A report has proposed that a tribunal be established to hear and determine cases arising out of the CervicalCheck controversy.

Hearings would be in private and be less formal than a court process.

The alternative system would take into account the issue of liability, each person’s Constitutional right of access to the courts, and all parties’ Constitutional rights to fair procedures.

For these reasons, the report says, the system must be voluntary.

Similar tribunals were established for the blood infection scandal in 1995 for people infected with Hepatitis C from contaminated blood products.

It later made provision for people infected with HIV from blood products.

High Court Judge Mr Justice Charles Meenan led an expert group considering an alternative mechanism to try to resolve CervicalCheck cases.

The group was set up in June and was part of a commitment in the Programme for Government.

It was tasked with examining tort law as it currently applies to personal injuries, arising in the healthcare context and to consider options for reform of relevant tort law, and examined whether existing clinical claims management systems were adequate.

The report has recognised the courage and fortitude of the women and their families who told Judge Meenan of their experiences of dealing with the devastating consequences of cervical cancer and the effects of the non-disclosure, or disclosure in an unacceptable way, of the results of audits carried out following diagnosis.

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Judge Meenan said that any liability for non-disclosure of the CervicalCheck audit findings, would appear to rest with the State and not the laboratories involved.

He said that for a woman, or her family, to establish negligence, evidence would have to be given from a suitably qualified expert that the reading of their smear fell below the appropriate standard required.

He said that where a woman develops cervical cancer following a false negative, this is not, of itself, sufficient to prove negligence.

He said each woman has her own individual smear history, so a finding of negligence (or of no negligence), in one case does not necessarily apply to another.

As a result, any alternative system to hear and determine claims arising out of CervicalCheck must recognise this issue of liability.

Judge Meenan said that as has been shown by High Court cases already settled, damages arising from a negligent misreading of a cervical smear are potentially very significant.

The difference between the Tribunal recommended by Judge Meenan and the Hepatitis C and HIV Compensation Tribiunal and other redress schemes, is that under Judge Meenan's proposal, it would be necessary for women or families affected by CervicalCheck to prove negligence, or breach of duty, for compensation.

Judge Meenan said that while under the Hepatitis C and HIV Compensation Tribunal, the Lourdes Hospital Redress Scheme, the Symphysiotomy Payment Scheme it was necessary to prove eligibility, it was not necessary to prove negligence, or a breach of duty for compensatory damage.

He said that for the purposes of research, learning and education, the Tribunal chairperson would produce a report outlining his or her findings in various cases.

Determinations would be published in anonymised form.

Judge Meenan said that there is a clear urgency that legislation for the Tribunal be passed without delay.

Judge Meenan's report has been published on the Department of Health website.

The Minister for Health Simon Harris said: "I would like to thank Judge Meenan for his invaluable report. He has carried out an extensive piece of work, including consultation with the women, their families and their representatives." 

He added: "Judge Meenan's report requires consideration by a number of Government Departments and I have committed this morning to returning to Government with proposals next month." 

Support group gives a cautious welcome to Judge Meenan's report

The support group for women and families affected by the CervicalCheck crisis has given a cautious welcome to Judge Meenan's report.

221 + CervicalCheck Patient Support Group said pending more detailed information on implementation, the report brought some clarity to the legal pathways open to women and families.

The group expressed disappointment that an earlier commitment by the Taoiseach to a totally non-adversarial process had not been realised.

It said that a time limit needs to be set on the establishment and work of the Tribunal, so that women, many of whom are ill, can be heard and have their issues resolved quickly.

Vicky Phelan urged the Minister for Health, Simon Harris and the Government not to delay in the issue and to enter into discussions with all those involved, on how the Tribunal will be established and managed.

'The courts should not be forgotten about' - O'Carroll

The solicitor for some of the women at the centre of the CervicalCheck controversy has said that Mr Justice Meenan has come up with a "very useful alternative dispute mechanism".

Cian O'Carroll who represented Emma Mhic Mhathúna, Vicky Phelan and Ruth Morrissey, said an advantage of what is proposed is that it would create a structure around an alternative mechanism to court.

However, Mr O'Carroll said the courts should not be forgotten about, particularly for urgent cases or for cases where people wanted to have the harm caused to them brought into the spotlight.

He said a tribunal such as the one proposed, conducts its business in private or in secret. In his view, this would make it more popular with the state and laboratories, who wanted to keep the issue and the human consequences away from public scrutiny. 

Mr O'Carroll said such a process may be less desirable for the women involved but he acknowledged that privacy could be a huge incentive for many women and families.

He also said it could offer a more timely resolution to matters. However, he noted that legislation would now be required and the Minister had said he wanted to enter into a consultation process with other government departments to work out a plan to implement the recommendations.

Mr O'Carroll said the process would be voluntary and he believed it was important that this was strictly adhered to so no inferences were drawn from someone's decision not to go with this process. 

He said the report specifically stated the tribunal should be available for existing cases. But whether or not you would abandon a partly heard trial was another matter. 

Mr O'Carroll said it appeared people would have to choose whether to go into the tribunal or into the court process and could not choose both and he said that would make sense.

No 'political axe to grind' - Varadkar

Meanwhile, Taoiseach Leo Varadkar has said he has no political axe to grind in defending the outsourcing of CervicalCheck because it was a decision made by a previous government ten years ago.

Mr Varadkar was responding to Solidarity-People Before Profit TD Bríd Smith who asked what was happening behind the scenes to indemnify laboratories involved in the CervicalCheck controversy.

Ms Smith asked again a question she has posed on a number or occasions in the Dáil, namely which labs tested and were responsible for the 221 false negative CervicalCheck tests.

The Taoiseach said Dr Gabriel Scallys report into the cervical cancer controversy found that laboratories in Ireland and the US were all up to standards.

"I know that wouldn't fit in with your particular ideology", he said, "but he found all laboratories were up to scratch".

Ms Smith said Dr Scally was not charged with investigating the 221 "grave errors" and she had not received an answer as to the labs in question.

Ms Varadkar said Ms Smith was making an assumption that the 221 false negatives were negligent, which he said they were not.