Kerry cervical cancer victim's dying wish: 'I want to hold the HSE accountable'

Jane Lucey. Picture: Seán Mac an tSíthigh/Lucey Family

"I want to hold the HSE accountable. If by going public on it, it helps other women, that’s what I want to do."

That was the priority for Joan Lucey, the Kerry cervical cancer sufferer who died last night, as she fought her campaign for justice from her death bed.

Ms Lucey, with her condition rapidly declining, had been suing the HSE and two laboratories over her smear slides. 

The 73-year-old's legal team repeatedly sought mediation with the HSE and the laboratories on her case hoping to resolve it before she died, but it was only yesterday, just hours before she passed away, that they finally agreed.

According to her solicitor Ernest Cantillon, speaking on behalf of the family, the former nurse's final days were consumed with the case, pleading for mediation from her death bed and unsure whether she faced a High Court hearing next week.

“Her family are devastated, Sean, Eilleen, Sinead. They said that their mum was sitting up with them having dinner last Sunday evening, they were talking about the battle ahead, she was up for it,” said Mr Cantillon. 

But the stress of the case wore on her through the week and they saw her “going downhill”.

“They think it contributed to her decline. And it certainly meant that the focus of their last few hours and days was not sharing happy memories of them as children and as a family. 

"Instead, they were talking about this, and the way they were being treated. It’s a disgrace really.” 

Ms Lucey wanted accountability from the HSE and some justice for victims of the cervical screening scandal.

After pushing “for weeks” for mediation through the courts, it was eventually granted yesterday and was due to begin on Tuesday, just days before her High Court action was scheduled.

Then, realising yesterday evening that she was close to death, her legal team pushed for the discussions to begin this morning instead. However, Mrs Lucey sadly died at approximately 11.35pm last night before the talks could commence. The process will now be held without her.

"They put this woman in the position where she had to beg on her deathbed for mediation and they still didn’t deliver it in a timely way," Mr Cantillon said.

"If they had, this mediation would be done and dusted and she would have died happily knowing that she had done something for others. It’s a real kick in the teeth for her family knowing that what she wanted to achieve, to hold these people to account, has not been achieved before she died."

Despite public declarations by the then Taoiseach Leo Varadkar that no woman who had a misread smear should have to go to court and despite loud assurances from the State Claims Agency that it would offer mediation to all such victims, Ernest Cantillon said little effort was made to facilitate timely mediation for her.

"(Health Minister) Stephen Donnelly should tell the State claims Agency ‘You’re our agent, this is not the way we want our agents to treat people who we have wronged and who we should be seeking to make amends with’," said Mr Cantillon.

"It’s really an outrage and a disgraceful way to treat people.”

Despite “religious” annual and bi-annual smear tests, Mrs Lucey, a retired nurse from Dingle, Co. Kerry, was diagnosed with cervical cancer in 2019.

She took a case to the High Court in relation to two cervical smear tests she had in 2011 which had been reported as normal.

“In 2019, she reported symptoms which were ultimately diagnosed as being cervical cancer,” Mr Cantillon said.

“We sought her slides and got them examined by a world expert, Dr Boon, who told us that the 2011 slides were misreported and if they had been reported correctly she could have got treatment and would not have gone on to develop cervical cancer. By the time she was diagnosed in 2019, it was too late to treat her.

“We got another expert involved, a surgical gynaecologist who told us what Boon had told us was correct, and that this was all avoidable."

She sued the HSE, Clinical Pathology Laboratories Incorporated with headquarters in Austin, Texas and MedLab Pathology Ltd with registered offices at Sandyford Business Park Dublin. All claims have been denied.

“The State Claims Agency, an agency of the State, said ‘we always offer mediation.’ So we were waiting for this offer of mediation to come and it didn’t," said Mr Cantillon. "We recognised her deteriorating health and the strength of the case, and we took to upon ourselves to invite mediation."

However, he said they got "circular" responses from the HSE and the labs saying, ‘well, we will if they will’. 

"A circular fudge," Mr Cantillon said. "We brought the matter before Judge Cross a number of times in the last few weeks in which we said, ‘we want an answer, this woman is dying, are you going to stop this codology of saying ‘I will if they will'? Are you going to mediate and if so, when?’” Mr Cantillon said that public exposure of the case helped to get Tuesday's date for mediation.

“We became aware yesterday evening that her situation was deteriorating further, we contacted them and asked them to bring it forward to today, Saturday, morning. Unfortunately, she died late last night at about 11.35pm.” 

The family are now pushing for answers from the HSE as to whether her case can be fully compensated following her death.

Approximately €500,000 in damages can be deducted from such cases if the claimant dies and Mr Cantillon said they have been seeking assurances that this will not apply to Ms Lucey’s case.

Cantillons wrote to the HSE and the laboratories weeks ago when they were told that Mrs Lucey was dying for assurances that part of her case, the general damages, would not die with her, they said.

However, they received no concrete assurances from the HSE on this while the laboratories refused to agree to it, Mr Cantillon said.

Had they agreed, it would have given Mrs Lucey “some good news on her death bed".

“Now she’s died and we still don’t know and still can’t get a straight answer," he said.

Mrs Lucey, a private person, had waived her right to anonymity to give others strength.

“She said ‘I want to hold the HSE accountable. If, by going public on it, it helps other women, that’s what I want to do'. She led a low profile in normal life but she was doing it to help others."

He said that failing to grant Ms Lucey’s request for ‘timely” mediation was “very wrong”.

“The HSE has the primary liability in these cases. They can then look to the labs for indemnity, but the primary liability is the HSE.

“The HSE accepts that they have the primary responsibility in these cases, but they keep dodging and saying, ‘we want to get the money in our back pocket first from the laboratories and then we’ll talk to you'.

“They should deal with the women that they have a liability for in a decent way in the first instance and then pursue the laboratories and not place the women in a position where they have to pursue the laboratories as well."

This evening the HSE said in a statement: "The HSE offers sincere condolences to the family of the late Joan Lucey, mediation in the case will continue early next week."

A spokesperson for the State Claims Agency said it would be inappropriate for it to comment on an individual case that is being case-managed by the High Court and which is the subject of mediation.

"The SCA aims to resolve all cervical cancer screening claims against the HSE in a sensitive manner and as quickly as possible. 

"It uses mediation wherever possible, as an alternative to a formal court hearing, and places a high priority on treating the people who have made the claims, and their families, with dignity and compassion.

"While the SCA does not act for the laboratories and others that are co-defendants in these cases, which have separate legal representation, its approach in these cases is to exhort all the parties to use mediation to seek resolution of the case in the shortest possible time period.”