A tribunal should be established to hear and determine claims arising out of the CervicalCheck controversy, according to a report published on Tuesday.
Mr Justice Charles Meenan was asked by Minister for Health Simon Harris to see if there was an alternative to the courts system for dealing with claims arising out of CervicalCheck.
His report was discussed by the Cabinet today and published at lunchtime.
Mr Justice Meenan said were such a tribunal set up, hearings would be in private and it would be less formal than a court process. Participation would be voluntary.
A right of appeal to the High Court would remain and a fast-track mechanism would apply where liability was not being contested.
The report does not set out the costs of operating the proposed tribunal but Mr Justice Meenan says damages arising from a negligent misreading of a cervical smear would be “potentially very significant”.
The women at the centre of the controversy cautiously welcomed the report but expressed disappointment that a commitment by Taoiseach Leo Varadkar to a “totally non-adversarial process” has not been realised.
The 221+ CervicalCheck Patient Support Group called for a time limit to be set on the work of the tribunal so that women, many of whom are ill, can have their issues resolved quickly.
Mr Harris commissioned the report in response to controversy over the screening programme sparked by Limerick woman Vicky Phelan, who has cervical cancer, settling a High Court action in April over the reading of her smear test.
It later emerged that more than 200 women were not informed of an audit which revised their earlier, negative smear tests. Many are taking legal cases against the testing labs and the HSE.
Two issues
Mr Justice Meenan said there were two issues involved: allegations that the smear tests had been negligently read; and a failure to disclose to the women the results of audits carried out on the smear tests, after their cancer was diagnosed.
There were serious issues on liability on the reading of the smears, he said. A significant number of smears will be reported as showing no abnormalities “despite there being possible abnormalities present”.
“This does not, of itself, amount to negligence on the part of the person(s) reading the smear,” he pointed out. “Missed does not mean negligence.”
Issues of liability on non-disclosure of audit results “may legally be of a less contentious nature”, the report states.
Given the issues on liability, a redress scheme based on no-fault liability was not appropriate, according to Mr Justice Meenan.
The cases attracted considerable publicity, and a serious concern that hearing evidence of a “particularly intimate nature” in public in the High Court was wrong, he noted.
The tragic deaths from cervical cancer of a number of the women involved in the controversy also underlined the need to avoid delay in acting upon the proposals in the report, he said.
Mr Justice Meenan said he believed the tribunal model he is proposing has application to other medical negligence claims.
Limited
Legislation would be required to set up the tribunal, which would be chaired by a serving or retired judge of the higher courts. Parties would be entitled to legal representation and would be limited to calling one expert witness only.
In a statement the Department of Health said this “alternative system will take into account the issue of liability, each person’s Constitutional right of access to the courts and all parties’ Constitutional rights to fair procedures. “
Minister Harris said: “I would like to thank Mr Justice Meenan for his invaluable report. He has carried out an extensive piece of work, including consultation with the women, their families and their representatives.”
“Mr Justice Meenan’s report requires consideration by a number of Government Departments and I have committed this morning to returning to Government with proposals next month.”
