CervicalCheck tribunal plan is a long way from what was promised

Having promised at one point that no woman involved in the CervicalCheck controversy would have to go to court, the Government seems likely to accept a proposal that runs along familiar legal lines.

The main difference between Judge Charles Meenan's proposals, published on Tuesday, for a compensation tribunal on the issue and the traditional High Court route is that the tribunal hearings would take place in private.

The women involved would therefore be spared the harrowing experience of having to discuss the intimate details of their disease, and its impact on their health and fertility, in public.

However, the hearings would still follow the adversarial procedures found in Irish courtrooms. Both sides would have lawyers. Women bringing cases can expect a thorough grilling from opposing lawyers when liability is contested.

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It is a long way from the promise made by Taoiseach Leo Varadkar at the emotional high-point of the controversy, when he pledged that the State would take over the women's cases, seek settlements by mediation and pursue the testing labs which misread smear tests for damages so the women would not have to go to trial.

The Taoiseach subsequently sought to clarify his comments, saying no government could take away the right of a person to go to court.

In fact, Mr Justice Meenan’s report explicitly rules out a no-fault compensation scheme because of the issues of liability that arise around the complex business of testing cervical smears. The likes of the hepatitis C tribunal, the Residential Institutions Redress Board and the symphysiotomy payment scheme did not require claimants to prove negligence and made ex-gratia payments.

The proposed tribunal for women affected by the CervicalCheck controversy would require negligence to be proven. As Mr Justice Meenan’s report makes clear, the fact that a smear was read as showing no abnormalities when some were present does not in itself amount to negligence on the part of the person reading the smear.

His report sets out the multiple advantages of the way forward he has proposed over a High Court hearing. Aside from being in private and less formal, a tribunal would be quicker and less costly, the report says. The constitutional and legal rights of the parties would not be compromised.

System of arbitration

Mr Justice Meenan says he had considered proposing a system of arbitration. However, this approach did not fit with his desire to preserve an avenue of appeal to the High Court, as under law an arbitrator’s award is final.

The Government has not committed to implementing his proposals but is likely to do so. Time is of the essence in dealing with the issue, both on a medical and a political level. Twenty of the 221-plus women affected by the controversy have died, and the State has a duty to help resolve matters for other women whose health may have been affected. Meanwhile, the last thing the Government wants to see is a series of terminally-ill women having to fight their cases in full view in the courts over the months to come.

While a handful of the cervical cancer cases have been settled in court, and scores of claims have been lodged, it remains unclear how many would make it to a full court hearing. That is because no one knows how many women had their slides misread, how many had their slides negligently misread, and what effect this had on their health outcomes.

It is therefore difficult to say how much a compensation tribunal would cost. All that can be said with certainty is that the cost of running tribunals, and the level of awards these kinds of bodies make, has generally far exceeded original estimates. Only this month, the Comptroller & Auditor General reported that the hepatitis C tribunal has so far cost the State €1.5 billion – though, as noted above, this involved ex-gratia payments that do not feature in the arrangements proposed by Mr Justice Meenan.