THE Minister for Health Stephen Donnelly said he will meet with Limerick CervicalCheck campaigner Vicky Phelan, after she accused the minister of ignoring her and her fellow cancer campaigners concerns over the proposed CervicalCheck Tribunal, which is earmarked to start October 27th.
Posting a series of messages on Twitter, Ms Phelan said she was “very angry” at how the proposed tribunal of inquiry was being handled before it had even started.
Minister Donnelly brought a memo to Cabinet last Tuesday proposing to open the tribunal next Tuesday, to investigate negligence in the State’s cancer screening programme.
However, Ms Phelan, a member of the 221plus campaign group, which formed following the cancer smear test scandal, claimed the women affected by the scandal and their families “who this Tribunal is aimed at, were not afforded an opportunity to respond to the Minister’s decision to formally establish the Tribunal BEFORE it was announced”.
“As we have become used to, those most affected are often the last to know,” Ms Phelan tweeted.
“We met the Minister and officials from (Department of Health) on a Zoom meeting just 6 weeks ago. We set out several aspects of the proposed Tribunal that were causing us, and our members, serious concern, the Minister’s response yesterday is a flat rejection of ALL of our concerns,” she said.
“We asked for a non-adversarial route to be found for the Tribunal, one NOT obliging women to fight the labs given recent rulings. The (High Court) in the (Patricia) Carrick case reaffirmed the view taken by the (Supreme Court) in (Ruth) Morrissey, that it was NOT necessary for women to sue the labs…”
“Women could instead rely on the non-delegable duty owed to them by the HSE, who were found primarily responsible for the cervical screening programme in the Morrissey case. The HSE could then rely on their contractual and legal indemnities against the lab.”
“BUT The Minister rejected these arguments and set out in his letter how the laboratories MUST be involved in proceedings if taken before the Tribunal. This will NOT be acceptable to many of our members,” Ms Phelan said.
The Limerick mother who was given a terminal diagnosis after she was given a false negative smear test result, added: “We asked that applicants to the Tribunal who receive an award be allowed to return to the Tribunal should they suffer a recurrence of their cancer, in the same way that the State allowed applicants before the Hep-C Tribunal to return where their health deteriorates.”
“Such a right to return to the Tribunal would be an advantage over the High Court procedures where, of course, no such right exists. The Minister’s letter did not even address this hugely important issue,” she said.
“Another issue that the Minister did not address is that of the Statute of Limitations. We explained to the Minister that some of our members have received legal advice that they may now be statute-barred because they relied on the Government’s promise of a ‘non-adversarial’ Tribunal and did not issue (High Court) proceedings.“
“These members may now, through no fault of their own, be statute-barred because of delays by Government of more than two years in establishing this Tribunal. The Minister did not address this issue,” she added.
“We had been given to believe that it was the needs of the women and families affected by the CervicalCheck debacle and NOT those of the @HSELive and the labs that were to come first in the Government’s response to the terrible wrongs visited upon our members.”
Ms Phelan further argued that “on the basis of all of the above, we would ask the Minister to reconsider any move to launch the CervicalCheck Tribunal next week”.
“Instead, we would plead with him to redouble efforts to sit down again with members of the @221plus, to identify an alternative solution of redress which is what our members have asked for, and what they deserve.”
“Otherwise, we will be recommending that @221plus members NOT participate in this Tribunal should it go ahead in its current format next week.“
In response to Ms Phelan’s tweets, a spokeswoman for the Minister said: “The Minister has received a letter from the 221+ group, he will respond immediately and is of course willing to meet with the group to discuss their concerns further”.
“Both the Minister for Health and Department of Health are very conscious of the sensitivity surrounding this issue.”
“The format of the Tribunal is as recommended by Mr Justice Charles Meenan in his report in 2018. In his report, Mr Justice Meenan addressed a number of issues being raised again today, including the need for evidence to be presented and tested. This is because negligence has to be established.”
“The Minister and officials at the Department met with members of the 221+ group some weeks ago. After that meeting, legal advice was sought from the Attorney General. The Minister was advised that laboratories had to be involved in the legal proceedings in some way.”
“In addition to the legal and practical issues for the State that would arise if the labs were not present in a claim, if proceedings between the State and the labs were to be dealt with separately the women concerned could be called by the lab to provide evidence in a second set of proceedings arising from the state’s need to recover monies due from the laboratories under the indemnity.”
The Minister’s spokeswoman added Mr Donnelly has “no control” over this.
“It is the Minister’s strong view that the Tribunal proceedings need not be confrontational, and that they must be conducted in a sensitive manner,” they said.
“Judges are already allowed and will be allowed to award damages based on severity and the likelihood that something may happen in the future.”
Mr Donnelly’s spokeswoman said he “would not like any woman to believe that Justice Ann Power, as chairperson of the tribunal, will not be able to make awards on the basis of the likelihood of a recurrence because she will be able to”.
“This was made clear by the former health minister.”
“Claims can be lodged electronically, and it is not necessary for claimants to attend in person to make their claim,” they said.
“Provisions have also been made to enable evidence to be given remotely. Where a woman does wish to attend the Tribunal will, as a purpose-built facility, be able to provide for the needs of claimants, with comfortable private rooms, consultation rooms and facilities that are beyond what the Courts can offer – a claimant will be able to view proceedings from a private room on site if she wishes.”
The spokeswoman added that the 221+ group “was informed that the Minister proposed to establish the Tribunal at the same time as the Cabinet”.
“Neither the Minister, not the Department, made an announcement about this.”
