critical reportage in advance of publication …”. None of the exceptions under this article applies to cover the respondent.

[9]     For the reasons given above, the appeal is partially upheld, the Ombudsman’s Ruling being hereby overturned only to this extent: The following statement published by TimesLives on 20 April 2015 was in breach of articles 2.1, 2.2 and 2.5 of the Press Council: “A senior doctor at a Gauteng academic hospital said the number of errors in the results of National Health Laboratory Service tests had ‘rocketed’…”

[10]   The following orders are made:

10.1  TimesLives must within a date to be determined by the Office of the Press Ombudsman produce a follow up to its story of 20 April 2015 containing a response by the Department of Health, or the National Health Laboratory Service, responding to the following statement: “A senior doctor at a Gauteng academic hospital said the number of errors in the results of National Health Laboratory Service tests had ‘rocketed’..”  Alternative to publishing such response, to publish a retraction of the said statement.

10.2  The appellant’s response referred to in 10.1 above must be submitted to the office of the Press Ombudsman within 3 days of the receipt of this Decision.

10.3  Respondent’s corrective story as directed in paragraph 10.1 above, alternatively, respondent’s retraction of the above statement complained of, must be submitted to the office of the Press Ombudsman within 3 days of respondent’s receipt of the appellant’s response, for approval and determination of a date for publication of the corrective story or the retraction.

Dated this 17th day of October 201

Judge B M Ngoepe, Chair, Appeals Panel

Mr F Groenewald, Member, Press Representative

Ms C Mohlala, Public Representative