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Taoiseach Leo Varadkar has admitted he should have been clearer when he promised in May that no woman caught up in the CervicalCheck cancer screening scandal would have to go to court.
Speaking on Monday, Mr Varadkar said everyone had the right to go to court and that no government could or should seek to take that right away.
The Taoiseach’s comments come after days of pressure on both him and Minister for Health Simon Harris over the commitment made in May.
Mr Varadkar had pledged that the State would take over the women’s cases, seek settlements by mediation and pursue the labs for damages so the women would not have to go to trial.
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Speaking on the Six One News on May 11th he said:
“What we propose to do is to offer mediation in every case so that women can avoid having to go to court and the trauma of a court hearing.”
In cases where the lab says no to mediation and wants to fight it, he said:
“What we will do in this situation is the State will settle and pursue the lab later. So essentially the State will be on the side of the plaintive, on the side of the woman.”
Limerick woman Ruth Morrissey, who has cervical and breast cancer, and her husband Paul are suing two laboratories, Quest Diagnostics and Medlab Pathology, for her misreported smear tests in 2009 and 2012, and the HSE for failing to tell her about an audit revealing the incorrect tests for two years.
The 37-year-old mother of one, who was diagnosed with cancer in 2014 and whose doctors have told her she has less than a year to live, is the fourth woman affected by the scandal to go to court.
Ms Morrissey was forced to take the witness stand for two days last week and deliver personal testimony about the pain she is suffering and about the impact of her terminal illness in relation to her seven-year-old daughter.
Mr Varadkar denied he had been “in hiding” on the issue, as had been claimed by Labour TD Alan Kelly.
Speaking in Government Buildings, Mr Varadkar said: “First of all, in relation to Mrs Morrissey, Ruth Morrissey, I am very sorry that she has cancer. I am very sorry for her and her family.
“Very sorry that it wasn’t picked up earlier on screening and very sorry that she wasn’t informed of the audit when she should have been. I really do hope the treatment she is getting is successful and that it will extend her life so that she can see her daughter grow up, and I think that is the most important thing.
“This is an ongoing court action. I am not in hiding but I am sure you will understand that I am limited in what I can say. I don’t want to say anything that might prejudice the outcome but there are a few things that I can say.
“Certainly what the Government wants is that all cases are settled by mediation so that women can avoid a court trial.”
Mr Varadkar said he spoke to Attorney General Séamus Woulfe on Friday and asked him to speak to the State Claims Agency to ask that mediation be resumed in Ms Morrissey’s case.
Mr Varadkar said he still hopes the case can be settled out of court. But he said it is the “constitutional right of anyone to go to court if they feel that is in their best interests.”
‘Constitutional right’
He said: “That is a constitutional right and I perhaps should have been more clear about that back in May, acknowledging that people have a constitutional right to go to court if they feel it is in their best interests. And no government can take that away, nor should any government want to take that away. And in some cases things go to court because the facts are disputed.
“In this case the State has accepted its liability, has accepted its liability for failing to disclose the audit, the fact that the women weren’t told about the audit when they should have been by CervicalCheck and by their doctors.
“But as I understand it there is a complication in this particular case as negligence has not yet been established in relation to the screening of the particular smear tests.
“This comes back to an issue we have had since the very start, that all false negatives are not negligent. False negatives are part and parcel of screening and all of them are not negligence. Indeed, most of them are not negligent.”
Meanwhile, Vicky Phelan, the woman who revealed the cervical cancer controversy, earlier said she was seeking an urgent meeting with Mr Varadkar this week.
Ms Phelan said she had a long-standing invitation from Mr Varadkar but had not felt she needed it as yet, given her frequent meetings with the Minister for Health Simon Harris.
"I felt I would keep [the invitation] until I needed it," she told RTÉ's Today with Miriam O'Callaghan radio programme.
Ms Phelan settled her legal action for €2.5 million over a 2011 false negative smear test.
Speaking about the case of Ms Morrissey, Ms Phelan said: “I am shocked that Ruth is in the position where she is now. She can’t talk to the media, but I can and I am going to ask the Taoiseach to try to get a resolution. Cian [O’Carroll, solicitor to both women] told me that no offer was made to Ruth whatsoever. How can you mediate when there is no offer?”
Ms Phelan said it is very difficult to go through a court case and that is why she is so angry. She said she had a very strong case, but she was still put on the stand where she was asked questions about the impact of her cancer on herself, her husband, her family, her marriage and her sex life.
“They ask questions like you’re already gone, it’s already difficult dealing with a terminal diagnosis,” she said.
She said she was lucky her husband did not have to give evidence, and that it would not have been fair on him. She said he should not have had to tell how her diagnosis would impact him and their children.
“I want the Taoiseach to step up and do something to protect these women. It is inhumane to watch,” she said.
Ms Phelan said settling the cases would be more expedient for the State, rather than paying huge legal fees.
She said that when she meets with the Taoiseach she will tell him he needs to take control from the labs.
“The labs are currently running the country with regard to CervicalCheck. Surely there should be something in the contract to allow the State to pursue the labs,” she said.
Ms Phelan warned that there are “40-something” more cases “coming down the line”.
“I want the Taoiseach to make good on his commitment. He’s leader of the country. He has to have some power to do something.”
Mr Kelly earlier said Mr Varadkar needed to “man up” and explain why women still need to go to court in relation to the cervical smear controversy.
“The Government has over-promised on this and it hasn’t delivered,” Mr Kelly told RTÉ’s Morning Ireland.
Mr Kelly said he had spoken to Stephen Teap on Monday morning, who said he had marked the first anniversary of the death of his wife Irene while listening to Ruth Morrissey’s case.
Ms Teap was one of the 18 women who died after their cancer screening was misread.
“This is unacceptable. It is a disgrace on top of a national disgrace. The Taoiseach must apologise to the nation if that was a false commitment,” said Mr Kelly.
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