Thursday 23 May 2019

Act now to atone for this great hurt

Taoiseach Leo Varadkar. Photo: Frank McGrath
Taoiseach Leo Varadkar. Photo: Frank McGrath


The Taoiseach and the Minister for Health each favour a situation where the women adversely affected by the CervicalCheck scandal are afforded an opportunity "to establish negligence in a non-adversarial way, that doesn't involve a witness box in court and having to talk about your own personal health in a very public forum".

But we are told that the well-meaning efforts of Leo Varadkar and Simon Harris are being frustrated by the "legal aggression" of the American laboratories, partners in the screening programme with the HSE, who are resisting any form of mediation and determined to force all of the 221 women involved to prove negligence in potentially lengthy and much-delayed court cases.

The Government has set up forums to investigate each of these cases to try to find a way of establishing who has been wronged by the process and how this might be addressed. They have tasked High Court Judge Charles Meenan with examining compensation options, including a redress scheme that would obviate the need for court ordeals. Separately, a clinical review of all women diagnosed with cancer in the past 10 years has begun, though this is delayed while individual permission is sought from each of the women. And a public Commission of Inquiry is also promised.

Establishing when negligence occurred should be relatively simple. In non-legalese, if a woman was screened (in some instances more than once) and told the results were negative, but she was later diagnosed with cancer and a review showed this could have been detected in the screening process, she has a case. The failure to inform women after review of the outcome compounds the offence.

So, having portrayed itself as being at odds with the American clinics who insist on court procedures, why then did the Department of Health make the following statement last week: "A determination of negligence is one which can only appropriately be made by a court and... no such determination has been made at this time."

How, it must be asked, does this approach differ from that of the American clinics? And if that is the official government position, what is the point of Judge Meenan looking at compensation options that stop short of the court process? The Government was responding to legal representatives for some of the women affected who suggested that the State could make settlements with women who clearly suffered from negligence in the process, and subsequently sue the American clinics for a contribution to the cost of this exercise. But the Government seems to fear they may make payments without a cast-iron guarantee that they will be able to rely on the contract their agents, the HSE, had with the American clinics, to obtain legal redress in all cases. Lawyers for the women affected have had clinical experts examine 40 cases so far and in each one, it seems provable that a duty of care was not fulfilled, they suggest. But the Department of Health is not convinced, fearing that false negative results may be deemed a normal part of any screening programme, and wants to take the more cautious approach, an approach that risks seeing the whole affair dragging on and on, adding to the hurt and trauma already suffered by sick and vulnerable women.

The Taoiseach and the Minister for Health have, through their own words, made it clear that they know what is the right thing to do. Not to be indelicate, some of these women may not have the luxury of the time to wait out the legal system to see justice for themselves and their families.

The Government must act now to compensate women who have been hurt beyond measure by the apparatus of the State, and then take on to itself the worry and concern over how the matter will eventually be adjudicated by the courts.

Sunday Independent

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