A tribunal to deal with CervicalCheck claims will not begin hearing cases until the Supreme Court rules on a High Court judgment involving a woman terminally ill with cervical cancer.
Patient advocates said it could mean that some terminally ill women never get to access the tribunal, or even the High Court, as the High Court does not generally hear a case while a similar case is being appealed to the Supreme Court. They also questioned why legislation governing the establishment of the tribunal is being “rushed through” when there is no date in sight for the hearing of cases.
Yesterday, at a select committee to discuss the CervicalCheck Tribunal Bill 2019, Health Minister Simon Harris confirmed to Labour Party health spokesperson Alan Kelly that the tribunal would not hear cases until after the Morrissey judgment was appealed. The State is appealing the High Court judgment in the case of Limerick woman Ruth Morrissey who was awarded €2.1m.
The appeal relates to the HSE’s primary and ‘vicarious liability’ as organiser of the screening programme as well as the finding by Mr Justice Kevin Cross that a screener must have “absolute confidence” before giving a test the all clear. Ms Morrissey and her husband Paul had sued the HSE and two laboratories for smear test failures.
Mr Harris said he did not know if the laboratories who carry out smears on behalf of CervicalCheck would co-operate with the tribunal, as participation is voluntary. However, he said the labs had engaged with Mr Justice Charles Meenan, who had recommended a tribunal as an alternative to going to court to settle claims.
Lorraine Walsh, a cervical cancer survivor and member of patient support group 221+, said the decision not to hear cases until after the Supreme Court ruling had been confirmed to the CervicalCheck steering committee last week, of which she is a member. “I know girls that are terminal. It probably means the tribunal won’t be a route for them,” she said.
She also questioned “why there was so much pressure to push the legislation through [to establish the tribunal] as it is very important, complex legislation”.
Stephen Teap, whose wife Irene died of cervical cancer following smear test failures, said that Judge Meenan told them last October that it was possible for the tribunal to be up-and-running by the end of last January.
“His best guesstimate, if everyone hit the ground running, getting the legislation through and taking the Christmas holidays into account was the end of January 2019,” Mr Teap said.
The Department of Health said that the tribunal “is not being deferred”.
The fact that the Morrissey judgment is before the Supreme Court should not delay the planned timetable for the establishment of the tribunal, nor will it delay the tribunal in conducting pre-claim work.
The department said it is was the case that the High Court would not generally hear a case while a similar case is in the process of being appealed to the Supreme Court, as the outcome of that appeal could impact how the case is conducted/concluded.
“The tribunal is in a similar position. In practical terms, as the tribunal is not planned to commence hearings until late in the year, there is unlikely to be any significant delay to it hearing its first case,” said the department.
The tribunal is available to 221 women whose smear histories were audited and where the audit results were at odds with original results. It is also open to women who consented to participate in an ongoing review by the Royal College of Obstetricians and Gynaecologists.
However, there are women affected by the CervicalCheck scandal who did not consent to take part in that review, without knowing at the time it would exclude them from the tribunal. Yesterday, Mr Harris said he would see what could be done to address this matter.