One wonders how Emma Mhic Mhathúna would feel today knowing that women affected by the CervicalCheck scandal are still fighting their way through an adversarial legal process
When Emma Mhic Mhathúna succumbed to cervical cancer in 2018, leaving five children behind, her funeral cortege wound its way by the Dáil, Government Buildings and the Department of Health.
In a statement, her family said the 37-year-old had deliberately requested that route not as a protest, but to “encourage those within to hold a mirror up to the organisations and agencies that they preside over politically and practically”.
Even in death, Ms Mhic Mhathúna wanted to send a message. That the State should do everything in its power to ensure her “tragic situation will never happen to another Irish mother or Irish woman again”.
One wonders how Ms Mhic Mhathúna would feel today knowing that women, affected by the CervicalCheck scandal, are still fighting their way through an adversarial legal process more than two years after she died.
This week another young mother, Lynsey Bennett, wept outside the High Court after her case finally settled, saying she hoped she has “done enough to secure [her daughters] a future free of financial worries”.
Ms Bennett, who is terminally ill, had to spend precious time away from her daughters fighting her legal case during a pandemic which further endangers her health. The level of stress and anxiety she must have experienced throughout this time is unimaginable.
At what point do we say, enough is enough? How many more seriously ill women do we want to see making tearful statements on the steps of the Four Courts? Is there any room for nuance or humanity?
When Gabriel Scally published his review into CervicalCheck, one of the most striking things was his determination to listen to every single woman who came forward. More than 150 women contacted him and he personally responded to every single one. Some were satisfied with an email, but many preferred to speak to him on the phone.
“These were rarely, if ever, short conversations; and some were emotional and harrowing for the women concerned, or for the relatives, usually the husband of the deceased,” he wrote.
Many of these women felt Dr Scally was the first person in a position of authority who was interested in what they had to say – in their trauma, their feelings of powerlessness and their anger at medics’ failure to inform them of their own medical information, after there was an audit of their smear tests.
They told their stories hoping there would be meaningful change. They wanted their experiences to be documented for the public record. They wanted to ensure the paternalism and misogyny they had endured – with one woman’s family told by a consultant “nuns don’t get cervical cancer” – to be stamped out forever.
It was supposed to be a watershed moment. Then Taoiseach Leo Varadkar stood up in the Dáil and offered the women a comprehensive State apology.
“Today we say sorry to those whose lives were shattered, those whose lives were destroyed, and those whose lives could have been different.
“We are sorry for: failures of clinical governance; failures of leadership and management; failure to tell the whole truth and do so in a timely manner; the humiliation, disrespect and deceit; the false reassurance; and the attempts to downplay the seriousness of this debacle,” he said.
Fine words, but what was their impact? Very little. The whole approach to these women, from the outset, has been to view them as threats to the State coffers. An accounting anomaly to be minimised.
They were not told about an audit of their smears because there is no statutory duty of candour in Irish law. Medics were under no obligation to give them this information, so they decided not to. A duty of candour is still absent. A ‘Patient Safety Bill’, which includes a statutory duty of candour, was published in 2019 but has yet to be enacted.
Leo Varadkar infamously promised none of the women would be forced to fight legal battles in court, but there are nearly 200 cases pending. The State Claims Agency, which handles these cases for the HSE, has a statutory duty to act in the best interest of the taxpayer. But the interests of the taxpayer extend further than mere financial interests.
There is a public interest in ensuring terminally ill women do not spend their final days embroiled in adversarial legal battles, fearful their families will be left in a financial hole when they lose their cancer battle.
Crucially, for those women who are terminally ill, there is an additional worry. If they die before a settlement or an adjudication is reached, the compensation their families receive will be greatly reduced.
Too often in our history, individual women have had to take on the might of the State to force change. May McGee fought for reproductive rights in the 1970s; Brigid McCole was subjected to a virulent attack when she took a case in the 1990s over the Hepatitis C scandal and Vicky Phelan’s refusal to sign a confidentiality agreement in 2018 revealed the extent of the CervicalCheck crisis.
After their seismic legal victories, attention has turned to the political system to institute reforms to ensure no other woman should suffer as they did. On each occasion, the political system has failed.
Speaking last year, Vicky Phelan asked a very simple question: “Why is it so hard to do what is right by women who have already been failed by the State?” It remains unanswered.