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A furious attack by the Prime Minister on the man at the centre of Auckland's medical laboratory feud has raised the question of whether legal action could be taken against him.
Helen Clark yesterday wasted no time in fingering Dr Tony Bierre as the villain in the mess that has seen the High Court cancel a $560 million laboratory contract - leaving health chiefs scrambling to secure services for 1.4 million Aucklanders beyond July 1.
Just hours after touching down in Auckland from the United States, the Prime Minister described Dr Bierre's conduct as "appalling" and said he had a serious conflict of interest.
"Dr Bierre badly misled the [Auckland District Health] board. The issue in my mind actually [is], has he committed an offence against the law in the way he behaved?" the Prime Minister said.
The laboratory contract tendering process was declared unfair by Judge Raynor Asher, who criticised Dr Bierre's role in failing to declare a conflict of interest as a member of the board and as chief executive of Labtests, which won the contract.
But legal experts yesterday said it would be difficult to conclude Dr Bierre had broken the law.
Jeremy Finn, associate professor of law at Canterbury University, said that if it could be shown that Dr Bierre had taken copies of confidential material and passed them on to Labtests, "you would be in an area of potential criminal liability".
The material would have to come under the "trade secret" definition of section 230 of the Crimes Act.
It would have to be proved that Dr Bierre tried to gain pecuniary advantage, "dishonestly and without claim of right" obtaining documents with trade secrets, and knowing they contained trade secrets, Professor Finn said.
Kevin Dawkins, associate professor of law at Otago University, said it would be difficult to prove.
He said the fact Dr Bierre sat on the board was not a criminal offence, and the possibilities of legal action under civil law were fairly limited.
Whether anyone would take up the cause was also questionable, although police would be duty-bound to consider it if a complaint was made.
Yesterday, Dr Bierre reiterated that he "declared the potential for conflict of interest at all times prior to and during my tenure with the board". He said he did not mislead the board.
Helen Clark yesterday refused to express confidence in the people at the helm of the city's three district health boards, which awarded the contract. She said the priority was to secure a continuation of laboratory services after July 1.
"When the contracts are secured we can delve further into why the [Auckland] board persevered with the process and awarded the contract in the face of a very obvious conflict of interest. That does disturb me."
She questioned whether the board had been adequately advised when it carried on with the process.
National Party health spokesman Tony Ryall said the public deserved accountability. "If the Prime Minister won't express confidence in Auckland's health bosses ... why should the public? Helen Clark must show leadership and demonstrate that she believes in accountability."
