The whole point of the CervicalCheck tribunal was to provide women with a quicker and less adversarial alternative to lengthy and confrontational court cases.
It has been more than a year since the tribunal was established and it has yet to hear a single case. In the last number of weeks campaigners said they felt “betrayed”, “talked over” and “ignored”. The 221 Plus advocacy group representing the affected women warned last week that time was up to resolve outstanding concerns.
On Friday, talks between the group and the Government collapsed.
Part of the delay in getting the tribunal off the ground can be attributed to the unexpected and hugely disruptive spread of Covid-19.
The tribunal’s premises, membership and staffing were all in the process of being put in place early this year, with plans to start work at the end of March 2020.
Because of Covid-19, in line with other public-health measures being taken, it was decided to delay the tribunal’s establishment. There was another delay this summer when it emerged two of the three judges, including the chair, would not be taking up their positions.
This was resolved with a number of appointments including that of Ms Justice Ann Power, a serving Court of Appeals judge, who will be chairwoman. Once these hurdles were cleared, members of 221 Plus met Minister for Health Stephen Donnelly in September to discuss issues about how the tribunal would operate.
These included concerns about an adversarial approach with the laboratories; concerns about the aforementioned delays and how this could mean some women would not be in a position to take part because of the statute of limitations; and requests to allow women whose cancer recurred to return to the tribunal. Members of the group said they were happy with the outcome of the meeting and believed those points would be addressed.
In late October, the group said it was “shocked” to receive a letter from Mr Donnelly confirming the tribunal’s imminent establishment. The group was given the news on October 20th – the same day as a memo was brought to Cabinet.
This was happening “without any further review of the issues raised”, they said. Since then, a number of letters have been exchanged between the Minister and 221 Plus.
Cancer recurrence
On the issue of the presence of the labs in the tribunal, and the fears about this being a potentially adversarial process, the Department of Health contacted the State Claims Agency (SCA), which handles all medical negligence claims against the State. The SCA confirmed that where a woman chooses not to name the labs as defendants it would not seek to challenge this at the tribunal and would instead join the labs as third parties.
In a recent letter, Mr Donnelly admitted the way this commitment had been phrased was ambiguous and he promised to address this.
On the issue of cancer recurrence, campaigners pointed towards the tribunal established in December 1995 to compensate people who had contracted hepatitis C from Anti-D and other blood products.
That tribunal had powers to give either a lump sum or make a provisional award and could give an applicant the right to return at a later date in the light of any new circumstances.
On this issue Mr Donnelly consulted with the Attorney General, the SCA and tribunal chair. He was told judgments would, where appropriate, include settlement amounts for potential future recurrence. This amount would form part of the final award made by the tribunal.
Crucially, however, the women could not return with a second claim at a later stage.
The Minister told the group any attempt to expand the ability of the tribunal to make awards beyond how the High Court operates would cause the labs to walk away from the process. He said former minister for health Simon Harris had reached the same conclusion.
Negligence
A number of legal and Government sources contacted by The Irish Times said the CervicalCheck tribunal could not be compared to the hepatitis C tribunal because, in the latter case, there was no need to prove negligence.
During a Dáil debate on the tribunal legislation in 2019, Mr Harris said: “This is not like the hepatitis C compensation tribunal. It is an adjudicative tribunal of a type for which we have never provided before. It is unprecedented. In this tribunal a judgment will be reached outside a court and it is a process to which we will need both the laboratory and the woman to sign up.”
The Irish Times understands Cabinet Ministers were told some women may be in a position where the time available to them to bring a claim under the statute of limitations could be considered to have expired.
The legal advice to Cabinet was that this is an issue that cannot be changed retrospectively. The reason given was that the labs could take the view that the State had taken an action which could impair their legal rights. The end result would again be that they would no longer co-operate and walk away from a tribunal which requires their voluntary participation.
Recently, 221 Plus said it feared Government decisions “are being guided by the wishes of the laboratories”. The advice to Ministers which said there was the potential for women to be outside the statute of limitations vindicates the group’s concerns, but some senior figures believe the cases will be accepted into the tribunal anyway, as it will be up to the tribunal to decide if they are statute barred.
The group wanted a clearer written commitment on this, an explicit promise that no woman would be left outside. In a one-page letter to the group last week, Mr Donnelly said: “I would like to acknowledge your disappointment that it has not been possible to meet your requests in respect of the statute of limitations or the issue of recurrence. The advice from the Attorney General is unambiguous in respect of both of these issues.”
The next day, the group walked away from the talks.
The group has told members that there is “nothing for them in the tribunal that is not available in the High Court”. The department intends to proceed in any event. The relationship between Government and many of the affected women – name-checked just over a year ago in a State apology – has disintegrated.
