Death of Vicky Phelan throws into focus Government inaction on key promises

When Vicky Phelan stood outside the High Court in late April 2018 and revealed her ordeal to the country, she said she hoped “some good” would come of the case and that there would be an investigation into what had happened to her and other women.

Her decision to take that legal action – and to refuse to sign a non-disclosure agreement – unleashed a political earthquake as Ministers scrambled to get to the bottom of what had happened, and who knew about it. Within days the clinical director of CervicalCheck Gráinne Flannelly had stood down as questions emerged about decisions not to inform women with cervical cancer that their smear tests had been audited. By May the director general of the HSE Tony O’Brien had also stepped down as Government Ministers repeatedly declined to say whether they had confidence in him.

The political atmosphere was febrile and charged as the full details emerged over a series of weeks.

In all of her public statements Ms Phelan made it clear that she had no interest in platitudes from politicians. She wanted to see tangible action.

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Along with Stephen Teap, whose wife died of cervical cancer, Ms Phelan appeared before the Public Accounts Committee (PAC) where she told TDs: “I am not interested in revenge. That is not what I am here for.”

She wanted to “see accountability and I would like to see a legacy that this will never happen again to any woman, man or child in this country. This is not just an issue for women. This is affecting men and children who are without their wives and their mothers. I never want to see this happen again. If I do die, I do not want it to be in vain.”

In their haste to respond, the Government made a number of missteps.

Then health minister Simon Harris revealed a plan to offer free out of cycle smear tests, which led to a backlog of tens of thousands of tests in the system. Health officials trawled the world to find the additional capacity. The situation became more difficult for Mr Harris when Ms Flannelly said she had warned senior officials in the HSE not to offer the smears to women because it would “fundamentally undermine the screening programme”.

Mr Harris insisted she did not warn him off the plan before he announced the initiative, but the fact was the system was overloaded.

Court hearings

Another aspect of the controversy that outraged the public was how terminally ill women were being forced through lengthy and arduous court proceedings. Then taoiseach Leo Varadkar made a bold promise: “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 laboratories in question did not want to enter mediation, Mr Varadkar 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 plaintiff, on the side of the woman.”

It was a risky promise made under pressure and had to be dialled back.

Instead what was promised was a tribunal, which women were told would be less adversarial. The current Government entered talks with the 221 Plus support group on the structure but in November of 2020 those talks collapsed. The group had a number of concerns about how the tribunal would work.

Open disclosure

In a letter sent to Minister for Health Stephen Donnelly, the group said it saw “no point in continuing this process”. They told their members there is “nothing for them in the tribunal that isn’t available in the High Court”. Only 25 claims have been made to the tribunal, which is no longer receiving applications. More than 360 legal claims have been brought to the courts. During that same PAC appearance in 2018 Ms Phelan was clear to outline the problems that needed to be most urgently addressed, and at the top of that list was open disclosure to patients.

“I was diagnosed in July 2014. It took a full two years to decide to communicate this to clinicians, so it was July 2016 before CervicalCheck communicated my particular case to my gynaecologist. Then there was 15 months of correspondence between the head of CervicalCheck and my gynaecologist about whose responsibility it was to tell me, 15 months of them deciding, ‘you tell her’, ‘no you tell her’, before he finally told me in September 2017.”

There have been countless promises made by Ministers to bring in mandatory open disclosure but four years later the legislation is still not passed, having fallen off the radar during the pandemic. Big promises were made to the women affected by the CervicalCheck controversy. Ms Phelan’s death throws into sharp focus the work the political system has yet to do to make those promises a reality.