Ruling

03442-18 University Hospital Southampton NHS Foundation Trust v The Sunday Times

    • Date complaint received

      2nd August 2018

    • Outcome

      Breach - sanction: publication of correction

    • Code provisions

      1 Accuracy

Decision of the Complaints Committee 03442-18 University Hospital Southampton NHS Foundation Trust v The Sunday Times

Summary of complaint

1. University Hospital Southampton NHS Foundation Trust complained to the Independent Press Standards Organisation that The Sunday Times breached Clause 1 (Accuracy) of The Editors’ Code of Practice in an article headlined, “Parents can love, but not protect: ask Alfie’s mum,” published on 29 April 2018.

2. The article was a comment piece, in which the columnist discussed the conflicts that can occur between the parents of seriously ill children, the medical profession, and the legal system. The columnist discussed a number of high profile cases, including one involving University Hospital Southampton. The article reported that one child had been removed from the hospital in 2014 by his parents, after the hospital had “refused their request to have his brain cancer treated abroad by proton beam therapy”. It went on to state that the hospital had “declared this treatment to be worthless, although its own did not offer much hope.” The article was also published online and was substantially the same as the print article.

3. The complainant said that the article had misrepresented the hospital’s concerns in this case. It said that the High Court judgment on the dispute, which had determined that the child’s parents were entitled to take him abroad for treatment, showed that the hospital had not “refused” the parents’ request to have their child treated with proton beam therapy abroad. It said that the parents had requested proton beam therapy treatment, and the hospital had referred the matter to the national body that makes decisions on such requests. It said that the High Court judgment recorded that this body had determined that the child’s condition was not on the “list of accepted indications” for proton treatment abroad “because of concerns around the logistics of offering timely radiotherapy to patients who may not be fit enough to travel.” In these circumstances, the complainant said it was inaccurate to state that the hospital had refused the request, or indeed any body, as the child’s condition was not one that NHS England funded.

4. It said that the Trust had opposed the child being removed from the hospital’s care without the necessary arrangements for his transportation and ongoing care. The complainant said that the Trust’s public statement at the time, which it provided a copy of, made it clear that despite the fact that the Trust disagreed that this treatment option would be of additional benefit, “the Trust agreed with the family to refer [the child] for proton radiotherapy.”

5. It denied that the Trust had opposed the parents’ request because it believed that proton beam therapy was “worthless.” It was unable to offer it to the parents as it was not, at the time, funded or recommended by NHS England for this type of tumour. It said that the treatment plan agreed by the hospital gave the child a 70-80% chance of survival, and that proton beam therapy offered no additional benefit. It also said that the article suggested that the hospital had not offered a viable treatment option, and said that the hospital should have been contacted for comment prior to publication.

6. The newspaper did not accept that it had breached the Code. It said that the article was an opinion piece by the columnist, in which he argued that parents are not given enough say in decisions about the treatment of their children. It said that the columnist’s views had been informed by his own personal experiences, and that he had referred to a number of high profile cases to highlight the concerns he had about the decision making power given to hospitals and the courts in these circumstances. It said that the columnist was entitled to criticise the medical and legal professions in this way. It said that the journalist had accurately reported the background of the case under complaint, and provided a summary of the High Court decision on this matter.

7. It said that the summary of the judgment stated that the Trust “could not recommend or provide” proton beam treatment. It said that the journalist had interpreted this to mean that the hospital had refused to provide the treatment because it regarded it as worthless. It said the fact that the Trust had not “opposed” the parents privately funding this treatment was, in its view, unconvincing, as it did not offer to facilitate the child’s access to the treatment and imposed practical obstacles to the parents accessing the treatment. The High Court decision stated that, “NHS England does not, however, recommend nor fund the use of proton therapy for cases of medulloblastoma.” It went on to state that, “Nonetheless, [the child’s] parents pursued their enquiries and identified a facility in Prague… The parents therefore asked the Southampton Hospital to refer [the child].” The judgment stated that at this point, the accounts of the parents and the hospital diverged, and so it was unclear how the hospital responded.

8. Regardless, as a gesture of goodwill, the newspaper offered to make amendments to the online article.

Relevant Code provisions

9.    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

8. The article was clearly presented as an opinion piece, written by a columnist with personal experience of the issues being discussed. The columnist was entitled to criticise the hospital’s actions, and to comment on the public dispute that had taken place between the child’s parents and the hospital regarding his care, which had resulted in a high profile court judgment. However, the newspaper had an obligation to accurately report the details of the dispute, and the nature of the hospital’s opposition. The basis for the article’s criticism of the hospital, was that it had objected to the parents’ request to take their child abroad because it believed the proton beam treatment was worthless. However the High Court judgment, and the publicly available statement from the Trust, made it clear that its objections related to the removal of the child without certain provisions in place. Also, while the Trust did not believe proton beam therapy offered any additional benefit to that offered by the hospital, it had not deemed the treatment “worthless.” This information was in the public domain at the time of publication, and misrepresenting the nature of the hospital’s concerns, represented a failure to take care, in breach of Clause 1 (i).

9. The article had given the significantly misleading impression as to the nature of the hospital’s objections, and where this formed the basis of the article’s criticism of the Trust, it required correction under the terms of the Editors’ Code. There was a breach of Clause 1 (ii) on this point.

10. The parents in this case wanted their child to receive proton beam therapy abroad. The High Court judgment made clear that this was not something that was offered for their child’s condition, at the time, by NHS England. The hospital had referred the matter to the appropriate body, who had confirmed that the child was not eligible as his condition was not on the recommended list. It had not “refused” this request, but had been unable to offer the treatment as NHS England did not fund it. The judgment went on to make clear that following this, the parents identified a facility which would offer the treatment to Ashya, and asked the hospital to refer him to this facility. There was discrepancy over the hospital’s response to the parents’ request for a referral from the hospital to an overseas facility they had contacted. As the newspaper was relying on the comments in this judgment for the basis of its characterisation that the hospital “refused” this request, reporting this claim, where the judgment made clear that the treatment was not funded by NHS England in these circumstances, and there were differing accounts as to the hospital’s subsequent response to the parents’ referral request, the newspaper had failed to take care over the accuracy of this claim. There was a breach of Clause 1 (i) on this point. Reporting this represented a significant inaccuracy, in breach of Clause 1 (ii).

Conclusions

11. The complaint was upheld.

Remedial Action required

12.  Having upheld the complaint under Clause 1, the Committee considered what remedial action should be required.

13.  The Committee considered that the article did not report solely on this case, instead, it referred to it as part of the article’s wider discussion about the rights of parents of seriously ill children. The inaccuracy did not affect the overall argument of the article, and in these circumstances the Committee considered that the appropriate remedy was publication of a correction which made clear that the basis of the hospital’s objections was concern about the provision of adequate care and transport arrangements and that it had not refused the parents’ request to have their child treated abroad.  

14. This correction should appear in print in the Corrections and Clarifications column, and as a footnote correction to the online article. It should state that it has been published following an upheld ruling by the Independent Press Standards Organisation. The full wording should be agreed with IPSO in advance.

Date complaint received: 11/05/18

Date decision issued: 19/07/2018