Dáil Éireann Debate, Wednesday - 15 May 2019
10. Deputy Stephen Donnelly asked the Minister for Health the implications for the National Screening Service of the recent High Court judgment in a case (details supplied); and if he will make a statement on the matter. [20743/19]
View answer34. Deputy Louise O'Reilly asked the Minister for Health his views on the future of the CervicalCheck screening programme and other screening programmes in view of the High Court judgment for screeners to have absolute confidence in their finding before giving the all-clear when reading a test slide, even though every screening test has an intrinsic error rate. [20834/19]
View answerAny conversation about the recent judgment in the case of Ruth Morrissey should start with an acknowledgement of the very brave stand she took. That is something we need to consider in the future when citizens seeking justice are faced with a wall of lawyers employed by the State. The State appears to use the law as a weapon in many of these cases. There is a great deal of concern about a particular element of the judgment and the phrase "absolute certainty" when telling someone a screening or test is clear. Does the Minister have an update on the potential implications of that judgment for the screening services and the wider healthcare services?
I propose to take Questions Nos. 10 and 34 together. I thank Deputies Donnelly and O'Reilly for their important and timely questions. We began to discuss this issue last week and it is quite right and important that we keep it on the agenda in the House. On the State and lawyers, it is very important that the State accepts liability in regard to non-disclosure in any of these cases, does not contest the matter and has set up an ex gratia payment scheme.
My officials and I, in conjunction with the State Claims Agency and the Office of the Attorney General, are carefully studying the recent High Court judgment in the relevant case. It is important that there is careful legal analysis of the judgment as an input to the proper assessment of its implications for the health service. Many well-intentioned people have commented on it, but very few of them are legal experts, as I am not a legal expert.
My Department has received correspondence from the HSE which sets out its concerns relating to potential implications arising from the judgment for screening services in particular. I am aware that concerns have been publicly expressed by some in the clinical community in recent days.
I ask that those in leadership positions in the medical profession work with me and this House during this time as we reflect on the judgement and form a fuller understanding of any potential implications. This will give us the necessary time and space to consider what actions might be required. I want the clinical community to know that I, as Minister for Health, the Government and, I am sure, the Oireachtas are committed to addressing their concerns and that we will work with them to so do.
I am conscious that decisions in regard to this case will impact individual women as well as having wider implications. I wish to reassure women, as will all Members, that the Government and Oireachtas are committed to ensuring that our life-saving cancer screening programmes can continue to operate to a high standard. I have no doubt that objective is widely supported across the House.
There has been much recent comment on this case. On many occasions since the CervicalCheck debacle of more than a year ago, I, the Government, the Oireachtas, the media and many others have been accused of a knee- jerk response. Such accusations were made for good reasons by those who made them, including Opposition Deputies. Now is the time for us to take a deep breath and put forward a calm, cool and collected response on this issue. I am happy to work with Opposition Members on it.
I wish to get a sense of the legal implications. What does "absolute confidence" mean? The Deputies and I may think it means one thing, but that may not be its legal meaning. What approach is taken in other jurisdictions in such cases? Mr. Justice Cross in his judgment and comments in the High Court on Friday referenced the fact that other jurisdictions have this stipulation and he specifically referenced Britain in that regard. He stated that he does not believe he has added a new test but, rather, that this is the law as it stands. Many others have refuted that claim. Deputy Donnelly articulated it well last week in the House when he asked how one can have absolute confidence when there is always a degree of clinical judgment.
I am conscious that although the debate to date has been about screening, it could have wider implications, such as its impact on diagnostics and so on. I am happy to keep in close contact with Opposition spokespersons on health on this issue. Although I am not asking for a significant amount of time, I suggest that we take the next couple of weeks to determine legally what this means, to see if there is a need for the State to seek legal clarity and, if that is necessary, how the State can do so in a way that does not have an adverse impact on Ms Morrissey, which none of us wants.
I thank the Minister for his reply. This is certainly an issue on which we need to work together. I presume the Attorney General is providing advice on it. I acknowledge that such advice cannot be shared directly, but I ask that it be repackaged into a report and that the Minister endeavour to get it to the Oireachtas and the health committee as quickly as possible. It should include the views of the HSE if they are not especially sensitive in order that we can start considering its viewpoint, which would be useful.
The judgment may be appealed, changed or overturned and the Minister will revert with legal advice in the coming weeks. In the meantime, there is widespread fear and concern among clinicians. As the Minister rightly stated, they are asking questions that go beyond screening and pointing out that the same issues exist with any diagnostics. Will the Minister consider as a matter of urgency convening a stakeholder forum with the professional bodies, the State Claims Agency, the clinical indemnity scheme, to provide reassurance to clinicians in the interim period while we are awaiting legal views on this in order that they are safe to continue practising, screening and diagnosing as they are today?
I welcome the clarification provided by the Minister and have no difficulty with the sentiment expressed about the need for cool and calm heads. I wish to take this opportunity to pay tribute to Ruth Morrissey, who has been to hell and back. The judgment raises concerns and has had a chilling effect across the clinical community. I am particularly thinking of Dr. Ailín Rogers, the chair of the Irish Surgical Training Group and a general and colorectal surgeon, who stated that the calls from outside the medical community for greater sensitivity in screening, although well meaning, are not necessarily going to advance things. The information should be shared not necessarily with Deputies, although that would be helpful, but with the clinical and medical community at the earliest possible juncture because I am concerned about the chilling effect the judgment has had. There may be an opportunity to address any consternation that may have arisen in the time between now and when the certainty or legal advice is made available. I echo the call for a stakeholder forum, which would be most welcome.
The Deputies' suggestions are very helpful and constructive. I concur that this is an issue on which we must all work and pull together and I have no doubt that we will do so. "Yes" is the short answer to Deputy Donnelly's question as to whether I will endeavour to find a mechanism to brief health spokespersons or the health committee on the legal advice or rationale behind any approach I may take. We will work out an appropriate way to so do. This is an issue on which I believe in sharing the maximum amount of information such that we can make informed decisions because there may be a need for this House to do something. There may be a need for legal clarity from the courts, legislative change or reassurance. We need to carefully tease through those questions.
I absolutely accept that there are concerns. I have heard them clearly. It is understandable that a person working on the front line of the delivery of our health service would have concerns on reading the judgment. I reiterate the call for time to seek a legal opinion. I make the point to all patients, particularly women, that our screening programmes are continuing and are safe to use. All Members would echo the fact that people should continue to use them.
A stakeholder forum is a very good idea. I have been considering it in consultation with my medical advisers and we have been trying to work out from a sequencing point of view the appropriate time to do that. The Deputies can take it as given that I will do that and will endeavour to do so quickly.
I thank the Minister for that commitment, which is very welcome. What is his advice for clinicians today? A significant number of nurses, midwives, doctors, radiographers, radiologists and others across the system will today carry out screening and diagnostic testing. We will await the legal advice, but is the Government's advice to them in the interim period to carry on as usual or is there any additional advice or information such as that they should do things differently?
In the absence of the advice of the Attorney General, which I appreciate takes time and, obviously, will not be fully shared with the House, although some version of it can and should be shared, the chief medical officer may have a role in engaging with the clinical community because, as has been pointed out, there is a vacuum and those in the medical and clinical community would greatly benefit from some direction. We are all very conscious that we do not want any knee jerk reactions.
We want to be measured. However, when someone like Professor Donal Brennan states that a woman with an entirely normal cervix could end up having a hysterectomy for no apparent reason other than nobody will say that the sample is normal, that is going to cause an issue, perhaps not in the short term but certainly in the medium term. That is a plea from the medical community for support and assistance. There may be a role in this for the chief medical officer.
I thank the Deputies again. My guidance to all those working in the health service is to continue providing the services we provide to women and men. Those services that have saved lives since we introduced CervicalCheck screening programme during the time in government of Deputy Donnelly's party. The mortality rates relating to cervical cancer have decreased by 7% each year. This is a programme that saves lives. For all the imperfections in screening, transparency and the like in recent years, it continues to do so. I ask those providing the services to continue with their work. I make that appeal in the context of last week's comments by Mr. Justice Cross to the effect that his judgment was being misinterpreted by some people. I do not believe that anybody out there is endeavouring to misinterpret what he said for any reasons other than good ones. I accept the bona fides of parties in this. We need to ensure that those analysing the legal impact are lawyers and legal experts. I will work out a way of sharing information with colleagues.
I wish to say to the medical profession, our clinical leaders and people working in the health service that we will engage with their colleges. That was and is our intention and I thank the Deputies for raising the matter. The chief medical officer will play a role in this regard. Dr. Holohan has shown leadership and has brought people together at difficult times in the past. I have no doubt that he will do so again.
