03349-18 University Hospital Southampton NHS Foundation Trust v Daily Express

Decision of the Complaints Committee 03349-18 University Hospital Southampton NHS Foundation Trust v Daily Express

Summary of complaint 

1.    The University Hospital Southampton NHS Foundation Trust (the Trust) complained to the Independent Press Standards Organisation that the Daily Express breached Clause 1 (Accuracy) of the Editors’ Code of Practice in an article headlined “Alfie’s case calls for a change in the law”, published on 2 May 2018. 

2.    The article was a comment piece in which the columnist discussed the issue of seriously ill children receiving medical treatment abroad. It included her opinion that where conflicts arise between parents and doctors as to where their child should be treated, the law should be changed to reflect a greater consideration of the parents’ wishes. 

3.    The columnist discussed and compared three high profile cases, including one involving the Trust’s care of a child. The article reported that “Doctors are not infallible: all they can offer is their best judgment and that judgment, pursued through the courts and pronounced so confidently to the world’s press, turned out to be comprehensively wrong in [the child’s] case.” 

4.    The article reported that this case was an example of a situation where parents had been denied the right to remove their child from hospital, so that they could receive medical treatment in a hospital abroad. It reported that: 

“What links the [three cases] is that all the parents in each case wanted to do was to have their child treated in one hospital rather than another but in each case that hospital was abroad. They were not asking to try some sort of voodoo treatment in a primitive jungle but to take their children to world-renowned, cutting-edge hospitals which were willing to receive them. Why should a parent not have that simple right?” 

5.    The article was also published online, in substantively the same format, headlined “Alfie Evans’s case calls for a change in the law, demands Ann Widdecombe”. 

6.    The complainant said that it was not “comprehensively wrong” in regards to the child’s care and treatment - the article had failed to substantiate this claim. The complainant also said that the article gave the misleading impression that the Trust had denied the child’s parents the right to take him abroad for medical treatment, when it had not. 

7.    The Trust provided a copy of a statement published on its website in 2014 which outlined that, having been diagnosed with medulloblastoma, the child’s tumour was successfully removed at the hospital, and that a combination of radiotherapy and chemotherapy was subsequently required to prevent the tumour from returning. The statement then explained that the child’s parents indicated that they wished him to undergo proton beam therapy instead of standard radiotherapy; the Trust explored this option with the family and informed them that there was likely to be no difference in survival and overall no proven significant benefit. The complainant added that the treatment protocol for the child would have remained the same regardless of the country he was treated in. 

8.    The complainant said that the Trust did not have the authority to recommend proton beam therapy abroad, and that the NHS England Proton Overseas Programme National Clinical Reference Panel (the Panel), held the ultimate decision making power. The complainant said that despite its reservations regarding the treatment, the Trust agreed to refer the child for proton beam therapy to the Panel, as the family could fund it privately. The Panel confirmed that it did not recommend nor fund the use of proton beam therapy abroad for medulloblastoma. The complainant provided a copy of the High Court Judgment which it said supported its position. It also referred to the Judge’s comment that “The Trust had never opposed the family’s decision to obtain proton beam therapy. The Trust itself was not in a position to offer it, but would support it being provided elsewhere if it could be reliably arranged and funded and the transfer arrangements were safe”. The Judge determined that the child could receive the treatment abroad. 

9.    The complainant said that therefore, the Trust did not act or make judgments which were “comprehensively wrong”, nor did it deny the parents the right to take their child abroad for medical treatment. 

10. The complainant also said that the article had misrepresented its concerns in this case. It said that the risk to the child’s life was not about the type of radiotherapy that he received, but rather it related to his parents’ decision to remove him from hospital without informing or seeking the consent of medical staff. As outlined in the statement published on the Trust’s website, it was concerned for the child’s safety as his parents were not trained to deal with his complex medical needs at home. 

11. The complainant said that the Trust did not pursue the family, or its desired treatment plan for the child, through the courts. It said that an action had been brought by the local authority based on the welfare of the child after he had been removed from hospital. The complainant also expressed concern that it was not contacted for its comment prior to publication. 

12. The newspaper did not accept that it had breached the Code. It emphasised that the article was a comment piece, which reported on the columnist’s opinions that had been formed on the basis of publicly available information. The newspaper said that as such, the columnist was not obliged to contact the Trust for its comment prior to publication. It noted that as the Trust had previously published various statements regarding the case, if contacted, it would not have been able to provide any further information that was not already in the public domain. 

13. The newspaper said that it was accurate to report that “doctors turned out to be comprehensively wrong in [the child’s] case”, as a US study carried out in 2016 showed that proton beam therapy was effective and had fewer side effects than standard radiotherapy. It said that the doctors in question were wrong about the possible superiority of proton beam therapy, and in their concerns for the child’s safety and welfare having been removed from hospital; the child made a full recovery and suffered no harm on the grounds for concern raised by the doctors. The newspaper noted that the child’s case was used as a mere example in an article which focused on the idea that “doctors are not infallible”. 

14. The newspaper also said that it was accurate to report that “all [doctors] can offer is their best judgment and that judgment, [was] pursued through the courts [in the child’s case]”. It said that the article did not state that the doctors themselves pursued the court proceedings, however it was correct that the local authority instigated the proceedings, on the basis of the doctors’ judgment in this case. The newspaper said that the High Court Judge had confirmed that the doctors treating the child "were very concerned about his removal”, and that “it was the hospital that informed the Local Authority that [the child] had been removed”. The newspaper said that therefore, it was on the basis of medical evidence presented by the doctors, that the child was made a ward of court. 

15. Nevertheless, during direct correspondence with the complainant, the newspaper offered to publish a clarification. The complainant did not accept this, as the newspaper had not acknowledged that it had breached the Code, and asked IPSO to begin its investigation into the complaint. During IPSO’s investigation,  the newspaper provided the wording of the clarification it was willing to publish on page 2 in the Corrections and Clarifications column, and online either as a standalone clarification appearing on the homepage, or as a footnote to the online article:  

“The University Hospital Southampton NHS Foundation Trust - Clarification

In a column published on 02 May 2018, Ann Widdecombe said that the judgment of the doctors in the case of [the child], was pursued through the courts and “turned out to be comprehensively wrong”. 

We have been contacted by University Hospital Southampton NHS Foundation Trust, where [the child] received treatment, to remove a medulloblastoma brain tumour. The hospital says the family wanted [the child] to receive proton beam therapy, but NHS England did not recommend nor fund the use of this therapy for [the child’s] type of cancer as it believed there was no proven significant benefit. The hospital has asked us to record that before [the child] left its care, it had nevertheless agreed to refer him to receive proton beam therapy privately.  

The hospital has also asked us to make clear that this disagreement about treatment was not the issue that was pursued through the courts. It says that the court proceedings were filed by Portsmouth City Council, who wanted [the child] made a ward of the court, as doctors had concerns for his welfare. For example, he was dependent on a nasogastric tube for food among other medical needs, and doctors were concerned that this could not be safely managed outside a hospital. 

In 2016, 2 years after the court proceedings, research was published in a medical journal suggesting that in treating the child’s condition, proton beam therapy may have some additional benefits over conventional radiotherapy, and the NHS has begun offering proton beam therapy to children with the same conditions as [the child].” 

The complainant did not accept this offer, as it said the proposal did not make clear that the information published was inaccurate. It also said that this wording had been offered several months after the complaint was first made, and therefore was not prompt enough to satisfy the requirements of Clause 1 (ii).  

Relevant Code Provisions 

16. Clause 1 (Accuracy)

i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text. 

ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.  

Findings of the Committee 

17. The Code does not require newspapers to contact the subject of an article prior to publication. In circumstances where the article was clearly presented as an opinion piece, based on information already in the public domain, the Committee did not find that this was necessary in order for the newspaper to meet its obligations under Clause 1 (i). 

18. However, while the columnist was entitled to criticise the Trust’s actions in this case, the newspaper had an obligation to accurately report on its actions and the outcome of the case. The basis for the article’s criticism of the Trust was that it had objected to the child’s parents’ request to take him abroad for medical treatment, and the article suggested that the parents were prevented from seeking medical care abroad for their child, under any circumstances. However the High Court judgment, and the publicly available statement from the Trust, made it clear that the dispute was about who would fund the proton beam therapy treatment abroad, and whether there were safe medical provisions for the child’s transfer. Furthermore, while the Trust did not believe that proton beam therapy offered any additional benefit to standard radiotherapy, it had still referred the child to the Panel and ultimately, the Court decided that the child could receive the treatment abroad. This information was in the public domain at the time of publication. In the context of an article which focused on children being denied the right to receive medical treatment abroad, the Committee decided that the article created the significantly misleading impression that the child had been denied this right by the Trust and by the judicial system. This misrepresented the Trust’s actions and the outcome of the case; there was a failure to take care over the accuracy of the article, in breach of Clause 1 (i). 

19. The newspaper had offered to publish a clarification which highlighted the misleading information and made the correct position clear, that the child’s parents had not been denied the right to take him abroad for treatment. The newspaper had offered to clarify the complainant’s position during direct correspondence. The Committee noted that the wording was not offered until later in IPSO’s investigation, however in circumstances where the complainant declined the newspaper’s offer to clarify, and decided that they instead wanted IPSO to begin its investigation, and for the Committee to rule on the complaint, it was satisfied that the actions of the newspaper met the requirement for promptness under the terms of Clause 1 (ii). There was no breach of Clause 1 (ii) on this point. 

20. The columnist had claimed that the doctors had “turned out to be comprehensively wrong” in this case, without specifying what aspects of his treatment or care she believed had been shown to be “wrong”. However during the course of the complaint, the newspaper had clarified the justification for this claim – the treatment the hospital thought offered no additional benefit had been shown to be effective and have fewer side effects than the traditional radiotherapy recommended by the Trust. In the context of this comment piece, reporting the columnist’s opinion that the doctors had been “comprehensively wrong” did not represent a failure to take care, and where further research had shown that there was, in fact, some additional benefit offered by proton beam therapy, in contrast to the doctor’s opinions in this case, reporting this was not inaccurate in breach of Clause 1(ii). 

Conclusion 

21. The complaint was upheld in part under Clause 1 (i).  

Remedial Action Required 

22.   Having upheld the complaint under Clause 1 (i), the Committee considered what remedial action should be required. 

23.   The newspaper had offered to publish a clarification which was sufficient in meeting its obligations under Clause 1 (ii). This should now be published, as offered. 

Independent Complaints Reviewer

The complainant complained to the Independent Complaints Reviewer about the process followed by IPSO in handling this complaint. The Independent Complaints Reviewer decided that, in its initial ruling on the complaint, the Committee had not explained why it believed that the offer of correction had been made promptly. The Committee re-considered the complaint, in light of the Complaints Reviewer’s findings, and issued the above decision.

Date complaint received: 03/05/2018

Date decision issued: 28/09/2018