CervicalCheck Tribunal Bill 2019: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to introduce the CervicalCheck Tribunal Bill 2019 to Dáil Éireann. On behalf of the Minister for Health, I thank Deputies for facilitating the taking of Second Stage at this early date.

The purpose of this important legislation is to establish an independent statutory tribunal to deal with claims arising from the CervicalCheck controversy. The Bill is very much based on the recommendations set out by Mr. Justice Charles Meenan in his 2018 report on an alternative system for dealing with claims arising from CervicalCheck. Following the issues that emerged last year, it is safe to say there is much greater awareness of the limitations of cervical screening and Members will be aware that false negatives do arise. As Mr. Justice Meenan noted in his report, where a woman develops cervical cancer following a false negative, of itself, this is not sufficient to prove negligence. To establish negligence, evidence would have to be given by a suitably qualified expert that the reading of the smear had fallen below the appropriate standard required. Recognising that any alternative system to the court process would need to recognise the issue of liability, Mr. Justice Meenan proposed that a tribunal be established under statute for the purpose of hearing and determining claims arising from CervicalCheck. The Bill does exactly that.

The Bill also provides for restoration of trust meetings. This takes account of what Mr. Justice Meenan said in his report and the view expressed by Dr. Gabriel Scally last year in the final report on the scoping inquiry into the CervicalCheck screening programme. Restoration of trust meetings are not part of the courts process, but the Minister believes it is important to facilitate them through the Bill. The CervicalCheck screening programme has played a vital part in saving lives. It is essential, therefore, that women and their families have confidence in the programme and that women continue to use it.

Before going into the detail of the Bill, I would like to take time to briefly give further context and set out some of the important steps taken so far in dealing with the CervicalCheck issues. They include the reports by Dr. Gabriel Scally, supports for women and their families and changes to the HSE’s open disclosure policy and practice. A further, very significant initiative is the ex gratia scheme for women affected by non-disclosure which just this week has begun to make payments to individuals impacted on by non-disclosure.

We are implementing in full the recommendations made in Dr. Scally’s report and have accepted two further recommendations in his recent supplementary report. They relate to procurement and quality assurance processes. Actions to implement them are being identified and they will then be incorporated in the approved implementation plan for all of the recommendations made in the scoping inquiry and reported on quarterly as part of it. The HSE continues to strengthen governance, quality assurance and management in the CervicalCheck programme and the wider national screening service in line with Dr. Scally’s recommendations.

In terms of supports for women affected, funding has been given to the 221+ CervicalCheck support group to enable advocacy and supports to be made available to these patients. Also, last year the Minister announced the establishment of a primary and social care support package for women and families affected by the CervicalCheck issues. This comprehensive package of supports is for the cohort of 221 plus women for whom the audit carried out by CervicalCheck found discordance with the original reading of their slides. The package will also be provided for any other woman for whom the independent clinical expert review being carried out by the Royal College of Obstetricians and Gynaecologists identifies discordance with her original smear test reading. Deputies will know that the review is ongoing and that its purpose is to provide women with independent clinical assurance on both the quality of the screening programme and the timing of diagnosis and treatment.

The third point I mentioned was open disclosure. This goes to the heart of the matter for many of the women concerned. Deputies will be aware that the HSE recently published a revised interim open disclosure policy. It is in line with recommendation No. 28 in Dr. Scally’s final report on the scoping inquiry into the CervicalCheck screening programme. It emphasised that the open disclosure policy should be revised to reflect the primacy of the right of patients to have full knowledge of their healthcare and, in particular, their right to be informed of failings in that care process however and whenever they arose. The interim policy will be further reviewed when the patient safety Bill is published. That Bill will provide for mandatory open disclosure of patient safety incidents and is at an advanced stage.

Regarding the ex gratia scheme, Deputies will know that earlier this year the Minister received Government approval for the CervicalCheck non-disclosure ex gratia scheme for women affected by the non-disclosure of the CervicalCheck audit. It ensures the women affected can have the impact of non-disclosure addressed without recourse to court through the establishment of a non-statutory scheme to provide ex gratia payments. The scheme is overseen by an independent assessment panel. All of t he women, or their next of kin, in the 221+ group will receive a payment where the panel which is chaired by Mr. Justice Aindrias Ó Caoimh determines that appropriate disclosure did not take place. An initial tranche of payments will issue this week, with further payments to be made as individuals apply and have their applications assessed.

I am aware that there are other issues which are of great interest to Deputies. Regarding the Ruth Morrissey case and the finding made in Mr. Justice Cross’s High Court judgment that the screening programme must have “absolute confidence” before giving a test the all-clear, the State Claims Agency has lodged an appeal in order to obtain clarity on the legal position. However, irrespective of the outcome of the appeal, the Government has given an assurance to Ms Morrissey that the full amount of her award of damages in the High Court will be protected.

In his second report Dr. Scally indicated that a form of no-fault scheme might be appropriate for those individuals impacted on by the CervicalCheck issues. In 2018 the Government established an expert group, chaired by Mr. Justice Charles Meenan, to consider issues associated with medical indemnity claims, including the possible use of no-fault schemes. The Minister looks forward to receiving the report of the group later this year.

Turning to the Bill, I propose to begin by giving a short overview. The tribunal will hear and determine liability in claims in relation to CervicalCheck, subject to the consent of all the parties to the claim, recognising the issue of liability. The Bill sets out who may make a claim and the period within which claims may be made. The Bill enables the tribunal to determine and adopt pre-claim protocols and the chairperson to issue practice directions in relation to the conduct of claims in the interests of hearing and determining claims in a manner which is just and expeditious. The tribunal’s determination of a claim may be appealed to the High Court. Where no appeal is made, the tribunal will apply to the High Court for confirmation of the determination. The tribunal’s hearings will be held otherwise than in public, except where the claimant requests otherwise and the tribunal agrees. This respects the privacy of the women concerned.

As I said, the tribunal will also facilitate restoration of trust meetings. The intention behind a restoration of trust meeting is to document experiences, facilitate discussion and provide information for the woman concerned or her family. In addition to these functions, the tribunal may also provide advice or recommendations for the Minister related to its work.

Moving on to the detailed provisions, the Bill is divided into three Parts. Part 1 is the preliminary and general Part; Part 2 provides for the CervicalCheck tribunal, while Part 3 includes miscellaneous provisions.

Section 1 is a standard section on the Short Title of the Bill and commencement provisions.

Section 2 is the definitions section. A key definition is the definition of “relevant woman” which is central to the scope of the tribunal regarding who may make a claim. They include a woman identified as part of the review of cervical screening as having CervicalCheck cytology review findings that were discordant with those of the original cytology examination, and a woman whose cytology slides were re-examined as part of the retrospective CervicalCheck audit and whose cytology review findings were discordant with those of the original cytology examination.

Section 3 is a standard provision for expenses incurred by the Minister in the administration of the legislation.

Part 2 contains sections 4 to 36, inclusive. Sections 4 to 10, inclusive, deal with establishing the tribunal and its functions. Section 4 provides for the establishment day of the tribunal. The Minister expects to establish the tribunal once the necessary arrangements are in place for it to begin its work.

Section 5 provides for the establishment of the CervicalCheck tribunal. The tribunal may sit in divisions. It will be independent in the performance of its functions and will regulate its own procedures.

Section 6 is the membership section. The tribunal will consist of a chairperson and not less than two ordinary members who will be appointed by the Minister. As announced, the intention is that Ms Justice Mary Irvine will be the chairperson. The Minister may appoint additional persons to the tribunal, if necessary. The chairperson must hold or have held judicial office in the superior courts. Ordinary members must hold or have held judicial office in the superior courts or be a practising barrister or solicitor of not less than ten years' practice.

The tribunal’s functions are outlined in section 7. As I said, the tribunal shall hear and determine claims made to it, facilitate restoration of trust meetings and report on and make recommendations, as it deems appropriate, on any other matter related to its work.

Section 8 deals with staff for the tribunal.

Section 9 enables the tribunal to appoint people with expertise to provide it with advice or assistance. The section also enables the tribunal to conduct or commission research, again subject to the prior approval of the Minister, given with the Minister for Public Expenditure and Reform.

Section 10 allows the tribunal to appoint its own counsel.

Sections 11 to 13, inclusive, are concerned with making claims to the tribunal. They are important sections, on which I will go into some detail. Section 11 provides for claims before the tribunal and who may make a claim. Claims may be made by an appropriate person. In the Bill an appropriate person is defined as a relevant woman, or where the woman is deceased, a dependant of the woman. A claim for compensation may be made seeking damages for negligence, breach of duty, breach of statutory duty or breach of contract arising from any act or omission concerning CervicalCheck. A claim may also be made seeking damages for alleged negligence or breach of duty arising from an alleged failure to inform the relevant woman or her dependant of the results of the retrospective CervicalCheck audit. It is important to state, as a general point, that the legal principles of liability and quantum of damages as applied in the High Court to such cases will apply to claims before the tribunal. A claim may not be made where a person has received an award from any court or settlement in respect of any action arising from any circumstance which could give rise to a claim before the tribunal. The exception is an award under the ex gratia scheme.

Section 12 deals with the reckoning of time for the purposes of the Statute of Limitations, etc. In the case of a woman identified as part of the review of cervical screening, a claim must be made within nine months of establishment day for the tribunal or within six months of being notified of findings of the review of cervical screening, whichever is the later. In the case of other women within the scope of the tribunal, a claim must be made within nine months of establishment day for the tribunal. A person may not make a claim where the person was entitled to institute proceedings in respect of a relevant claim, and the limitation period in respect of instituting those proceedings has expired.

However, the period beginning on the making of a claim and ending on the date on which the tribunal notifies the claimant that one or more of the relevant parties have failed to agree in writing to the claim being determined by the tribunal will be disregarded in reckoning any period for the purpose of limitations period.

Similarly, the period beginning on the making of a claim and ending on the date on which the tribunal notifies the claimant that one or more of the relevant parties have notified the tribunal that they no longer consent to the claim being determined by the tribunal will also be disregarded in reckoning any period of time for the purpose of limitation periods regarding a claim.

Section 13 provides that the tribunal will hear and determine only claims in respect of which there is an agreement in writing from the relevant parties. The relevant parties are the claimant, the HSE and the cytology laboratory services retained by the HSE for CervicalCheck.

Sections 14 to 26, inclusive, provide for claims before the tribunal and procedures. Section 14 provides for the manner of determination of issues. The tribunal will hear and determine claims in the same manner as such matters are determined by the High Court in respect of claims for personal injuries.

Section 15 provides for third party procedures and consent issues. The tribunal may grant an application to join a third party to a claim in the same manner as such applications are determined by the High Court. The claim will proceed before the tribunal only where the third party consents to having all issues arising in the claim determined by the tribunal. Where the third party does not consent to having all issues arising in the claim determined by the tribunal, the tribunal shall not continue to determine and hear the claim.

Section 16 requires the tribunal to take into account any sum paid or payable to a claimant under the CervicalCheck non-disclosure ex gratia scheme when considering whether an award should be made in relation to non-disclosure. Section 17 provides for applicable principles to awards of the tribunal. An award shall be made on the same basis as an award of the High Court. A claimant will have 21 days, or such longer period as the tribunal may determine, from the making of the award to accept or reject the award or to appeal the award. A claimant shall be deemed to have rejected the award where the claimant neither accepts or rejects the award nor appeals the award within the 21 day period or such greater period determined by the tribunal. Where the claimant decides to accept the award, the acceptance must be made in the prescribed form, a “notice of acceptance” and shall be accompanied by a waiver. Rules contained in the Civil Liability Acts 1961 to 2017 shall be applied to the tribunal in the same manner as would be applicable in an assessment of damages were proceedings to be brought to the High Court in relation to the claim.

Section 18 provides that parties appearing before the tribunal shall be entitled to be legally represented. Section 19 provides that the tribunal may award costs in relation to a claim. Under section 20, hearings are generally to be otherwise than in public. However, a hearing or part of a hearing will be conducted in public where a claimant requests and the tribunal agrees that it would be appropriate to do so. Section 21 provides for the form and manner in which evidence may be given. Section 22 provides for powers relating to witnesses and documents. Section 23 provides for privileges and immunities of witnesses. A person who gives evidence to the tribunal or who produces or sends documents to the tribunal as directed by the tribunal has the same immunities and privileges in respect of that evidence or those documents, and is subject to the same liabilities, as a witness in proceedings in the High Court.

Section 24 provides that the tribunal may apply to the High Court for directions relating to the performance of its functions or for the approval of the court of an act proposed to be done by the tribunal for the purposes of performing its functions. The High Court may hear an application otherwise than in public having regard to the subject matter or any other matter relating to the nature of the evidence to be given at the hearing of the application. An important section in the Bill is section 25 which enables the tribunal to determine and adopt pre-claim protocols. These are procedures governing requirements to be complied with before claims are brought. The aim is to promote timely communication between parties, facilitate early identification of the relevant parties, facilitate early identification of the issue in dispute in respect of a possible claim and facilitate the hearing and determination of claims in a manner which is just and expeditious. Section 25 also enables the chairperson to issue directions – practice directions – in relation to the conduct of claims, in the interests of hearing and determining claims in a manner which is just and expeditious. Section 26 provides for the tribunal to make rules to regulate practice and procedure and the conduct of claims.

Section 27 provides for appeals. An appeal may be made to the High Court from a determination of the tribunal not later than 21 days from the date of making the determination, or such longer period as the tribunal may determine. An appeal lies from a decision of the High Court to the Court of Appeal on a point of law only. Appeals must be heard otherwise than in public, except where a claimant requests otherwise and the High Court agrees. When making its determination available to the public the High Court and the Court of Appeal will exclude any information that identifies or that could reasonably lead to the identification of any of the parties.

Section 28 provides for confirmation and publication of the tribunal’s determinations. Where no appeal to the High Court from a determination of the tribunal is made in the allowed period, the tribunal will apply to the High Court for confirmation of the determination. On hearing an application, the High Court shall confirm the determination unless the Court considers that it is not in the interests of justice to do so. Where there are proceedings pending in the High Court in respect of the claim, the High Court shall provide by order for the discontinuance of those proceedings and may make such order as to the costs of those proceedings as it thinks fit. The tribunal shall publish the determination where confirmed by the High Court but will exclude any information that might identify the parties. Section 29 provides for enforcement of awards.

Sections 30 to 33, inclusive, contain the restoration of trust provisions I spoke about earlier and include provision for a facilitator in regard to the meetings. Under section 30, an appropriate person - that is, a relevant woman or her dependant - may make a request to the facilitator irrespective of whether the appropriate person has made, or intends to make, a claim. Section 31 provides for the Minister to appoint a facilitator to carry on and control generally the administration and business of restoration of trust meetings. Importantly, the facilitator is independent in the performance of his or her functions. Section 32 sets out the detail in regard to restoration of trust meetings. As I said at the beginning, these meetings are for the purposes of documenting experiences, facilitating discussion and providing information to the appropriate person in respect of that person’s experience in relation to CervicalCheck. The sequence is that an appropriate person may request the facilitator to convene a restoration of trust meeting. The request must specify the persons to participate in the meeting. The meeting may proceed with those persons who have consented to participate. This is subject to the consent of the appropriate person. An appropriate person may be accompanied by a person or persons of his or her choice when attending a restoration of trust meeting.

The facilitator will establish and maintain a panel of suitable persons to be moderators who will convene a restoration of trust meeting and act as chairperson. A restoration of trust meeting may, with the unanimous agreement of those participating in the meeting, make recommendations to the Minister. Records of the meetings are otherwise confidential. It would be important that real discussion takes place and section 33 therefore provides appropriate protections for participants. Evidence is not admissible in any court or the tribunal of any information, statement or admission disclosed or made in the course of a restoration of trust meeting.

Information provided by a participant at a restoration of trust meeting will not invalidate professional indemnity insurance policies or contracts of insurance, etc., nor will information provided at the meeting constitute an admission of fault, etc., or be admissible as evidence of fault, etc., in determining complaints or fitness to practice matters.

Sections 34 and 35 deal with tribunal recommendations and the tribunal’s annual reports. Under section 34, the tribunal may make recommendations to the Minister and the Minister will publish any recommendations made by the tribunal. Section 35 requires the tribunal to prepare and submit these to the Minister. These will be published by the Minister.

Section 36 provides for the dissolution of the tribunal and that the Minister may by order dissolve the tribunal. This would be done following consultation with the tribunal.

Part 3 provides for miscellaneous matters and has sections 37 to 40. Section 37 provides that where an appeal from a determination of the tribunal is made to the High Court, rules of court may make provision for the hearing and determination of those appeals in a timely and efficient manner. Section 38 provides for offences and penalties for offences. Section 39 provides for restriction of the data protection regulation to enable the tribunal, the facilitator and moderators to perform their functions. Section 40 amends the Freedom of Information Act 2014 to provide that the 2014 Act does not apply to certain records relating to the tribunal.

Before I conclude, I want to inform the House about two amendments that the Minister for Health, Deputy Harris, will propose on Committee Stage. The establishment of the tribunal is in response to the CervicalCheck controversy, and our objective is to have it available to both those individuals in the 221 cohort and also those women who consented to participate in the current review of cervical screening, RCOG review, and where the outcome of the review in their case indicates a discordance with the original cytology examination. However, in recent weeks, it came to light that, for a small number of women, one or more slides cannot be located, and therefore, through no fault of their own, they will not be able to participate in the RCOG process. The purpose of the first proposed amendment will be to open the tribunal to these women.

A second amendment of a technical nature will be introduced providing that the tribunal will establish and publish procedures for the restriction of the data protection regulation to the extent necessary to carry out its functions. Such restrictions are necessary to ensure that claims can be heard and determined with appropriate confidentiality and publishing these procedures will provide clarity to all parties regarding what is involved.

This Bill faithfully implements the Meenan report in respect of hearing and determining claims arising from CervicalCheck outside the court process. The Bill will help to build and restore trust and confidence in the cervical screening programme, a programme that is a crucial part of our health services. I look forward to hearing the views on Deputies on the Bill and I commend this Bill to the House.

I wish to start by acknowledging the bravery and perseverance of many women and their families who have been willing to speak publicly and fight publicly for justice, women such as Ruth Morrissey, Emma Mhic Mhathúna, Vicky Phelan and men like Stephen Teap. It is not easy to take on the State or companies with deep pockets, to walk into court with one's barrister and be faced with an army of junior and senior counsel paid for by companies and the State, or to experience the State using the law like a battering ram, deploying vast legal resources which few individual citizens could ever match. It is not easy to have the most personal and intimate details of one's life thrown around in a court room or having well-heeled barristers delving into one's sex life in an attempt to paint a picture for the court that somehow it is one's own fault that one has cervical cancer and that the slides were missed.

It is not easy at the best of times for someone in her full health and it must be next to impossible for a woman fighting this disease or recovering from it to go through all of this and deal with all of it, yet that is what these women have done. They have fought, persevered and suffered the slings and arrows of our legal system. This is why we are here this evening setting up this tribunal because without them this would not have happened.

To an extent, the CervicalCheck tribunal will be a step into the unknown. Nothing of its kind has ever been done by the State. Fianna Fáil believes several changes are needed to the Bill to provide additional protections for women and their families. We believe the legislation should have been before the House a long time ago. We believe the results for those involved could be mixed. There could be unintended consequences of this on the basis it has never been done before. However, in the round we believe this is a genuine attempt to make the process less hostile and a little more manageable for the women and their families. We believe the Government is engaging in good faith and we believe it is supported by the women, or certainly most of the women. As such, we will support the Bill.

More than a year ago, the Taoiseach pledged that the State would be on the side of the plaintiff and on the side of the woman. Given that, and given the time sensitive nature of this issue for people involved, the Bill should have been before the House last year. It is extraordinary that it is over a year since the Taoiseach said this. He also said that no woman would ever have to go to court again. That was over a year ago but, of course, we know that many women had to go to court and had to go to court repeatedly. He also promised that the State would make good on the payments to the women and that the State would pursue the laboratories if necessary. None of these things has happened. There was an awful lot of loose talk and promises made in the heat of what unfolded but most of those promises were either never met or took far too long to come about, including this initiative. It is hard not to conclude that much of the recent progress has not been spurred on to some extent by media attention. Perhaps it is not the case but if it is then women such as Ruth Morrissey deserve credit, as do the media for continuing to shine a light on this and continuing to keep it in the public domain. If that is what has happened, it would be similar to how this entire episode started last year. Civil servants warned the Government weeks in advance of Vicky Phelan's case ending that this would be a problem that could undermine confidence in the screening programme but the Government did nothing.

In recent days, I received a response to a parliamentary question on when the Government engaged with the national screening services for the first time. The answer was the morning after Vicky Phelan was on the news for the first time. That is what happened. It cannot be the case that the Government acts like this, that it is warned about serious things but does nothing and then, when something comes up on the six o'clock news that it has known about and been warned about for weeks, it states that now it will act, now that it is a public crisis. This is where we are and it is certainly better late than never.

Women need and deserve an alternative to the public adversarial court process that has gone on. Of course, it is important that if they choose to continue to access the courts and go through the process in public that is their right but they have this other option. The tribunal does offer a private space where women can discuss what happened and make their case. It is an important option to have. There are three changes we seek to the tribunal itself and we will table Committee Stage amendments. I appreciate they may not be taken for technical legal reasons but I very much would like the Minister of State to take them on board and see whether the Minister can come up his own versions that have been checked through the Attorney General's office. I know time is short but I want to lay them out now rather than just waiting for Committee Stage.

The first change is with regard to who has access. At present, the two groups of women who have access are the 221+ group who have been through the CervicalCheck audit and, of the other group of approximately 2,000 women who have also been diagnosed with cervical cancer, the approximately 1,000 who have gone through the Royal College of Obstetricians and Gynaecologists, RCOG, review. This means approximately 1,000 women who have or had cervical cancer and who are on the national cancer database but who said they did not want to go through the audit by RCOG do not have access. When they said they did not want to take up the RCOG review, they did not know that in refusing to go through it they were also taking themselves outside of the option of being able to use the tribunal. This does not seem right. We want all of the 2,000 women on the national cancer database to be re-approached, made the offer again and told we want them to have access to the tribunal and that if they would like to go through the RCOG process we will add them to the process so it can happen. It would not be right for these women to be told they cannot have access to the tribunal because they said they did not want to go through the process, when at the time no one said they would not have access to the tribunal. This is the first change we would very much like the Government to incorporate.

The second change is with regard to costs. Obviously, the tribunal will not be free, and going to court is not free. The women and their families will need the right highly expert and specialised legal representation. Solicitors, barristers and the lot can be very expensive. It can be beyond most people anyway. In this case, we are dealing with people who are also dealing with the financial implications of fighting cancer so there may be a loss of household income because people have had to take time off work. There may be an awful lot of expenses related to their healthcare and many of them are already in a stressed financial situation. I hope the Government will agree there can be no woman and no family who, for financial reasons, does not get access to the appropriate level of legal representation and expertise. We would like this hardwired into the legislation. I am very open to how it is done. Perhaps it could be done through free legal aid but not just random free legal aid from whoever happens to be available. It should be the right legal aid. Perhaps it would be made available to everybody or done on a means test. Certainly, we will table an amendment to look at this. The point is that financial concerns can never be a barrier to full access and full legal representation.

The third concerns hostile cross-examination. The genesis of this tribunal was to address somehow the extraordinary hostility that women were dealing with, including some nasty stuff such as victim shaming and bringing up women's sex life in court. All sorts of nasty stuff was going on. The idea of the tribunal is to protect women from this. The tribunal protects them from the public glare but there will still be full hostile cross-examination. We will submit an amendment, and we are very open to the Government's ideas on this, to try to provide additional protection for the women involved, for example, that it would be hardwired into the legislation that rulings can be made on aggravated damages if those cross-examining the women go to far. We know we have to get the balance right and we need the laboratories to partake in this.

These are the three areas and I am happy to discuss them with the Minister of State, the Minister or the officials prior to Committee Stage. I would very much like the Government to submit amendments on these three issues, which it can accept on Committee Stage.

Over the past 12 months, we have spent a lot of time discussing CervicalCheck, smear tests, the two Scally reports, court cases and those women who tragically lost their lives due to misdiagnosis. I do not think the memory of Emma Mhic Mhathúna's coffin passing outside the gates of Leinster House with her five children behind it will ever leave me. There are days that stand out since I became a Member of the Thirty-second Dáil and that is one day I will never forget.

Emma was diagnosed with cervical cancer in 2016 having previously received two incorrect smear results. Her five children are now left without their mother. I believe, therefore, that it is important to support this long overdue legislation. I cannot answer as to why it has been left until the last few weeks before the summer recess. It is important that we progress now, however. This Bill provides for the establishment of an independent statutory tribunal to deal with claims arising from specified reviews relating to the CervicalCheck screening program.

In doing so, it implements the recommendations made by Mr. Justice Charles Meenan in his report on an alternative system for dealing with claims arising from CervicalCheck. Mr. Justice Meenan was asked by the Government to make recommendations on how claims arising from CervicalCheck could be resolved outside the courts process. This is very important. We have all seen the images of Vicky Phelan and Ruth Morrissey going in and out of court when they were clearly unwell, undergoing treatment and trying to keep life as normal as possible for their children and families. That is not easy. It must be absolutely soul destroying to have to fight tooth and nail for compensation for something that is affecting their lives, is completely outside of their control and was not their fault.

The tribunal will only hear and determine claims in respect of CervicalCheck with the consent of all parties to the claim. The tribunal will be chaired by Ms Justice Mary Irvine and will be optional. Women or their next of kin can still choose to go to court if that is their preferred option. Hearings will be conducted in private, and that is important, but the claimant will be able to seek the agreement of the tribunal to request that a hearing, or part of a hearing, be held in public. Evidence of the injuries suffered by women arising from treatment for cervical cancer is of an intimate and narrowing nature. This similarly applies to the evidence of partners and families in cases where women have died as a result of cervical cancer. No woman or family member should feel deprived of the right to take legal action because of fear of publicity, fear of the media or fear of the courts process.

During the recent local election campaign, I was surprised by the number of women who raised with me the length of time they have been waiting for their smear results. Perhaps that was because I was a woman knocking on the door and they felt that they could speak to a woman. Most women engage in the process of having regular smears and they are happy to do so knowing that they are looking after their health. There is no doubt, however, that there is genuine fear regarding why some women are still waiting up to 30 weeks for the test results. Some of those women are beginning to question whether this means that something is wrong or perhaps that the test has been misplaced. We need to get on top of these waiting times to encourage people to have faith in this system. We have to have faith in the system.

The supplementary recommendations outlined by Dr. Gabriel Scally regarding CervicalCheck must be implemented without delay. We are relieved that the laboratories subcontracted to check Irish smear tests were operating to acceptable standards. However, at the beginning of the inquiry Dr. Scally was informed that the number of labs involved was six, then 11 and finally 16. It is astonishing for such basic information to be so inaccessible. Everything that can be done must be done to ensure that women have confidence in the CervicalCheck program. One reasonable and implementable solution is for every woman to know exactly where her smear test is being screened. As well as that, every single smear test should be screened in a lab which complies with a quality assurance process developed and operated by CervicalCheck. This second recommendation from Dr. Scally would ensure that the quality assurance system would be in place irrespective of the physical location of laboratories.

When we look at how this situation arose we find that mistakes were repeated again and again by the system. In the beginning, we had a situation where we had laboratories of variable quality. The supplementary report published in June of this year outlines the issues regarding the laboratories. Those include the protocols, or non-protocols, involved in some cases and the difficulties with the tendering process. There seems to have been a total failure. That was bad enough but the system then compounded that failure.

We are literally talking about people's lives. I find it hard to understand a situation where people knew that mistakes had been made, and they were very serious errors, but they did not go back immediately and tell the people involved. I wonder how often this kind of thing is going to happen before we realise that it is terrible to have a sloppy system, which is what was involved in this case, but it is unforgivable not to act properly when the mistakes come to light. Nothing that we can do now is ever going to compensate people for the terrible wrong involved in this whole process.

Much credit has to go to the people who have taken the court cases, Vicky Phelan and Ruth Morrissey. I refer in particular to Vicky Phelan who went to court first and highlighted this whole issue. She brought this matter to national public attention. That somebody else had then to go to court so long after that original case became obvious and was decided shows the dysfunction of system. It is a system that seems to be all about rules and law and not about heart, compassion and admission of serious mistakes.

I hope that in setting up this tribunal its operation will be one of compassion, understanding and recognition of the small steps we are trying to take. We are not taking these steps to try to put anything right because it will never be put right. We are taking these steps to deal with serious and horrendous fall-out from what was a monumental series of errors. I also hope that the tribunal's powers will operate so that it will be easy for people to get a hearing. They are clearly identifiable. I also hope that the least intrusive and most compassionate approach will be taken to these cases. Unlike other tribunals we have set up in the past, this is going to be very limited regarding the numbers of people involved relative to the population. This tribunal is just to decide on what should be done regarding compensation and other supports for the people affected. There have been enough delays, mistakes, harsh treatment and the State getting involved in forcing people to go to court. What is needed now is that compassion, understanding and big-heartedness be the measure of this tribunal when it is set up, and not legalism, nitpicking and meanness.

I welcome this Bill but I feel it is being rushed. I will be honest about that. I understand time is tight and the end of this Dáil term is coming but it does feel like this is being rushed somewhat. I am sure every speaker this evening will acknowledge the bravery of the women who came forward and told their stories in the media. I would say that was really hard. I do not know how those women were able to do that. I do not know how even women in the whole of her health could do that.

These women are battling a really serious illness and yet they and their families can find the inner strength to come out. We must also acknowledge those women who for whatever reason do not feel able to come out, as well as their families. They have been in touch with us. We know what is going on in their lives though they do not feel able to go public.

Clearly the aim of this legislation is to provide a quicker and less adversarial way to deal with some of these issues. It is really important that we remember why we are here and what these women have been through, particularly those women who have been to court. Through a very close friend of mine I have had occasion to see exactly what they have had to go through at first hand. It is really rough. Most of us, even after a few drinks in the company of our friends, do not want to have a frank discussion about our sex lives. They must do so in a courtroom full of people, with strangers trying to pick holes in their story. I do not know how they do it. I refer to the notion of a "loss of consortium", which is the description of a husband's loss of the services of his wife. What they have been through is horrific.

I understand what motivated the Taoiseach when he said that no woman should ever have to go to court and go through that process. However, as is very often the case, particularly with soundbites, talk is really cheap. Women are still having to go to the courts. What has brought us to this juncture is nothing short of shameful. This tribunal will not erase that but I believe it will go some way towards doing so. I assure the Government of Sinn Féin's co-operation in getting this legislation through. We want to work constructively, as I think all parties have done on this issue. As Deputy Butler referred to, all we have to do is remember the sight of Emma Mhic Mhathúna's coffin going past the gates here with her children following behind. That is enough for everyone to say that we must do our best. It is really important that this Bill is as good as it can be. It is in that regard that I say it is a bit rushed. We are speeding towards the end of the term and we want to ensure that we get this Bill as right as it can possibly be.

It is important that the awards issued are in line with those that would be issued by the courts system. It is also important to acknowledge that this is new territory. There should be some acknowledgement on the part of the Government that it has never done this before. It must be open to listening to people who may have a view and particularly to the women who have been impacted, whether or not they have been part of the Royal College of Obstetricians and Gynaecologists review. Those women must be listened to, because reading Dr. Scally's report or talking to them makes it absolutely clear that they did not feel listened to. They felt they were brushed aside. Any woman could talk about going to a doctor and being told some concerns are just women's issues. There is a feeling that these things are not taken very seriously. It is important that those women are at the centre of this process.

The legislation sets out the limitations of the tribunal and the mechanisms for it to do its work. It has to be efficient and compassionate and it has to include as many women as possible. It must not serve to exclude women. We have all had engagement related to the mother and baby homes scheme. I refer to the homes that were left out and the campaigns people had to mount to be included in it. Like the Minister of State, I do not want to see women left outside this process and having to battle with the State and the system again to get into it. We all want this to be done quickly, but in order to be done properly it must be inclusive. In that regard we will be tabling amendments. I am mindful of what was said previously. Those amendments may be ruled technically out of order. I would appreciate if that did not happen. I am quite happy to decline to table an amendment if amendments that are in order are tabled from the Government side to deal with the concerns that have been raised. This is not about me ticking a box so that my amendment is passed, or Deputy Donnelly or Deputy Kelly being able to say that their amendments got through. This is not about defeating the Government's amendments either. It is about making sure this is done right. I have said we will be constructive. That will absolutely include withdrawing amendments if it is the sensible thing to do. However, that also has to involve the Government listening to what is being said, taking it on board and making sure this is done right. We must not end up with someone standing here in a couple of years, listing the names of women who have been excluded after we stood here this evening and said we wanted to make it as inclusive as possible.

I fully appreciate that this is new ground and it is tricky and difficult legislation. I can assure the Government of our support. I think it will get the support of everyone here to get it done right. That means listening and not trying to score points. I am not suggesting the Government is trying to score points; I certainly will not be and I do not think that anyone will. We want this to be right. We have to listen to the women and we have to make it as inclusive as possible.

We have to make it a realistic option for women not to go to court if they really feel they cannot do so. There must be an acknowledgement of what those women have been through. It is important that the tribunal hears testimonies and information from the affected women and anyone it deems it necessary to hear from. It is also important that it can elect to hold certain elements of the process in public. The Dáil is a public forum; I speak in public fora often. If I were discussing what those women will be discussing I am not sure I would take the option of a public forum. However it needs to be there, because for some people it is quite cathartic not just to tell their story but to share what they know and what they have experienced. That is really important to them. In cases where a woman has unfortunately passed away it is important that a family member can appear. That will also help.

In reference to the tribunal itself, it is important that it hears and determines all issues of negligence, breach of duty, breach of statutory duty, breach of contract and any other matters that should arise. I am glad there will be an opportunity to hold hearings in public or in private. We must be prepared for the fact that some of what we will hear in public will make for very uncomfortable listening. If it is important for the women to say it, it is important for us to hear it and to try to understand.

At the very beginning of this there were issues with regard to the release of information and documentation. The things that went on were ridiculous. Information that should have been available online or in soft copy was printed out and sent in hard copy - in other words in an unsearchable format. It was absolutely reprehensible. It is welcome that the tribunal will have the power to compel witnesses and to compel documentation. That is extremely important.

There are some areas of concern. Excluding those who have previously received an award from even giving evidence is a concern. I would be grateful if that was taken on board and consideration was given to how those women can also be included. It is important that all of those affected should have the opportunity to give evidence to the tribunal. As I have said, on the whole we welcome this legislation. It is our intention to work constructively to ensure that it is passed through the Dáil and the Seanad as quickly as possible.

As we move towards the establishment of the tribunal we must be very mindful of the fact that the women who will be part of it and their families have had their trust in the system absolutely shattered.

Many of them have no faith in a system they consider to have let them down. They use the phrase "Having to go to war with the State" because, in effect, that is what they have had to do. They are of the view that the system let them down and then fought against them. As a result, their trust has been shattered. As part of this process, we must acknowledge that those women, and in many instances their families, have been treated disgracefully. The tribunal must be seized as an opportunity to make some form of amends to those women, in so far as amends are even possible given what we know we are dealing with here. I reiterate that it must be inclusive. The test of the tribunal will be the support for it from the women involved.

I thank the Minister of State for being here. In fairness, the Minister, Deputy Harris, contacted me and apologised. He is double-booked. I wish he was here, but he had the decency to contact us.

This is a very important Bill. I have been through it multiple times. I have spoken to many people about it as I always do in matters relating to this issue. I am sure the Minister of State is well aware that I speak to patient advocates and people who are involved with this every day, including most Sundays. I would be lying if I said there are not mixed views about the Bill. This is virgin territory in legislative terms. There is a crossover between politics and the law with which some are uncomfortable. I include myself in that. Government and Opposition are approaching this in the same spirit and it is not an us versus them legislative process. For the right reasons, it is proposed to enact provisions to allow women and their families to go through a less adversarial process. However, I am not sure the law allows for this. I am not sure the law is willing to yield to create that less adversarial process. There is not much of a distinction between the proposed process and that which obtains in the High Court. It is still adversarial and will still involve cross-examination and many other issues which I will go through in detail.

There are a couple of points to make before I go through the Bill in detail. We have come a long way since Vicky Phelan, who I know extremely well at this stage, blew the lid off this issue. We are where we have got to today but many mistakes have been made. I am not here to admonish anyone. We have repeatedly discussed what the Taoiseach said on "Six One". I watched it live. It was impossible to do what he said would be done. It was never going to happen. Notwithstanding why he said what he did - I do not who advised him to say it or whether it was a rush of blood to head - it was inexplicable and wrong because it gave false hope to the most vulnerable. Ruth Morrissey spent 36 days in the High Court in the longest medical negligence case in the history of the State. That happened after the Taoiseach went on "Six One" to say that the State would settle the cases and chase the laboratories. There have been instances of faux pas before, but that has to be biggest faux pas on a sensitive issue that I have seen in the course of my political career. I deal with these people all the time. They are vulnerable and they were let down badly.

I am in something of a minority, at least in terms of what people have stated publicly, in that I do not agree with appealing the Morrissey judgment. Certainly, I do not agree with the manner in which it has been articulated. I will get into that too. There are unintended consequences of appealing the decision. If we were to be Machiavellian about it, we might say that those consequences were intended. I would love if the Minister of State answered the following question directly. Will the tribunal start before the outcome of the appeal relating to the Morrissey judgment is known? Will he ask his officials? My understanding is that it will not. I am pretty sure I am correct on that. It is new information that was received only in the last short while.

Health spokespersons and other members of the Joint Committee on Health received a letter from Greg Dempsey, Assistant Secretary General of the Department of Health, in recent days. The letter was addressed to the Chairman of the committee, Deputy Harty. Committee members and spokespersons have had an issue with pre-legislative scrutiny being waived in respect of this very important, virgin legislation. Of all the legislation in train, this was felt to require it. In order to allow the legislation to go through, however, we decided eventually to waive scrutiny on the basis of a letter assuring us the Morrissey judgment would not have consequences. It is a two paragraph letter, the second of which states that the advice the Department had received indicated the tribunal is configured to deal with such CervicalCheck cases as are sent to it by claimants and defendants on the basis of the applicable law on personal injury claims. The applicable law is the body of precedent that now includes the judgment in the Ruth Morrissey case. In time, it will include any judgment that is issued on appeal in the same case. The letter does not state that the legal advice is that we have to stop the tribunal from commencing. It does not say that at all. Some of my colleagues and I asked the question in that regard. If the information I have received is accurate, who in the Government sought an opinion regarding why the tribunal should not commence until the Morrissey case has been appealed and its outcome is known? This does not tally with what the joint committee was told. I am angry about that and I am not alone. Obviously, it delays everything. Previous speakers indicated that there is an urgency in respect of this legislation. If what I have said is true and the appeal of the judgment in the Morrissey case means that the tribunal will not be up and running until the case is dealt with in the autumn, that urgency is not there. We do not have the same urgency at all and should deal with the Bill in the appropriate manner. We should not have to submit amendments by 10 a.m. on Friday. That to which I refer changes everything, which is why I want it confirmed.

The Taoiseach must apologise to the women. He went on Marian Finucane's show and said he thought he had done so. How in the name of God can the Taoiseach of Ireland not know whether he has apologised officially to these people and their families? How could he not know that? There was then the line that we would wait until the Scally report was completed. The report has been completed. I welcomed Dr. Scally's initial report but I have a lot of questions about the second one. I am not as happy about it by a long shot. I will deal with that matter at another time. However, it is done. As such, the apology must be made. When will that be? Is there a reason that there has been no apology? People are beginning to worry. I ask the Government to please tick that box. While it is doing so, it might also deal with another, albeit smaller, issue. The Taoiseach must correct the record in the context of what he said about the information being provided to Ruth Morrissey's legal representatives on the appeal of her case. I have raised that matter in the House previously and the Taoiseach has been contacted in writing about it. Given that it is now being commented on in the media, I do not have to shy away from it.

He should do the right thing by apologising and withdrawing what he said. That is it.

A woman who is quite involved in this matter contacted me this evening to ask me to put her views on the record of the Dáil. I will not name her. She says that from her perspective, this tribunal is about saving the State money and fighting the women. Those are her words and not mine. She believes her view of the tribunal is proven by the fact that the appeal to the Supreme Court is going ahead. Is it not deeply worrying that a woman who has been badly affected by this issue holds such an opinion? She points out that the Taoiseach said he would indemnify the women so they would not have to fight the labs. She wants to know whether, now that he has indemnified one, he will treat everyone else the same. I want to get on to that because I am the biggest supporter of what Ruth Morrissey did. I have spoken about her on many occasions in this House, in the Joint Committee on Health and in the Committee of Public Accounts. When the Minister said he would give all drugs to any women who were affected, I had to point out the inconsistency with regard to pembro. I had to get other women on that drug because of the way the matter was dealt with by the Minister.

I am concerned about the manner in which the State has dealt with the Morrissey fallout. I want to say right here on the record that there are unintended consequences that the Government has not calculated. I believe I will be proven right in the future. By the way, I am a big supporter of this lady. I support the ring fencing of her money. How will it affect other potential claimants into the future? Has the State set a precedent? I ask the Minister of State to think about that. I know that many people out there are thinking about it. Some of the women and families affected by this issue believe the appeal of the Ruth Morrissey case, which will have some consequences one way or the other, means that women and their families who fight their cases in the future may not get the benefits of what Mr. Justice Cross determined in the Morrissey case. That is deeply worrying. The appeal will go ahead. The process is going ahead now. Is the equation the same in the way this will be dealt with? Is it a case of the State isolating one case because it does not want everyone else to follow the pattern of the case in which Ruth Morrissey deservedly got an award?

I want to deal with the legislation. There are unintended consequences here, or else they are intended consequences, if the Minister of State understands my meaning. There are concerns about this Bill. This is still an adversarial situation. I do not understand how the audit just stops. The audit has not happened since 5 April 2018. What about all the women whose cases arose after the cut-off of the audit? The date of 5 April is an arbitrary one. What about women whose diagnoses arose after 5 April? Their slides would have been read before 5 April. How are they going to get access to this? What happens in the case of a woman who suffers a late occurrence? We all know that in some unfortunate cases, women get cancer a second time. What about a woman who settles through the tribunal before her cancer recurs? Unlike the hepatitis C tribunal, this tribunal will not allow claimants to go back again. How will such cases be dealt with?

I have concerns about the amount of time being given to those who want to bring forward cases. Why is the pattern set down in the Personal Injuries Assessment Act, under which six months can be added onto the statute, not being followed in this case? I think that would be appropriate. This tribunal will deal with very vulnerable women, including women with terminal illnesses. I ask the Minister of State to note this important point. If such a woman unfortunately passes away, why will the case stop? Should this legislation allow her next of kin to proceed? It has happened before. I think this is a reasonable request. There seems to be a long period between an award being given and actually coming into effect because of the need to go through the High Court. This is something that could be changed pretty easily.

Section 19 of the Bill provides that when an award is made, the woman should be entitled to recover her costs. This has to change because people are nervous when they read the word "should". Similarly, section 24 is vague about the entitlement to recover costs through the High Court in respect of the element of a case that a plaintiff may have left aside to give the tribunal a chance. This means a woman could be penalised for choosing the tribunal over the High Court. That just does not add up. I hope these are merely wording or drafting issues. If they are, I want them to be addressed.

Section 22(1)(d) gives the tribunal the power to cross-examine witnesses. Why would an independent tribunal have to cross-examine witnesses? That is what the word "independent" is about. Why would it have to cross-examine witnesses? I ask the Minister of State to examine these matters.

I will mention a few other issues. The definition of "relevant woman" in section 2 of the Bill appears to exclude a certain number of categories. The cases that came through the cancer registry are gone off to the Royal College of Obstetricians and Gynaecologists. It needs to be clarified that the women in those cases are covered. We need to ensure women who have independent expert reviews that bring them into this cohort are included, even if they did not start off in CervicalCheck or in the cancer registry. I welcome the Government's decision to include women whose slides have been lost.

Section 20 involves "Hearings generally to be otherwise than in public". It is being said publicly that women and their families can ask for hearings to be in private. I feel that is fine if they want to make such a request. Unfortunately, the way this is drafted leaves the tribunal with the decision. It is totally understandable that a woman might ask for her hearing to be private on the basis that she does not want to discuss her sex life with the tribunal. The judge in such a case, having listened to other parties, might still decide that the hearing should be held in public. That is the way this is written. This has to change.

Section 28 involves "Confirmation and publication of determinations". Why do all determinations have to go through the High Court? As the Bill stands, even the rejection of a tribunal award has to go to the High Court. If the parties do not want to accept the award, it should not go to the High Court. Why is this the case? It needs to be looked at.

The role of facilitator is set out in section 31. There does not seem to be any obligation on people to attend. I suppose there would be issues there in other formats of law. Will the Minister ensure all State employees have to attend? I would like the Minister of State to respond directly to that question tonight. Surely he has the answer. All HSE employees and all workers paid by the State should have to attend.

There is an issue here regarding liability, namely, the question of liability regarding some of these cases and the State not accepting liability. When it comes to the issue of non-disclosure, the draft of the text is still very clear that the State is not accepting liability. When it comes to non-disclosure, given the fact it was a cervical cancer screening programme run by the HSE - by the State - why can the issue of non-disclosure not be dealt with differently? Surely as a country and a State, it is very hard to argue that the non-disclosure issue is not one that can be dealt with separately because, obviously, the State did not tell its people.

There is deep distrust among some people regarding the way trust meetings are put together so more depth is needed regarding how these meetings are going to work otherwise some people might feel it is a fishing exercise. The legislation says it will consider other awards and take that into consideration. That needs to be removed. We know about ex gratia payments so that needs to go. This must be a straight line. It has to be a baseline. We cannot take any other payments into consideration.

I hope the Minister and officials have taken on board all those issues because there are some very serious questions and I have a funny feeling we will be coming back to the contributions made on the floor of the House regarding this in the future if they are not addressed between now and 10 a.m. on Friday.

I welcome the opportunity to speak on this Bill. I have the most serious concerns about this Bill notwithstanding the purpose behind it and the fact the vast majority of affected women seem to support it, which I will certainly take on board. The background is the roll out of CervicalCheck in 2008 after a pilot project. This is the same year during which we decided to privatise it and run down our laboratories. We gave the first contract to Quest and so we continued. It is difficult to put a figure on this because the figure keeps changing. Whatever Minister is left here at the end of the debate might tell us the up-to-date figure regarding the women affected by this scandal. I have seen it listed at 221 and 221 plus. It is an insult to women to have plus or minus in here. Tell us the exact figures at this point.

The Taoiseach came into the Dáil and told us that there would be a HIQA investigation. That was the understanding at that point. We then agreed to a scoping exercise, which completed its report in 2018. The findings were stark. It was followed by a supplemental report recently. It found that there was an over-emphasis on obtaining the lowest cost from suppliers at the expense of an equivalent emphasis on quality. There were no contract governance controls. It appeared to the inquiry that it was difficult for new services to enter the procurement process. Listen to that one. We go to the private market so that we have competition and then when we look at it, we find that it was difficult for new players to enter the market. The inquiry found that there was a noted over-reliance on contract extensions and so on. I do not have the time to go into it except to note for the record that the findings are damning. We have had those two reports arising out of that.

On top of that, we have the ongoing Royal College of Obstetricians and Gynaecologists inquiry and there are many others along with this Bill, which is being rushed through. I will list the measures. They are the Royal College of Obstetricians and Gynaecologists inquiry, Mr. Justice Charles Meenan's report, an audit mentioned by Deputy Kelly that has been suspended since last year without explanation and the Patient Safety Bill that provides for open disclosure but which is lying around somewhere and has not been enacted. We brought in an ex gratia scheme in December 2018 that has still not been rolled out. We are being told it is being rolled out today.

Into this, we bring a Bill. I understand the Bill but I do not understand the women's emotions being used. The shame and fear should be on the system, not on the women. The women have been through the process and have suffered and the shame is on us. It is on Dáil Éireann for not reacting properly and quickly and for continuing, through the Taoiseach, to make mistakes. An example would be the case of Ruth Morrissey, that is, not saying it was appealing it and not communicating it properly. We have had mistake after mistake regarding how information was disclosed. Shame on the HSE and the system. Shame on the laboratories. Dr. Gabriel Scally's supplemental report tells us that he persisted so he got more answers. Just recently, I asked whether he would have got more answers if he had persisted further. Would he have found out that there were more laboratories, not just 16? It took two reports to find there were 16 and Dr. Scally is now reassured by the same laboratories that they did not feel they could tell the truth in the first place - let me rephrase that, that they could not disclose in the first place that there were a lot of laboratories.

We then introduce this Bill because we want to avoid women having to talk in public. I respect that, which is the women's choice, but it should never be our choice. I have a serious worry about why we are introducing this in this manner. I have looked at it. We have never done it before. I have looked to see whether there were any precedents but there are none. Through what I see in the press and various statements, the women want a less adversarial system, as does Mr. Justice Meenan, who came up in an adversarial system. He makes suggestions for a non-adversarial system but, actually, it is an adversarial system. Women deserve the truth. It is an adversarial system except it will be behind closed doors. If that is the choice of each woman as she goes forward, I have no problem with that. I would have preferred it to be in public and at the discretion of the women who might want it in private. That would restore the balance somewhat rather than the other way around.

Regarding the Bill and its adversarial nature, it is on all fours with cases in the High Court. The Bill sets that out and, of course, it has to because access to the courts is fundamental. It is not a tribunal of redress because, as was clearly pointed out by Mr. Justice Meenan, there are serious problems with liability - liability relating to the laboratories and whether they were negligent in reading the slides and then what liability is on the State for not telling the women on time through its agency.

Regarding disclosure, I will deal with the last part of the Bill - restoring trust. I think that should not be part of the Bill. If we want to restore trust, we should do the right thing. Let us tell the truth and use language to mean something. Any institution should be able to hold meetings as a fundamental part of its governance. It should be able to talk to the patient, explain what happened and give maximum information. The part of the Bill about restoring trust is disingenuous.

The Bill is being brought before us ostensibly on the basis of Mr. Justice Meenan telling us that we need a non-adversarial system on the basis that it is quicker, more efficient and less costly, although this is adversarial. There is no evidence before us that this will happen. We are told it is based on Mr. Justice Meenan's reports almost verbatim. Well the Statute of Limitations is not being followed. It clearly has been changed. I have difficulty understanding it but it has been changed to nine months. The Minister of State might try to explain that to me. Why must claims be brought within nine or six months depending on which is the furthest out?

Regarding the matter mentioned by Deputy Kelly, I reiterate the point about determinations having to go before the High Court.

We then put it back to the High Court for it to tell us if the determination is correct or not. We have absolutely no information as to how the High Court judge will decide that. How will the judge decide if that determination is right or wrong? We have no timespan for that determination and then it will go back again to the tribunal.

Consent can be withdrawn at any point. It needs to be spelled out that this tribunal is similar to the Personal Injuries Assessment Board where the consent of all parties is necessary. If the consent is not forthcoming, then the tribunal cannot be used. If the consent is forthcoming and it is in writing, it can be withdrawn at any point. I have serious concerns about a laboratory which has failed to disclose it has labs in Honolulu - God knows where else because I cannot remember their names as they are so exotic – 5,000 miles from this country with four or five different time zones. A lab could enter into this process and withdraw at any time. Where does that leave the woman or the proceedings?

On protocols and speed, I do not know when the tribunal will be introduced. When will the Minister set it up? Issues have been raised regarding the ongoing court appeal and what consequences that might have for the tribunal. Is there a completion date? Have premises been picked? Has the Minister any idea as to how many women will be covered or take part in it? What about the women who are excluded by the narrow terms of reference? We have those who were included because of the review, as well as those who will be included as a result of the ongoing Royal College of Obstetricians and Gynaecologists investigation. What about the other women? I have gone through all the reports in detail but am more confused than ever as to how many women have been affected and what we are providing for with this legislation.

I am worried about some of the provisions relating to costs, particularly if the chairwoman of the tribunal wants to get expert advice or appoint counsel. She needs the consent of not just one but two Ministers. I have a difficulty with that. On every occasion I have taken the opportunity to stand up for those affected and fight for justice for them, as have all my colleagues. However, I am not sure that it has been clearly explained to them what is involved. I am reluctant to say it but I believe there is a sleight of hand or a certain disingenuousness regarding this matter.

Mr. Justice Charles Meenan outlined that, to date, the system has been efficient and that the cases have gone through quickly, notwithstanding what Ruth Morrissey went through for a long time. In her case, that was because liability was being fought. All the protocols are already in place. Mr. Justice Cross made specific provision with barristers and solicitors that cases would be pushed through. Questions arise as to what is causing the delay. The courts are an easy target. I am no defender of courts or high costs for barristers or solicitors. When I see them being misused, however, to justify something which has never been tried before in the context of giving more speed and efficiency without any evidence before me, then I have a duty to raise those concerns.

When will the tribunal be set up? What premises will it sit in? Have premises been identified? What number of staff will the tribunal have? Have the consequence been totally explained to the women involved? What consultation has taken place to explain to them that this process is absolutely adversarial? Mr. Justice Meenan went out of his way to say that we should try to make it less adversarial by taking written statements from the women involved. That is nowhere to be seen in the legislation. Several other suggestions have not been taken on board. They cannot because there would be great difficulties in terms of justice and applying the law.

In the guise of a non-adversarial system, we have an adversarial system behind closed doors. I will finish with a report on a matter which is still prevalent in Irish society. The Irish Times on 25 June contained a report on a hospital in Kilkenny where tests were carried out on women without their permission. I will not go into the physical aspects of the case such as the flushing out of the vaginas of the women in question and so on. The newspaper report stated, “The equipment involved, including tubes and pressure gauges, was brought in from outside the hospital.” The professor involved said the issue “had more to do with preliminary, exploratory work – as to whether you need consent for that”. It was an open question. He personally did not think consent was necessary for carrying out the procedure involved on a woman’s body. He got worse when he “stressed that no patients were harmed, adding they did not even know it is being done.”

Something of similar mentality pervaded the whole scandal of the cervical smear tests. It was a case of the professionals knowing best and that they would decide when it suited them to tell women what they should have known from the beginning. If we do not learn from that and we do not look at this legislation, then this is a complete sham in this Dáil.

I support the Bill on the basis that the 221+ patient support group and its spokesperson, Stephen Teap, support it and hope there will be no delays to the process. Stephen Teap said, "With the details for this tribunal we haven't seen yet but the first step in the whole process is getting this legislation passed before we can get to what this tribunal means for us." The devil will be in the detail as to what the tribunal process will mean to the women and families affected by this terrible situation.

I have concerns, like other Members, that the legislation is being rushed. It must be clarified to the women and families concerned that it is a tribunal and not a redress scheme. It can potentially be private by request of the woman. However, the adversarial situation we have seen in the High Court to date was also private. That has to be made clear.

The tribunal itself can be accessed by the women and families of the 221 women involved with the CervicalCheck audit, along with individuals who are identified during the independent expert panel review undertaken by the Royal College of Obstetricians and Gynaecologists in the UK, where the review presents findings discordant with those of the original cytology examination. How many women are affected? I have significant concerns about those women who did not take up the opportunity to go into that review.

The Bill’s intention is that women and their spouses can make claims in an alternative, faster and less adversarial surrounding from the High Court system. Women still have the option to proceed through the courts system as well. Will the Minister explain why the claimant, the HSE and the labs have to agree for the case to go to the tribunal? Why can it not just be the claimant or her family who decide whether they wanted heard in public or private? Will the Minister clarify if the labs can block the claimant’s request for the case to go to the tribunal? Will he also clarify that the State is not appealing the €2.1 million award in the Ruth Morrissey case but only the legal points?

How does that affect the establishment of the tribunal? Will the laboratories in question proceed in the same way? Are they only appealing the legal aspect and not the awards to be paid to the families and women concerned? The Bill makes no provision for women who may have a later recurrence of cancer. That issue has been raised already but it is a very important point on which I would like clarity. How many women have applied for and received the ex gratia payments of €20,000 to date?

I will make one last point. I only have five minutes as Deputy Connolly is leading our grouping on this issue. I recently read that the private laboratory which processes cervical cytology tests in Ireland has said it will no longer do so in light of recent controversies and the recent High Court ruling in the case of Ruth Morrissey. News that the judgment from Mr. Justice Kevin Cross has resulted in changed working practices at the laboratories owned by one large global operator will fuel concerns that a new and problematic legal precedent has been set. In a letter to doctors last month, the company in question, Eurofins Biomnis, stated that women who wanted to be tested would have to get a human papilloma virus, HPV, test to help detect the presence of that virus, which can lead to the development of cervical cancer. I have concerns about that. In the debate last year, the Taoiseach specifically stated that HPV testing would be rolled out by the end of last year. We still have not seen it happen and now certain laboratories are saying they will only undertake the tests in conjunction with the HPV test. That is of huge concern to me and the many other women who will face testing in the future.

Vicky Phelan is a brave woman. She will go down in history as a woman who changed the lives of many other women for the better. She fought tirelessly for her rights and the rights of other women. It is a disgrace that this brave woman was dragged through the courts while terminally ill to fight for her right to the truth. She bravely resisted all attempts to get her to agree to a gagging clause. She never wavered from her ultimate goal of revealing the truth to all the other women who were affected. No money in the world will compensate women such as Vicky Phelan and their families. There are no winners but if any good is to come from this horrific scandal it will be getting the answers Vicky Phelan was denied during her court case. A year later, this Government is still torturing terminally women ill who are still fighting for these answers. If the Government had any backbone, it would ensure that all of these questions were answered and that Vicky Phelan could spend the valuable time she has left focusing on her loved ones. She is a selfless woman who has given her precious time to fight for all of the other women in Ireland.

The 221+ group has a long list of the promises which have not been delivered on by the Government. The delays in implementing these promises are completely unacceptable. Has the Government not robbed enough valuable time from these brave women? We all accept that mistakes can and do happen, but the conduct of CervicalCheck and the HSE, which withheld from hundreds of women with cancer the information that an audit had reclassified the results of their original smear tests, was not a mistake. It was a cover-up and is completely unforgivable.

The changes being asked for would ensure that a scandal such as that of CervicalCheck would never happen again. If this Government is dragging its heels in implementing these changes, how can we ensure such a terrible scandal does not occur again? There has been a massive delay in setting up the tribunal, which will ensure that women taking cases will not have to go through the courts when seeking compensation. Can the Government give a guarantee that the tribunal will be up and running by a specific date because there is a big fear that it will not commence work this year? Further to this, a promised scheme to compensate women for the HSE's failure to tell them of the audit of smear tests has also been delayed. This scheme was announced more than six months ago and it is no nearer to being up and running. This is a disgrace.

Across the health sector it has been one scandal after another in recent years. The national children's hospital may be old news to some but that does not take away from the fact that it is a real issue which has not gone away. Nurses and the ambulance personnel branch of the Psychiatric Nurses Association have recently been on strike. Health support staff were striking today. In Cork alone, 1,000 health support staff were on strike today. I fully support these workers. They feel undervalued and underpaid. When will the Government and Minister for Health finally listen to the people of this country? It is one glaring error after another. One need only look to the position of carers and home help provision, which is in tatters. Our elderly cannot get a simple 15-minute cataract procedure. In my constituency, they have to wait for five years for the procedure. I raised the issue of the centre for mental health and recovery at Bantry General Hospital today. Workers in the centre are at breaking point. Community mental health staff are being withdrawn from community care to fill vacancies on the wards. The scandal of CervicalCheck, however, will never be forgotten by the people of this country.

I am pleased to speak on this Bill. One of the most contentious aspects of this entire scandal has been the confrontational legal dimension. The scandal itself was, and is, bad enough without considering the legal aspect. The Taoiseach stated that there would be no issue on the part of the Government and that no more sick women who are under life sentences or their families would be dragged through the courts. When those words came from the Taoiseach's mouth we believed that would be the case but, sadly, it has not been, for some very strange and perverse reason. Sick and terminally ill women were forced to go through highly stressful court processes when there was a better way. There has to be a better way. The courts should be the last resort in any dispute but this is especially the case when one's life is threatened because of negligence, misdiagnosis and God knows what. We now see all of the laboratories running for cover and we see the totally reckless behaviour of the private service to which these tests were farmed out. It is uncaring.

As the legislation states, the CervicalCheck Tribunal Bill will do what the Taoiseach said "in respect of the hearing and determination, outside of the court process, of claims arising from acts or omissions arising from CervicalCheck and, for those purposes, to make provision for the establishment of a body, [...] , with the consent of the parties concerned, to hear and determine a certain limited number of claims made to it outside of the court process". I do not have any faith in the tribunal, however. Our experience of tribunals has been bad, sad, and costly, starting with the beef tribunal. We have had one after another. The guys down on the quays and the fat cats are rubbing their hands with glee to see even more coming. It is manna from heaven for them. These tribunals have been costly, useless, toothless and fruitless. They get no answers. They produce boxes of reports that gather dust. Is anyone held accountable? No. Is there any proper investigation? No. Tribunals grow like knotweed. The culture of tribunals has been and will continue to be sickening. It will provide no solace or reprieve for the women affected and their families. Of all the things to do, why set up a tribunal? That is the question we are all hearing. Given our experience of tribunals, we must be in kindergarten if we are going to set up another one.

We have had the experience. How many more costly tribunals must we have? We had the inquiry over IBRC. We had a briefing recently by the Taoiseach. It was due and now it has gone two years beyond its date and it is only on the first module of 61 pieces. It will go on forever. It was supposed to cost €3 million or €4 million. It is already €11 million and growing. It is unbelievable that we allow that. On the night I met him, I said it should be shut down. What is the point in throwing good money after bad and telling us that it might go on for another three or four years and cost perhaps €50 million, the way it is going, for nothing? We would get more sympathy and empathy from a rock.

Clearly, we would not be here today if the existing court process was sufficient, but it is not. I railed against setting up the new Court of Appeal recently - there was only a small few of us. It was supposed to solve all our problems, but the backlog has got worse. Justice delayed is justice denied and it is left there. However, there is no justice for these women. They have life sentences. The best we can offer is a tribunal. No disrespect to the judge who will head it up, but they have not worked. They are an abject failure and a complete waste of time and money.

It is an adversarial system that is ill-equipped to handle sensitive issues of this kind. It is also not known for the speed at which it can process claims like this. This of course is directly relevant here because of the tragically contracted timespan in which some of the women find themselves, having terminal or life-threatening illnesses. It just beggars belief. The women and their families do not want to have their precious time bogged down in courts when it could be spent with their children or their loved ones.

The Bill also arises, as we know, from the report of Mr. Justice Charles Meenan on an alternative system for dealing with claims arising out of CervicalCheck. Mr. Justice Charles Meenan was tasked by Government last August with identifying further mechanisms to avoid adversarial court proceedings for the women and families affected by the CervicalCheck issues. In his executive summary, Mr. Justice Meenan outlined some of the advantages of the tribunal over a hearing in court. I have no faith they will be any better.

Hearings will be in private and be less formal, which is a good thing in some ways, but if it gets bogged down, no one will know what is going on, so where is the public accountability? Even inquests need to be held in a public place and this will take place behind closed doors. As the tribunal will adopt pre-hearing protocols and case-management procedures, claims should be dealt with more expeditiously. I will believe that when I see it. They will not. The legal system in this country does not have a good record in dealing with cases expeditiously.

It is supposed to be less costly for the parties involved. It will possibly be less costly for the families: they should not have to incur any costs. There is no way it will be less costly for the State based on any tribunals we have had, including the IBRC investigation.

The adoption of pre-hearing protocols and case-management procedures will reduce the adversarial nature of hearings. The constitutional and legal rights of the parties involved are not compromised, but lives have been compromised. We are just tinkering with words and using platitudes. Their lives have been compromised and are under threat. Many of them are under a life sentence.

There is a right of appeal to the High Court - here we go - by way of full rehearing and a subsequent appeal in accordance with law. Such appeals will be heard in private. I worry about this. Those appeals mean we will be going around this circus like trying to circumvent a trip switch on an electric board. We avoid tripping the switch for some time. It is a costly way of avoiding it.

Where liability is not being contested, for example in claims relating solely to non-disclosure, such claims can be fast-tracked through the tribunal. It is all mind-boggling. These are all reasonable and excellent points. We can only wonder why it took so long for such an obviously more humane approach to be introduced. As I said, it is not being introduced: it is just a delaying game - a waiting game - and they could just end up in the courts anyway.

In terms of the damages aspect of this process, inasmuch as they can be assessed and quantified, Mr. Justice Meenan is also very clear when he notes that the pain and suffering involved cannot be overstated. It cannot, must not and will not. However, setting up a tribunal seems to be the best we can do instead of having full and open acceptance of misdiagnosis, neglect, disrespect and no proper accountability held with the powers that be in the Department of Health from the Minister down.

Mr. Justice Meenan is absolutely right to say that the loss of a young mother is not only a tragedy for the family but also has serious financial consequences for the care and support of young children involved. Let us think about it. All of us attend funerals of people who die tragically. Women die of cancer and get killed in accidents. It is worse in the case of suicides, God knows. It is so tragic. The funeral will take place tomorrow of the Leas-Cheann Comhairle's friend and colleague who died in Donegal following a tragic accident. He was a young businessman and a father of five. The consequences are that everybody is hurt and emotional.

However, this situation is almost contrived. The State and the Minister must be held as being complicit in this because they allowed it to happen. We are finding out about more and more labs. The thing is bonkers.

As has been shown by High Court cases already settled, damages arising from a negligent misreading of a cervical smear are potentially very significant. We know they are. Doctors and people who read tests all the time can certainly make mistakes. However, this is not down to mistakes. It is pure shoddy practice by backroom cowboy outfits, to which the work was subcontracted. We could not even get the number of overseas labs involved. The eminent doctor found that there were many more labs than he was first told about. It is deceitful and it would be a matter of intrigue if it was not so serious.

That said, all of us here would share the view that what has motivated these brave women is a firm sense of justice. I could not say enough about the bravery of the women and their families, and the solicitor for many of them, Cian O'Carroll from Cashel in County Tipperary. I salute him and thank him. He has long since proved himself by supporting lay-litigants and people who have been trampled upon by the might of the monstrosity that we call the HSE and have been denied healthcare. He has had many a battle with the HSE. I salute him and his staff. I thank them for being so sensitive and understanding to the women in these cases. It is unimaginable how one would sit down and be able to engage with these women, who are so brave and powerful and able to relate their issues to him. He is very sensitive and very delicate given the truly harrowing personal circumstances in which these women find themselves.

What has motivated these brave women is a firm sense of justice and obviously a wish like any mother, parent or sibling - a dying wish in many cases - that their loved ones left behind would be provided for, that they would have enough resources to be able to go to school and get an education without their mother and without their precious sibling, and be comfortable. It is not to get rich.

However, here we are, with the might of the State and the HSE marching in the barristers against them in the courts. There has been no empathy, no sense of justice and no sense of understanding of the wrongdoing that has taken place. It is shocking; it beggars belief.

These women wanted justice for themselves and for the women who potentially could be affected in the future, and that is a huge issue. How will we play catch-up? We already know about the backlog and the huge delays in the tests, but how can we have fit-for-purpose labs when these tests are farmed out? This is a worry I have had about the HSE in many areas in recent years. It is creating a similar situation with the use of private contractors in many areas of care, including for people with profound disabilities. We have had many problems with the HSE and there is little to no scrutiny, just washed-out rules and observations.

As I said, these women want justice for themselves and for women who may be affected in the future. We owe these women an enormous debt of gratitude. They have used their pain to bring about a great social good. I salute their bravery and wish them well. How are we reacting to their bravery, to the pain they live with and to what they have suffered in telling their stories and bearing themselves to us? We have sympathised but we have not empathised, and the HSE has not been reformed.

The Minister should have been gone from here 12 months ago or much sooner, but he was kept in power. Fianna Fáil Members told us that because of the confidence and supply agreement, it could not bring him down. However, the more senior Minister, the Minister for Justice and Equality, was pushed out of power because that Minister did not suit them. They all cosied up together and allowed the Minister to carry on. The Minister for Health is not fit for office. Someone has to be held accountable and he is the political head of the HSE. He got away with blue murder; it is unbelievable. Shame on Fianna Fáil and Fine Gael for supporting him and keeping him there. These women and their families have been treated in a callous way and those Members should hang their heads in disgrace. They are hiding behind Brexit, even though the Minister for Justice and Equality was forced out with no issue. It would cause no issue if the Minister for Health were to go, and we could be rid of him; good riddance to bad rubbish.

The Deputy is a long-standing Member of the House and I remind him that terminology such as "cowboy outfits" is not parliamentary language. The Deputy will have to find other words.

These outfits are cowboys.

The word "complicit" is out of order.

The Deputy has to be careful. We have to be responsible in the House.

I am being responsible.

I intend to comment on the issue that you raised, a Leas-Cheann Comhairle. You are absolutely correct. There was a time in this House when-----

Everyone is complicit.

Deputy McGrath pointed at me.

There was a time in this House when everybody had respect for everybody else, inside and outside the House. Sadly, we are moving away from that. I would never come to a judgmental decision and say that the Minister, or anybody else in this House, whether in government or in opposition, was unfit to do his or her job, and nor should I. People come into this House in good faith and to serve their country, their constituency and the community. They do it very well, and have done since the foundation of the State. It is very easy to take away from somebody's character by saying that they are not fit to do his or her job. Likewise, it has become commonplace to mention people outside the House. I thought we had perhaps learned our lesson on that in recent times. It is not a good thing to do and there may be a price to be paid for it. The privilege we have in this House will be taken away from us unless we recognise that we have to honour Dáil privilege in spirit and letter. Your point is well made, a Leas-Cheann Comhairle, and I concur entirely.

To go back to the issue in question, we have seen a long and tragic series of events for an awful lot of women in this country. However, we have to measure that, and I will deal with that in a second.

The procedure was put in place several years ago to try to identify the presence of cancer in women at the earliest possible stage in order to give the services a chance to combat it. In fairness, the screening tests saved the lives of thousands of women, as is readily admitted. I emphasise that the screening test was never a diagnosis, although I am sure that we have all come across cases were a diagnosis was subsequently proved wrong as well.

I know all about the court case, the judgment and the call for absolute certainty. It is very difficult to diagnose cancer with absolute certainty, whether on the positive or the negative side. There have been countless instances over the years. We all know from our own families of instances of a person being diagnosed and told that he or she has no chance, or words to that effect, only for the whole situation to subsequently change. That is obviously to the joy of those concerned, but we have had similar situations where people were given the all-clear and problems subsequently arose. We have all also come across people with various forms of cancer for the second, third, fourth and fifth time. We need to respect that there is an element of the unknown in this. Therefore, we need to look at the circumstances in which this test was provided in the first place.

As I said, the test saved the lives of thousands of women. The flaw was due to the number of women who were awaiting treatment, outsourcing and a reliance on home-based tests. The sad part is that this test has an 80% accuracy rating. That is a fair distance from absolute certainty, which cannot exist in such circumstances. This accuracy means that there is 20% that no one is too sure about at all. Uncertainty can transpire on the positive and negative sides, because there is a sizeable unknown element.

However, one way or another, the situation arose when patients should have been told but they were not. Nobody asked for the look-back, but it was agreed within the system because somebody spotted something. A determination was made as to whether their particular circumstances should have been identified at the first test. For all kinds of reasons that I will not go into now, tests in other countries are more frequent than they are here; that is part of the tragedy. It was discovered that there appeared to be a number of cases in which the screening test did not show up cancer-giving properties and the patient was subsequently diagnosed with cancer. The look-back took place and we know what happened in the meantime.

The problem was that there were so many cases in the pipeline and the fear and worry for the women concerned was so great, that the Taoiseach, the Minister and every Member of the House expressed the wish that we should do something to alleviate the burden and stress caused to women in whatever way we could, and to try to produce a system more amenable to the women who were directly affected.

None of us is happy that women in those circumstances must go through the courts. However, both combatants in every tribunal, no matter where, have the right of access to the courts. Both the defence side and the other side have the right to go to court in the final analysis. I do not accept criticism of the courts, even if a court's decision is made in camera. Many courts make decisions in camera and that practice has been well established since the foundation of the State. It is untrue and unfair to state that a court meeting in camera, or in secret, to examine the circumstances surrounding a particular case is somehow wrong. This merely means that the next stage, the Court of Appeal, examines the circumstances surrounding the case. A woman may feel that she was not fairly treated and the tribunal did not do all the things that she expected it to do. In such circumstances, every woman has a right of appeal and to go to the courts. That is a fact and we should not make too much of it.

Over the years, women have been subjected to some strange treatments and have not always been told about it. Symphysiotomy is a particular procedure that was frequently visited upon women. They were not told about it in most cases. It was deemed to be good for them, although I do not know why. I have been in this House as long as the Leas-Cheann Comhairle and nobody ever explained to us why that particular procedure should be good for women and yet they were medically advised to have that treatment. Hysterectomies are another example. Of course, there were situations where a hysterectomy was desirable and necessary but what about all the women who were told to have hysterectomies anyway and that it would be good for them when there was no necessity for it at all? That happened in several hospitals.

When we pretend that this is the first time that these kinds of things have ever happened, we should remember that it is not. There were worrying cases in the past that affected women and their health to quite a considerable extent. We need to keep that in mind as we proceed, although that is not at all, in any way, to make excuses for the scenario that unfolded in this case and affected the women whose tests were inaccurately recorded.

I want to again mention the difficulty in attempting to come to a conclusion about a diagnosis, particularly in a screening case, with absolute certainty. I do not think we can do that. It is a danger for that responsibility to fall on somebody because nobody will take a decision in such circumstances. People in authority will walk away if they are expected to take upon themselves responsibility for arriving at a diagnosis they cannot stand over because it is impossible to do so. The whole system is then affected and defective. We should not try and do that. We should, within reason, try to ensure that we apply the highest possible standards, that every possible effort is made to ensure that the procedures we put in place are followed to the letter and that a procedure is in place to do a fairly ready check to pick up any situation that might arise where mistakes might be made. There have been quite a number of mistakes in medical procedures of one kind or another in recent years, although that is not to suggest that those in the medical profession are to blame. I am not stating that they were right or wrong but this points to something we should all recognise. In that kind of profession, it is not always possible to be absolutely certain about what should be done in particular circumstances. There are other circumstances where it should be possible and, very often, procedures that should be followed are not, although that argument is not for tonight's debate.

When we look back, there was a serious flaw in the system. It had an 80% accuracy rate, or a 20% inaccuracy rate. That is a flaw in the system. The HPV test will eventually replace the old system. It is coming, and hopefully soon, but it is not fair to state that the Minister has deliberately dragged his feet or that someone else has failed to do his or her job. These procedures have to be put in place and that takes time. If one mistake was made in recent years, there is no use following it with another. What we put in place must be reliable and accurate, insofar as we can make it so, and we must be able to rely on the conclusions with some kind of certainty because otherwise we are going to find ourselves in this kind of situation in a few years' time trying to unravel something else.

In the past, there was a theory that a medical practitioner should not tell a patient everything. Does the Leas-Cheann Comhairle remember that? Medical practitioners did not tell patients everything because certain patients would not want to know. If diagnoses were not good, medical practitioners thought it better not tell patients. The diagnosis was wrong in some of those cases and the patient recovered. It does not follow that it is beneficial to a patient to keep information from him or her, or that he or she will benefit from that in years to come. The reverse is the case.

That leads me to my final point. Full disclosure is something that the health service is committed to in the future, and the sooner the better. Without prejudice, there is a need for a patient and community to know what happened. If there is a liability, we can spend all the money we want going through the courts and trying to prove it but it would help if, for example, the relevant medical institution was able to state that a procedure went wrong or that a mistake that should not have been made was made. Accidents will always happen. Medical institutions should say that not to boast about it, or pretend it was an achievement or something, but to at least put something in place that acknowledges there are two ways to go about this. The institution can tell the patient or his or her family that it is sorry the procedure did not go right and try to make amends in some way. That would cost an awful lot less than going through the courts to prove something one way or the other, or going to tribunals.

When full and open disclosure takes place and becomes commonplace, it must be observed in both the letter and the spirit. There is not much sense in having that procedure available to people unless it is honoured. Some will state that it will cost money. The simple answer to that is that it will be worthwhile if it helps the patient and does not cost more money than the alternative. It could not cost more because it is merely an admission that something went wrong. If something goes wrong in particular circumstances, it naturally follows that the patient or his or her family will follow it up with legal proceedings because they feel they have to and they feel like they have been put through the ringer in terms of stress and trauma. Why should they walk away without making a claim?

I stated many years ago that we should not be so ready to contract out tests of this nature. We should have the relevant facilities in this country. It is quite possible to provide all the necessary technology here that exists in any laboratory worldwide. There are good laboratories in my constituency and in many other places.

There is no reason we cannot invest in that technology. Some in this House will say it has become the practice in here that every time anybody looks to spend, people will say we cannot have that. If we cannot have it, we do not deserve to have a proper service of any kind. The children's hospital is very expensive but it is what we must pay if we want that quality and standard of service. We can play with the words as long as we like or we can just contract the job to people who provide the services. We need to invest in infrastructure in our own hospitals. We must put money into them and justify it rather than running away from the issue and making excuses. We should not be saying that people will be in trouble if they spend money. If we spend the money initially, we would do a great service for the people of this country to ensure they have available to them the best quality service on the globe.

I hope we have learned a salutary lesson and we will no longer have to tell patients, men or women, that we are sorry but we did not get something right when we thought we did. Things were said when the women involved with these cases were not being properly informed by their consultants, or in some cases where the consultant told the GP that the flow of information should be paused. It was a case of hitting the pause button and not telling the women until the clinicians saw what happened. No purpose was served by that action.

In the heel of the hunt, I hope we have learned that lesson and when this is over, we can put in place a system recognising the need to serve patients, with patients' interests coming first. I also hope we can raise the level and quality of our services, both at consultant and GP level, wherever they may be, to such an extent that we will not have to visit this scene or anything like it again. If we need arbitration in circumstances of this nature, it should be at the beginning. The matter should be referred to a tribunal, with people having the right to go to court if they are not satisfied with the outcome of that tribunal. That is always the way it has been and it is the way it should remain. We hope our small contribution to this debate is of some benefit to those who have suffered and the families of those who have passed away so tragically. We also hope this salutary lesson will stand us in good stead in future.

I welcome the opportunity to speak to this Bill and I will continue from where Deputy Durkan finished. A great debt of gratitude is owed to the women who came forward and shared their stories, Vicky Phelan, Ruth Morrissey, the late Emma Mhic Mhathúna and others, as well as men like Mr. Stephen Teap. Without them and their courage in coming forward and sharing their experiences, we could never learn the lesson mentioned by Deputy Durkan.

It is a lesson from which we need to learn. It is a lesson that these people have brought us and which should not have to be repeated. Despite being diagnosed with terminal cancer, each of the women have fought for fairness in our health system. It is because of these brave women that we are standing here to discuss the setting up of a CervicalCheck tribunal.

It is not easy to take on the State or companies with deep pockets. It is not easy to walk into that courtroom with barristers and be faced with an army of senior and junior counsels. It is not easy to experience the State using legal process as a battering ram and deploying major legal resources that an ordinary person could never afford. It is not easy to have personal details thrown around in a public courtroom or having well-heeled barristers delving into one's private sex life in an attempt to imply it is all, somehow, one's own fault. It is not easy, at the best of times, to go through intensive cancer treatment while at the same time having to sit in a courtroom. We must show empathy and understanding because we cannot imagine what it is like to be in the shoes of these women, having their families and managing their very precious time. We have all experienced a family member being affected by a cancer diagnosis somewhere along the line. We all know what cancer treatment does to people and how invasive and debilitating it is.

What is being proposed is not a simple solution by any manner or means and there is much pressure being felt by these people and their families. To an extent, the CervicalCheck tribunal will be a step into the unknown, as nothing of its kind has been established before. Several changes are needed to the Bill to provide additional protection to the women and their families. We believe this and we have heard other Deputies speak about this in some detail, including Deputies Alan Kelly and Catherine Connolly. The legislation should have been before the House a long time ago and the results for those involved could be mixed. However, in the round, we also believe that this process has the potential to benefit the women involved and make the experience less traumatic and quicker. We are supporting the Bill, as Deputies Donnelly and Butler mentioned earlier. Nevertheless, it is important that we comment on the legislation.

More than a year ago, the Taoiseach pledged that the State would be on the side of the plaintiff and on the side of the woman in these cases. He promised that no more women caught in the smear test scandal would have to go court. That was over a year ago but women are still going before the courts. Only last week Ms Ruth Morrissey was involved in legal proceedings. The Taoiseach promised the State would make good on women's claims and pursue the labs but it has not done so. It is hard not to conclude that much of the recent progress has been spurred on by the media attention to the current cases. I suppose the reason the media and everybody else has a very keen interest in this women's health issue is we all have a mother, a sister or a daughter. We can all relate to that one person. We all know the Vickys and Ruths. They are in our communities and talking to us. They are very engaged. It is hard not to be switched on and caught in the emotion because we can feel their pain. It is palpable. It could be me; I am lucky because it is not me but it could be me, my sister, my mother or my aunt.

The episode started last year when civil servants warned the Government weeks in advance about the potential impact of Vicky Phelan's case. Vicky is a strong woman but nobody would have thought that a person in the depths of her treatment would step forward and shine a light on the matter. Nobody thought she could be courageous and encourage others to have that same belief. These women got strength from the numbers of supporters and responses to the issue. There is always strength in numbers, although these people may not be in the exact same position. A vein of support arose because empathy took over.

We are better to be late than never. Women need and deserve an alternative to the public glare of the adversarial legal system, and the tribunal offers a private space where women can discuss what happened to them. It is an important option for those who want it and it is also important that we learn from it, as Deputy Durkan noted. That is why this measure is welcome.

This brings us to the question of who can access the tribunal. As the Bill stands, the tribunal will be open to any woman who was part of the original CervicalCheck audit or the follow-up audit by the Royal College of Obstetricians and Gynaecologists. Some women turned down the review from the Royal College of Obstetricians and Gynaecologists but in doing so they did not know they would therefore exclude themselves from access to this tribunal. That is what Deputy Connolly spoke of earlier and I completely concur that we need to provide an option for those women to be part of this process. Fianna Fáil believes all women who had the option of participating in the Royal College of Obstetricians and Gynaecologists review but turned it down should be offered it again, with the clear understanding that it would allow them access to the tribunal.

We will table amendments on this issue on Committee Stage.

We will also table an amendment on the legal costs. We all know that tribunals are not free. Women will need legal representation. Not every woman or family will be in a position to pay for that but every woman and family must have access to the tribunal and legal expertise and representation. Every woman needs to have her voice heard. Every woman should feel that her voice matters. Women should not be precluded from the process because they cannot afford the legal costs. If it is good enough on one side of the discussion, it should also be good enough on the other side. For those who cannot afford the legal costs, Fianna Fáil wants legal expertise and representation to be provided by the State and for that representation to be appropriate in terms of seniority.

The entire genesis of the tribunal was to spare the woman involved the trauma of a hostile cross-examination in public. It occurred to me when Deputy Kelly spoke earlier that people might not be comfortable talking about their sex life in public. If they want to be able to keep that information to the two legal sides and avoid the media reporting on it, their wishes should be respected. We cannot have any barriers preventing women from coming forward. We must have as much inclusion and learning from this as possible. The Bill, as drafted, achieves one part of this by moving the process from a public to a private setting. However, it still allows for an intensive, hostile cross-examination similar to what takes place in the High Court. Fianna Fáil accepts that in order to establish negligence cross-examination by both parties is required. However, such cross-examination must be proportionate. As such, the third amendment we will table will concern the legal mechanism to this end such as aggravated damage as a result of disproportionate cross-examination. It is the case that such mechanisms exist in the High Court and the Government will therefore be of the view that making this explicit in the Bill is unnecessary.

As a female Oireachtas Member, I was saddened in recent months by the length of time it has taken us to reach this stage. I do not want to get into a blame game but it has taken a while to get to this point. I know the parties concerned are happy to have this tribunal established. They are very supportive of it. It is our duty, as Teachtaí Dála, to have concern for the wishes of the people. The Bill is not perfect but we have to be supportive of it because we need the truth. We need to learn the lessons for women like Emma Mhic Mhathúna, who was so courageous, and their families and to ensure we can improve the position for women in the future. That is what this is about. I am both pleased and saddened to have spoken on the Bill.

I thank Deputies Bernard Durkan and Anne Rabbitte for their contributions and for their overall support for the CervicalCheck Tribunal Bill. I commend them on their measured and compassionate response to this particular issue.

I listened carefully to the speakers in the debate and the Minister for Health, Deputy Harris, and I will consider the issues that have been raised. We look forward to engaging with Deputies to do all that we can to ensure the swift passage of this Bill to enable these sensitive cases to be dealt with in a new forum that will be less adversarial than a court setting. I also commend the other Deputies who made contributions.

I note the proposed amendments mentioned by Deputy Donnelly and I acknowledge Deputy O'Reilly's indication that she and her party will table amendments to the Bill. The Minister and I will engage further with Members on those amendments.

I also want to acknowledge the concerns raised by Deputy Mary Butler relating to delays experienced by women. Some Deputies raised concern that this legislation has been too long coming. Others suggested that the Bill has been rushed. Obviously, there is a delicate balance to be struck, and I acknowledge both concerns. I believe we have had adequate time to consider the issues and have moved quickly to act on Mr. Justice Meenan's recommendations.

Deputy O'Reilly is correct that this is a new process. I agree that we need to listen to women, as Deputy Rabbitte stated. I understand that the Minister has reached out to the 221+ women and that a meeting and briefing will be arranged in the coming days.

The central purpose of the Bill is to implement the recommendations of Mr. Justice Meenan on an alternative system for dealing with claims arising from CervicalCheck. This tribunal is fundamentally different in character from tribunals of inquiry with which we have become familiar. It will hear and determine liability in regard to claims, subject to the consent of all parties, and will make awards in line with the principles governing awards in the High Court. This new process will have significant benefits for those people wishing to take a claim by adopting pre-claim protocols and practice directions that will make the hearings move more quickly and in a less adversarial forum than the High Court.

The tribunal will uphold the principles of justice and will only make findings of negligence where the evidence, considered to High Court standards, warrants such findings. These findings will be subject to High Court confirmation and can be appealed to the High Court, and thereafter to the Court of Appeal, on a point of law. The tribunal's hearings will be held in private except where the claimant requests otherwise and the tribunal agrees. This respects the privacy of the women concerned while ensuring that they are empowered to go public if they so wish.

In regard to the Ruth Morrissey appeal, to which Deputies Rabbitte and Kelly referred, Ms Justice Irvine has indicated that she will not begin hearings until the Supreme Court has issued its judgment in this case. We do not expect that this will cause any delay as the tribunal can begin pre-claim work in the interim and is unlikely in any case to be in a position to hear claims for logistical reasons until later this year.

In regard to the non-adversarial issue, I acknowledge that the tribunal will not be a fully non-adversarial process or a compensation tribunal. All women taking cases relating to CervicalCheck will continue to be offered mediation and I hope that many of these cases can be resolved in that way. I know that some already have been resolved. As Mr. Justice Meenan stated in his report, given the issues of liability that arise in the CervicalCheck claims, a redress scheme would not be appropriate.

In introducing the Bill, the Minister of State, Deputy Jim Daly, underlined the importance of moving forward with this legislation to set up a structure to deal promptly and fairly with the cases that have arisen out of the CervicalCheck audit process. This tribunal is a key part of our collective response to the CervicalCheck cases and enacting this Bill sends the message that we have listened to the concerns expressed by women who have taken cases to court and acted to provide an alternative, less adversarial solution.

I again underline the important features of this tribunal that distinguish it from the court process. As well as practices and procedures, the Bill provides for an independent facilitator who will convene restoration of trust meetings between women and their clinicians. This facility will be independent of the tribunal, the Government and the HSE and will provide a space where the experiences of women can be heard and can engage meaningfully with clinicians in a safe environment. This function will be available regardless of whether a woman chooses to take a case to the tribunal or the courts. It will also be available to women whose cases have already concluded. Deputy O'Reilly raised this point. Where trust in medicine, the screening programme or the State has been damaged, it is vitally important that we take steps to rebuild that trust.

The Minister and I look forward to our continued work together on the CervicalCheck Tribunal Bill, and as we move forward on implementing the recommendations of Dr Scally, including the move to primary HPV screening and the enactment of the Patient Safety Bill, which will provide in law for mandatory open disclosure in respect of serious patient safety incidents. On behalf of the Minister, Deputy Harris, who cannot be here, I stress that we all have a duty of care to work on behalf of all our citizens.

From contributions here it is clear that public representatives in this House have the same view of the importance of acting to deal with this promptly and sensitively. I thank Members and the Ceann Comhairle for the work that has been done in allowing the Bill to be brought to the House. I also wish to acknowledge the support of the Attorney General and his officials who have worked to develop the wording of the Bill that it could be brought to the House this week.

Question put and agreed to.