05386-15 The Royal Marsden NHS Foundation Trust v The Spectator

Decision of the Complaints Committee

05386-15 The Royal Marsden NHS Foundation Trust v The Spectator

1. The Royal Marsden NHS Foundation Trust complained to the Independent Press Standards Organisation that the Spectator breached Clause 1 (Accuracy) and Clause 2 (Opportunity to reply) of the Editors’ Code of Practice in an article headlined “For speaking frankly about the NHS, I was first silenced and then pushed out”, published on 8 August 2015.

2. The article was a first-person piece by a cancer surgeon who had worked for the Trust, but had left a few months prior to publication of the article. Having previously written articles (both for this magazine and a national newspaper) about the National Health Service (NHS) which had provoked an angry response from other health professionals, he wrote that he had been “silenced” by the Trust. The article was highly critical of the way in which the Trust had treated him, and suggested that his right to freedom of speech had been compromised.

3. The magazine had published an article in January 2015 which told the surgeon’s story, but had been written by a staff journalist. Following publication the complainant had raised concerns about the article with the magazine directly, and a number of the inaccuracies it had alleged were repeated in the article now under complaint. The magazine had rejected the complainant’s claims of inaccuracy at that time.

4. The complainant said that the magazine had presented the surgeon’s views as fact, rather than as his personal comment. It was the magazine’s responsibility to ensure that the Trust’s perspective was also included, especially when it was already aware that the Trust disputed the surgeon’s characterisation of events.

5. The complainant said that it was not true that the surgeon had been “pushed out”, as he had resigned from his role several months prior to publication of his first controversial article, about GPs. There was no causal link between the expression of his views on the NHS and his retirement. He had asked to remain on staff because he wanted to access private facilities and finish a research trial, but the Trust decided that it did not have sufficient capacity in private care to give the surgeon access to the facilities after his official retirement. Further, the trial will conclude in four years, not two, as stated in the article.

6. The complainant denied that the surgeon had been made to sign a “gagging order” following publication of his earlier articles. He had simply been asked to sign a document which said “[the Medical Director] made it clear that it is important that you do not write any further press articles, or if you do, then you must show these in advance to the chief executive so that she is reassured that the content will not affect the Royal Marsden’s reputation by association with your personal views.” This did not amount to editorial control of his work, or a veto power.

7. It was misleading to report that the Trust had refused the surgeon’s request for an independent investigation into the manner in which his employment ended, as a detailed investigation had been undertaken by the Senior Independent Director, following a complaint to the Chairman.

8. The complainant said that the magazine had refused to engage with the substance of the Trust’s concerns, following publication of the article. The complainant had provided a statement outlining its position and requested that it be published in full in the next available print edition of the magazine, and alongside (not underneath) the online version. The magazine’s refusal to publish the statement represented a breach of Clause 2.

9. The magazine said that the article concerned matters of real public interest: the surgeon was a senior and highly respected physician who had come under organised attack by fellow doctors and his own employer for speaking out about the NHS. It was important to allow the surgeon the opportunity to publish his own version of events, irrespective of whether his employer disagreed with him over what had happened. The value of a first-person account such as this one would be greatly diminished if it were required to include material the author did not accept to be true. The magazine said that the complainant had failed to identify one material inaccuracy; this was a case in which the two sides simply disagreed.

10. In response to the specific concerns raised, the magazine said that it was quite possible for someone who had “resigned” to correctly consider that he had been “pushed out” by his employer. It said that the Trust’s inquiry into the matter had found that it was not disputed that the surgeon had been given the options of “walk, disciplinary action or gardening leave” in his talks with the Trust following publication of his initial articles. The magazine said that it had accepted the surgeon’s claim that the ongoing trial would be finished in two years, as he was in charge of the trial and therefore seemed sufficiently well-placed to know. Following receipt of the complaint, the surgeon had told the magazine that the first results of the trial would indeed be determined within the next two years. In any case, even if this was an inaccuracy (which was denied), it would not be significant.

11. The internal inquiry had been carried out by a Trust Board member; it was therefore accurate for the surgeon to say that he had not been granted the “independent” inquiry he had asked for.

12. The magazine said that it had considered approaching the complainant for comment in advance of the article, and had decided not to do so as it already had comments relevant to the matter as a result of its previous dealings with the Trust. Further, the magazine knew that the article’s accuracy was likely to be challenged by the complainant, but did not believe that what it was going to publish was inaccurate.

13. Following publication of the article, the complainant had been offered a right of reply on the letters page, but had declined that offer. A letter was the appropriate means of reply on this occasion; the magazine was satisfied that it had not breached Clause 2.

Relevant Code Provisions

14. Clause 1 (Accuracy)

i) The press must take care not to publish inaccurate, misleading or distorted information, including pictures.

ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.

iii) The press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.

Clause 2 (Opportunity to reply)

A fair opportunity for reply to inaccuracies must be given when reasonably called for.

Findings of the Committee

15. The article was plainly presented as the opinion of the surgeon to whom it was attributed. It was clear that this was his own perspective of events in which he had played a central role, and the magazine was not under an absolute obligation to include a statement from his employer. There was no breach of Clause 1 (iii) in this regard.

16. The magazine was under an obligation to take care not to publish inaccurate material. In meeting this obligation it had taken into consideration both the surgeon’s account of his experience of the Trust, and the complainant’s version of the matters under discussion, as provided in earlier correspondence. There was no failure to take care over the accuracy of the article.

17. It was evidently the surgeon’s opinion that he had been “pushed out” of the Trust, and the article had made clear that he had given notice of his resignation prior to the publication of the articles which had caused controversy. It was accepted that the complainant had been placed on “authorised absence” following publication of one of his articles, had been asked to clear any future articles with his employer, and had not been permitted to remain on staff following the end of his NHS contract, in order to oversee the conclusion of a clinical trial. The Trust’s internal inquiry had found that the surgeon had been given a choice of “walk, disciplinary action or gardening leave”, prior to his being placed on authorised absence. The surgeon was entitled to characterise the circumstances surrounding the end of his employment as being “pushed out”; this did not represent a significant inaccuracy and did not require correction under the Code.

18. Given the text of the statement the surgeon was asked to sign upon his return to work, which made clear that he should “not write any further press articles” or that, if he did, he must show them in advance to the Chief Executive, the Committee found that it was not significantly inaccurate of him to describe it as him being “gagged”, which was clearly his view of the purpose of the statement. The article had also directly quoted the relevant passage of the statement, making clear the basis for the surgeon’s concerns. The reference to the surgeon being “gagged” by the Trust was not a breach of Clause 1.

19. The inquiry mentioned in the article had been carried out by one of the Trust’s Board members which, as an internal inquiry, could reasonably be perceived as not being independent of the organisation. It was not significantly inaccurate to say that the surgeon had been denied an independent inquiry.

20. Clause 2 calls for an opportunity to reply in circumstances where inaccuracies have been identified. The Committee had not established any inaccuracies and, in any case, the magazine had offered to publish a letter from the complainant, which was the appropriate means of reply in this case. There was no breach of Clause 2.

Conclusions

21. The complaint was not upheld.

Remedial Action Required

N/A

Date complaint received: 28/08/2015
Date decision issued: 09/12/2015