Thursday 19 September 2019

Judge Mary Irvine appointed chair of CervicalCheck scandal tribunal

Ms Justice Mary Irvine Picture: Collins
Ms Justice Mary Irvine Picture: Collins

Eilish O’Regan

Judge Mary Irvine has been appointed to chair a tribunal of compensation for women caught up in the CervicalCheck scandal who want to avoid going to court.

The tribunal - which will not get underway until well into next year – will hear claims from women who developed cervical cancer after getting wrong test results.

The tribunal will have to determine if the fault was due to the limitations of science or negligence.

Judge Irvine has been a judge of the court of appeal for four years.

The proposed tribunal  was put forward in a report by Judge Charles Meenan who was asked by the Government to come up with an alternative to going to court.

Women will still have to prove their case and the proceedings will be held in private.

Health Minister Simon Harris also indicated he may set up a separate non statutory ex gratia scheme to compensate women for the non –disclosure of audits carried out by CervicalCheck after they developed cancer which showed they got a wrong test result.

It was only after the Vicky Phelan High Court case in April that the existence of these audits became public and it transpired a majority of the 221 women involved were not told of them.

It is not clear what levels of compensation will be involved.

Mr Harris said the 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.”

Women will still be entitled to go the High Court,

"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."

 Judge Meenan concluded that no matter what alternative system is proposed legislation is going to be required.

The Department of Health said the issue of liability in CervicalCheck cases is not straightforward. It relates to:

*reading of the smear test;

* non-disclosure of the results of audit to the women; and

* 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.

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