Seán Haughey (Dublin Bay North, Fianna Fail)
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215. To ask the Minister for Health if appropriate measures will be taken to facilitate women who have had their smear tests misinterpreted and who have since been diagnosed with cervical cancer in order that they can avoid High Court actions to be considered for compensation; the position regarding the scheme for compensation for these women; and if he will make a statement on the matter. [12300/21]

Stephen Donnelly (Wicklow, Fianna Fail)
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A number of measures have been taken to facilitate the women affected by the CervicalCheck issues without having to make a claim in the Courts, including:

- Establishment of the CervicalCheck Tribunal based on the recommendations of Mr. Justice Meenan’s Report on an Alternative System for Dealing with Claims Arising from CervicalCheck

- Establishment of an ex-gratia scheme for those affected by the non-disclosure issues

The CervicalCheck Tribunal Arising from the issues relating to CervicalCheck and in particular the impact on affected women of having to pursue their claims in Court, the Government of the time asked Mr. Justice Charles Meenan to review, in the case of women affected, mechanisms which avoid, wherever possible, women and their families having to give evidence in court.

In October 2018 Mr. Justice Meenan submitted his Report on an Alternative System for Dealing with Claims Arising from CervicalCheck, which proposed that a statutory tribunal be established for the purpose of hearing and determining claims arising from CervicalCheck.

In his report Mr. Justice Meenan explained the limitations of the screening process and the implications that these limitations have for the issue of liability with regard to CervicalCheck claims, outlining that ‘...where a woman develops cervical cancer following a false negative, this is not, of itself, sufficient to prove negligence.’

Mr. Justice Meenan also considered the appropriateness of a redress scheme for CervicalCheck cases and referenced other such schemes including the statutory Hepatitis C and HIV Compensation Tribunal. A feature of those schemes was that it was not necessary to prove negligence or breach of duty for compensatory damage. Mr. Justice Meenan advised that such a scheme was not appropriate for CervicalCheck cases given the issues of liability involved. Accordingly, the format for the CervicalCheck Tribunal which gives effect to Mr. Justice Meenan’s recommendations recognises the issues of liability involved in CervicalCheck cases and allows them to be determined by the Tribunal.

Mr. Justice Meenan’s recommendations were accepted and have been implemented with the establishment of the CervicalCheck Tribunal on 27 October 2020, under the CervicalCheck Tribunal Act 2019. Following a pause in the steps towards full establishment to allow for discussions with the 221+ Patient Representative Group about the Tribunal and CervicalCheck Cases generally, establishment of the Tribunal was finalised with the appointment of the nominated members to the Tribunal with effect from 1 December 2020.

The Tribunal remains the most appropriate venue to hear and determine CervicalCheck claims. It has been specifically designed for that purpose. It is, of course, entirely up to eligible women as to whether or not they use it.

The CervicalCheck Ex-Gratia Scheme In his report on an alternative system for dealing with claims arising from CervicalCheck, Mr. Justice Meenan recognised that the issues of liability on non-disclosure may legally be of a ‘less contentious nature’ and that any liability for non-disclosure appeared to rest with the State, having no involvement of third parties i.e. the laboratories.

Judge Meenan recommended that in cases where liability is not being contested, e.g. in claims relating solely to non-disclosure, such claims should be “fast tracked” through the statutory Tribunal which he proposed.

Following consideration of Judge Meenan’s report, the Government recognised that setting up and establishing a statutory Tribunal would take some time and proposed an alternative process that would facilitate the women affected in addressing the non-disclosure issue without delay. On 11 March 2019 the Government agreed to the establishment of an ex-gratia scheme for those affected by the non-disclosure of the CervicalCheck audit. The Scheme is designed to provide an alternative, non-adversarial and person-centred option for those affected by the CervicalCheck non-disclosure issue.

The Independent Assessment Panel, chaired by Justice Aindrias Ó Caoimh, has determined that €20,000 is the appropriate amount for the ex gratia payment. All women, or their next of kin, in the 221-cohort identified from the clinical audit as having discordance in their smear test result are eligible to participate in the Scheme.

To date, 170 applications have been received and payments of €20,000 have been made in 169 of those cases, amounting to a total of €3,368,000. The latest application received is currently being considered by the Panel. The scheme remains open.

As applications to the Scheme are not intended to be adversarial, it is not envisaged that the Applicant will require legal representation. Nevertheless, an applicant may wish to consult a solicitor and take legal advice and assistance in applying for payment under the Scheme. Accordingly, each individual invited to participate is advised of an allowance of €1,500 plus VAT, payable on a vouched basis, for legal advice, both in connection with the decision to participate, and for on-going engagement.

The establishment of the ex-gratia scheme ensured that the women affected could have the impact of non-disclosure addressed without recourse to court.

Participation in the Scheme does not preclude the women from continuing (or indeed commencing) a claim in respect of CervicalCheck. However, any award for non-disclosure against the State should take account of the amount paid under the ex-gratia scheme. To date Court awards relating to non-disclosure have not exceeded €10,000.