Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I thank Deputy O'Reilly for raising this very important issue. The CervicalCheck tribunal is being established in good faith by Government, honouring a commitment made by Government after the Meenan report of 2018. It is being established as an alternative to court for those who want it where cases cannot be settled by mediation or negotiation, which is of course the preferred solution and has happened in many cases but is not always possible, especially when there is a dispute about the facts and whether or not there was negligence. The idea is that the tribunal will be quicker, will have fewer legal costs, can be done in private and can be less adversarial as the tribunal will have access to independent experts. The Minister, Deputy Donnelly, has met the 221+ group. I heard him say this morning that he is willing and will be happy to meet again with the 221+ group to hear its members concerns, sit down with them and listen to their ideas and suggestions. He has made that commitment and that is welcome. I know he will follow through on that.

On the issue of a system being adversarial or not, it is worth paying attention to the words of Ms Justice Mary Irvine. She said that adversarial, in this context, describes a process whereby the evidence of each witness may be tested on cross-examination. It does not necessarily mean that it has to be confrontational. Unfortunately, in some of these cases, it may not be clear-cut. The person taking the case may feel that her smear was misread negligently. However, the scientist who read it or the doctor who signed off on it may feel otherwise. There is then a dispute about the facts. The evidence is set out and each side gets to question the evidence. That is what happens and I have not seen anyone come up with a solution to get around that. I do not think it would be fair to deny a scientist or doctor the right to be heard and to say that they were not negligent and read the smear correctly. I have not seen any solution to that conundrum other than to refuse to allow people to make a defence. I do not see how that would work.

On the issue of the laboratories being involved, following from the recent Carrick case in the High Court, I understand that laboratories can be involved as third parties rather than as defendants. That follows on from the Morrissey case, which established that the HSE has primary liability and cannot delegate its liability. It will be possible for the HSE and the State to be the defendant but the laboratories will only be there as a third party. That may be necessary because third parties have indemnified the State and will have to pick up the tab for any compensation. If they are totally excluded from saying that there was not negligence, that would create an issue and require the State to sue the laboratories, resulting in a second trial and second court hearing. I do not think that would be in anyone's interests.

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