Editorials

The Irish Times view on the CervicalCheck controversy: the case for a tribunal

The report by Mr Justice Charles Meenan offers a useful roadmap

Campaigners Vicky Phelan, Stephen Teap and Lorraine Walsh at the launch of the 221+ Cervical Check Patient Support Group at Farmleigh House in Dublin. Photograph: Niall Carson/PA Wire

Thu Oct 18 2018 - 00:10

Mr Justice Charles Meenan's report on how to deal with claims arising out of the CervicalCheck controversy has received a cautious welcome. The judge had been asked by Minister for Health Simon Harris to see if there was an alternative to the courts system for dealing with claims. His preferred option is for a tribunal of inquiry, sitting in private, and with a right of appeal to the High Court.

While expressing disappointment that a commitment by Taoiseach Leo Varadkar to a "totally non-adversarial process" has not been realised, the women at the centre of the controversy gave the Meenan report a cautious welcome. The 221+ CervicalCheck Patient Support Group called for a time limit to be set on the work of the tribunal so that the women affected can have their issues resolved quickly. Meenan recommended the inclusion of a fast-track facility in cases where liability is not being contested.

At the height of a fevered political and media response to the controversy, Varadkar pledged that the State would take over the women’s cases, seek settlements by mediation and pursue the cervical smear laboratories for damages so the women would not have to go to trial. But that was never deliverable.

Meenan said he had considered proposing a system of arbitration but that such an approach would not preserve an avenue of appeal to the High Court, as under law an arbitrator’s award is final.

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Time is not on the side of politicians, and more importantly, the health of many of those involved is under significant threat

In contrast to much of the muddled thinking seen in the initial stages of the CervicalCheck controversy, the judge clearly outlines the two strands that lie at the centre of the issue: allegations that the smear tests had been negligently read; and a failure to disclose to the women the results of audits carried out on the smear tests, after their cancer was diagnosed.

In addition he has identified the conundrum at the core of the controversy: a significant number of smears are reported as showing no abnormality even though there are abnormalities present. Crucially, the report points out that “this does not, of itself, amount to negligence on the part of the person(s) reading the smear. Missed does not mean negligence”.

As a result of these liability issues, a redress scheme based on no-fault liability was not appropriate, the report says. The proposed tribunal model also avoids evidence of an intimate nature being heard in public in the High Court.

It would be a mistake not to follow Meenan’s considered recommendations. Time is not on the side of politicians, and more importantly, the health of many of those involved is under significant threat. Twenty of the 221-plus women affected by the controversy have died. No one wishes to see those who survive facing an adversarial grilling in open court.

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