Seanad debates

Thursday, 11 July 2019

CervicalCheck Tribunal Bill 2019: Second Stage

 

10:30 am

Photo of Jerry ButtimerJerry Buttimer (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Question proposed: "That the Bill be now read a Second Time."

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I have pleasure in calling on the Minister to address the House.

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Leas-Chathaoirleach and I am delighted to be in Seanad Éireann two days in a row. I am pleased to introduce the CervicalCheck Tribunal Bill 2019 to Seanad Éireann. At the outset, I acknowledge the sincere bi-partisan effort in the other House, which I know will be in this House too, to get this done so that we can provide an alternative pathway to court for women seeking answers and justice in the botched CervicalCheck audit. I sincerely thank Members for taking this legislation so promptly and facilitating this debate.

I wish advise Members that the Dáil Business Committee agreed to waive pre-legislative scrutiny in the case of this Bill to enable the Houses of the Oireachtas to consider it with a view to enactment before our summer recess, and certainly before the Seanad's summer recess. Meeting this milestone will enable the tribunal to be established before the end of the year and to begin hearing cases as soon as possible. For women, some of whom are unwell, this timeline is obviously crucial.

The purpose of this important legislation is to establish an independent statutory tribunal to deal with claims arising from the CervicalCheck controversy. The Bill is based on the recommendations set out by Mr. Justice Charles Meenan in his 2018 Report on An Alternative System For Dealing With Claims Arising From Cervical Check. I thank the excellent Mr. Justice Charles Meenan for giving his time and sharing his expert advice in this regard. We have tried to stay true to his findings and recommendations in that report.

Following the issues which emerged last year, it is safe to say there is much greater awareness of the limitations of cervical screening and screening in general, and we will be aware that false negatives and false positives arise in all screening programmes in Ireland and internationally. As Mr. Justice Meenan noted in his report, where a woman develops cervical cancer following a negative smear test, this is not, in and of itself, evidence of negligence. There is a difference between a false negative and negligence. To establish negligence evidence has to be given from a suitably qualified expert that the reading of the smear fell below the appropriate standard required, and this evidence needs to be adjudicated on.

Recognising that any alternative system to the court process would need to recognise the issue of liability, Mr. Justice Meenan proposed that a tribunal be established under statute for the purpose of hearing and determining claims arising in relation to CervicalCheck. This Bill does exactly that. It also provides, very importantly, for restoration of trust meetings. That is a really important point because trust has been broken and damaged. I have met many of the women impacted from this situation. Those restoration of trust meetings could be of real value in getting to where we need to get to on our screening programme and in bringing a degree of closure and answers for the women involved.In that context, this Bill takes account of what Mr. Justice Meenan stated in his report and the views expressed by Dr. Gabriel Scally last year in the final report of the scoping inquiry into the CervicalCheck screening programme. Restoration of trust meetings is, of course, not part of the courts process but it is an important part of this legislation. We need to re-emphasise that the CervicalCheck screening programme has played a vital role in saving lives. We all know that. Despite its shortcomings and limitations regarding the audit process, we should not, and we will not, take away from that reality. It is, therefore, essential that women and their families have confidence in the programme and continue to use the programme.

Before going into the detail of the Bill, I would like to give further context and set out some of the important steps taken so far to deal with CervicalCheck issues. These include the reports by Dr. Gabriel Scally, supports for women and their families, and changes to the HSE's open disclosure policy and practice. A further significant initiative is the ex gratiascheme for women affected by non-disclosure. Payments have so far been made to more than 80 individuals impacted by non-disclosure. The scheme's independent assessment panel met and is continuing its work. I understand that further payments will be made in the coming days. We are, crucially, implementing the recommendations in Dr. Scally’s report in full and we have accepted the two further recommendations from his recent supplementary report. My aim, my vision and my policy, and that of this House, is to effectively eradicate cervical cancer. That is not pie in the sky and it is not a lofty political aspiration. It is something that we can do and it is something I genuinely believe that we will do through a combination of a robust screening programme, a move to HPV testing and, crucially, the introduction of the HPV vaccine for boys and the continuing promotion of the vaccine for girls.

We also have to push back against the myths - we are not allowed to say "lies" in this House - disinformation and misinformation that is put forward regarding vaccinations. I will bring forward a motion in support of the vaccination programme in the other House and I would also like to bring it into this House. I hope all of the Members of Seanad Éireann, regardless of party affiliation, will state clearly that they support the HPV vaccine for boys and girls and the child's immunisation programme. I hope as well that Members of both Houses will stop writing letters to me trying to question the validity of that vaccination. They are doing serious harm to people, present company excluded of course. There is, of course, a legitimate role for asking questions but giving succour to misinformation about vaccines has resulted in deaths in this country. I promised Laura Brennan that we will do everything we possibly can to reverse that trend. I know I have great cross-party support in this House for that approach as well.

The HSE continues to strengthen governance, quality assurance and management in the CervicalCheck programme and the wider national screening service in line with Dr. Scally’s recommendations. This is a key point. Great work was done by the CervicalCheck screening programme and that is still being done. It is fair to say, however, that it was somewhat operating as an island and a silo. When Dr. Scally looked closely at the programme, he found a real need for proper governance structures, proper management structures and clarity on how the programme links in with the wider health service.

Turning to supports for women affected, something important for all of us here, funding has been provided to the 221+ Patient Support Group to enable advocacy and supports to be made available to these patients. I also announced last year the establishment of a primary and social care support package for women and families affected by the CervicalCheck issues. This comprehensive package of supports is for the cohort of 221+ women for whom the audit carried out by CervicalCheck found discordance with the original reading of their slides. The package will also be provided to any other woman for whom the independent clinical expert review currently being undertaken by the Royal College of Obstetricians and Gynaecologists, RCOG, identifies discordance with her original smear test reading. Members will be aware that this review is ongoing and that its purpose is to provide women with independent clinical assurance about the quality of the screening programme and the timing of diagnosis and treatment.

I also want to mention open disclosure. This goes to the heart of the matter for many of the women concerned. Audits are a good thing and we should encourage them but we should also be disclosing and openly disclosing information. When things go wrong in our health service, and things go wrong in every health service, it is important that people disclose information. It is important that patients - women and men - get information. It is also important, however, that our clinicians can disclose in an environment where they know how that process will work. What we saw at the heart of the CervicalCheck audit debacle was mass confusion regarding what the open disclosure policy was and whose job it was to disclose.

I welcome the new open disclosure policy published by the HSE. It is in line with recommendation 28 of Dr. Scally’s report, which emphasised that the policy should be revised to reflect the primacy of the rights of patients to have full knowledge about their healthcare and, in particular, their right to be informed about failings in that care process, however, and whenever, they may arise. The interim policy will be further reviewed when the patient safety Bill is published. I look forward to returning to this House in the autumn with the full patient safety Bill, which will provide for mandatory open disclosure of patient safety incidents. It is at an advanced stage.

Turning now to this Bill, I want to present an overview of the general principles. The tribunal will hear and determine liability for claims regarding CervicalCheck, subject to the consent of all the parties to the claim. The Bill sets out who may make a claim and the period within which claims may be made. The Bill enables the tribunal to determine and adopt pre-claim protocols and enables the chairperson to issue practice directions regarding the conduct of claims, in the interests of hearing and determining claims in a manner which is just and expeditious. The tribunal’s determination of a claim may be appealed to the High Court. Where a claimant accepts an award and where no appeal is made, the tribunal will apply to the High Court for confirmation of that determination.

The tribunal’s hearings will be held otherwise than in public; in other words they will be held in private, except where the woman would like it to be held in public. This respects the privacy of the women concerned. I have met many of these women as others here have as well. The idea of those women having to tell their intimate life stories in a very public fashion is something that has discouraged many from going forward to seek justice and answers. The idea of having an opportunity to tell their stories in private in a less formal setting is something that we can welcome. It respects the privacy of the women concerned while giving them the opportunity to have hearings, or part of hearings, in public should they wish.

The tribunal will also facilitate restoration of trust meetings. The intention behind a restoration of trust meeting is to document experiences, facilitate discussion and provide information to the woman concerned or her family. In addition to these functions, the tribunal may also provide advice or recommendations to the Minister relating to its work. That is important because we will discuss over the next few days the various views on this Bill. My starting point, and frankly my finishing point, will be the fact that the judge will have the opportunity to keep in contact with my Department while being fully independent regarding any recommendations that she may wish to make. That should provide us with a degree of assurance in this House.

The Bill is divided into three Parts. Part 1 is the preliminary and general part, part 2 provides for the CervicalCheck tribunal and part 3 contains miscellaneous provisions. Section 1 is a standard section on the Short Title and commencement provisions. Section 2 is the definitions section. A key definition is the definition of "relevant woman", which is central to the scope of the tribunal regarding who may make a claim. These are women identified as part of the review of cervical screening as having had CervicalCheck cytology review findings that were discordant with those of the original cytology examination, or women whose cytology slides were re-examined as part of the retrospective CervicalCheck audit and whose cytology review findings were discordant with those of the original cytology examination. I brought forward an amendment on Committee Stage in the Dáil that extended eligibility to a small additional group of women whose slides could not be located in time for them to be examined as part of the review of cervical screening.

I want to let Senators know at this stage that I have committed, and commit again today, to returning to the Oireachtas in the autumn with a proposal to amend the legislation to allow women who declined to participate in the review of cervical screening a further opportunity to be included in the scope of the tribunal. At the moment, it is possible for a woman in the 221+ group and who has had a discordance, a woman who has gone through the RCOG process and had a discordance, or if it was not possible to go through that process because slides were missing, to have access to the tribunal. There will be another group of people who have decided, for their own reasons, which we should not second-guess, that they do not wish to be part of any review. I was asked in the other House if I would consider allowing that group one more opportunity to take part in an independent review and allowing them to access the tribunal if they say "yes" and a discordance is found. I happily conceded on that point and I will return to the Oireachtas in the autumn in respect of that matter.

Section 3 is a standard provision for expenses incurred by the Minister in the administration of the legislation. Part 2 contains sections 4 to 36, inclusive. Sections 4 to 10, inclusive, deal with establishing the tribunal and the tribunal's functions. Section 4 provides for the establishment day for the tribunal. I expect to establish the tribunal once the necessary arrangements are in place for it to begin its work. Section 5 provides for the establishment of the CervicalCheck tribunal. The tribunal may sit in divisions, it will be independent in the performance of its functions and will regulate its own procedures. Section 6 is the membership section. The tribunal will comprise a chairperson and not less than two ordinary members, appointed by me as the Minister for Health. As has been announced, Ms Justice Mary Irvine will be the chairperson. I thank her for accepting that role. The Minister may appoint additional persons to the tribunal, if necessary. The chairperson must hold or have held judicial office in the superior courts. Ordinary members must hold or have held judicial office in the superior courts or be a practicing barrister or solicitor of not less than ten years' practice.

The tribunal’s functions come under section 7. The tribunal shall hear and determine claims made to it, facilitate restoration of trust meetings and report on and make recommendations as it deems appropriate on any matter relating to its work.Section 8 deals with staff for the tribunal. Section 9 enables the tribunal to appoint people with expertise to provide it with advice or assistance. It also enables the tribunal to conduct or commission research, again subject to prior approval from me, as Minister, and the Minister for Public Expenditure and Reform. Section 10 allows the tribunal to appoint its own counsel.

Sections 11 to 13, inclusive, are concerned with the making of claims to the tribunal. These are important sections. Section 11 provides for claims before the tribunal and who may make claims. A claim may be made by an appropriate person and an appropriate person under the Bill is defined as a relevant woman or, where the woman is deceased, a dependant of the woman. A claim for compensation may be made seeking damages for negligence, breach of duty, breach of statutory duty or breach of contract arising from any act or omission concerning CervicalCheck. A claim may also be made seeking damages for the alleged negligence or breach of duty arising from an alleged failure to inform the relevant woman or her dependant of the results of the retrospective CervicalCheck audit. I have mentioned already the amendments made to this section and my plans in that regard. It is important to state that the legal principles as to liability and quantum of damages as applied in the High Court in respect of such cases will apply to claims before the tribunal. A claim may not be made where a person has received an award from any court or settlement in respect of any action arising from any circumstances which could give rise to a claim before the tribunal. The exception is an award under the ex gratiascheme.

Section 12 deals with reckoning of time for the purposes of the Statute of Limitations. In the case of a woman identified as part of the review of CervicalCheck, a claim must be made within nine months of establishment day for the tribunal or within six months of being notified of findings of the review of cervical screening, whichever is the later. In the case of other women within the scope of the tribunal, a claim must be made within nine months of the establishment day for the tribunal. A person may not make claim where the person was entitled to institute proceedings in respect of a relevant claim, and the limitation period in respect of instituting those proceedings has expired. However, the period beginning on the making of a claim and ending six months from the date on which the tribunal notifies the claimant that one or more of the relevant parties have failed to agree in writing to the claim being determined by the tribunal will be disregarded in reckoning any period for the purpose of limitations. As initiated, the Bill did not provide for the additional six months. I was pleased that my amendment to allow for the latter - on which I engaged with the Opposition - was accepted on Report Stage in the Dáil following constructive discussion at the Select Committee on Health. Similarly, the period beginning on the making of a claim and - following amendment - now ending six months from the date on which the tribunal notified the claimant that one or more of the relevant parties have notified the tribunal that they no longer consent to the claim being determined by the tribunal will also be disregarded in the reckoning of any period for the purpose of limitation periods regarding a claim.

Section 13 provides that the tribunal will hear and determine only claims in respect of which there is an agreement in writing from the relevant parties. The relevant parties are the claimant, the HSE and the cytology laboratory services retained by the HSE for CervicalCheck.

Sections 14 to 26, inclusive, provide for claims before the tribunal and procedures. Section 14 provides for the manner of determination of issues. The tribunal will hear and determine claims in the same manner as such matters are determined by the High Court in respect of claims for personal injuries. Section 15 provides for third-party procedures and consent issues. The tribunal may grant an application to join a third party to a claim in the same manner as such applications are determined by the High Court. The claim will proceed before the tribunal only where the third party consents to having all issues arising in the claim determined by the tribunal. Where the third party does not consent to having all issues arising in the claim determined by the tribunal, the tribunal shall not continue to hear and determine the claim.

Section 16 requires the tribunal to take into account any sum paid or payable to a claimant under the CervicalCheck non-disclosure ex gratiascheme when considering whether an award should be made regarding non-disclosure. Section 17 provides for applicable principles to awards of the tribunal. An award shall be made on the same basis as an award of the High Court. A claimant will have 21 days, or such longer period as the tribunal may determine, from the making of the award to accept or reject the award or to appeal the award. A claimant shall be deemed to have rejected the award where the claimant neither accepts or rejects the award nor appeals the award within the 21-day period or such greater period determined by the tribunal. Where the claimant decides to accept the award, the acceptance must be made in the prescribed form, which is a notice of acceptance and shall be accompanied by a waiver. I have committed to considering this provision further over the summer, because some women have raised concern over the concept of a waiver. The word "waiver" does not sit well with me either but I want to be clear that this provision only applies in a situation where a woman wishes to accept an award. Should a women be unsatisfied with an award, of course she is not expected to waive the right to take further action. I will look at the wording of the section. I am satisfied that the legal principles are sounds.

Rules contained in the Civil Liability Acts 1961 to 2017 shall be applied to the tribunal in the same manner as would be applicable in an assessment of damages were proceedings to be brought to the High Court regarding the claim. Section 18 provides that parties appearing before the tribunal shall be entitled to be legally represented. Section 19 provides that the tribunal may award costs in respect of a claim. Under section 20, hearings are generally to be otherwise than in public. However, a hearing or part of a hearing will be conducted in public where a claimant requests and the tribunal agrees that it would be appropriate to do so.

Section 21 provides for the form and manner in which evidence may be given. Section 22 provides for powers relating to witnesses and documents. Section 23 provides for privileges and immunities of witnesses. A person who gives evidence to the tribunal or who produces or sends documents to the tribunal, as directed by it, has the same immunities and privileges in respect of that evidence or those documents, and is subject to the same liabilities, as a witness in proceedings in the High Court.

Section 24 provides that the tribunal may apply to the High Court for directions relating to the performance of its functions or for the approval of the court of an act proposed to be done by the tribunal for the purposes of performing its functions. The High Court may hear an application otherwise than in public having regard to the subject matter or any other matter relating to the nature of the evidence to be given at the hearing of the application. An important section in the Bill is section 25 which enables the tribunal to determine and adopt pre-claim protocols. These are procedures governing requirements to be complied with before claims are brought. That is important. It is one of the big differences between the court process and the tribunal model. The aim is to promote timely communication between parties, facilitate early identification of the relevant parties, facilitate early identification of the issue in dispute in respect of a possible claim and facilitate the hearing and determination of claims in a manner which is just and expeditious. Section 25 also enables the chairperson to issue practice directions on the conduct of claims.

Section 26 provides for the tribunal to make rules to regulate practice and procedure and the conduct of claims. Section 27 provides for appeals. Section 28 provides for confirmation and publication of the tribunal's determinations. I was pleased to accept an amendment to this section on Report Stage. It now provides that confirmation will only be required where an award is accepted. Section 29 provides for enforcement of awards.

Sections 30 to 33, inclusive, have the restoration of trust provisions which I spoke about earlier and I also include provision for a facilitator in regard to the meetings. Section 31 provides for the appointment of a facilitator to carry on and control generally the administration and business of restoration of trust meetings. Importantly, the facilitator is independent in the performance of his or her functions. Section 32 sets out the detail in regard to restoration of trust meetings. It is important that real, open discussion takes place at those meetings and, accordingly, section 33 provides appropriate protections for participants. Evidence is not admissible in any court or the tribunal of any information, statement or admission disclosed or made in the course of a restoration of trust meeting. Information provided by a participant at a restoration of trust meeting will not invalidate professional indemnity insurance policies or contracts of insurance, nor will information provided at the meeting constitute an admission of fault. In other words, it must be a safe space for trust to be restored.

Sections 34 and 35 deal with the tribunal's recommendations and its annual reports. Under section 34, the tribunal may make recommendations to me as Minister and the Minister will publish any recommendations made by the tribunal to inject transparency. Section 35 requires the tribunal to prepare and submit the recommendations to the Minister and places an obligation on me to publish them. Section 36 provides for the dissolution of the tribunal and that the Minister may by order dissolve the tribunal. That would be done following consultation with the tribunal.

Part 3 provides for miscellaneous matters and has sections 37 to 40. Section 37 provides that where an appeal from a determination of the tribunal is made to the High Court, rules of court may make provision for the hearing and determination of those appeals in a timely and efficient manner. Section 38 provides for offences and penalties for offences. Section 39 provides for restriction of the data protection regulation to enable the tribunal, the facilitator and moderators to perform their functions.

The Bill is quite technical and it is important to put the information on the record of the House, as it is a Bill that will interest many. At its heart, what we are trying to do here is provide an alternative pathway to the courts system. People will always have a constitutional right to go to court. The Constitution is clear on that, but there is an onus on us to provide as many alternative pathways as possible. Through the State Claims Agency we have a process of mediation, which has settled a number of claims, including some high-profile ones. We have the courts system in its constitutional place. We have an ex gratiascheme for non-disclosure, where the State has said for the issue of non-disclosure we accept liability and an independent panel has agreed the figure of €20,000 to be paid out in that regard where non-disclosure took place, or not appropriate disclosure. The CervicalCheck tribunal is another alternative pathway. Is it perfect? Absolutely not. Is there a perfect model? Absolutely not. We are trying to do here something we have never done before. People hear the word "tribunal" and they think of the Mahon tribunal. That was a tribunal of investigation, this is not. We had Dr. Scally do his work. People also think of the hepatitis C tribunal. That was a compensation tribunal, this is not. In that case, it was quite straightforward - people had been injected with contaminated blood that did them serious damage and the State needed to care for and compensate them. In this instance, we know, because of the limitations of screening, that there will have been false negatives and false positives in some cases and that there was negligence. Where there was negligence, women have a right to have that determined. We want them to have it determined, if they so wish, in an alternative place to the High Court.This is an adjudicative tribunal and liability does have to be determined. We have been at this now for many months, trying to find the best and most compassionate way to do it. Greater minds than mine have looked at it. Mr. Justice Charles Meenan, one of the most eminent clinical negligence judges in the country, examined it in great detail. On page 20 of his report he published ten reasons it would operate better than the court system. For me, as a layperson, at its heart is that it can be done in private and people can submit written statements, which lessens the need to go and tell their whole story, unless they wish to do so. There are pre-action protocols; the judge can appoint her own experts and, where liability is not contested, the process can be fast-tracked. There are a number of ways in which it is less adversarial. However, it is not entirely so as there has to be that ability to adjudicate on and determine the issues of liability and negligence. I am happy that, after significant engagement by the judge with Dr. Scally, patient advocates, the State Claims Agency and the laboratories, this is the best model we can put in place. It is just one of a number of pathways we are trying to provide as alternatives to court.

I thank the House for taking the Bill as speedily as it has and hope we can endeavour to pass it in the coming days.

Photo of Catherine NooneCatherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Minister for his work in this area.

Photo of Colm BurkeColm Burke (Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank the Minister for Health, Deputy Harris, for coming to the House to introduce the Bill. I also welcome the Minister of State, Deputy Catherine Byrne, for attending to deal with it.

This is welcome legislation. We have the report from Mr. Justice Meenan which recommends the setting up of a tribunal and deals with how it is to be established and operated. We have appointed the chairperson of the tribunal, Ms Justice Mary Irvine, who has huge experience in dealing with difficult issues and cases. It is important that we deal with cases in a proper manner. The issue for many people who want to bring claims is that they want to bring them privately, but they will also have the option, if they want all or part of the hearing to be held in public, to make that application.

It is important that we give recognition to the work of Dr. Gabriel Scally in the reports he has produced and identifying a number of issues which had not been disclosed at an early stage, in particular, the number of laboratories to which work had been subcontracted out. Even CervicalCheck appeared not to have been aware of the subcontracting that was taking place.

In dealing with the Bill it is important that we also give recognition to the amount of work that has been done on cervical screening and the number of lives that have been saved. What occurred was that women who had gone through the screening process and been told that they had no abnormalities were within a period of time identified with cancer. It was for them CervicalCheck decided to carry out an audit to see whether the cancer could have been identified at an earlier date. It turned out that 221 cases were identified where inaccurate readings had been furnished to the clinicians and patients. A a result, we are left with the difficulty of dealing with this issue where inaccurate information was furnished and patients were given a false sense of security.

When patients became aware that their cancer could have been identified and treated at an earlier stage, it caused huge difficulties in trying to deal with it, not only for themselves but also for their immediate families. In some cases, the results of the audit were not furnished to the patients, while in others the results were only furnished after the patient had died. It is appropriate, therefore, that we set up a proper structure to deal with these cases, particularly because the patients have gone through huge trauma in being diagnosed with cancer and going through the treatment process. Every one of us in the House has some relation, family member or close acquaintance who has received treatment for cancer, whether it be cervical cancer, lung cancer, breast cancer or otherwise. It causes huge trauma for both the patient and immediate family members. The one thing we need to do is to try to lessen that trauma by making sure the process made available to deal with the issue of the compensation that should be awarded does not involve an additional traumatic experience for them. Thus, the recommendation of Mr. Justice Meenan was that a tribunal be set up.

It is important to recognise that there must be agreement by both the HSE and the cytology laboratories that they will participate in the tribunal. It is important that there be agreement on participating to make sure all parties will be involved.

This is welcome legislation, something we need to put in place. The issue that still has to be dealt is the decision of Mr. Justice Kevin Cross in the High Court in the context of “absolute confidence”. That matter still has to go before the Supreme Court and needs to be clarified. Overall, the Minister has adopted the right approach and accepted the recommendation of Mr. Justice Meenan to set up a tribunal. The legislation is comprehensive and deals with all aspects of the matter. It also deals with the availability of an appeals process and ensures there can be directions by the tribunal and recommendations to the Minister from it, which is welcome. It is important that we pass the legislation and set up the tribunal. We have appointed a chairperson and need to appoint a further two persons to it in order that it can get on with its work at the earliest possible date.

Photo of Maire DevineMaire Devine (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I welcome the Bill. I wish we had extra time, especially given the extremely tight turnaround time between Second Stage and all other Stages which are due to be taken tomorrow. That barely gives the House enough time to draw breath, let alone consider amendments. However, as I would prefer to see the Bill passed in some form, rather than not, I welcome it.

The entire country was deeply affected and impressed by the bravery of all the women who came forward during the CervicalCheck scandal. They were and are warriors for women and the country. I remember, in particular, the beautiful woman that was Emma Mhic Mhathúna. Ar dheis Dé go raibh a h-anam. In her last weeks she topped the bill at a comedy venue in Dublin at which she proved to be a huge success and brought the House down.We were all there when the cortège passed Leinster House and all our hearts broke watching her small children's faces creased with incomprehensible and insupportable grief. Listening to the debates on this legislation in the Dáil, it is widely acknowledged and accepted that women should not have to go to court again for the claims arising from the acts or omissions of CervicalCheck. They have been through enough. It is vitally important to continue to listen to women throughout this process. They are experts by experience, unfortunately.

The legislation sets out the limitations of the tribunal and the mechanisms for it to do its work. It has to continue to include the women affected and to be efficient and compassionate, and it has to include as many women as possible. It reminds me of the HSE steering committee on children with complex medical needs, which we discussed last year. We had to fight to get parents included in the work of that steering committee. We got this House to agree, by way of a motion, that the parents of those children were experts by experience. The same principle applies here. The women involved are the experts and, while the Minister acknowledges this, it is important to make the point again and again. They are at the epicentre of this situation and we will always need to be mindful of them and their experiences. Sinn Féin stated in the Dáil that it does not wish to delay this Bill in any way. We want it to be the best it can be and the Minister has been working with all sides as the legislation progresses. We agreed not to table amendments in the Dáil on condition that the Minister took seriously our concerns and we are willing to do the same here.

In reference to the tribunal itself, it is important that it hears and determines all issues of negligence, breaches of duty, including statutory duty, breaches of contract and any other matters that should arise. I am glad there will be an opportunity to hold hearings in public or in private. We must be prepared for the fact that some of what we will hear in public will make for uncomfortable listening. It is important for the women to say it and for us to hear it and try to understand and act on it. As this scandal came into the public arena over the last year, it made for heartbreaking listening and it was often infuriating to hear of the failures of the State to those women. With scandal upon scandal exposed, it was like the opening of a Pandora's box. I hope the passing of this Bill brings at least some relief, although we know the damage cannot be undone. It is welcome that the tribunal will have the power to compel witnesses and the production of documentation. At some stage last year, Dr. Scally found it difficult, to say the least, to get documentation in an orderly and timely fashion. It is extremely important that we have the power to compel witnesses and documentation for the sake of transparency, accountability and accessibility. I note that the tribunal can make recommendations to the Minister. In that regard, there is space for a mechanism for hearing from a broader range of opinions.

Sinn Féin raised a concern during the Dáil debates around the exclusion of those who have previously received an award from giving evidence. While I understand the rationale, I wonder if we might miss some information or evidence that should be included in the feedback from the tribunal to the Minister. This should be taken on board and consideration should be given to how those women can be included. It is important that all those affected should have the opportunity to give evidence to the tribunal. We need every woman's story and journey included in the feedback. I would be grateful if the Minister of State, Deputy Catherine Byrne, could address this in her reply.

As I stated, I wish we had more time to scrutinise this important Bill. However, it is welcome that it is being addressed before the summer recess because time is precious to the women in question. The Minister made reference to the HPV vaccine. I ask those tinfoil hat Neanderthals to cease propagating fear among people who take their news mainly from social media. We deal with science and facts. We spoke with the Minister yesterday about the expansion of the heel prick test, done on newborn babies, to include 40 tests. Some 99.9% of new parents avail of this although it is not mandatory because they know its intrinsic worth. We want to get to that figure in respect of girls taking up the HPV vaccine. It is essential for the future eradication of cervical cancer. While take-up of the vaccine is increasing, I suggest we could do more in the way of advertisement. It would honour those we have lost to cervical cancer.

Photo of Alice Mary HigginsAlice Mary Higgins (Independent)
Link to this: Individually | In context | Oireachtas source

This is a very important tribunal for the women who have been affected and their families. It is also important for Ireland. Dr. Scally spoke about the lack of grace and compassion in how Ireland had engaged with the controversy. While financial remedy may be part of the solution, it does not do the job fully in terms of addressing what we need to address. Dr. Scally also spoke of a culture in which women were often disempowered or silenced within our health system. We have seen that in many other areas of the health system again and again.

While we want to pass this legislation before the summer and move forward with the tribunal, I have a couple of key questions on which I hope the Minister of State might be able to give us assurance. The point made by Senator Devine is most appropriate. The fact that somebody has received an award does not mean her experience or insight is no longer relevant. The fact that we may have given some kind of small compensation, which can never compensate for what families have experienced, does not mean that is the end of the State's job in rebuilding trust and relationships or in repairing our health system. It is foolish to place any constraint on those who have received an award being able to give evidence. The extraordinary generosity of voice of the women who have experienced this failure in our screening process, who have suffered and some of whom, as in the case of Emma Mhic Mhathúna, have lost their lives, has been remarked upon internationally. I refer also to people like Vicky Phelan who continue to be incredible advocates. In moving past their own traumas, these women have sought to talk about what Ireland should be. It has been crucial in respect of the HPV vaccine, which is crucial for preventing future cases of cervical cancer and which is often under attack in many parts of the world. I am an executive member of the European parliamentary forum on sexual and reproductive rights, where members have described the campaigns against the HPV vaccine. Those women have extraordinary generosity in championing the vaccine. They worked with schoolgirls in Kilkenny recently to produce projects about it and highlight it. Those voices are incredibly powerful and important. My only real concern about this tribunal is that we do not inadvertently silence the voices of women who have experienced this. I ask for this aspect to be reviewed.

I may put forward an amendment to section 20. We often talk about the concern for privacy in Ireland but we can sometimes be excessive. We must ask which privacy we are protecting, and if we are really seeking to avoid State embarrassment. The Bill provides that the tribunal shall conduct its hearings otherwise than in public, which I presume means in private.Section 20(2) states: "Where a claimant requests the Tribunal to hold a hearing or part of a hearing in public and the Tribunal agrees that it would be appropriate to do so ...". That is my concern. If a claimant says they wish to have their hearing, or part of their hearing, held in public, we should not be in a position where the tribunal denies them that right to have their case heard in public. I hope the Minister of State will be able to assure me that it will never be the intention of the tribunal to deny women the right to have their stories told in public because I see the legislation allows for the tribunal to deny a request from a claimant to have their story told in public. I hope this can be addressed procedurally but I may table an amendment on for tomorrow.

On the terms of the recommendations, the importance of rolling out the HIP vaccine and Ireland giving leadership on that issue internationally and, through our aid programmes, supporting access to HIP vaccine for women and girls worldwide has been touched on. The learning and the recommendations may be of global benefit but another area where I believe recommendations may be, and I hope will be, made by the tribunal is in respect of our public procurement process. I brought forward legislation on public procurement some months ago in this House and specifically on the issues of price quality versus lowest cost. We know that in respect of the cervical screening programme it was a lowest cost tender. We know the State has and should have the opportunity to insist that both price and quality, the price-quality option, are considered. That is an option within European legislation. The Bill I put forward would make it a default option in that unless a Department can justify an exception, price and quality, and a consideration of quality, would be involved in every public tender. In the areas of health that is all the more crucial. We should never be in a position whereby if there is a question mark around quality in respect of any company it is able to jump the queue because it comes in with a lower bid. That is a concern. I hope that is a learning we have collectively in terms of future screening and future health services in our country. The Minister might give an indication as to the scope and range of the recommendations the tribunal may give to the Minister and how those issue are to be addressed in the future.

Photo of Gerald NashGerald Nash (Labour)
Link to this: Individually | In context | Oireachtas source

I do not think we will ever forget the reaction in this House, the other House and among the public at large when this scandal first emerged last year. My first reaction, and that of many of my friends, was that that could have been my wife, my sister or my friend. It turned out that many of us in these Houses have friends who have been affected and who are among those 221 women affected, and they have been dealing with very difficult sets of circumstances in the past few years.

It goes without saying that this is a very important Bill. My colleague, Deputy Kelly, has led the way in working with many of the women who were so badly affected and badly treated in terms of the cervical check situation. He has considerable experience on this issue, more than I have. As we know, he has developed very close personal relationships with many of the women who have been affected, particularly women like Vicky Phelan, who have inspired us all in the past year or more since this scandal was first brought to public attention. The women concerned have behaved so selflessly in telling their own stories and advocating, not just for themselves but for other women, for improvements to our health service and to the culture in terms of how we deal with situations like this in our country.

I do not intend to use all the time available to me to speak about the legislation necessarily but it is important to state that we need to get to a position where lessons are learned and applied by the this country's bureaucracy and the political system. When a scandal of this nature and scale emerges, we have a terrible tendency to circle the wagons and protect the system.

Looking at the legislation, it is important that we recognise some very important developments. The provision of a mechanism for what is called restoration of trust meetings is very important. That can lead to a culture change in terms of how we do things in this country. It is very important that the women affected get the opportunity to air their concerns in a supportive environment and believe that not only are they being listened to but that they are being heard as well and that their experiences can and will change how we do things in this country.

I note from the Minister's remarks on one or two Committee Stage amendments that he will be extending eligibility in circumstances where slides may be missing. That is a good idea and an important measure. I welcome also that is has been established in the legislation that a dependant of a deceased claimant may make a claim on behalf of the deceased. It is important to clarify that also, and that there is reassurance for families because we are dealing with women who in many cases are gravely ill and, in all too many difficult cases, are terminally ill.

This is an alternative to the adversarial court processes. I understand and appreciate that this is an adjudicatory process and one that seeks to establish liability and negligence. The Minister will say, with the best will in the world, that these fora are, almost by definition, adversarial, although perhaps not as adversarial as High Court proceedings and the like. In so far as we possibly can, we need to avoid damaging women going through these excessively adversarial processes. These women have been through enough and this system needs to be supportive and understand the position in which they find themselves. I hope that the tribunal staff, the Chair and others are mindful of that and the requirement to be very sensitive and supportive of the women who will be going through this process.

I have a key question for the Minister of State and I hope she is in a position to answer it. An amendment was tabled by my colleague, Deputy Kelly, in recent days which focused on the need to allow claimants to go back to the tribunal in the event of a recurrence or a relapse but the amendment was not accepted. My understanding is that it was initially ruled out of order. That is disgraceful. My understanding is that the hepatitis C tribunal provided for the opportunity for individuals to go back to the tribunal. We know only too well, in the context of cancers, that relapses sometimes occur after a period of remission. How does the Minister intend to deal with these all-too-human occurrences of relapses and recurrences of cancers? If not in this legislation, how does her senior colleague, the Minister, Deputy Harris, intend to deal with that? To quote from the RTÉ website and not directly from the Official Report of recent nights when Committee and Report Stages were taken, the Minister, Deputy Harris, appears to have stated that if cancer returns, "[t]here is nothing to stop a woman [taking] a new cause of action to the court[s]". Surely this is about avoiding the use of the courts to settle cases like this and to establish negligence if and when it occurred and establish liability. Surely the best way to do this is through the tribunal and not through the courts. I am concerned that the Minister said in the Dáil in recent days that if cancer returned there was nothing to stop a woman taking a new cause of action to the courts. The amendment tabled by my colleague, Deputy Kelly, failed in the Dáil but we, the Labour Party group, intend to reintroduce it in the Seanad and have this debate on Committee Stage, and potentially Report Stage also, if it is not accepted.

Photo of Catherine ByrneCatherine Byrne (Dublin South Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I thank Senators for their contributions and overall support for the CervicalCheck Tribunal Bill 2019. The Minister of Health, Deputy Harris, and I have listened carefully to the Senators. We will consider with our officials the points raised in the House this afternoon.

The central purpose of the Bill is to implement the recommendation of Mr. Justice Meenan on an alternative scheme for dealing with claims arising from CervicalCheck. The tribunal is fundamentally different in character to tribunals of inquiry, with which we have become familiar. It will determine liability in respect of claims subject to the consent of all parties. It will make awards in line with the principles governing awards in the High Court. The new process will have significant benefits for those wishing to claim by adopting a pre-claim protocol and practice direction that will make hearings move more quickly. The tribunal will of course uphold the principle of justice and will only make findings of negligence when the evidence considered to the High Court standard warrants such findings. These findings will be subject to High Court confirmation and can be appealed to the High Court and, thereafter, to the Court of Appeal on a point of law. The tribunal hearings will be held in private except when the claimants request otherwise and the tribunal agrees. This respects the privacy of the women concerned while ensuring they are empowered to go public if they so wish.

The tribunal is a key part of our collective response to the CervicalCheck cases. Enacting the Bill sends the message that we are listening to the concerns expressed by women who have taken cases to the court. We have acted to provide an alternative solution.

As the Minister for Health, Deputy Harris, has said, an important feature of the tribunal that distinguishes it from court practice and procedure is that the tribunal Bill provides for an independent facilitator who will convene restoration of trust meetings between women and their clinicians. This facilitator will operate independent of the tribunal, the Government and the HSE. The facilitator will provide for the experiences of women to be heard and they will be able to engage meaningfully with clinicians in a safe environment. This function will be available regardless of whether the woman chooses to take a case to the tribunal or the courts. It will also be available to women whose cases have already concluded where trust in medicine, the screening programme or the State has been damaged. It is vital that we take steps to rebuild this trust.

As the Minister, Deputy Harris, mentioned, we will return in the autumn to expand the scope of the tribunal to a particular additional cohort of women. The Minister will also consider the points made today over the summer. The Minister looks forward to working more with the House and Departments in moving forward on implementation and the recommendations of Dr. Scally, including the move to primary human papilloma virus, HPV, screening and the enactment of a patient safety Bill, which will provide in law for mandatory open disclosure in respect of serious patient safety instances. The Minister is open to working with Members on ways we can protect the well-being of vulnerable service users and their families. We believe that the tribunal will make the difficult process somewhat easier.

I thank Members, the Ceann Comhairle and officials of the Bills Office, whom I know worked late into the night to have the Bill published. The hard work that has been put into developing this legislation is only beginning. After the Houses have finished their work for the time being, the Minister has tasked officials with beginning work on the implementation of the tribunal as an absolute priority. I wish to assure Members and women who may be listening that the work will not stop or slow down after this afternoon but will continue. I thank the House once again for its consideration and input.

I wish to refer to one or two things. I was thrown in here and did not realise that I would be here.

Photo of Catherine NooneCatherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

We are in no rush.

Photo of Catherine ByrneCatherine Byrne (Dublin South Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I want to ensure I cover one or two points.

Photo of Martin ConwayMartin Conway (Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Minister of State should take her time. We are in no hurry.

Photo of Catherine ByrneCatherine Byrne (Dublin South Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source

The dedication and compassion of the Minister of Health, Deputy Harris, have made the Bill what it is today. There has been notable input from people here and in the Dáil yesterday and I acknowledge all of the issues raised, including some that were ruled out of order and some on which we could not agree. The Minister has assured people that he will work to overcome any obstacles that people may put in place during the summer months and afterwards as well.

My colleagues behind me have me thrown in at the deep end today. Senator Devine should note that women who have already received an award can make use of the restoration of trust meetings. Such women will be encouraged. Their experiences should be recorded and section 32 sets out the details in this regard. I agree with the Senator on the importance of their voices being heard. Senator Higgins has given me an opportunity to highlight the work of the steering group on CervicalCheck, which includes women and family members who were part of the process. I wish to thank them on behalf of all of us. Reference was made to hearings in public. There is absolutely no intention to deny the right of women to have their hearing held in public. The requirements of the tribunal on public hearings are purely procedural. They are required to ensure women will indicate in advance whether they want to be heard publically.

I am conscious of the fact that I may not have been able to answer one or two other questions. However, I assure Senators that from listening to the Minister for Health, Deputy Harris, in recent days and especially his commitment in the Dáil yesterday I am confident we have a Minister who is more than compassionate. The Minister is in the right place and will do everything to rectify the damage done to so many women.

I am conscious of the fact that I may not be able to answer some of the questions. I was directed here from the Dáil some minutes ago. In dressing myself this morning I was conscious of the fact that I put on a jacket. It is only as I sit here that I realise I am wearing a CervicalCheck pin. This is an indication of what has been said here, especially by Senator Devine, about the HPV vaccine. As public representatives we know how important it is to instil in young people the importance of having the HPV vaccine. I sat on the Joint Committee on Health a long time ago along with several people in the Chamber. I remember the time we met women and mothers who had concerns around some of the vaccines. I have been looking at the evidence from Australia recently - I imagine many people have seen it - and the number of women there suffering from cervical cancer has almost gone off the map altogether. We will all have a role to play over the coming months to promote the HPV vaccine and all the other vaccines that are so essential to our children and the health of all of us in this country. I hope that helps some of the Senators. I know there is another session and Senators may be able to raise issues then.

Photo of Catherine NooneCatherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

Thank you, Minister of State, for your compassionate and understanding voice, as always, on matters such as this.

Question put and agreed to.

Photo of Catherine NooneCatherine Noone (Fine Gael)
Link to this: Individually | In context | Oireachtas source

When is it proposed to take Committee Stage?

Committee Stage ordered for Friday, 12 July 2019.