Marshall was defiant today as major cracks opened up between the two government agencies overseeing SA’s pandemic response – after police declared they couldn’t gather sufficient evidence to warrant laying a charge, blaming SA Health’s lack of cooperation with their inquiry.
“SA Health have exercised what they see as their obligation to claim privilege and not provide information to the investigators,” Assistant Commissioner Peter Harvey told reporters yesterday.
“Information cannot be provided or will not be provided by them.”
They were investigating a 36-year-old Spanish medi-hotel worker whom Marshall last month declared had “lied” to contract tracers about working a second job at the Woodville Pizza Bar – with Police Commissioner Grant Stevens asserting the misinformation was directly responsible for the aborted six-day lockdown.
But South Australian Salaried Medical Officers Association president Dr David Pope – an emergency specialist at the Lyell McEwin Hospital, where the Parafield cluster was first detected – told InDaily today the Premier’s response “was certainly unhelpful with having people come forward with movement information and the like”.
“It will make people more nervous, I’d imagine, about speaking to public health contact tracers – because who knows if you’re going to be accused of something by someone up on high,” he said.
“It certainly wasn’t helpful from a [perspective of] public health people doing their job.”
Pope said he understood “why he said it”, adding: “It was probably emotional and reactive rather than thoughtful and considered.”
Marshall’s office refused interview requests this morning, instead releasing a statement saying: “The Premier stands by his comments in relation to this matter.”
Media were informed on Tuesday – the day before the police confirmed their investigation had wound up – that the daily briefings provided by the Premier, Stevens and chief public health officer Nicola Spurrier would be discontinued as of yesterday.
The Premier was, however, doorstopped by TV media at an event this morning, insisting again that “this person… gave false and misleading information to public health officials [and] this is extraordinarily dangerous”.
Despite having repeatedly insisted he was unequivocally accepting SA Health advice, he was critical of the agency staff for refusing to pass on information to police.
“I understand their reason but it is disappointing for our state,” he said.
“I believe there have got to be consequences for this type of action… it’s a very serious offence to provide false and misleading information to public health officials – it frames their response to a public health crisis, so I find it very disappointing.
“I think this is very regrettable.”
He said it was “an extraordinary situation… this is a situation where SA Health are now trying to protect someone who has given them false and misleading information”.
“I certainly wouldn’t support public health being forced to hand over information which might lead to prosecutions in areas beyond the public health crisis itself, but this was false and misleading information,” he said.
“This wasn’t public health being asked to hand over information regarding this person’s migration status or their employment status, this is a situation where SA Health are now trying to protect somebody who has given them false and misleading information, and sent our entire response to this in a direction which probably wasn’t warranted.”
He then insisted the lockdown would still have gone ahead but “I don’t think it would have been six days”.
Prominent criminal lawyer Craig Caldicott today expressed doubt about SA Health’s ability to stymie the police inquiry, telling InDaily: “If the police wanted to go in there using either a general search warrant or subpoena, I’d have thought they’d be able to get everything they need.”
“There’s no reason why they couldn’t use a subpoena… they’ve got pretty broad powers to go in and look at anything they like,” he said.
“There’s no confidentiality between medicos and their patient – the only privilege under law is lawyer/client privilege, and courts have recognised that forever and a day…
“What they’re trying to stop is the suggestion police will get access to any of your information – otherwise people won’t come forward.”
He noted: “It’s two arms of the same government – why wouldn’t they be cooperating?”
But QC David Edwardson said there was “nothing unique or unusual about privileged information being protected, nor anything unusual about someone exercising a fundamental right”.
“We all have the right to silence – if the consequence of that is the investigation falls over, so be it,” he said.
“I’m a firm believer in protecting fundamental rights at any level – that does sometimes have consequences, but that’s a fundamental right we’ve all got and should treasure.”
Pope agreed doctor-patient confidentiality was not “enshrined in any privilege” but insisted it was a fundamental principle “ethically” and under the profession’s code of conduct.
“You maintain patient confidentiality – because that’s the only way you can do your job,” he said.
“People aren’t going to tell you stuff if they think it’s going to be subpoenaed as evidence to police or whatever…
“Those codes of conduct are everything [and] any health professional who violated that would be put in front of a tribunal and dealt with very severely – it’s an enforceable code.”
He also queried the notion that the Spaniard’s alleged “lie” would have misled authorities so profoundly, saying: “The whole concept of somebody lying – well, I’ve never spoken to a patient yet who doesn’t get some material fact wrong.”
“You can’t hold people to a very high factual standard when you’re taking a medical history,” he said.
The man’s lawyer Scott Jelbert has now flagged the prospect of his own action.
InDaily asked police and the Premier’s office whether they were confident they did not breach section 99 of the Public Health Act by revealing personal information about the man, including his age and visa status – with neither commenting directly.
The act holds that “if a person, in the course of official duties, obtains personal information relating to another, the person must not intentionally disclose that information”. They are exempted if the information is disclosed “in the course of official duties, or for any other purpose connected with the administration of this Act or a law of another State or a Territory of the Commonwealth or of the Commonwealth; or disclosing information as required by law”, or if the disclosure is reasonably required for the “treatment, care or recovery of the person”.
Police declined to comment “on matters that could involve technical legislative matters or detailed legal interpretation”, but noted there was other state and federal law – as well as state government policy – that addresses “matters of privacy and information release”.
They also referred InDaily to a cabinet directive on information privacy principles.
The Government’s response to the recent cluster was to be probed in a proposed parliamentary inquiry, which was moved this morning by independent MP Frances Bedford with the backing of the Opposition and crossbench.
However, it was defeated by the casting vote of Speaker Josh Teague after a tied vote, 23-apiece, on the floor of parliament.
Liberal backbencher Nick McBride, who had been pressured to cross the floor after slamming the handling of the lockdown, said he met with Marshall this morning along with Davenport MP Steve Murray after which they opted to toe the party line.
But he insisted Marshall “did not give any direction” on how they should vote.
“I went to the meeting with reservations that the review was not going to be completed in time and have no direction to change any outcome in the future,” he said.
“[The Premier] wants [the response] to be better, he wants it to be speedier – he wants to get out of these restrictions as fast as we can.”
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