KEY POINTS:
A pilloried man was quietly exonerated last week and I don't think it was noticed. Two years ago an enterprising doctor named Tony Bierre was paraded in Auckland's village square and accused of using a public position to undermine the city's splendid blood testing service.
Bierre reportedly had
fallen out with fellow doctors whose company held the contract for diagnostic services financed by the city's three district health boards and he was an elected member of the Auckland board when the $560 million contract was expiring.
He went into partnership with a large Australian laboratory operation and filed a competing bid, taking leave from the board while the bids were evaluated. His consortium, Labtests, was awarded the contract at a $16 million annual saving.
"Unfair," cried the dispossessed incumbent, Diagnostic Medlab. "The service will not be the same," said Auckland medical practitioners in unison.
Together they went to the High Court, challenging the transfer on grounds that the boards had not consulted doctors and had not properly handled Bierre's "conflict of interest" which they said had put them at an informational disadvantage.
And a High Court judge, one Raynor Asher, agreed with them. His judgment of March 2007 set aside the contract that was due to start a few months later and brought down the wrath of Helen Clark, among others, on Bierre's head.
He was not the only one condemned by Asher's judgment to the insults of the mob. Wayne Brown, Auckland board chairman at the time, was vilified by National's health spokesman, now minister, Tony Ryall. Ross Keenan, deputy chair of all three boards, Auckland, Waitemata and Counties-Manukau, was also in the stocks.
Newspaper editors called for heads to roll. The salaried doctors' association called for Brown and Keenan to "do the decent thing". The Government called for an inquiry by the Auditor General. His report was described as damning.
Brown and Keenan stepped down at the end of 2007 and Bierre sold his interest in Labtests to his Australian partner. But fortunately, they were already taking the Asher decision to the Court of Appeal.
Three of its judges heard the case in May last year. Their 130-page decision was delivered in September. It overruled Asher on every point.
There had been no improper use of inside information by Dr Bierre. He had acted appropriately as soon as he took steps to bid for the contract. The incumbent contractor was not at an informational disadvantage. The board's consultation was adequate. Labtests' contract should be reinstated.
But the public impact of those rulings was muted by the fact that the incumbent quickly indicated an intention to take the case to the Supreme Court.
Last week three of its judges refused to hear it, saying they were not persuaded that any new arguable question of public or general importance had been raised. So the Court of Appeal's conculsions stand.
The outcome has "deeply concerned" practitioners such as those in the North Shore's primary health organisation Harbour Health, which supported the incumbent in the courts.
"Under this ruling, there will be limited ways to influence any contractual matters or how these services are to be delivered or by whom," said its chief executive Susan Turner.
When medical practices assert a right to influence public service contracts I wonder where the real conflict of interest lies. There is a natural conflict between cost and quality that paying customers would normally resolve.
When a service comes free to the customer, the paying agency has to resolve the conflict. Providers of the service have other priorities, as they often tell us. They "put patients first".
Well, we are all occasional patients and we're also taxpayers. My ordinary experience of the blood testing service gives me no difficulty believing it could operate with many fewer collection centres if that is what Labtests intends and general practices could easily do more of the needlework themselves.
If medical specialists want to have a greater say in how their services are provided they should stand for election to health boards as Dr Bierre did.
As board members they would also feel the pressure of finite public finance and competing claims on the limited funds. That is exactly the sort of conflict of interest we need.
The Asher decision surprised me at the time. Health practitioners have been sitting on hospital and health boards for as long as I can remember. Many would have had a hand in designing the specifications of contracts they won. The rules are well established.
I think the former chairman of the Auckland board deserves to have the last word in this saga. After his vindication in the Court of Appeal Wayne Brown said, "Judge Raynor Asher not only got it wrong, he got it completely wrong at every point ... It is he who should go."
