David Cullinane (Waterford, Sinn Fein) | Oireachtas source

I thank the Minister for the briefing provided today by his officials. We had a number of conversations on this issue in recent days. I will start with an observation that I have stated privately to the Minister.

It is also important that I put on the record that everybody wants to arrive at the same place. That position is genuinely held by everybody in this Chamber. We all know how emotive the CervicalCheck scandal was and we all want to make sure that duty of candour and open disclosure is what it is. We have arrived, however, at an unsatisfactory place, where we have an important amendment that inserts this Part 5 request into a Bill on Report Stage. There are genuine concerns, which I imagine many of us have, and we now have limited time, even with the additional time that has been allocated, to not just discuss those amendments but amend them, if we want to. It is more difficult on Report Stage to amend. In fact, it might be impossible if a Deputy has not previously raised an issue. We are quite limited in what we can do.

On top of that, stitched into this Bill, as I said privately to the Minister, is an entirely new section relating to the role of the chief officer in inspections of nursing homes. Again, I support this section and much of it is good but we do not have sufficient time to properly interrogate it either. We have arrived at an unsatisfactory position regarding how the Bill is being dealt with. Others may make the same point.

I have an issue with the process, in addition to what is being proposed. In some respects, there is an absence of a statutory duty of candour in the Bill. It also does not provide for an obligation on a provider or clinician to inform a patient of the right to a Part 5 review at the point of diagnosis. When I spoke to the Minister privately, he said that was not in the Bill but it would be in guidelines elsewhere. I would prefer if it was in the Bill. I would prefer that to be a legal requirement of clinicians so that it would be crystal clear that this is a requirement. When the Minister responds, he might explain to us exactly how it will work in practice. That is, again, a legitimate and reasonable request. The Bill does not specify or provide powers to the Minister of the day to prescribe how the review is done. In fact, the section leaves it to the lab itself, as far as I can see from my reading of it - if the Minister wishes, I will read him the section - and that is problematic. We will certainly table amendments to that section when it goes to the Seanad because we think this is unsatisfactory.

The core issue, however, relates to whether the Part 5 review will do what it should do, and whether it will do what Vicky Phelan, all the women, myself, others and the Minister want. No matter what the circumstance, if a discordant slide is found, particularly those horrific ones that we know happened in the past that led to the CervicalCheck scandal, there is no requirement to request a review other than if a request comes from a woman. There is no legal requirement on the lab if it does a look-back, or conducts this programmatic review or audit, to inform a woman of a discordant slide. That is problematic. There is a difference between an obligation on a service provider or clinician to provide information as of right, if that is what a woman wants, as opposed to her having to ask and having to go through what is called a Part 5 process to get information that, I imagine, we all agree should be done as of right. Even if we have an anonymised-type programmatic review or audit, it should still be possible, if there is a troublesome, difficult, discordant slide, to be able to trace that back to a patient and that patient then being informed. The Minister said in response that means information could be used by the lab, possibly against the wishes of a patient. Maybe that is something that could be looked at. When a woman undertakes a smear test or a cervical check screening, she might then agree, as part of qualitative audit look-backs that if a discordant slide is found, she would indicate she wants to know about it. We should give women that choice. That is not the choice they are being given. That is the difference between how I see it and possibly how the Minister sees it.

I understand, from an education perspective, that there is a need to collect data and to do look-backs for all sorts of reasons. My point is, in its simplest form, when we look at everything that happened in the past, no matter what the situation is in the course of a lab's business - it might be in the course of a look-back, audit or other reason - and whatever the circumstances, where a horrific, discordant reading is found, if a woman wants that information to be disclosed to her, it should be done as of right and automatically. It should not be up to the woman or patient to have to request a review. That aspect of the Bill is fundamentally flawed.

Vicky Phelan's file, as the Minister knows, contained information relating to her discordant reading. She picked up the file, read it and found out to her horror, at that point, that there was a discordant reading. That was done as part of a non-anonymised look-back. Under what is being proposed, that would never even have ended up in her file and she would never have known. Even if there was a right to review, how would she have known to seek a review? She would never have guessed or known that there was a difficulty in the first place. That is the flaw in what is being proposed and the difference between how the Minister sees it, I see it and others in the HSE see it.

Other Members want to come in. I will leave it at that. I have concerns about all these matters. If we are to have duty of candour and open disclosure, it has to be an obligation and not simply a right to request. A right to request is important. It is part of this and gives added value, but it cannot be a replacement for placing an obligation on a provider, if that is what a woman signs up to. If a discordant reading is found, in whatever way it is done in the course of a lab's work, a woman should be informed. This section simply does not do that.

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