Government announces the establishment of an independent statutory Tribunal to deal with claims arising from CervicalCheck
Minister for Health Simon Harris TD today (Wednesday) announced the Government has agreed to establish an independent statutory tribunal to deal with claims arising from CervicalCheck.
The Minister secured Government approval to prepare legislative proposals as a matter of priority, but the Government acknowledged this will take time to establish.
The Cabinet approved the appointment of Ms Justice Mary Irvine as Chair of the Tribunal. Ms Justice Irvine will begin preparatory work as soon as possible ahead of the establishment of the tribunal later in 2019.
The Minister also confirmed he is to examine the early establishment of a non-statutory scheme to provide ex-gratia payments for the women affected by the non-disclosure of the audit.
The Tribunal will be established based on the recommendations set out by Mr Justice Charles Meenan in his recent report on an alternative system for dealing with cases arising from CervicalCheck.
Hearings will be held in private and will be less adversarial than the current court process due to the adoption of pre-hearing protocols and case management procedures.
Once established, cases will be dealt with in a timely manner. The Tribunal will differ from the current court process in that it will be voluntary for all parties.
Minister Harris emphasised that establishing a Tribunal does not, in any way, restrict the right of women or their families to give evidence in public in the High Court, if that is their wish.
Minister Harris said: “The Tribunal will allow women to progress their cases in a timely and sensitive, less adversarial manner, while equally respecting the constitutional entitlement of all parties to a fair hearing.
“I want to thank Ms Justice Irvine for taking on this role. I look forward to engaging with her in the new year and progressing with this work as soon as possible.
“This will take time to establish but all arms of Government are working to progress as a matter of urgency. I will also consider the establishment of an ex-gratia compensatory scheme to deal with any accepted non-disclosure to the 221 women and their families and I hope to progress this in the new year.”
Main Elements of Judge Meenan’s proposal
Establishment of a Statutory Tribunal
· Judge Meenan proposed that claims arising out of CervicalCheck could be resolved outside the court process and that a Tribunal be established under statute for the purpose of hearing and determining these claims. Judge Meenan set out a summary of what would be required in legislation in Appendix 1 of his report.
Requirement for legislation
· Judge Meenan concluded that no matter what alternative system is proposed legislation is going to be required.
Issue of Liability
· The issue of liability in CervicalCheck cases is not straightforward. It relates to:
a) reading of the smear test;
b) non-disclosure of the results of audit to the women; and
c) issues between CervicalCheck and the respective laboratories involved.
· Smear tests are a screening not a diagnostic process. There are serious issues on liability on the reading of the smears. A significant number of smears will be
reported as showing no abnormalities despite there being possible abnormalities present. Judge Meenan notes that this does not, of itself, amount to negligence on the part of the person(s) reading the smear.
· The Judge has advised that, given the issues on liability, a redress scheme based on “no fault” liability is not appropriate. The proposed Tribunal must take into account the respective liability in each case, each person’s constitutional right of access to the courts and the constitutional right of the parties involved to fair procedures.
Tribunal Procedures and Right to Appeal
· The proposed Tribunal would hear and determine claims. It would adopt pre-hearing protocols and case management, details of which have been set out by the Judge at Appendix 2 of his report. It would be specifically designed to deal efficiently and effectively with all claims arising relating to CervicalCheck. It will have power to order discovery, inspection and the attendance of witnesses. In the event of a failure to comply with such orders without reasonable explanation, the Chairperson of the Tribunal may transfer the claim to the High Court.
· The Chairperson of the Tribunal would be a serving or retired Judge of the Superior Courts (High Court, Court of Appeal or Supreme Court). The Chairperson would be assisted by relevant expert(s).
· The Chairperson would have power to determine liability, including the apportionment of liability in each case, to award damages and to make orders for legal costs, including taxation of such costs.
· The consent of the parties involved would be necessary for the Tribunal to hear and determine claims.
· The Statute of Limitation Acts would apply to all cases.
· Hearings would be in private.
· Determinations of the Tribunal may be published in anonymised format.
· There would be a right of appeal to the High Court by way of a full re-hearing from all or any part of the determination by the Tribunal and such hearing would be heard in private. The determination of the appeal would be published in an anonymised form.
· Where liability is not contested cases would be fast tracked in the Tribunal
Biography of the Hon. Ms. Justice Mary Irvine
The Hon. Ms. Justice Mary Irvine
Educated: University College Dublin and the King’s Inns
Called to the Bar: 1978
Called to the Inner Bar: 1996
Appointed as a Judge of the High Court: 2007 and in charge of the Personal Injuries list since 2011
Chair of the Working Group on Medical Negligence and Periodic Payments
Judge of the Court of Appeal since October 2014