I welcome the Minister, Deputy Harris, back to the House.
CervicalCheck Tribunal Bill 2019: Committee and Remaining Stages
I move amendment No. 1:
In page 7, line 6, after “audit” to insert “or otherwise”.
This is a straightforward amendment which was proposed in the Dáil by my colleague, Deputy Kelly. It provides for broadening the scope of the women who can be included in the tribunal. I would appreciate the Minister's view on this.
I would also like to say, as I am sure the Minister has anticipated, that it is important for him to put his views on the record of the House in respect of the revelations overnight about CervicalCheck screening. We all listened with horror to the testimony from Sharon on "Morning Ireland" this morning as well as to the contribution of Lorraine Walsh. Confidence in the cervical screening process is critically important, as the Minister has said many times. In fairness to the strong advocates who spoke this morning, they have always said that. It is bizarre that we are in this situation. I will not say that nothing has been learned but mistakes are still being made and the loop is not being closed. General practitioners need to be included in the loop. As I understand from the women's comments this morning, GPs did not have the information to give to women who had had smear tests done. It is extraordinary. The longer people have to wait, the more concerned they become about their health. What is the Minister's view? Will he provide any clarity on what emerged overnight? I am not at all accusing the Minister of deliberately concealing this. I would not do that. However, there was a view expressed by the Fianna Fáil spokesperson for health on the Seán O'Rourke programme today that the issue was not brought to the attention of the Dáil yesterday. The Dáil is now in summer recess but the Minister has the opportunity in the Seanad to make his views clear. I have no doubt that the women in the 221+ group and all the women of Ireland would appreciate hearing his views as a means to provide confidence around this process.
I welcome the Minister and support Senator Nash in proposing the amendment. I also support Senator Nash in seeking a statement on the overnight revelations about the 800 women who have seen delays in the disclosure of their results due to an IT fault. I listened to what Lorraine Walsh and Sharon said on the radio this morning and was struck by the fair comments that IT faults happen but the failures in communications and getting back to people after the IT fault are a real cause of concern, particularly in light of all the ongoing issues around CervicalCheck. I would welcome a statement from the Minister. I am conscious that those who spoke on this Bill on Second Stage yesterday did not know about the issue, nor did those who spoke in the Dáil.
While it is important that we set up this tribunal, there are issues arising. I wrote to the Minister on another aspect of concern, namely, a circular issued to all CervicalCheck clinics over recent weeks. In some cases, GPs may have identified a person for whom the waiting time for the results to come back might be too long and may have taken decisions about trying to fast-track that person. Now CervicalCheck is advising that even where results come back as abnormal, if the GP refers the person back for further investigation, it appears the clinics are saying they are not prepared to put the women on the list because they have not come through the public screening process. The reason the GP may have referred the person for immediate screening and an immediate result is out of concern for the health of the patient. The clinics do not appear to be taking on board genuine concern that is being expressed by a GP that something needs to be fast-tracked. I am concerned about the circular issued in the past four or five weeks to the clinics. We need clarification on that matter as well.
I support the amendment. I also refer to the unfortunate blunders that seem to be repeated in the cervical screening programme. The news from last night further undermines the programme and we cannot afford it. In the words of Deputy Louise O'Reilly of Sinn Féin, it is incredibly regrettable. Surely the HSE should have informed these Houses as soon as it discovered this glitch in June, which concerns 800 women who had repeated the test because of the previous scandal. A female friend of mine had a test in December and only got the results a week ago. It is a very long wait. In some cases it is far too long. Have the resources put into the screen test been improved? Will the Minister spell this out? What is the average wait for these tests? How can we proof against an IT glitch? This is a serious credibility issue for cervical screening. Women's lives have been lost, sadly, and we will lose others in the future.
I welcome the chance to be in the Seanad for what I hope will be an opportunity to pass the CervicalCheck Tribunal Bill 2019 so that we can provide an alternative pathway to the courts system for women who are seeking justice and answers in respect of a botched retrospective audit and all the pain, suffering and damage that caused. I am happy to take the opportunity in Seanad Éireann, at the request of Senators Nash and Bacik, to comment on the situation regarding the 800 women. I do so in the context that we have made a lot of progress in recent days and weeks on CervicalCheck and on some of the issues. We now have a situation where the backlog of smear tests is significantly reduced. I expect it to be gone effectively, as a result of the additional capacity, by the time these Houses resume. We have secured additional capacity in labs that have been accredited and have met what I call the Scally standard. I have met Dr. Scally to ensure he is satisfied with the standard of those labs as well. This means the programme can continue and women can continue to be called at regular intervals, something that was in doubt in recent months.
We are preparing to move to the HPV test. We will be one of the first countries in the world to do so. It will reduce the number of false negatives and false positives, which is important. There are plans in place to roll out the HPV vaccine for boys and that will begin in September in schools. We are continuing to push back against the misinformation regarding the HPV vaccine for girls and we are seeing some encouraging signs in that regard. We can state with honesty that within a generation we will be able effectively to eradicate cervical cancer in our country. It is important that women know that according to the most recent report of Dr. Gabriel Scally the laboratories being used are safe and accredited. I sometimes hear comments above and beyond what is in the Scally report. Dr. Scally was clear in that regard.
Of course, the issue that has recently emerged is a source of great frustration, annoyance and worry for women and I hope I can provide them with some reassurance this morning. Most importantly, I hope and expect that the chief clinical officer of the HSE, Dr. Colm Henry, will soon provide commentary regarding the clinical risk. I do not want women to be worried about a clinical risk that may not exist, although the matter is still extremely upsetting and frustrating from an administrative point of view. We need to try to provide reassurance from a clinical perspective regarding this impact.
Last Tuesday, the HSE advised the Department that it became aware in June that due to an IT issue at a Quest Diagnostics laboratory, several results letters were not issued to women or their GPs. The HSE also advised that it is working to ensure that all women and GPs are informed and receive the results. Communications are ongoing with the group of women identified as not having received results. My understanding is that from today GPs will receive the results manually, which is very important. It should have happened previously and it is extremely frustrating that it did not. While the electronic issue is being dealt with, the manual results can be sent to GPs from today.
For the group of women who, regrettably, were not issued with a results letter due to this IT issue, it is important to state from a reassurance point of view that the tests in question were primarily repeat HPV tests carried out in the Chantilly laboratory between 1 October 2018 and 25 June 2019. It is important to state that this test was carried out as a precautionary measure. Senators will recall discussions previously in the House after Quest Diagnostics advised CervicalCheck that HPV testing was carried out initially outside the recommended timeframe on several cervical screening samples. Senators will remember that Dr. Peter McKenna, clinical director of the national women and infants health programme, stated that there was no or very low clinical risk in that regard. As the women affected and their GPs were advised at the time by CervicalCheck's clinical team, these tests were carried out to provide reassurance and women's original HPV results were unlikely to change. That is a very important message for the women of Ireland to know. The overwhelming majority of the tests were precautionary and carried out to reassure, as explained by the HSE and its clinicians at the time, and it was highly unlikely that results would change as a result of this additional test.
The HSE stated that it has identified a small number of tests affected by this issue that were carried out outside the period described above and it has contacted these women directly to communicate their results. That is important because there are women at home today who are wondering whether they have been impacted by this issue. There are two groups involved, one of which involves women who have been contacted directly by the HSE and another of women for whom it was a precautionary test with a result that is highly unlikely to change and in regard to which Dr. Peter McKenna stated there is very low clinical risk. I hope that provides reassurance while not taking away from the rightful annoyance that people should feel regarding this situation happening again.
The existence of an IT issue was identified following engagement in June by my Department with the national screening service based on representations from an individual. I welcome the fact that the HSE has rightly apologised sincerely for the IT issue and the confusion and worry it is likely to have caused for the individuals concerned. I understand that the HSE is now confident that the IT system in the Chantilly laboratory can generate electronic results for women and GPs. The HSE will continue to monitor closely and engage with the lab in this regard. It goes without saying that my Department will also continue to monitor very closely the situation and engage with the HSE in this regard.
It is important for women to know that letters are being issued to women today. It is important for them to know that the overwhelming majority of the tests relate to a test done for reassurance, a precautionary measure involving a result that is unlikely to change. I am not taking away from the rightful annoyance people have in this regard, but I hope that provides some degree of clarity and reassurance. Dr. Colm Henry, the chief clinical officer of the HSE, will engage and communicate on this matter today to provide further reassurance and clarity from a clinical point of view to the women of Ireland.
On the amendment, I wish to acknowledge a number of very helpful amendments tabled by the Labour Party in the Dáil, several of which I was able to accept or adapt to a version which I brought forward on Report Stage in the Dáil. The amendment regarding providing women with an additional six months beyond the Statute of Limitations if the tribunal was not in a position to help was particularly constructive. We had good engagement on the issue of free legal aid and the scope of the tribunal, to which this amendment very much directly relates.
We asked Mr. Justice Charles Meenan, an eminent judge with a long track record in the area of clinical negligence, to look at an alternative pathway for the 221 women who have been affected. We then decided it right and proper to include those who are going through the Royal College of Obstetricians and Gynaecologists, RCOG, process where discordance may be found and that it was also appropriate to include the small number of women whose slides were missing or not located in time for them to participate in the RCOG review. The group of 221 or more women where there is discordance, those who participate in the RCOG review and where there is discordance and the small number whose slides were missing such that they could not participate in the RCOG review to determine discordance are all included in the current scope of the tribunal.
During discussion of the Bill in the Dáil I was asked to consider widening that scope to include women who decided for a variety of reasons which we should not second guess that they did not wish to participate in an independent audit and, as such, were not audited by CervicalCheck's retrospective audit. They may have declined to participate in the RCOG process so far, but may reconsider with the establishment of the tribunal and should be given one more opportunity to decide. I am sure some women will decide to participate while others will decide that their cancer journey is in the past and they are happy to leave it there. Different women will make different choices. I could not progress that measure in advance of the summer recess due to legal issues and the requirement for Government approval, but I intend to return to the Oireachtas early in autumn to widen the scope in order to offer those women who have had cervical cancer and are known to the cancer registry but, to date, opted not to participate in the RCOG review one more opportunity to participate. That proposal met with cross-party agreement and satisfaction in the Lower House and I hope it will receive a similar response in this House. Obviously, I want the Bill to be passed such that during the summer months Ms Justice Mary Irvine and others can begin the process of establishing the tribunal.
I thank the Minister for giving a statement on the new revelations about a group of 800 women whose results have been delayed and for giving them reassurance. He stated that these were primarily repeat tests. Is there a small number which were not precautionary repeat tests?
On the amendment, Senator Nash and I are seeking clarification. The Minister stated that he accepts that the scope of the tribunal could be broadened and he intends to return to amend the Bill in the autumn in similar terms to those of the amendment. The amendment would provide some flexibility through the inclusion of the words "or otherwise". The amended subsection would refer to women "whose cytology slides were re-examined as part of the retrospective CervicalCheck cytology clinical audit or otherwise". We are not being prescriptive in the amendment. Rather, we are seeking to be constructive. I thank the Minister for acknowledging the role of Deputy Kelly and the amendments tabled by the Labour Party during the passage of the Bill through the Dáil. It seems odd that the Minister is willing to move in the autumn to include our amendment or an amendment in similar terms but cannot accept it now. I seek clarity on whether I understood him correctly in that regard.
I would love to be able to accept the amendment now as it would be easier to do so and would save coming back in the autumn. Being frank, the challenge in accepting it is that it would go much further than I am willing in terms of broadening the scope. Following very significant engagements on the matter, including with members of the Senator's party, I am happy to widen the scope based on what was a very strong view across the political spectrum that we should provide women who said no to the RCOG review with another opportunity to have an independent review.
In fairness I do not think the Senator has asked me to but I am not willing to go beyond that and leave this as a standing tribunal for people at any point in the future. The phrase, "or otherwise" is very broad and would effectively create a standing tribunal.
What the amendment has not done for obvious reasons but what I will need to do, and there was an understanding of this in the other House, I will need to be quite prescriptive on how that independent audit works. As Senators will know, we have had the CervicalCheck audit. We have had the RCOG review, which is a very independent and robust process. We obviously need to have a situation whereby it is very clear what the criteria are for the audit and obviously it needs to mirror the RCOG review or something very similar. There is a little bit of work to do to get this right. I am saying on the record of this House, as I said on the record of the other House, I will be back early in the autumn and I have some drafting done on this already to expand the scope to include that group. There is also a lot of work under way on the Scally recommendations on the future of audit. I am not proposing at this stage, and it would be unwise to so do, to expand beyond that group. For that reason and that reason only, I am not in a position to accept the amendment today.
I thank the Minister for his update on the IT glitch. Many women will view one blunder as unfortunate but a second blunder involving 800 cases is carelessness.
The Minister referred to the Scally standards for extra capacity. Have some of the previous companies that took on this work been found lacking and let go contract-wise? How many of the previous companies that were at fault have been let go and were told we are no longer interested in them because of their standards?
We are not not interested in anyone because of their standards but as we all know from Dr. Scally's two reports, it is absolutely true that labs were used that were not properly accredited and the governance structures were questionable. He did not find safety issues, as we all acknowledge, but that does not take away from the fact that there were serious shortcomings in governance dating back many years. The programme today has two arms. There is the Coombe Hospital here in Ireland that carries out roughly 10% of smears and there is now Quest Diagnostics, which does the rest. All of the laboratories being used by Quest Diagnostics have been accredited. I personally met Dr. Scally and asked him eye to eye whether he was satisfied with this and whether they were meeting his standards. He is satisfied. I have also said on the record if not of this House then certainly of the other House, and this is no reflection on Quest Diagnostics, that instinctively I would like over time to be doing more here in this country. The move to HPV testing gives an opportunity to reconsider that. As the Senator will know, I have already committed, and it is in the various implementation reports regarding Dr. Scally, to expand the capacity of the Coombe's laboratory facilities. Even if one pressed go on that today I am advised that it is at least a two to three-year project. I do believe and would like to do more here in our own country. That is the ultimate direction of travel.
On that point and the other points, I expect that many of us want to be consulted about the amending Bill the Minister intends to bring forward in the autumn.
On what was said about the quality of diagnostics and governance, on Second Stage I indicated my concern about public procurement. I have had some indications that that would not be within the scope, potentially, but I am sure we will get a chance to discuss the tribunal's recommendations.
The Minister has given some assurance about this specific issue. In terms of the general issue, I am sure he will be aware that I have brought forward legislation that seeks to ensure we use a price-quality ratio model with an emphasis on quality as the default position, rather than the lowest cost model when it comes to public procurement and that lowest cost would become the exception rather than the rule. This is particularly important in areas such as health and social services as they have a direct personal impact on citizens. I am hoping that as well as learning within the actual issue of CervicalCheck in terms of screening now, that there is also some extrapolation and a further review or consideration of other procurement within the health services in trying to ensure, across the many areas where contracts are being given, that a greater emphasis is placed on quality and, indeed, that the quality route within public procurement is taken, ideally, as the default mechanism. I ask the Minister to comment.
I am sure that the Minister will use this opportunity to clarify why the word "primarily" was used. I appreciate if he would respond to Senator Bacik on that issue, which is an important point to make, and he is free to use that opportunity.
On the remarks that the Minister made about the IT glitches and the revelations overnight, including on the Tuesday that was referenced as the date when the HSE and the Department became aware of the problem. The Minister made the very alarming point that it took a woman to make the complaint in order that this issue could be examined and investigated. That is extremely concerning. Can we be confident that these things, insofar as one ever can, will not happen again? Confidence in the system is so important. I have incredible admiration for the 221+ group and their selfless campaigning advocacy work for the women of Ireland.
As I said during the Second Stage debate yesterday, this is not just about the concerns of the group or of women who are affected. This is about culture change and making sure that our systems change. We have a tendency in this country, unfortunately, when issues like this arise for the bureaucracy to circle wagons around itself to protect itself and for the political system to protect itself. That is simply not good enough and I hope that the Minister would agree with that.
Is he confident that had this woman not come forward to make the complaint, this issue would have been uncovered? It is important to reflect on that aspect. We could have a situation where the women and their GPs would not have received the reports on the 800 tests. Inevitably somebody would come forward but that is not good enough in terms of governance. I would appreciate if the Minister would respond to my concerns. Only for one woman made a complaint we would not know about this, which is not good enough.
I do not have the figures sought by the Senators. I am sure the HSE will provide them and, I, indeed, have sought them.
Senator Higgins made a fair point about procurement that is very much aligned with Dr. Scally's findings. He did not quite say this but he certainly alluded to the fact that during certain years, price became a bigger ratio than it had been previously. That is something we need to reflect on. I personally think we need to reflect on an even broader point, namely, how to arrive at a point where we can provide these services in our own country. In terms of Sláintecare, the agreed health policy and the road to universal healthcare, there will always be a need for outsourcing but we should not be satisfied - I am not satisfied - that if we need X-rays done today, we still must bring in private contracts to help to breach gaps in the public health service. Over time, we must try to lessen that reliance, while accepting there of course will always be a degree of procurement and outsourcing in contracts. I take the point made by the Senator and I am happy to further engage with her on this broad matter.
I concur with the Minister that publicly delivered health services is the ideal.
I thought that the Senator would do so. That is now the agreed policy of the Oireachtas. We have come a long way from very different views, including within my own party, on how the delivery of healthcare should be provided through insurance models, Dutch models, etc., to an agreed platform now that is through universal healthcare. I regularly get misrepresented on this but that is absolutely my view, the view of Government and the view, I think, of all parties in the Oireachtas. That in and of itself is quite substantial progress.
On the issue raised by Senator Nash, yes I am confident the issue would have been resolved because it was being worked on. It is quite clear that it was being worked on, that the IT system was being updated and the like. I am absolutely also confident that it is now being resolved much quicker and much more speedily thanks to that woman coming forward because what appeared to be an individual representation from a woman saying, "Hang on, I went to my GP and my results were not there" provoked questions from my Department to the HSE and to the laboratory, which highlighted the fact that this woman was not on her own.
I fully agree with the comment about confidence in the programme that was made by Senator Nash. I certainly do not attribute this to any comments made in this House this morning but we need to be careful every time an issue emerges about screening that we do not allow a situation to develop whereby women are left unnecessarily worried from a clinical perspective. That is something on which we can all agree, which is not to take away from this mess in terms of communication.
That should not have happened. It is right that the HSE has apologised. The matter needs to be resolved. This should not happen again and lessons must be learned.
All of that is true but I am also conscious that many women go for smear tests every year. Thankfully, even through the CervicalCheck controversy, the number of women going for smear tests has increased dramatically . We are seeing new women who have never been screened previously. It is encouraging that, even with all of this discussion about screening, women are going for smear tests in even greater numbers. This shows a confidence in the programme. However, I do not want to have a situation whereby, when something from an administrative or an IT point of view goes wrong, many women are left worried from a clinical perspective, particularly when the advice available to me is that the clinical risk is very low. I hope and expect that the HSE and its clinicians will provide much greater reassurance to women on that matter this afternoon.
Is the amendment being pressed?
We are pressing it.
Amendment No. 2 is in the name of Senators Bacik, Humphreys, Nash and Ó Ríordáin.
I move amendment No. 2:
In page 10, line 18, to delete “audit.” and substitute the following:
(c) seeking damages under paragraphs (a) and (b).”.
This is essentially a technical amendment. Our party's view is that the suggested wording we are putting forward would tighten up the section somewhat. That view was also expressed in the Dáil. It is not just semantics. We believe it would make the particular provision much more robust.
I just want to voice my support for the amendment. We are putting it forward again in a constructive manner, as we have done throughout the process, in order to try to ensure that the legislation is strengthened.
To reiterate what Senator Nash said about confidence in the system, it is welcome to hear the Minister state that the numbers of women going for cervical screening have increased even through the controversy. When we talk about that, we should acknowledge the huge contribution made by Vicky Phelan and so many of the other women affected by the controversy who have always been clear and strong in stressing the ongoing need for women to avail of cervical screening. That has shored up the confidence in the system. It is important to state that.
I could not agree more with Senator Bacik. For people who have every reason to lose trust in parts of our health service or who, like Vicky, Lorraine, Stephen, Emma and so many others, have gone through bad experiences to still come out and promote screening is something for which I, in my role as Minister, am extremely grateful. It is also something that I know will help continue to save lives and ensure the sustainability of our programme. Not to digress from the Bill but in my first conversation with Vicky Phelan on the phone she said, "I want something good to come out of this." In fairness to her, the 221+ group and many other people, including a large number of clinicians, that is what they have worked day and night to make happen to the point where I, as Minister for Health, can say that we can effectively eradicate cervical cancer within a generation. That is not pie in the sky or a lofty political promise. It is happening in Australia and New Zealand. It is on the way to being done in Scotland. There are so many illnesses and diseases in respect of which we do not have solutions. This is one for which we have screening and vaccinations, the treatments are getting better and the international evidence is very encouraging. The focus we have put on that arising from great adversity and tragedy will save lives in the future. I just wanted to agree with Senator Bacik in that regard.
This amendment was put forward by Deputy Kelly on Committee Stage in the Dáil. We had a good debate on it. The Deputy put the amendment forward in a construction fashion, as the Senators are doing again today. I gave an undertaking to the Deputy that I would seek legal advice on foot of the discussion we had at the health committee. It was not semantics but a question as to whether the wording could be better. I sought legal advice from the Attorney General. Deputy Kelly informed me that he seeks his own legal advice. I do not know whether that is from Senator Bacik or others-----
-----but he often believes he has better legal advice than me - perhaps he does - although I am very satisfied with the advice I receive.
The Minister must be coming down with-----
The Senator's party has a proud tradition of attracting barristers, and many eminent ones. I sought legal advice from the Attorney General and the Office of the Parliamentary Counsel, OPC, and they confirmed to me that the current structure of the provision is very much in line with the drafting practice that takes place in these Houses and that it allows for either or both categories of claim to be pursued. The construction, as it stands, is very much in line with all the other provisions of the Bill and with drafting practice. The very strong view of the OPC is that it is preferable to maintain it as stands and that it does exactly what the Senator would like it to do in terms of recognising both categories.
Is the amendment being pressed?
Amendment No. 3 has been ruled out of order because of a potential charge on the Exchequer.
Can I get an elaboration on this section? The Minister was very clear as to the reason we proposed to introduce this particular amendment. I understand it was not taken on Report Stage. It was discussed on Committee Stage.
It was ruled out of order.
On what basis was it ruled out of order?
It was ruled out of order not by me but by the Ceann Comhairle.
It was ruled out of order in the Dáil by the Ceann Comhairle.
Is the same device being used here?
The same principle applies but it was separately ruled out by the Cathaoirleach also.
The Minister knows what we were trying to achieve with this amendment. Now is the time where we are establishing-----
The Minister does not have any role in ruling out amendments. It is a matter for the Chairs.
I appreciate that is the case under Standing Orders. I beg the Leas-Cheann Comhairle's indulgence to allow me put on the record of the House the reason we tabled this particular amendment. Deputy Kelly was very clear as to the reason. Amendment No. 3 is supported by the 221+ group for very good reasons. We are now setting the rules of this tribunal and, in essence, this amendment is trying to make sure that in respect of a woman who goes to the tribunal and gets an award, if her condition deteriorates, for example, if a woman is in remission and if her condition relapses, she could be enabled to return to the tribunal to perhaps achieve an additional award to reflect the changed circumstances she is experiencing. We understand that if one goes to the High Court and one gets an award, the facts are found, negligence and liability is identified and an award is made, one cannot return to the High Court to achieve an additional award; essentially, one cannot go back to the High Court with the same case. However, we are making these very important rules as to how this tribunal will manage its own affairs and we have only one opportunity to do that.
I want to put on record again the view expressed by Lorraine Walsh from the 221+ group. Deputy Kelly put this on the Dáil record this week also. She states:
I am thankfully cancer-free right now but I, or anyone else, cannot know if it will come back in the future. So, it would seem crazy for me to sign away my rights to something I cannot know will happen or not. I get checked regularly for the very reason of a possible recurrence. The rest of the women who are thankfully alive or are not terminally ill are in the same boat. Why would we sign away that right when we do not know what the future holds?
My understanding is that the Minister may have expressed the view that when the judge and the team at the tribunal are assessing the level of awards and the quantum of money that might be awarded when liability, negligence and so on is found that they factor in any future developments that might occur including relapses, remissions and possible return of a fatal cancer, for example. I am not certain that this is achievable. Every case has to be considered on its own merits and now is the time to deal with these very important issues. This is not the High Court. It is a tribunal. We, as the national Parliament, set those rules and we cannot miss the opportunity to get this right.
I think the Minister has explained this matter. In fairness, we have appointed a judge to chair this tribunal and two other people with at least ten years experience will be appointed to the tribunal. One of the major issues in assessing damages is the foreseeability of something happening in the future.
That is what a court will have to do in assessing damages. Likewise, the tribunal will have to take a high probability of cancer recurring into account. If that is highly likely, and in most cases it is, the compensation will have to reflect this likelihood. The award is made on the basis that there is a very high probability of recurrence. That is what the tribunal is for, that is, to make sure that people are compensated in the appropriate way. That includes taking something that is highly likely to happen in the future into account in the assessment. It is important that this message goes out. The impression may be given that women are only being compensated for what has happened. We must also remember that they are entitled to compensation for what may happen in the future as a result of negligence that happened in the past. That is important.
Senator Nash is correct. Deputy Kelly and I have had very long and intense discussions on this, for good reason. As the Cathaoirleach, and the Leas-Cheann Comhairle in the other House, made very clear, the Minister has no role in ruling amendments in or out of order, despite assertions to the contrary. There was a bizarre situation in the other House when an amendment was ruled to be in order on Committee Stage and out of order on Report Stage. I do not understand that. I have no difficulty with speaking on the amendment, whether it was ruled in or out of order. I am certainly happy to speak to the section and I very much appreciate and respect the bona fides of Senator Nash and others in putting this forward.
However, I also need to be truthful. This is a voluntary tribunal. It requires both parties to sign up to any case. It requires a woman to say that she is happy to have her case heard by the tribunal. It also requires a laboratory to say the same. What this amendment effectively suggests would accidentally make the tribunal redundant because no third party would ever sign up to participate. I do not want to accidentally set up a tribunal to which parties will not sign up in practice. We cannot do so because the amendment was ruled out of order anyway. I also do not want to set up a tribunal similar to the one following the hepatitis C scandal. In fairness to Deputy Kelly, he conceded the wording of one of the earlier iterations of this amendment was effectively lifted from the hepatitis C legislation. That legislation provided for a compensation tribunal. This is not a compensation tribunal, but rather something we have never done before in the history of our State. It is not a tribunal of investigation or a compensation tribunal but an adjudicative tribunal. We have never set one up before in the Oireachtas. The compensation tribunal pertaining to hepatitis C was very straightforward in many ways. People were effectively infected with contaminated blood by the State and therefore compensation was to be to be paid out. Claimants' illness and well-being were monitored. This is not a compensatory tribunal. It is an adjudicative tribunal. It is an alternative to the High Court but it operates on the same principles to establish negligence.
I must make a point which my colleague, Senator Colm Burke, made very well. He knows this from his own legal background. The High Court factors in the likelihood of recurrence every day of the week. This tribunal can do that as well. I do not need to tell Senator Burke, Senator Bacik or any legally minded Members that when a case goes before a court a judge looks at the impact of the situation to date as well as the future. It will be the same in the tribunal. In preparation for this debate I have read examples of how High Court judges have done this. Where a boy goes before the High Court and it is established that there is only a 50% chance that he may develop epilepsy in the future, the judge factors that in and makes an award on the basis of future medical impact. Deputy Kelly made some flippant comments to the effect that judges cannot predict the future. Of course they cannot - they are human. However, they can listen to expert medical advice on the likelihood of recurrence and further injury. Members do not have to take my word on it. We could fill the tables in this House with case law in that regard.
Senator Nash is entirely correct. This is a very sensitive matter which we have a duty to get right. I have consulted with the Attorney General, the State Claims Agency, relevant experts and the tribunal. I am satisfied that the manner in which the High Court deals with potential future harm is the appropriate way to deal with cases before the tribunal. We have to ensure this tribunal operates within our constitutional framework. In all cases where an award is made it is the full and final settlement of the claim. However, that has been misrepresented in recent days to suggest that people cannot pursue fresh causes of action. Of course a person can pursue a fresh cause of action. In the other House Deputy Donnelly very helpfully asked if going before the tribunal would prevent an applicant from pursuing a fresh cause of action should one arise. Of course such an applicant could pursue this action. An applicant is not waiving her right to take a future action if a fresh cause occurs. To be frank, it is factually incorrect to suggest that members of the Judiciary do not factor in the likelihood of recurrence on a daily basis.
However, in the interests of maintaining what has been really good bipartisan work on this legislation, I have already given a commitment to meet with all health spokespeople to make available to them the experts and officials that have been available to me over the summer and autumn period. I will do this in advance of coming back with the miscellaneous Bill to expand the scope. If the Labour Party and others feel strongly about it at that stage there will be another opportunity for debate. I try to accept and work with as many amendments as possible. I have very serious concerns about the unintended consequences of this amendment. They are not just my concerns but those of people whose judgment and discretion I value very much.
I appreciate the motives of the Cathaoirleach and the Minister. The Minister is not obliged to respond to me but I am grateful that he did.
Amendment No. 4, in the names of Senators Bacik, Humphreys, Nash and Ó Ríordáin, has been ruled out of order due to a charge on the Revenue.
I move amendment No. 5:
In page 13, line 31, to delete “and the Tribunal agrees that it would be appropriate to do so,”.
The Minister and others have spoken very eloquently in this House and elsewhere about the contribution made by many of the women affected by the CervicalCheck scandal. It has had very deep and personal effects on their lives, in some cases causing the loss of their lives. Many of these women have raised their voices in a very positive way to highlight the importance of the human papillomavirus, HPV, vaccine and to talk about screening and the reality of CervicalCheck and how it affects them and their families. It was mentioned earlier that at each stage of this process individual women have continually pushed for standards to be raised. They have demanded more and they have been very clear that we need a new culture now. This was echoed in Dr. Scally's report. We need to move past the culture of silence and circling the wagons. We need to move to a health system in which women's voices and experiences are heard and recognised. That must carry through to this tribunal in its adjudicatory function.
In that context I have a very serious concern about section 20 of this Bill. As the Minister said, we are attempting to do something new here, but some old language has reappeared. Section 20 includes the phrase "Hearings generally to be otherwise than in public". This means that these are again to be private hearings. That will be the norm except where a claimant requests for the tribunal to hold a hearing or part of a hearing in public and the tribunal agrees that it would be appropriate to do so.
Here is my concern. If a woman wishes to have her hearing in public she should have it in public.
There are exceptions which have been mentioned in correspondence from the Department regarding a single sentence but that is not the issue. If part of the way through a process, a woman may feel she wants to switch to a public process because of how she is experiencing it and because of the fear many women have of the very adversarial relationship the State has sometimes had with them. As such, this is something that gives that assurance that they will be able to have their hearings in public or to move to a public hearing if they so wish. That is vital. The language, unfortunately, of the section as drafted echoes directly the language we saw in relation to the mother and baby homes commission which said specifically that evidence would be received in private except where a witness requests to give evidence in public and the commission grants that request. We have the exact same dynamic. We know the reality in relation to mother and baby homes was that many requested to have their evidence heard in public and had that request denied. We have in our past experience a situation in which women have felt further silenced, even in the arenas in which they should have got justice, and were denied the right to have their voices heard. The Minister will understand people's concerns. We talk about restoration of trust and I recognise the Minister is trying to engage in that process. However, it is a major project and we have very real issues with trust in the State. One of the things that is important is that sense of openness.
My amendment suggests simply that where a claimant requests the tribunal to hold a hearing, or part of a hearing in public, the tribunal shall conduct the hearing, or part of the hearing, in public. It seeks to remove the fear that the tribunal will simply determine that. The Bill includes no measures as to how the tribunal would determine that. There is nothing in the Bill about what the tribunal would consider to be appropriate. There is no caveat and no mechanism to appeal. The Minister might give me an initial response as to how he thinks this can be addressed. Can he accept my amendment today or consider it for the next Stage? How can the Minister assure the House that we will not have a situation in which women are silenced in this process?
I can see where Senator Higgins is coming from. In fairness to the tribunal, however, and Ms Justice Mary Irvine, who has been appointed as its chair, where an application is made for a matter to be held in public, she will give serious consideration to it being held in public. There is no major concern about it being held in public. However, for people to take part in the tribunal, they have to agree to it. That includes the HSE and the laboratories. This is about getting everyone into the tribunal. This is not about hiding any information. In fact, many women would prefer it to be held in private rather than in public. However, if it arises that a person wants the matter to be held in public, the tribunal has that discretion. It is important that the tribunal has the discretion rather than to set it out in black and white that it must hold a hearing in public once an application is made. The tribunal has to take into account all the parties involved and I have no doubt the people who will be appointed to the tribunal will come to fair decisions in relation to determining any such applications.
I understand absolutely what Senator Higgins is trying to do here. While I agree with what she is trying to do, I am not in a position to accept her amendment today. However, I would like to do more work on this whether through the legislation or through the tribunal setting out greater clarity on its own rules and procedures, which will not, of course, be a matter for me. One hopes the tribunal will reflect on how it might provide reassurance in a published document that women, lawyers and, indeed, all of us will be able to see. The Senator is correct that what we are trying to do here is provide an alternative to the High Court. We cannot remove people's right to go to court and we should never suggest that. Everyone has a constitutional right to go to court. We are trying to provide an alternative pathway. We asked Mr. Justice Meenan to look at this in his report and one of the major positives he outlined from this model versus the court is that a woman would not have to set out her intimate details in public. As we have seen, that has been deeply traumatic for people. The idea here is that the default position in court is that hearings are held in public and that justice must be seen to be done in public. What we are doing as an Oireachtas is saying the default position is to hold a hearing in private. However, we are also saying we cannot silence women and tell those who would like their hearings to be held in public that they cannot be. We are trying to get this balance right. The default position is a private hearing to protect the woman and not, by the way, anyone else. If the woman would like it to be in public, she should have that right. If the woman would like some of it to be in public, the woman should have that right too. The legislation discusses that being partial or full.
The tribunal is even making arrangements with the OPW and so on to make facilities available for hearings to be held in public because it is likely that its regular set-up will not have such facilities. However, it is at that advanced level of planning. The tribunal is also at an advanced level of planning in terms of working out how to indicate at an early stage whether a woman would like a hearing to be in private or in public and it is going to provide in its pre-claim protocols a mechanism for a claimant to indicate whether she wishes her hearing or any part of it to be in public. This will allow a hearing to take place in a different location if required. The tribunal has confirmed to me that it has no intention of rejecting a reasonable request for a public hearing. This is where we all get frustrated with the legal language of what is a reasonable request and what is appropriate to do.
My understanding from engaging on this matter in recent days is that there must be fairness. If one decides to hold one's hearings in private, that is absolutely one's right. If one decides one wants part of one's hearing in public, that is also one's right. However, one must also then allow the right of response to be in public also. We cannot have a situation in which clinical negligence lawyers put forward a viewpoint about our screening programme in public to which the health service does not then have an ability to respond to in public also. There are public good issues here and a degree of judicial discretion that is probably appropriate, albeit I can see entirely what the Senator is worried about. None of us wants to think the tribunal will tell someone "No, you cannot have your story told in public." That is not the intention of the tribunal nor is it the intention of Ms Justice Mary Irvine.
While the Senator points out rightly that there are no caveats or expansionary clarifications in the legislation, which, with the benefit of hindsight, could be helpful and while I cannot wade into this space, my gut instinct is that the rules and procedures of the tribunal could provide a degree of reassurance. I am very happy, while respecting its independence, to reflect this discussion when liaising with the tribunal and to ask how it can provide that clarity. It is not its intention to stop people from telling their stories in public; quite the opposite. We expect that many women will go through this process because they would like to have their privacy protected and not to have the trauma of being photographed walking in and out of court every day. I can only imagine how difficult it must be for very ill people. That is the intention but I can see why the Senator is concerned.
I thank the Minister for his response. If we are having a discussion about what is reasonable, I will note a couple of points. I appreciate the point that one should not be able to say "My words will be documented but the response will not be." That point has been made to me and it is fair enough. That is the kind of nuance that may be there. However, it should also not be the case that if one does not specify at the very beginning that one wants a process to be in public, that route is then closed off. For many people, it is only when they find themselves in a process that they feel isolated by it being in private. That can happen and it can be people's experience. They may wish to say they would feel better and more supported if the hearing was in public. Indeed, I am finding that some people consider privacy important but that others find speaking about their experience publicly to be very important for their own process and healing. That might be something that is important. In that context, we must ensure it is not a matter of saying a room is already booked and it is too late for someone to change her mind. People will sometimes wish to change their mind. While I am reassured to hear the OPW is seeking spaces in that regard, the Minister will understand the concern that the State has form on this and that form is that it says "No" to public hearings. That is the precedent and that is the context.
That is why there is somewhat of a burden of proof on the State to indicate that it will be seeking to respect the voices of women.
I appreciate that the Minister is suggesting that it may be that the tribunal procedures may be able to clarify how this will be determined. However, I would like an assurance, if possible, from the Minister that if the procedures that probably will be set up with the passing of this Bill over the summer do not adequately address this issue, we will have the opportunity to address this issue in the legislation that the Minister has indicated he plans to bring forward in the autumn. It is very important that it be addressed and that it not be an ambiguity. It should be borne in mind again that these are private individuals from every walk of life. We should not have a situation where they are having to navigate any kind of complicated process to have their views respected and reflected.
There is another area, which we will come to in sections 32 and 33, where I have similar concerns about the voice of women and how it may be reflected or sensed. I would like to have an assurance that if we see a pattern of refusals of requests emerging, the Minister would be prepared to come to this and to the other House to address that.
As Members, many of us have been contacted by women involved in other processes where the State has failed in its relationship with women and they have found they have no route to be heard. So often, many of us as individual parliamentarians have been asked to bring the voices and experiences of women directly and indirectly through. It is very important that the direct voice is always heard wherever that is sought.
I thank the Minister and would like to work with him over the summer on this issue. I expect that it will be addressed in the autumn legislation. I will press the amendment now as it is an important point, but I hope we will send a satisfactory signal to women. I will raise a similar concern on section 33 when that section arises.
I wish to speak on section 31. My issue relates to section 32 as well. I can speak twice or in a combined manner, as the Acting Chairman prefers.
Yes. The Senator should proceed on section 31.
This section relates to a point I will address in section 32 on recommendations to the Minister, whereby all those involved in a meeting make recommendations to the Minister. I simply note that in section 31 the facilitator has been appointed by the Minister. In that context, the concerns I am going to raise in relation to section 32 may be addressed in the implementation of section 31.
My concern in section 32 is that recommendations to the Minister require the agreement of all who are present at the meeting. We should never have a situation where, if there are strong recommendations, the facilitators, who are, as we see in section 31, appointed by the Minister, should effectively act as a filter whereby those recommendations from women do not reach the Minister.
I will come again to the concern I have on section 32. They are intertwined but perhaps the Minister can assure me that in his or her appointment under section 31, it would not be the intention of the Minister that the facilitator appointed would serve to block or effectively ensure that only recommendations pleasing to the Minister would be put forward.
The Senator is making a reasonable point. It is certainly not the intention that that would be the case. The facilitator has a role to play. The point needs to be made that part of the restoration of trust meetings will be about both sides putting forward their viewpoint. Whereas women have been absolutely hurt and let down in this process, which is beyond question, there are also learnings and inputs from the clinical community as well that we want to be sure to capture too. Beyond the facilitator, the judge - the tribunal - also has the ability to make recommendations to the Minister, which I would publish anyway but which, under this legislation, I am duty-bound to so do as well. I will reflect on the Senator's points but I am satisfied that they can be met through the implementation process.
To build on the point made earlier, subsection (10) of section 32 reads: "A restoration of trust meeting may with the unanimous agreement of those participating in the meeting make recommendations to the Minister." My concern again is to ensure that a facilitator appointed by the Minister, as one of those participating in the meeting, would not have an undue chilling effect on the making of recommendations. The Minister has indicated his intention to direct that, but it is something that we in the Oireachtas would be concerned about.
The Minister might address the ancillary concern of those of us who are fellow legislators and public representatives that these recommendations are directly to the Minister. Perhaps he might indicate how he intends to engage with us as Oireachtas Members on the recommendations that may be made to him. I am aware he may not wish to publish the proceedings of those restoration of trust meetings.
This Oireachtas has shown a great ability to hold me to account. I take questions on CervicalCheck very regularly in the Oireachtas, and rightly so, and I expect that to continue, as it should. I also expect that I will be sending the recommendations to the appropriate Oireachtas committee, which I instinctively presume will be the Joint Committee on Health, although it could cross over to the Joint Committee on Justice and Equality.
For the record of the House, I want to reference section 31(4), which reads, "The Facilitator shall, subject to this Act, be independent in the performance of his or her functions under this Chapter, and shall in particular, be independent of the tribunal and its functions". While, as Minister of the day, I certainly appoint many people - I appointed Dr. Gabriel Scally, for example - they are appointed to be very independent, and I believe we have a proud enough track record of those people showing and asserting their independence. That would certainly be the type of person I would intend to appoint.
I thank Seanad Éireann for its constructive consideration of the Bill and for providing the time, and using it efficiently, to get this measure passed. Everyone in this and the Lower House worked to try to reach a commitment to get the Bill passed before the Houses rose for the summer recess. It was an extraordinarily demanding timetable and it could not have been achieved without the co-operation of this House, for which I want to express my gratitude.
I thank Mr. Justice Charles Meenan for undertaking the difficult task of trying to find an alternative to the courts system and for reporting in that regard. I also thank him for the way in which he went about his work and his engagement with the labs, the State Claims Agency, Dr. Scally and, most crucially, the patient advocates in the 221+ group. I thank them in particular for feeding into the process.
Commitments were made in good faith, but finding an alternative to the court process has not been easy. With the passage of this legislation, however, we now have a number of avenues. We have the ex gratia scheme for non-disclosure, where an independent panel will pay out €20,000 where there was not a disclosure or an appropriate disclosure. That is the State rightly putting up its hands. We have the mediation process that the State Claims Agency goes through. This has seen a number of cases successfully resolved. We have the courts, which are available to anyone under the Constitution. We now have an alternative pathway being opened up through this tribunal Bill. It is not perfect, but there is not a perfect model for dealing with such a challenging situation where an adjudication needs to be made. Mr. Justice Meenan outlined clearly how he believed this to be a better way for many women. I hope that proves to be the case.
I thank Ms Justice Mary Irvine for agreeing to take on the job of chairing this tribunal and those who will join her, whom we will appoint shortly. The judge has a long track record as an excellent and accomplished member of the Judiciary and has a deep understanding of the issue of medical negligence. She is also a compassionate individual in how she goes about her business.
I thank the Office of the Attorney General, including the Office of the Parliamentary Counsel. A great amount of work has been done on trying to get a Bill together that respects the constitutional position of our courts. I thank my officials, including Mr. Greg Dempsey, deputy secretary general, Mr. Stephen Brophy and Mr. Eddie O'Reilly, for the large amount of work they have done in not just helping me to get this legislation through, but in engaging with Members on their amendments.
I hope that this will be another resource that helps to provide a different avenue than the courts system to women who want justice, answers and the restoration of trust process and, where negligence is found, want and deserve compensation. I thank Senators for their co-operation.
I thank the Minister for introducing this legislation and getting it through both Houses. It is important and it is crucial that its provisions be available to people who have had to go through the trauma of the past 12 months. Options now exist that did not previously.
Where testing is concerned, we are very reliant on resources from outside the State. We should set out a clear programme so as to ensure that all of this work moves back to Ireland over time. Enterprise Ireland and IDA Ireland are working hard to get foreign companies to set up operations in Ireland. However, we have a situation here whereby work that could be done in Ireland is being sent abroad and that is leading to the creation of employment in other countries. Regardless of the type of medical lab work involved, we should try to develop the relevant services here rather than sending tests to other countries.
It is important that we recognise those who work in the medical service and want to provide the best possible level of care. That has got lost in the debates of the past 12 months, but a large number of people working in our medical services, be they doctors, nurses or support staff, work day in and day out to do that. They provide the care and the requisite follow-up treatment, but they need resources. A major challenge in recent years has been our very good medical staff moving abroad because they do not find working in Ireland attractive. We must ensure that the challenge is lessened and more people can remain to provide the service required by Irish people.
The numbers participating in the screening programme have increased dramatically in the past 12 months. People have confidence in it, but this Bill is about ensuring they can have absolute confidence that they are getting the correct results and that there are no errors being made in the system.
I thank the Minister for his work on this matter.
I also thank the Minister for his work. I commend his officials on the intensive work that they have done. It is only appropriate that that be recognised in the House. We often fail to do so, or at least do not sufficiently recognise what the Civil Service and our State agencies do in working with us to address the concerns expressed in the House and reflect the will of the people.
As the Title suggests, this Bill is an alternative to the court process. In light of the context and sensitivities around these issues and cases and how the events of recent history have placed them at the forefront of people's minds, it is important that this process be as non-adversarial as possible insofar as an adjudicatory tribunal process can be. We need to be mindful of that.
I wish to recognise and be associated with the Minister's comments on the appointment of Ms Justice Irvine. I understand that she has a significant track record, is a woman of humanity and compassion and will expertly and sensitively deal with the cases before her. I have absolutely no doubt about that.
I wish to reflect on the initiative taken in this legislation concerning the restoration of trust meetings. It is an important innovation. I am interested in the restorative justice process and its principles. We might be able to learn much from this. It will be a valuable opportunity, not just for the women themselves, but for the State to learn lessons about how we handle such issues and experiences.
To the fore in our minds should always be the women who have been affected by this issue. That is the case when every Senator contributes to a debate on it. Women like Vicky Phelan, Lorraine Walsh and Emma Mhic Mhathúna, who tragically lost her life, and families like the Teaps are steadfast campaigners and advocates. They do not campaign on the basis of what is good for them or what their experiences have been. Instead, they use their experiences to try to change this country and ensure that we learn lessons and change the culture of how we do things. That is central to the process arising out of this legislation.
I pay tribute to my party colleague, Deputy Kelly, whom the Minister will agree has done remarkable work on a cross-party basis to ensure that the State's response to this scandal is robust, sensitive and fair and that we learn lessons about how to prevent situations like this from happening again.
I want to put on record my thanks and appreciation for my colleague, Senator Bacik. I also thank her colleague, Deputy Kelly, for the excellent work he has done on this issue and for the support he has given to the 221+ support group. This work and support has also been acknowledged by the women and their families. I know the Minister has acknowledged this in the past himself and continues to do so.
I welcome the Bill and all the work the Minister and his Department have done to get us to this point. It is fitting that this is the last Bill to be discussed this session and that a sitting was held to ensure that happened. I do not want to allow the opportunity to pass without emphasising something that all of the women affected by this issue have emphasised. I commend them on their courage in seeking justice not only for themselves, but for others. We must learn from the mistakes we have made. To err is to be human, and that will always be the case, but if we learn from the mistakes we make we can make great strides. I emphasise, as have these women, the importance of screening. Many lives have been saved, and will continue to be saved, not only by this screening programme, but by other screening programmes within the health service. I thank the Minister, who has put so much work into this and who has done so much to bring it where it is today.
As Senator Nash has said, the key thing today is the women who have been affected, the more than 20 women who have died, and the women who generously gave the last part of their lives to raise and highlight these issues. I refer to people like Emma Mhic Mhathúna, who has been spoken about; Julie O'Reilly; and Orla Church, who died during the long process of seeking justice through the High Court system. We hope that as this tribunal begins to operate, which I hope will happen as soon as possible, it will expedite access to justice and support for all women affected by this. This is part of the work to restore trust. I commend Dr. Scally on his report, which was seminal because it pointed to the wider culture of misogyny and of silencing women. Our health service and our culture in respect of women and women's health need to change and I hope this Bill will be one more small building block towards that change and that the recommendations about both this issue and culture and practice in our health service across the board, which will come through from the women who have directly navigated this system, will really be heard and reflected.
Another campaigner and woman affected, Vicky Phelan, has been extraordinarily strong in giving leadership on the HPV vaccine. Women's gynecological and obstetric health is under threat internationally from things such as the global gag rule and the international clampdown on some services available to women. I hope that Ireland will learn from its negative experience. I commend the Minister on having championed the HPV vaccine. I hope Ireland will champion this vaccine and related issues of women's health internationally through our international programme. We have an opportunity to own the mistakes we have made and to allow this to make us a stronger advocate on these issues internationally.
I again offer my condolences to all families who have been affected by this. I thank them for the service they have done this country in terms of bringing us forward.
That concludes the business of the Seanad today and, indeed, the business for this term. Colleagues will know that we expect this to be our last sitting in this particular room, the historic ceramics room, as we hope to return to the original Seanad Chamber in September. I put on the record our acknowledgement of the National Museum of Ireland and thank it for its co-operation in facilitating continued sittings of the Seanad. I also thank the Houses of the Oireachtas Commission and the Office of Public Works for overseeing the works. I wish colleagues, Seanad staff, the Bills Office, and all of the staff of the Houses the very best for the summer. I sincerely hope everyone has a nice summer and enjoys some downtime with their families. I thank everyone for their support during the term.