TWO NEW CLAIMS have been lodged with the CervicalCheck Tribunal, bringing the total number of cases lodged to 19.
This represents a doubling of the total figure in a two-week period, but compares to over 336 court cases taken against the State in relation to the CervicalCheck programme.
The figures were released by the Health Minister Stephen Donnelly as part of a response to a parliamentary question posed by Sinn Féin health spokesperson David Cullinane.
“The Tribunal has notified my Department that it has received 19 claims to date. The number of claims received is now increasing regularly,” Minister Donnelly said on 1 February. This compares to 10 claims received as of 19 January this year.
“The figure includes two claims that were consolidated. The claims received are a combination of new claims, ie claims that were not the subject of proceedings before the High Court, and claims transferred from the High Court.”
The CervicalCheck Tribunal has been a contentious issue for the Government.
Set up in order to deal with legal claims from women who were affected by the CervicalCheck controversy, the Tribunal was hoped to provide a non-adversarial, quicker route to providing redress to women than the courts.
As of 31 December 2021, 336 legal claims have been received by the State Claims Agency regarding the alleged misreading of smear tests.
Since the Government pressed ahead with the Tribunal without meeting three key requests from campaigners, the 221+ Patient Support Group announced it would not support it – but stressed that women could decide themselves on whether to use it.
The three main issues that 221+ campaigners wanted that the Government said it could not deliver due to legal issues were:
Cullinane told the Dáil in July 2021, when just five claims had been lodged: “…Women are voting with their feet”.
“[They are] saying to the Minister loudly and clearly that there are problems with this Tribunal and that there were problems from the get-go with recurrence, the statute of limitations and whether their legal advisers sought an alternative to the courts system.”
“Everything that has been done in the aftermath of the CervicalCheck scandal has been done through a paternalistic lens, in particular in how we ploughed on with the Tribunal. We now have a situation where many women are being advised not to participate in the Tribunal,” Labour leader Alan Kelly said.
Donnelly has ordered that the closing date for claims submitted to the Tribunal be extended until 26 July inclusive – no further extensions are possible beyond that date.
“The Tribunal has successfully brought a number of claims to conclusion swiftly and I am confident it can continue to do so,” the Minister said.
The CervicalCheck Tribunal was established on 27 October 2020, based on the recommendations of a former judge on an alternative to the courts for CervicalCheck claims. It has cost €2.5 million to set up as of July last year.
In October 2019, Justice Charles Meenan recommended that because “missed” does not mean “negligence” in the context of health screening, which is not diagnostic, that liability would still have to be proven that a missed abnormality was medically negligent.
Where liability is not contested, the Tribunal could be used instead, he said.
When analysing the possibility of a “no-fault” Redress Scheme, used by the State in the case of the Hepatitis C scandal and for symphysiotomy survivors, Meenan said that offering this would not be possible for CervicalCheck because of the liability issue.
The Department of Health said in a statement that the Tribunal was “one element of the work undertaken” to deal with the issues arising from the controversy.
In relation to the non-disclosure, or inappropriate disclosure, of audit results, the then Minister established an ex-gratia scheme to provide a payment to women or their families impacted by this issue. This scheme received over 160 applications, and a payment was made in each case. The scheme remains open for any other eligible women or families.
The Department said that the previous Government had “recognised the difficulties” of CervicalCheck cases being heard in the courts.
It said the Tribunal “implements in full the system recommended by Mr Justice Meenan, and was designed with a rigorous case-management process to facilitate the speedy determination of claims in a more sensitive setting than the courts”.
The Department acknowledges that the number of claims received by the Tribunal is lower than had been anticipated. However, the Tribunal has advised that a significant number of the claims it has received have now been resolved.
“The Tribunal only received its first claims in March 2021 and the early resolution of the claims received demonstrates that the Tribunal can bring claims to resolution in months, rather than the years that many claims have been pending before the courts.”
When the Department of Health was asked whether they were concerned that the low engagement with the Tribunal and the 300 cases due before the courts would undermine trust in its cervical cancer screening programme, a spokesperson said:
“Maintaining public confidence in cervical screening is vital, and there has been significant progress made by the HSE and National Screening Service, working closely with stakeholders including patient advocates, in implementing recommendations from Dr Scally’s report and continuing to develop the CervicalCheck programme.
“The Minister recently asked Dr Scally to conduct a final progress review of implementation of the recommendations of his Scoping Inquiry into the CervicalCheck screening programme, and this is now commenced.
“Recent data from the NSS shows that, despite the many challenges of the pandemic, by end 2021 CervicalCheck had screened the same number of women as any other two-year period, and the programme is now up-to-date with invitations for screening.
“This is testament not only to the work of the CervicalCheck team, the GPs and community clinics involved, but also to the women who attended for cervical screening over the past two years.”
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