Government lawyers are arguing a coroner exceeded his powers in granting a doctor a certificate to give evidence about ambulance ramping at an inquest into the deaths of three patients, without being liable for disciplinary action.
The allegation is contained in Supreme Court documents obtained by the ABC.
The inquest is investigating whether ramping – where emergency patients are stuck in ambulances outside hospitals waiting for a bed – played a part in the deaths of three people between April 2019 and March 2022.
The Labor Government promised to “fix the ramping crisis” when it came to power in 2022 but has come under fire as ramping soared to record highs this year.
The former site director at the Royal Adelaide Hospital, Dr Megan Brooks, was due to give evidence at the inquest last month.
But she feared she would breach the SA Public Sector Code of Ethics because SA Health refused to allow her to reveal official information about ramping and delayed transfer of care.
Deputy State Coroner Ian White used a section of the Coroners Act to issue her with a certificate that compels her to give evidence, but provides protections from disciplinary action for breaching the code.
But the Attorney-General has applied to the Supreme Court for a judicial review of the coroner’s decision.
Supreme Court documents obtained by the ABC argue the Deputy State Coroner “acted beyond the power” of the Coroners Act by providing a certificate to Dr Brooks before she answered any ramping-related questions.
“[Mr White] erred in determining that the interests of justice required [Dr Brooks] to give evidence,” the documents say.
“The only factor [Mr White] considered with respect to the interest of justice was [Dr Brooks’s] career and involvement with the RAH [Royal Adelaide Hospital], FMC [Flinders Medical Centre] and SA Health.”
The court documents also suggest Mr White should have considered whether Dr Brooks’s evidence could have been obtained from other witnesses and whether it might already be in the public domain.
Attempts already made
According to the documents, Mr White had first issued a certificate to Dr Brooks in May, but later withdrew it after correspondence from the Attorney-General and SA Health that said the certificate was issued “beyond jurisdiction, was void and of no effect”.
At a hearing on Wednesday, Tom Cox KC, told the court his client, Dr Brooks, had recently made a request for permission to give evidence and was expecting a response from the Attorney-General next week.
“If she is authorised on those terms and she’s given that comfort, then this application has little utility from our perspective,” he said.
Counsel assisting the coroner, Darren Evans, told the court a contradictor – an independent representative who could advance an opposing perspective — should be appointed.
“… It may be that the section under consideration here has a greater impact on the community in South Australia than just Dr Brooks,” he said.
First time legislation used, AG says
Speaking on Thursday, Attorney-General Kyam Maher said the bid to the Supreme Court was not an attempt to block the doctor from giving evidence.
“We think it’s important that people have a say, get to outline what they know about how the system works,” he said.
He said this was the first time a coroner has used “new laws” in the Coroners Act to issue certificates of immunity.
“I understand how this scheme operates is it is the Coroner’s Court who can provide that certificate, that what is said or used in a coronial hearing is not used in another forum against a person who uses that,” Mr Maher said.
“So at the first use, I think the [Supreme] Court is just considering what is the breadth of those — are there things like general immunity for anything at all that might be said or are these laws designed to cover specific areas.
“As I understand that is what’s being asked of the Supreme Court to give some guidance on how that works, not something that comes to me to give permission.”
The matter will return to court later this month.