CervicalCheck Tribunal (Amendment) Bill 2021: Committee and Remaining Stages

SECTION 1

The amendments submitted under section 1 have been ruled out of order.

Amendments Nos. 1 to 3, inclusive, not moved.
Question proposed: "That section 1 stand part of the Bill."

I accept that the amendments have been ruled out of order. The Minister dealt with some of these issues on Second Stage with regard to recurrence and the Statute of Limitations and the reasons he was not able to deal with these issues at the time the tribunal was being established. He also stated while responding to Deputies on Second Stage, and in dealing with some of the issues addressed in the amendments that have been ruled out of order, that we have to wait and see whether more women will make claims. He stated that some women are themselves waiting to see how all of this pans out. On what is that based? Is it based on hope? Is it based on engagement? The engagement I have had with the 221+ group indicates that it does not expect more women to make a claim. I certainly am not going to offer an opinion to any woman as to whether she should make a claim before the tribunal because it is not my job to do so. It is entirely up to each woman, her family and her legal representatives. Each woman should be free to make whatever decision she wishes, rather than politicians or anybody else making the decisions for her.

I wish to read into the record a letter sent to the Minister. It was published. It is important because it deals comprehensively with the concerns of the 221+ group, which makes the arguments better than I could. The letter is dated 26 November 2020.

As we have outlined both in meetings and correspondence over recent weeks, the sole focus of the 221+ support group is and has always been to reflect and represent the views of our members whether that is in respect of the CervicalCheck Tribunal or any other matters arising from the past failings of the national cervical cancer screening system.

In respect of the Tribunal specifically your letter of 19 November set out clearly that it has not been possible to meet our requests on members’ behalf in respect of the Statute of Limitations or the issue of Recurrence on the basis that the advice received from the Attorney General on both issues is “unambiguous”.

We have relayed that position to our members and advised them seek their own advice on the matter. We have advised also that the talks in which we have engaged with you and your colleagues since 2 September last have run their course and that the letter of November 19, which was unambiguous in tone, represents the definitive position of Government on the matters outstanding.

Your letter of yesterday (Wednesday, 25 November 2020) now appears to contradict that position. You will appreciate that there have been a number of missteps on communication around this issue since the establishment of the Tribunal was first announced four weeks ago which have undermined the confidence of this group in the approach of Government.

In that context, it is unclear to us as to whether this most recent letter shows that anything of substance is being offered over that represented in the letter of Thursday last week. We are unclear as to how expressions of hope and an aspiration that “no woman will be left behind” would offer any relief from the obligations of the legal process as it would be applied.

If there is an opportunity to get the Tribunal to a point where it is fit for purpose for the women impacted, then we will play our part but as things stand, we would need to have an unambiguous commitment in writing and with any caveats set out clearly.

We cannot in conscience go to our members with anything less and it would be an abuse of their faith in us to offer only a verbal or second hand briefing of what seems to us to be a nuanced political promise rather than a formal commitment of government.

In the absence of that detail, we don’t see any basis to meet at this time. We would however be happy to consider a more developed explanation of this new ‘commitment’, written in consideration of it being shared with our members. Were that available to review, a meeting at that point may be an appropriate medium by which to clarify any matters outstanding.

I do not think there has been any correspondence since then or, if there was further correspondence, the public position of the 221+ group was that it did not have confidence in the tribunal and was disappointed that its concerns were not met. It certainly was not in a position to recommend the tribunal to women, but it did say that it was a matter for women and their families.

To bring up costs of the tribunal in the context of this issue can come across as crass because we all know that it should not be about costs. If the tribunal is fit for purpose and is working, it does not matter what the cost is because it needs to be in place. It is in place because women have been wronged. The tribunal is there to make it less adversarial, to give them an option other than the High Court and to give them additional comfort and support they did not have up to now. The problem is that is not happening.

I may be wrong and the Minister may be able to correct me if I am, but I referred to five cases earlier. Is it still five cases? Has the number gone up? It is a very small number. Surely the Minister must be concerned that the number of women who have availed of the tribunal and made a claim is low. Surely, as the Minister who set the tribunal up, that is of concern to him. It is certainly of concern to me and to the 221+ group. If the number continues to stay low and the deadline for women to make claims is extended by six months, and then maybe another six months, but no more women make claims, how long will the tribunal have to last, with all the additional costs that will incur, before there is a recognition that there is a more fundamental problem? That is a reasonable argument to make, albeit not necessarily in respect of costs but, rather, in respect of the rationale for a tribunal being in existence when it does not have the support of the very women it wishes to make claims before it. Those are reasonable arguments. I will say no more as I know other Members wish to come in and we are short on time. I hope the Minister will be able to respond to some of the points I have made.

Are any other Members offering on the section?

Are we taking the whole section together?

I believe amendment No. 2, which I tabled, has been ruled out order. Is that correct?

Yes. We cannot debate amendments that are out of order.

Okay. I wish to back up the arguments made by Deputy Cullinane. At the end of the day, there is a significant exclusion of all sorts of categories of women from the tribunal. For example, if one's case involves a spouse, one cannot go before the tribunal. That would mean that Vicky Phelan and Jim Phelan and Ruth Morrissey and Paul Morrissey would be excluded from the tribunal were they to try to apply to it. As I stated earlier, if Vicky's case was starting today, she would be totally excluded from it. The other category relates to dependent children in the context of families not being eligible to apply unless the cancer sufferer is dead. That would have excluded Emma Mhic Mhathúna. There is a significant gap in the Bill that does not allow for the representation that is required for families and women. The Minister should address that issue. I will later come to my amendment to section 2.

I too support the comments of Deputy Cullinane. Why is it so finite and why are so many categories of people excluded? Surely we should have a proper no-holds-barred investigation and proper access for all people. The access should not be as wide as a field, but anybody who was misdiagnosed or involved in this should have access, as should their families, no matter whether the woman is unfortunately no longer with us or is still alive or whether both spouses are involved or children are involved. I support that point as well.

I think there is broad agreement on accepting the section. As to the point made by Deputy Cullinane, I agree that, ultimately, this is a choice for women. It is a choice for the women and families involved as to whether they want to go to the tribunal or to the courts. There is an onus on all of us, as Oireachtas Members, to make the tribunal as advantageous as possible. The tribunal that has been set up broadly reflects what the House agreed to in the 2019 Act. The recurrence issue was then as it is now, as was the statute issue.

That was the Act that was passed. As I stated earlier, we have pushed in a lot of areas in response to very reasonable requests from the women, the families and the 221+ group, as far as we can. As Deputy Cullinane stated, it is not for me or for him to say what choice people should make. It is their choice.

What I can say is that having spent a lot of time last year going through what it means to go to court versus what it means to go to the tribunal, I believe there are some very important advantages for women and families of using the tribunal. I could not find any advantages that the courts provide over the tribunal. Essentially, whatever you have access to in the court you have access to in the tribunal, but the tribunal has advantages over the courts. When you line up the choice of going to the tribunal or going to court, I have not been able to see a single advantage of going to court, but there are very clear advantages to the tribunal, some of which we have agreed on today, including timing. Timing is a real issue here. The tribunal is much quicker. The premises have been set up specifically for the process. There has been very good feedback in respect of the facilities and how they are appropriate. The tribunal is set up in cognisance of the fact that the process needs to be dealt with in as sensitive a way as possible.

One of the points that was raised by several colleagues on Second Stage concerned the adversarial nature of the proceedings. It is worth responding to the points raised. I wholeheartedly agree with all of the comments made about the tribunal not being adversarial in the way that we all talk about things being adversarial, some of the testimony we all heard from women who were taking their cases, and the lines of questioning, which sounded completely unacceptable, around their sex lives and all sorts of things to potentially try to discredit them as witnesses. I found some of the questions to be outrageous. Indeed, one of the amendments that is tabled - I do not know if it is in order or not - addresses exactly that issue. It provides that aggravated additional damages could be awarded in the case of the use of an unacceptable line of questioning or harassment. Actually, the good news on that is that I do not need to accept the amendment because it is already covered. When the Bill was being passed, I raised this matter, as I am sure other colleagues did. It is already allowable within the tribunal and indeed within the courts. To lawyers, the term "adversarial" just means they are allowed to cross-examine. The way we all use the term "adversarial" is different from that. We do not use it in the technical sense. We use it in the sense that none of us would accept these women and families being harassed under hostile cross-examination. The tribunal is very sensitive to that. It has been set up to try to deal with that as well as it can be dealt with. However, there is one important caveat, namely, cross-examination, which is what the lawyers refer to as adversarial. That is part of the process. Indeed, I know from my own meetings with the 221+ group that the members accept that negligence has to be established. It is accepted that for negligence to be established, questions have to be asked. Indeed, representatives from the laboratories have to be cross-examined.

Therefore, the tribunal is set up to be as unadversarial as possible in the sense of how we all use the term. I think that most people agree - and the 221+ group members in their meetings with me have agreed - that negligence needs to be established. It is not a redress scheme. It is about establishing negligence and then the State pays. The State has an indemnity agreement with the laboratories and it deals with that end of it. The State pays.

I am loath to interrupt, but there are only 16 minutes remaining.

I beg your pardon. I will address the last point very quickly.

Thank you, a Cheann Comhairle. It concerns eligibility. I am very sympathetic to expanding eligibility. An opinion was given some time ago in favour of allowing the current groups to have access to the tribunal. However, I think there is a case to be made for the expansion of that. Indeed, the memo that I brought to the Cabinet on Tuesday addressed exactly that issue. It is something we can look at

Question put and agreed to.
NEW SECTIONS

I move amendment No. 4:

In page 4, between lines 6 and 7, to insert the following:

"Amendment of section 17 of the CervicalCheck Tribunal Act 2019

2. Section 17 of the CervicalCheck Tribunal Act 2019 is amended by the insertion of the following after subsection (6):

“(7) The Tribunal shall be entitled to award aggravated damages in circumstances where—

(a) the Tribunal determines that a claimant has been cross-examined in an unnecessarily aggressive and/or adversarial manner by a respondent, or

(b) the Tribunal determines that the respondent advanced a defence that it knew or ought reasonably to have known was not justified by the evidence available to that respondent.”.”.

First of all, when the Minister said he cannot see the advantages of going to court, I suggest he might ask the women what advantages they see in going to court as distinct from the tribunal because clearly they are walking, talking and voting with their feet on this issue.

I know that the Minister tabled this amendment previously. I basically copied and pasted the Minister's amendment from the last discussion that we had before the CervicalCheck Tribunal Act was passed. The former Minister for Health, Deputy Harris, told the Minister that he should not worry and that aggravated damages are allowed for in the circumstances. If the Minister has accepted that, and he has repeated it here today, that is fine. However, since there is a huge kickback against this tribunal and all of its mechanisms from the actual sufferers themselves, I ask the Minister how he can guarantee the provision for aggravated damages. Therefore, I ask him to accept the amendment, because it copper-fastens the idea that aggravated damages will be awarded rather than just accepting that it is something that is stated. We have not seen anything here that would make women want to go to the tribunal more than the High Court. Considering the lack of trust that they have in the tribunal, accepting and passing this amendment might at least signal that we are serious about addressing their concerns.

The Minister stated that he would like to see a broadening out of the circumstances under which women can go to the tribunal. Why is that expansion not contained in the Bill today? If eligibility could and should be expanded, why is that provision not being brought before the House to address the concerns of the 221+ group? The group members' impression of the discussions they had with the Minister was that they were not listened to. If the Minister is listening to them and he thinks eligibility should be expanded, the provision should be brought before the House.

I did not realise the Deputy had copied and pasted my own amendment. It looked very familiar. Indeed, she will be aware that when I tabled the amendment, the then Minister for Health, Deputy Harris, told me that the powers were already provided for in the High Court and at the tribunal, because it replicates the procedures in the court. I checked that myself and received exactly the same advice that it is covered. I am satisfied that the tribunal already has exactly the powers that the Deputy is calling for in the amendment, and indeed, that I called for previously.

While we are talking about some of the advantages of the tribunal, I will set out one that I think is important. Unlike in the courts, the tribunal has very extensive procedures for non-expert witnesses, as they are known. For example, women can give their statements in writing. Responses to questions can also be given in writing. Some real thought has been put into this to prevent the circumstances under which some of the more adversarial interaction, which I think we all disagree with, can happen.

There is no need to accept the amendment. I am satisfied that the powers are already there. However, I thank the Deputy for raising the issue. I absolutely share the core concern that she has raised.

I do not understand that response. We have all gone through the debate here today, as short as it was. It was a short debate on a most important topic. The Minister is telling me that the safeguarding of women against adversarial proceedings is built into the process, but the provision for it is not in the Act. If the Minister accepts that, and I am tabling the amendment that he originally tabled, why would he not accept the amendment, at the very least to indicate to those who do not trust the tribunal that he is trying to establish at least an element of trust? There is enough lack of trust in the tribunal, particularly in the case of reoccurrence, which we have discussed. The Minister gave a convoluted answer about how to prove reoccurrence.

It is simple medical science. A biopsy is taken to show whether the cancer is a recurrence of the original or a new cancer. It is not rocket science; it is medical science. The Minister needs to give at least some reassurance he is taking this issue seriously. Ruling my other amendments out of order on the basis of cost was slapping this down. It does not make sense to slap down amendments based on cost because I am an Opposition Deputy and cannot incur a cost to the State. What we are trying to do here is make a tribunal process fit for purpose. At the moment, it is not. It is not me saying this; it is those who are suffering. They are not going to the tribunal. They will likely choose the courts instead of this very inadequate tribunal. Therefore, I ask the Minister to accept, at the very least, an amendment that would indicate he means what he says rather than saying the powers already exist.

I want to make a contribution on the amendment and make a wider point. The amendment seeks to improve the working of the tribunal. What we are all trying to do is find ways in which we can make the tribunal more attractive to women so they can make a claim in the first instance. We have had some discussions on the advantages of the court system by comparison with the tribunal. It seems the only thing we are doing here today is extending the timeframe for a woman to make a claim. Will it be possible at any other time to make changes to the tribunal process, or is it the case that it simply cannot be done and that the only option is to leave the tribunal as it is such that no changes of any description can be made, whether through amendments by us or anybody else, and to extend the time period? The core problem is we are just extending the time period in which women may make claims but we are not dealing with any of their concerns. In some respects, that is why this legislation could be a wasted exercise, keeping in mind all the additional costs it will incur.

I thank both Deputies for their comments. On Deputy Smith's remarks on the amendment, the powers are contained in the Act. The 2019 Act essentially states the procedures, powers and running of the High Court are transferred to the tribunal. That is how this power is brought across. It is already in the Act. I do not believe it would be wise to complicate the Act, which has been legally and constitutionally proofed, by inserting in the Bill duplications of its powers. If the Deputy is asking me again whether I am satisfied the powers are available to the tribunal, my answer is that I am. I tabled the same amendments myself so I am very sympathetic to them. The powers already exist.

Deputy Cullinane asked a fair question. On the first aspect, the answer is "Yes”. The purpose of this very short Bill is to extend the time period. On the question as to whether that excludes the possibility of making changes, we have already discussed the potential for expanding eligibility, for example. Maybe that could be done through regulation or maybe it requires legislation, but if it requires legislation and we can agree on the parameters in that regard, we can legislate.

If, in the running of the tribunal, problems occur that require legislative change, of course we will all be able to meet and make that change. If the question is whether there is an intention to change the parameters now according to some of the issues that have been raised, all I can do is repeat — I hope colleagues will take this in good faith — that the Department and Government, as with the previous Government, have pushed these issues as far as they can go without making the tribunal unconstitutional or simply having the laboratory say it is just going to the High Court. We really did push it as far as we believed it was possible to push it. Therefore, I do not believe there is anywhere else to push. If, as the tribunal occurs and the cases are heard, the judge or women involved raise questions in respect of which it appears there are changes we should make to the operation of the tribunal, we should keep the matter under review and have the conversation. If we all need to come back with amending legislation, we should keep an open mind on it.

Deputy Smith has a right of reply.

I want to reply to the Minister because he said at the outset the Bill was necessary because time is of the essence and people are very sick and need access and things to move along. Why, therefore, did he not listen to the women and their representative organisation, the 221+ group, when they made the point to him that eligibility criteria to gain access to the tribunal must be extended for it to be real? If it is not, the Minister is excluding around 300 women from access to the tribunal. That is why there are so many cases waiting in the High Court. If the Minister believes we can sit around and wait to see what happens at the tribunal in the belief the eligibility criteria may need to be extended and, if they do, legislation can be brought to the House, he is making a negative case for himself. If the Bill is about time sensitivity, let us expand the eligibility criteria now and give the women access to the decent, proper, fully representative tribunal they have asked the Minister for. It is not as if he has not had negotiations with the representative group. It is very much representative of most of the women affected but it was not listened to. It is not as if the argument has not been heard. It has been heard by the Cabinet, including the Minister, by all sorts of people the group has appealed to and written to, and in negotiations the group has had to walk away from because it was so frustrated.

Where will this end up? Will it end up with a tribunal that will take years and years, after which we will all be scratching our heads saying we should have extended the eligibility criteria to include dependent children and spouses and that we may have been wrong? The Bill does not represent time-sensitive behaviour of a Minister. If the Minister believes the matter is time sensitive, he should behave accordingly and introduce the measures now rather than wait to hear the response of the women. He knows what it is. They have already told him.

Does the Minister wish to comment?

I think we are-----

We are practically out of time.

I am very happy to respond. I am not trying to dismiss what the Deputy is saying at all. The Bill before us is to extend the time. The Deputy has asked me very reasonably whether we will consider extending the eligibility criteria and I am just saying we will. She is making the point there is time sensitivity and urgency. I accept that. It is not a matter for the Bill before us today, however. The Bill before us is simply about timing. On the Deputy's question as to whether we will consider eligibility, the answer is "Yes." On whether we will do so with urgency, the answer is also "Yes."

Amendment put and declared lost.

I move amendment No. 5:

In page 4, between lines 6 and 7, to insert the following:

"Reports

2. Within 3 months of the passing of this Act the Minister shall prepare a report for the Oireachtas which shall detail---

(a) the costs of the Tribunal to date,

(b) the spend on the Tribunal's own costs,

(c) and the amount spent on compensation to victims of screening failures, and

(d) the numbers of applications to the Tribunal,

and provide to the Oireachtas a statement on whether the current Act is fit for purpose in addressing the issue of negligent screening practices and its impact on the woman affected.".

This is simply asking that the Minister prepare a report within three months of the passing of the Bill on the costs of the tribunal to date, the expenditure on the tribunal's own costs, the amount spent on compensation to victims of screening failures and the numbers of applications to the tribunal. It also asks that he provide to the Oireachtas a statement on whether the current Act is fit for purpose, particularly in addressing the issue of negligent screening practices and their impact on the woman involved. It is self-explanatory. I would like the Minister to accept it.

I have a question. I asked several parliamentary questions on the cost of the tribunal. I keep repeating that the cost is not the fundamental issue. The fundamental issue is to make sure we have a tribunal that works. Obviously, we also have to watch costs. By extending the time period by six months, taking that as the first part, are there are any anticipated additional costs? What are the expected annual running costs of the tribunal? As a consequence of this Bill being passed and the extension of the eligibility period for six months, what will be the anticipated cost above the overall operating cost we have already been told about?

On Deputy Cullinane's point first, I will get him an answer on that. It is important to note that significant costs have been incurred and most of these are fixed costs relating to the premises. The running costs are much lower. By extending the tribunal for six months, we are not doubling or near doubling the costs and the facility we have will be available for a long time to come for other uses as well.

On Deputy Smith's amendment, the tribunal is currently required to submit its annual report for every financial year to the Minister for Health under section 35 of the Act and the first annual report was submitted to me on 25 June. The Act provides that the Minister can publish the information in the tribunal's annual report if he or she thinks fit and I am undertaking to make a summary of the information submitted to me by the tribunal available to Deputies for its 2020 report. An amendment to facilitate that is not necessary as I will be doing it in any event.

To address Deputy Cullinane's point on details of the tribunal's accounts, many of these have been released in reply to parliamentary questions but I am certainly happy to share any and all costs and financial information.

The time permitted for this debate having expired, I am required to put the following question in accordance with an order of the Dáil of 6 July: "That in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Title is hereby agreed to in Committee, and the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed, and the Bill is hereby passed."

Question put and agreed to.

The Bill will now be sent to the Seanad and my thanks to everybody involved in this piece of business.