Analysis: The return to lockdown and the contact tracing of Case M has been overshadowed by a furore over confusing communications to members of the Papatoetoe school community. Marc Daalder lays out who was told to isolate and when
Although it was rule-breaking by Case M - who developed symptoms four days before being tested and visited numerous high-risk locations in the meantime - that forced Auckland into lockdown, the microscope in recent days has been on Case L.
She's the sibling of a Papatoetoe High School student and a KFC employee who went to work the day before her sibling tested positive for Covid-19. At the time, Jacinda Ardern said Case L "should have" been at home the day she worked.
"They were always told that they weren't meant to be operating in a Level 2 environment," Ardern said. "They were still required to stay at home and be tested."
On Monday evening, however, Case L told Newshub that she had received conflicting messages and thought her behaviour was permitted. A subsequent review of communications from a number of sources, including the Prime Minister and Director-General of Health at press conferences, the school via texts and Facebook posts, the public health service and the Ministry of Health shows that people received contradictory advice about whether they were free to go about their business or were required to isolate at home.
February 14
Case L isn't alleged to have broken rules during Level 3 (unlike members of two other families in the Valentine's Day cluster). She also isolated after a family member returned a positive test result on February 23 - and was moved into MIQ with the rest of her family that day. However, the day before, Monday February 22, she attended a shift at KFC Botany Downs, working from mid-afternoon until late into the evening.
Confused by the alphabet soup of cases in the Valentine's Day cluster? Read Newsroom's explainer here.
The worker says she had been told she was allowed to work and that only her sibling, a student at Papatoetoe High School labelled Case I, was required to isolate before returning a negative test result. Another of her siblings, Case J, also went to work at Kmart the previous Friday and Saturday, February 19-20.
When we trace communications back to the start of the cluster, some of the confusion becomes evident. On February 14, when three new cases linked to LSG SkyChefs and the high school were first announced - and before the Prime Minister later that evening chose to raise alert levels - the Ministry of Health said official advice would be forthcoming from the school.
That advice arrived in the form of a letter from the Auckland Regional Public Health Service (ARPHS). Different letters were sent out to families depending on whether their children were close or casual-plus contacts of Case A, the student who had tested positive. The letter sent to the family of Case I, a casual-plus contact, asked that the student stay at home and get tested. It didn't state whether family members were asked to isolate or get tested.
The ARPHS letter also linked to an information sheet for casual contacts, which explicitly stated: "Your household members do not need to stay at home or get tested, unless they are also Casual-plus or Close Contacts, or they develop symptoms".
Similarly, Case L's family received a text message that afternoon instructing them, "casual contacts to isolate and test - their families don't need to".
February 15
Speaking to the New Zealand Herald the next morning, Papatoetoe High principal Vaughan Couillault said the Ministry of Health and Ministry of Education initially advised everyone in households to get a test. Newsroom could not independently verify this.
However, later in the afternoon on Sunday, Couillault said, the advice changed for casual-plus contacts - only students in those families needed a test.
The same morning Couillault spoke to the Herald, deputy principal Ben Claxton told a community member on Facebook that only families of close contacts would need to isolate or seek a test. "COVID test update - casual contacts to isolate and test (their families don't need to). Close contacts and families to isolate and test," he wrote.
However, the point over who had to isolate was moot at that stage, as Auckland had entered Level 3 and non-essential workers were advised to isolate at home if they could anyway.
February 17
When Auckland dropped to Level 2 on February 17, the Government says the advice changed. Another ARPHS letter to the community said household members were "encouraged to stay home until Monday" and "all household members should work from home if they can". That's softer language from elsewhere in the letter, where it states in bold that students and staff "must have a negative test result before they return to school on Monday" (emphasis added).
Part of the reasoning for the different language is that the request for family members to isolate wasn't enshrined in a legal public health order. When asked on February 17 whether a public health order would be issued, Bloomfield said, "We contemplated that and it's certainly a tool we could use. However, the school has been incredibly supportive and cooperative around the measures to date.
"With the expectation that students require a negative test before going back on Monday and the support that can go in to support that school community, we didn't feel that an order was necessary to achieve what we wanted to achieve. So we'll be working with that school community to achieve the outcome we're after without an order."
That indicates the Government was taking a voluntary approach to families self-isolating. It also runs against what Ardern said the next week, when she claimed family members were "required to stay at home and be tested".
Bloomfield on March 2 backtracked and claimed that there was a legal requirement to isolate.
"The requirement on the school community was articulated in a letter. And so that's an expectation of the Public Health Unit [ARPHS]," he said, appearing to refer to the February 17 letter that only encouraged family members to stay home. A February 19 letter similarly "encouraged" whānau to get tested and implied they should await the test result at home.
"There's a legal requirement in the sense that they had been asked to [isolate] by a Public Health Unit and that advice and that request is from a medical officer of health who is a designated under the Health Act."
Questioned further on March 3, Bloomfield insisted again that the ARPHS letters required families to remain isolated.
"The school was being instructed anyway, on the authority of a medical officer of health who is designated under [Section 70 of] the Health Act, so there was a legal basis for the requirements," he said.
However, University of Otago public law professor Andrew Geddis told Newsroom that merely "encouraging" people to isolate would not have formed a legal requirement.
"A request, I would think, is not necessarily the same as a requirement," he said.
"There's this question of, when exactly is someone exercising the Section 70 power and when aren't they? The most we know is from the Borrowdale case from last year in the High Court, where the High Court said that in order for a Section 70 requirement to bite, as it were, it has to be appropriately notified.
"How that tracks down to an individual medical officer of health giving notice to individual people, we don't know. All we know is that it must be notified in an appropriate fashion. And I think there's a very strong argument to say a letter saying 'you are encouraged to stay home until Monday' is not appropriate notification you are legally required to stay home until Monday."
February 23
Bloomfield later issued a public health order under Section 70 of the Health Act 1956 requiring families to isolate, but this only occurred on Tuesday, February 23. The public health order was not released publicly in the Gazette, where previous health orders have been notified, but Newsroom has obtained a copy of the text. It requires Papatoetoe High School students and staff, and their family members, to isolate at home until contacted by a contact tracer.
However, the order was issued too late to stop Case L from attending work the previous day. Certainly there was little publicity around the order, which journalists only learned was in force a week after it was issued.
"It wasn't made publicly available which is another questionable misstep by the Ministry, because it does establish legal requirements, but because they weren't made public, no one could see what they were," Geddis said.
Bloomfield defended the Ministry not publicising the order.
"The actual order is not promulgated to the people who it applies to. It just underpins the instructions they are given," he said.
Geddis also said the legal requirement to isolate would have lifted once a contact tracer got in touch with the school community members and new legal requirements couldn't then be layered on because contact tracers are not medical officers of health under the legislation.
Public health guidelines for families of casual contacts were clarified on February 23 in line with the Section 70 order - after Case I tested positive and Case L and Case J were moved into managed isolation as a precaution. These guidelines were clearer and non-contradictory about the need to isolate at home, although they were later broken by Case M.
Case L also says she and her family never received any of the ARPHS letters. It is unclear if she saw media coverage of the February 17 press conference at which Bloomfield and Ardern said families of casual contacts should isolate, but were not legally required to. She says she did not receive any attempts by the Government to reach out to her or her family - Covid-19 Response Minister Chris Hipkins says more than 20 attempts were made via phone and text. However, at no stage did officials visit the household of Case L in person.
February 26
Further complicating matters is a Facebook comment from the Unite Against Covid-19 page, run by the All-of-Government pandemic response team, which states that Case L and Case J were not required to isolate. Written in the evening of Friday, February 26, the comment responded to someone bashing Case L and Case J for ostensibly breaking the rules.
"Case J (Kmart worker) and Case L (KFC worker) were not required to isolate at the time. The advice for all staff and students of Papatoetoe High School to isolate was updated on 23 February, after the two had attended their shifts at their workplaces," the page wrote.
The revelation has prompted a further round of calls for Ardern to apologise to Case L from Opposition politicians. It also validates criticism from community members and health experts that the communications from the Government have been confusing and contradictory.
The Government clearly believes that journalists are being too credulous in believing Case L's claims that she didn't know she was expected to isolate. However, the unclear communications give Case L plausible deniability. So long as the Government remains unable to definitively say Case L knowingly breached public health guidelines, the failure in its outreach strategy remains clear.
