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Wednesday 21 November 2018

Tribunals for cancer victims to be 'adversarial'

Proposal: Judge Charles Meenan has called for urgent action. Picture: Collins
Proposal: Judge Charles Meenan has called for urgent action. Picture: Collins

Eilish O'Regan and Cormac McQuinn

A private tribunal, which will hear claims for compensation from women at the centre of the CervicalCheck scandal will still force them to prove their case in an "adversarial" arena, it was claimed yesterday.

The tribunal, similar to court proceedings but held behind closed doors, was proposed by Judge Charles Meenan in a Government-commissioned report.

It proposes that compensation awards for successfully proven cases will be on a par with those handed down in the High Court.

The highest so far is the €7.5m given to the late Emma Mhic Mhathúna.

Judge Meenan, asked to come up with an alternative for women who wanted to avoid the ordeal of open court and remain anonymous, said it should be set up urgently because a number were very ill with cervical cancer.

In response, the 221+ support group for the women said it welcomed the proposal "with some caution", but it was disappointed Taoiseach Leo Varadkar's commitment to a "totally non-adversarial" process was not followed through: "We particularly welcome Judge Meenan's statement to the effect that where liability is not being contested, in claims relating solely to non-disclosure, such claims can be fast-tracked through the tribunal."

Health Minister Simon Harris is to bring a detailed plan to Cabinet in a month, following consultation.

Vicky Phelan, who went public with her High Court case in April to highlight CervicalCheck failures, said: "We urge the minister to provide us with assurances on how the adversarial nature of such a process can be minimised."

Judge Meenan said damages arising from a negligent misreading of a cervical test were "potentially significant".

Laboratories would be liable in these cases.

The State may be sued for the delay in disclosing audits to women and these damages would be significantly lower.

The tribunal would be presided over by the judge and have a panel of experts.

If the woman is dissatisfied, she would have the right of appeal to the High Court for a complete re-hearing .

He believed the hearings would be "less costly" and the tribunal could be of wider use in other medical negligence cases.

There are 221 women at the centre of the crisis, 20 of whom have died.

All developed cancer after getting a wrong test result. Not all were negligently read and some were incorrect due to the limitations of screening.

Commenting on the proposal Cian O'Carroll, the solicitor representing several women, said it added to the choice of options open to his clients.

Some women would want to remain private but others would go to court, anxious for public accountability for the harm done to them, he added.

"The problem is the tribunal is in camera and it shields the State and labs from the public knowing about negligent errors. Women must also prove their case in an adversarial system," he said.

Irish Independent

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