Q&A: CervicalCheck Tribunal

Q: What is happening with the CervicalCheck Tribunal?
A: At a Cabinet meeting on Tuesday, October 20th, Minister for Health Stephen Donnelly told his ministerial colleagues that he intended to appoint Tuesday, October 27th 2020, as the establishment day of the CervicalCheck Tribunal. Campaigner Vicky Phelan, whose court case exposed the controversy two years ago, said the 221 Plus support group were told about the plans at the same time as the announcement was made publicly. This was despite the fact, she said, that the group had raised significant concerns in the weeks preceding the announcement about how the tribunal would operate. Ms Phelan said those concerns were not properly addressed.

Q: What are some of the main issues being raised by Ms Phelan and the 221 Plus group?
A: Firstly, the group wanted to find a "non-adversarial route" for the tribunal which would not oblige women to have to fight the labs. The campaigners point towards a Supreme Court case which found that the HSE was primarily responsible for the cervical screening programme and, consequently, it was no longer necessary for women to sue both the HSE and laboratories.

Q: That seems straightforward, so why would that be an issue?
A: The Government's position is that it will be possible for the HSE and the State to be the defendant but the laboratories may need to be present as a third party. Tánaiste Leo Varadkar said this may be necessary because third parties have indemnified the State and will have to "pick up the tab for any compensation".

He said that if labs were excluded from the process, the State may in turn have to sue the laboratories, resulting in a second trial and second court hearing. The involvement of the labs is not acceptable to the 221 Plus group who continue to ask for a non-adversarial route for the women affected.

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Q: What are the other concerns being raised?
A: The group has also 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. "When it comes back, you're going to end up like Ruth [Morrissey], like Emma Mhic Mhathúna, like me, you are going to die, there's no cure for this," Ms Phelan said recently, pointing out that this was an issue raised by the group at the start of the process.

The 221 Plus group also has concerns about the statute of limitations and says a large group of women may not be in a position to partake in the tribunal because of how long they had to wait for it to be set up. Given these concerns, the group asked the Minister for Health to reconsider his plans to launch the tribunal on Tuesday the 27th. They warned that if everything went ahead as planned, women could decide not to take part.

Q: How did the Government handle this request?
A: The Minister and his officials spent last weekend and the early part of the week holding talks with the campaigners in an attempt to work through the issues and find solutions. The meetings were described as positive and constructive, but the Tuesday start date was drawing closer and agreement had not yet been reached.

On Monday, a number of changes to the process were proposed to the group. The group asked for time to consider the proposals and a decision was made to “pause the establishment of the tribunal for a number of days which allows some space for 221 members to consider the changes proposed”.

Q: So is the tribunal paused or not? And what happens now?
Although the support group were told that the tribunal's work would be paused, it emerged on Tuesday evening that the order establishing the tribunal had, in fact, already been signed by the Minister on Friday 23rd and that this could not be reversed. This means that, formally, the date of October 27th stands as the first day of the tribunal. This matters because there is a nine-month period for making claims and it runs from that date.

Ms Phelan said the group felt “betrayed” by the development and said the Minister should not have signed the order. A spokeswoman for Mr Donnelly said the Government would extend the length of the tribunal to cover any time lost in that nine-month claims period. The spokeswoman also said all further actions in terms of establishing the tribunal, including the appointment of the chairperson and members, have been paused as agreed.

Q: What happens next?
A: The support group has said that it is up to the Minister and Government to address fully the concerns raised by the affected women and their families. Contact between all sides will continue but, as of yet, there has not been a resolution.