Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

The withholding of important information from patients is completely unacceptable. What we have seen so far in the case of CervicalCheck is nothing short of an outrage. It constitutes a fundamental breach of trust between patients, their doctors and the HSE and it has led to widespread fear and anger across Ireland in the past few days, and I will speak to that shortly.

Before I do so, I want to commend the bravery and determination of Vicky Phelan and of her family. If Ms Phelan had not made the stand she did, what has happened in CervicalCheck would remain a secret. Ms Phelan’s lawyer has said that "enormous efforts and energies were put into forcing her to remain silent". If Ms. Phelan had not faced down those efforts, what has happened in CervicalCheck would remain a secret. Ms Phelan’s courage has laid bare a conspiracy of silence. Her courage has ensured legislation on mandatory disclosure will be introduced. It has ensured that many other women, also kept in the dark, will now be told the truth. It has prompted Government to fast-track patient safety legislation. It has led to an investigation being launched to see what was going on in CervicalCheck and to see if similar withholding of patient information is happening in other screening programmes. For all of these reasons, and more, Ms Phelan’s courage will lead to important changes in health care in Ireland, which I believe everyone in this House will support.

The focus this week must be on the 162 women who, like Vicky Phelan, were not told of screening errors. It is imperative that all these women are engaged with quickly, and are provided with the support they need. In the 17 cases where women are now deceased, their families must be met similarly.

The establishment of an investigation is also essential, and the Government’s announcement on this is welcome. As answers are required quickly, the Health Information and Quality Authority, HIQA, seems to be a reasonable choice to lead the investigation, at least in the first instance. However, HIQA’s focus is clinical quality, and this investigation must be broader than that. At the core of this issue is the withholding of patient information, and Fianna Fáil will support this investigation only if the Government can provide an assurance that this will be covered. Specifically, HIQA must be able to investigate the question of who decided what, and who knew what in CervicalCheck and in the broader HSE. The investigation must not be used by the Government to avoid answering questions in the short term. There is very considerable public worry, and it is essential that information continues to be made available, including while the investigation is carried out.

There are many other questions that need to be investigated. Why did it take two years for the HSE to inform Ms Phelan’s consultant, Dr. Hickey, of the false negative? The HSE has a policy of open disclosure. Why then was the HSE telling doctors to use their judgment as to whether they should openly disclose, and in the cases of the deceased, why was the HSE saying that the doctors should simply make a note on their files? Why did Ms Phelan’s consultant not share the information about the screening error with her until the year after he found out about it? When senior managers within the HSE were informed of the disagreement between Ms Phelan’s consultant and CervicalCheck, why did senior management within the HSE not act to ensure all patients were told? Why did the HSE adopt such an aggressive legal position in the proceedings brought by Ms Phelan? Why was the HSE agreeable to a confidentiality clause? Does this not run entirely contrary to a culture of open disclosure? How are we meant to learn how to make things better in health care if agreements like this are met hand-in-hand with gagging orders?

There are important questions to be answered too regarding the Department and the Government. When did the Department become aware of Ms Phelan’s case? Was the Department aware that it took three years for Vicky Phelan to find out about the screening errors and that these had been kept from her? Was the Department aware, or did it suspect, that this practice was more widespread than the individual case? Why did it take so long for the Department to prepare a note on the case for the Minister?

There are also questions for the Minister to answer, following on from the note he gave today, and I acknowledge he has made that note available. Did the Minister make any follow-up inquiries of his officials based on the content of the note? That is one of the key questions we want to understand. The note states that the case was being taken for two reasons, the first is the error in the 2011 screening, which is the responsibility of the US laboratory. The second reason was the non-disclosure of the error, which is the responsibility of the HSE. Did the Minister ask why this non-disclosure happened? Did he ask how many other screening errors there might be? Did he ask how many other non-disclosures there might be? The note also states, "The State Claims Agency is of the view that publicity around the case and/or settlement is likely." Should this not have prompted further questions and earlier action? The Minister did act when he found out about the scale of the issue last Thursday, but if these questions had been asked of officials when the Minister was given the note, they would have alerted him to the wider issue, which would in turn have led to quicker action from the Minister and the Government and avoided several very difficult days of concern in this country and avoided a lot of fear and a lot of confusion.

A further question is whether the Minister could or, to be fair to him, should, have intervened to stop the court case? I would like to quote Ms Phelan’s lawyer who said the following:

The entire court process could have been avoided. We have heard Minister Harris confirm that he was made aware through an information note on this case on the 16th of April. That's three days before the trial began.

While he said ... that the one time a minister cannot intervene is during a court case. If that is so, there wasn't a court case at that time. There was nothing preventing him from asking further questions or directing those through the State Claims Agency or through the Department of Health to prevent steps being taken to force Vicky Phelan into court.

That is a question that Vicky Phelan's solicitor has asked.

Vicky Phelan describes what has happened to her as "an appalling breach of trust".

Many people across Ireland feel the same way. I have been approached by constituents. I imagine all Members have. People are scared. People are furious that this has happened. That an error in diagnosis or in screening would have been spotted, that the State would have waited two full years to let anybody know of that error and that one's own doctor would then have engaged in correspondence with the State as to who should tell the patient is simply outrageous. The danger is that this appalling breach of trust leads to a lack of confidence in screening, and that cannot happen.

The screening programme introduced in 2008 has saved many lives. I talked to a consultant last night who told me that he reckons 400 to 500 women's lives are saved every year thanks to the cervical screening programme, but if we are to maintain confidence and if we are to rebuild trust, then many serious changes are need. Mandatory disclosure must be brought in quickly. It should be in by now but it is not. We must move to a culture of transparency. The default option of the State seeking gagging orders where it settles with patients must be reviewed otherwise how else will we learn from the mistakes that are made. Critically, a way must be found for the public to seek justice that does not incur such high legal fees that one could lose one's house. We all know how this works. Somebody goes to a solicitor and gets a legal team. He or she potentially incurs very serious upfront costs. We know how the State responds. The State walks in with an army of lawyers. The State walks in with senior counsel and junior counsel, solicitors and experts and it is the individual citizen against the State. That fear and threat of legal costs is used as a weapon against people in this State and it is an effective weapon. Ms Phelan could have been excused for not risking all of that in dealing with everything that she did. She decided to fight. She decided to put everything on the line. It is incumbent on us all to make sure that we take some serious steps on what will be a long and tough journey to ensuring that confidence and trust is rebuilt and that we begin to have an era of transparency and genuine openness in this country when it comes to people's health.

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