In December 2018, the Government agreed to set up a tribunal to provide an alternative system to the Courts for dealing with claims arising from the misreading of test results in the CervicalCheck system and the Cervical Check Tribunal Act, 2019 was passed.
The scandal was sparked when Limerick woman Vicky Phelan, who has cervical cancer, settled a High Court action in April 2018 over the misreading of her smear test. It later emerged that potentially hundreds of women were not informed of an audit that revised their earlier, negative smear tests.
A campaign group, called The 221+, was set up to support individuals identified by the HSE as being directly affected by failures in the CervicalCheck Screening Programme. This includes the 221 women and next of kin identified in 2018 through the internal audit process. The campaign to have a less adversarial procedure was launched. Ultimately the Act was passed in July 2019 but unfortunately the procedure is still adversarial in nature and has been widely criticised by the 221+ group as being unfit for purpose.
In March of this year Health Minister Simon Harris confirmed the setting up of the Tribunal was delayed due to the Covid-19 pandemic. In August, Minister for Health Stephen Donnelly confirmed that the tribunal work would start in September and he announced the appointment of two Judges to the Tribunal – Ms Justice Ann Power, a serving judge of the Court of Appeal and High Court Judge, Mr Justice Tony O’Connor. They will join Mr Justice Brian McGovern.
The Commencement Order relating to the Act was finally signed and sent for publication on Friday October 23rd, amid much controversary, as the campaign group supporting the women affected indicated several concerns which remain and had not been addressed by the Minister prior to the commencement order being made.
A key area of concern is the time limit involved for a claim to be made. October 27th is the establishment day of the Tribunal under the Act and is the date from which the clock will run. A claim to the Tribunal needs to be made within nine months of the establishment day, or six months from the date of notification (that the cytology review findings were discordant with those of the original examination in relation to the woman), whichever is the later. This does not preclude a claim being taken to the High Court instead of the tribunal, within two years of the date of knowledge of negligence, which realistically will be the date of receipt of notification from the HSE in most cases.
Other issues regarding the tribunal include the issue of the recurrence of cervical cancer. Ms Phelan said that, as it stands, some victims will be barred from inclusion in the Tribunal due to the statute of limitations on the original case she took against the State. She said the Minister knew that the 221+ campaign group was “not happy with the format of the tribunal and that we would not support it”. Ms Phelan stated that she and her fellow campaigners “have communicated the issues very clearly and what needs to happen”. She added that the Department had originally agreed to pause its establishment to allow it to engage with members of the group but unfortunately this has not happened.
It looks unlikely that the women affected will bring their claims to the Tribunal and instead may prefer to continue with their claims to the High Court. It will also be interesting to see how the tribunal will deal with cases and what attitude the HSE will take in that forum. Given the apparent issues and without the support of the 221+ Group, it is anticipated that claimants will be advised to continue to bring their claims to the High Court, being a known quantity. Claimants should note that it is possible to seek anonymity and fast track cases if required depending on the particular facts of each case.
Those affected are advised to seek legal advice without delay, one way or the other, to not fall foul of the time limits involved and to be fully advised on the options available.
NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff, whose numbers can be found on our website, www.nfg.ie