Has the establishment of the Cervical Check Tribunal in Ireland restored loss of trust?

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Sharon Hughes

Barrister Sharon Hughes discusses news from Ireland relating to the Cervical Check Tribunal whose Supreme Court analysed leading English case law on negligence.

Has the establishment of the Cervical Check Tribunal in Ireland restored the loss of trust by Irish women following the cervical screening scandal?

Cervical Check is the national cervical screening programme in the Republic of Ireland since 2008. The tests are subcontracted from the Health Service Executive (“HSE”) to a laboratory in the US and Co. Dublin. A 43 year old, mother of two, Vicky Phelan, exposed the cervical screening negligence scandal after she settled a High Court case against the laboratory following a false negative smear test result in 2011 but went on to be diagnosed with terminal cervical cancer in 2014. After her case gained notoriety, an audit was carried out of 208 women who were diagnosed with cervical cancer and an original smear test had provided a normal result. 162 of these women were not told about the revised results and 17 had since died.

Ruth Morrissey became a prominent campaigner of the scandal. She had a smear test in 2009 and 2012 which were revealed in 2014 to be false negatives. She was not informed until 2018 and passed away in July 2020 of cervical cancer. Her case reached the Irish Supreme Court in 2020 and has become the leading case on the principles to be applied in medical negligence cases. The late Emma Mhic Mhathuna and Lorraine Walsh were amongst the 221 plus Irish women with cervical cancer to have received an incorrect smear test result.

This failure in Irish women healthcare led to the establishment of the Cervical Check Tribunal in October 2020 which aimed to provide an alternative to the court for eligible claims. The first claims were only received in March 2021 and the initial deadline for claims to be received by the Tribunal was 26thJuly 2021. The Cervical Check Tribunal Amendment Bill 2021 extended the deadline to 26th January 2022 with a view to a further extension granted of 6 months, 26th July 2022. The Minister of Health, Stephen Donnelly TD, published the Tribunal’s annual report on 8th November 2021 which revealed only 8 cases have been received. The cost of setting up the Tribunal has been over €2.5m and the poor turnout from affected women and their families has encouraged a debate on whether it was worth it and importantly, has it in any way restored the lost faith? How many more claims will the Tribunal realistically receive before the limitation period expires? Is it even justified to impose a limitation period when time is not on the side of the women impacted? What about the cases of recurrence?

The first and last words of Mr Justice Clarke, Chief Justice, in the Supreme Court case of Morrissey & Anor v Health Service Executive & ors [2020] IESC 6 is on the background to the case being a real human tragedy. The case has clarified principles to be applied by the courts in medical negligence claims, particularly that the HSE are primarily liable for any negligence found during the screening checks at the laboratories. The English cervical screening process was said to be one of the very highest standards. At what point however does a screener become negligent?

In dismissing all but one of the grounds of appeal from the High Court, Mr Justice Clarke considered English case law, including Penney Palmer & Canon v East Kent Health Authority [2000] Lloyds Rep Med 41 (“Penney Palmer case”) and Woodland v Essex County Council [2013] UKSC 66. The Irish High Court had found that the HSE were not only primary liable for any negligence found against the laboratories but also vicariously liable. The Supreme Court disagreed on the findings of vicarious liability in light of the legal relationship and degree of control between the HSE and the laboratories but maintained they were primary liable. Mr Justice Clarke considered whether the criteria for determining that a non-delegable duty arises are the same as those identified in English case law. Even though the HSE had subcontracted the screening testing to laboratories, they had a non -delegable duty based on the manner it adopted and promoted Cervical Check “would lead an informed and reasonable person to assume that the HSE was undertaking responsibility for ensuring that the programme would be conducted in a non-negligent way”[1].

The Supreme Court also confirmed that there is no new legal test in clinical negligence claims. The ‘Dunne’ principles remain the legal standard of approach in Irish medical negligence claims, requiring a court to assess what a reasonable professional would apply (whether no reasonable professional of the type concerned could have carried out their task in the manner which occurred in the case in question). The English concept of absolute confidence arose from an assessment of the evidence provided by the professionals in the Penney Palmer case and has likely caused more confusion than clarity.  It was stressed that a court has no role in establishing the standard, it was to be imposed by the profession itself, as demonstrated by the evidence.

It is hoped that the Tribunal will receive more claims before the extended limitation period and the concerns raised by the 221+ Patient Support Group on its functioning are considered.

[1] Morrissey & anor v Health Service Executive & ors [2020] IESC 6, p.13.26