Judge asked to consider redress plan for cervical cancer cases

Government looking at compensation options that will avoid a court process

August 1st, 2018: After meeting Leo Varadkar, Vicky Phelan says the Taoiseach promised her "he meant what he said” when he had announced that women caught up in the CervicalCheck controversy would not be forced to go to court for compensation. Video: Enda O’Dowd

 

The Government has asked a High Court judge to examine alternative approaches to compensation, including a redress scheme, for women affected by the cervical cancer controversy.

Taoiseach Leo Varadkar discussed the approach on Wednesday at Government Buildings with Vicky Phelan, who has cervical cancer and has become an advocate for the women involved.

High Court judge Mr Justice Charles Meenan is to examine options for compensation for the women which would avoid a court process. In doing so he will seek the views of the women and their families and report back within two months.

Mr Varadkar also committed to a Commission of Inquiry into the smear tests controversy in public and said he would bring legislation to the Dáil in the autumn.

Speaking after her meeting with Mr Varadkar, Ms Phelan said she was very frank and brutally honest with the Taoiseach about how harrowing the courtroom is for women. “Since I have already been through this I was clear that I don’t want to see any more women being dragged through the courts,” she said.

She wanted to bring home to him, she said, that “there are people out there with very little empathy who think we are out to get money and that we’re bringing down the screening programme.

“I have an issue with the management of the screening programme but not screening itself as screening saves lives. I want to see a programme we can trust. I don’t believe the current iteration of it is fit for purpose and it needs to be overhauled.”

Mechanisms

A Government statement, issued after the meeting, said Mr Varadkar reiterated the Government wants cases arising from CervicalCheck audits to be resolved through mechanisms which avoid women and their families having to take the stand in court.

It added Mr Justice Meenan has been asked to “assess the management of cases, liability and quantum that arise, in conjunction with the State Claims Agency and other relevant bodies (State parties, laboratories, insurers, indemnifiers and affected parties).”

His report is to recommend a way through which cases can be resolved “in a sensitive and timely manner, that is appropriate to these cases involving complex liability issues and multiple parties, outside of adversarial court processes”.

However, there are growing concerns at the highest levels of Government that a large bill for compensation, either through mediation or court cases, could severely undermine the current and future cancer screening programmes, with some senior figures expressing concerns about BreastCheck, the national breast cancer screening programme.

Mr Varadkar said this week that the State could not accept that there had been negligence in individual cases until they had been examined by experts. The Government is awaiting a series of expert reports into the screening programme, and the HSE’s handling of the affair, including reports from experts on the cases of the 221 women identified.

Wave of litigation

However, there is also concern in Government that screening laboratories could be frightened away from Ireland by a wave of litigation, undermining the state’s ability to run the screening programmes.

The Government has been moving towards a redress scheme for some time but concerns about the costs are escalating in Government Buildings.

Ms Phelan said: “I told him [Mr Varadkar] not all of the women are going to get settlements as large as mine or Emma’s [Mhic Mhathúna] as the treatment the women received may have been sufficient for the degree of the error, and I do understand people are not entitled to automatic compensation, but they are entitled to compensation for the non-disclosure part of the claim they will make.”

There was further focus on the victims on Wednesday when the husband of another woman who died due to cervical cancer said he wants someone to be held accountable for CervicalCheck failures.

Ben Lawless said his wife Edel was one of over 200 women not told their smear tests had been audited. Mr Lawless has six children.

He told RTÉ that his wife had a CervicalCheck smear test in 2011 and 2013 but was not diagnosed with cancer until around August 2014.