Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld
Ad description
A TV ad for Michael W Halsall Solicitors discussed potential complications of pregnancy and childbirth. The ad featured a diagram of a pregnant women surrounded by the labels "Birthing Injury", "Cerebral Palsy" and "Forcep Injury", followed by a line drawing of a doctor inside an orange 'warning triangle' and an image of a woman surrounded by her family. On-screen text stated the URL "claimthroughus.com" and the phrases "BIRTHING INJURIES CEREBRAL PALSY FORCEP-RELATED INJURIES" with the word "injuries" in red, and was followed by an image of a newspaper with the headline "Over £1,200,000,000 PAID OUT TO MEDICAL NEGLIGENCE VICTIMS" and a cheque made out to "The Victim" for "Maximum Compensation". The voice-over stated, "During your pregnancy you thought your doctor was doing everything they could for you and your baby. But your doctor didn't see the danger signs, and now you're left picking up the pieces. At ClaimThroughUs.com we help people who have experienced injuries sustained during pregnancy or childbirth to claim compensation." The first part of the voice-over was accompanied with dramatic music that transitioned to an upbeat melody when the claims service was described.
Issue
The ASA received 15 complaints:
1. ten viewers, including a number of expectant mothers, objected that the ad was likely to cause undue fear or distress to pregnant women;
2. six viewers, including one whose child had cerebral palsy, objected that the ad was likely to cause offence or distress to those who had suffered from complications in pregnancy or during childbirth; and
3. five viewers, some of whom considered that the ad implied that the listed complications would only result from medical negligence, challenged whether the ad was offensive because it was insulting to medical professionals.
Response
Media Agency Group responded on behalf of Michael W Halsall Solicitors Ltd. They stated that the medical negligence sector of the claims market was an emerging one, but was not led by claims management companies or affected by fraudulent claims in the same way that other legal claims sectors could be. They considered that medical negligence could have life changing consequences and that a claimant's main motivation for pursuing a claim would often be to obtain answers about their experience or prevent it from happening to others.
Media Agency Group noted that birthing and maternity-related claim messages would naturally be emotive, but that the claim-related responses to the campaign that had been received by Michael W Halsall were equally so, as well as being serious and numerous. They stated that they had not been surprised at the responses received as a result of the campaign, due to the quantity of serious mistakes made during the birthing process in both NHS and private care. Media Agency Group provided a document from the NHS Litigation Authority (NHSLA) that showed figures on obstetrics claims data, including numbers of claims and associated costs. They stated that it was a well-documented fact that mistakes in maternity care accounted for a third of £1bn NHS spending on medical negligence claims settlements, attributing this claim to a national newspaper. They also referred to six online news articles about increasing numbers of claims and complaints made about NHS services, stating that these demonstrated that medical negligence and birthing injury in particular were widespread problems in the UK. They considered that this justified the direct and serious tone of the ad.
Media Agency Group stated that £700 was set aside for every baby born in the UK to pay for clinical negligence cover, and that errors by medical staff could have a serious, lifelong impact upon the lives of mothers and children. They said that the ad was not designed to stimulate a market, but to promote a specialist service to help the large number of victims of substandard care to get the answers they needed to move on and the financial settlement required to live with the consequences of medical error. They stated that the ad had been very effective and the issues associated with the claims accepted had been very serious. They believed the tone and execution of the ad was suitable to the nature of the claim type.
Clearcast stated that the intent of the ad was not to cause distress or offend anyone who had suffered a misdiagnosis, but to offer help to people who were in need of professional advice. They said that, although modern pregnancy care had improved, mistakes still happened and that when they did, professional advice would be needed. They stated that many of those who had suffered from the events listed in the ad had made cases against the medical profession in the hope that it would serve as a lesson and prevent them from happening to others. They reiterated that it was not intended for the ad to cause distress, and that they did not consider that it would.
Clearcast stated that, although they understood unjustified fear was not acceptable, they considered it justifiable to refer to these issues because a legal claim might result in lightening the financial burden of caring for a child, thus alleviating some suffering. They stated that Cerebral Palsy, forceps-related injuries and birthing injuries could all result from mistakes made during birth, but considered that the ad fell short of suggesting that they only happen as a result of error.
Assessment
1. Upheld
The ASA noted that the first section of the ad, which described the potential consequences of medical negligence, was accompanied by dramatic music and used warning imagery, as well as referring to doctors not doing all they could to assist mother and child during pregnancy. We considered that the complications were presented in a manner that drew attention to the worst case scenarios and implied that medical negligence during childbirth was something that was widespread and to be particularly concerned about. We noted that the articles referred to by Media Agency Group did not demonstrate that medical negligence in general or during deliveries was widespread, and that although they had provided data relating to the absolute numbers of obstetrics claims, they had not related this to the total number of deliveries in the UK or otherwise shown that these amounted to a significant proportion of such procedures. We understood Media Agency Group and Clearcast's view that the ad served to give information to affected individuals, rather than to cause distress, and that the issues raised in the ad were serious ones that justified the approach used. However, we considered that the overall tone and presentation of this information implied that medical negligence resulting in the named complications was a considerably more common occurrence than we understood was the case and, as such, was likely to cause undue distress to pregnant viewers.
The ad breached BCAP Code rule 4.10 4.10 Advertisements must not distress the audience without justifiable reason. Advertisements must not exploit the audience's fears or superstitions (Harm and Offence).
2. Upheld
The ASA noted that the complications in the ad were referred to in stark and dramatic tones, and set clearly in the context of the serious consequences for those affected and their families. We considered that injury and bereavement due to such complications would be a highly emotive subject for any sufferer, regardless of whether they were unavoidable natural occurrences or caused by clinical error, and that such subjects should therefore be dealt with sensitively. We noted Clearcast's view that references to these issues was justifiable, but considered that the manner in which they were presented in the ad emphasised their impact and was likely to be regarded as insensitive to those affected. We also noted that, by including Cerebral Palsy in the list of complications for which parents were left "picking up the pieces", the ad framed the condition as a burdensome affliction and was therefore likely to cause particular offence to sufferers of Cerebral Palsy and their families. We concluded that the ad was likely to cause serious offence and distress to some viewers.
The ad breached BCAP Code rules 4.2 4.2 Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards. and 4.10 4.10 Advertisements must not distress the audience without justifiable reason. Advertisements must not exploit the audience's fears or superstitions (Harm and Offence).
3. Upheld
The ASA noted that the examples of birthing complications referred to in the ad were raised in the context of medical negligence, and considered that the manner in which they were presented made them appear to be fairly common problems. Although we considered that the ad made clear that the legal advice available was for those cases where problems had been caused or exacerbated by medical negligence, and did not go so far as to imply that the only reason these problems would occur was because of error, we considered the ad implied that occurrences due to clinical error were relatively common. We concluded that the inference of widespread medical negligence in childbirth procedures was likely to cause serious offence to medical professionals.
The ad breached BCAP Code rule 4.2 4.2 Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards. (Harm and Offence).
Action
The ad must not appear again in its current form. We told Michael W Halsall Solicitors Ltd to ensure that future ads were not likely to cause distress or offence to viewers.
