The issue of recurrence has been examined in great detail by the government as well as the previous government and I have engaged in extensive consideration on this most sensitive issue.
The form of the CervicalCheck Tribunal is based on the report of the Hon. Mr. Justice Charles Meenan on an Alternative System for Dealing with Claims Arising from CervicalCheck. In his report Mr. Justice Meenan explained the limitations of the screening process and the implications that these limitations have for the issue of liability with regard to CervicalCheck claims.
Mr. Justice Meenan considered the appropriateness of a redress or compensation scheme to address claims arising from CervicalCheck and referenced such schemes including the statutory Hepatitis C and HIV Compensation Tribunal. Mr. Justice Meenan advised that such a scheme was not appropriate for CervicalCheck cases as in those schemes it was not necessary to prove negligence or breach of duty for compensatory damage, and instead recommended a format that would allow the issues of liability to be addressed.
Judge Meenan recommended that the Tribunal would have power to determine issues of liability and award damages on the same basis as a judge of the High Court, and that the Tribunal legislation should require the Tribunal to hear and determine claims on the same basis as that Court.
Accordingly, the Tribunal will make awards relating to recurrence in the same way as the High Court. That is, an additional amount can be made as part of the Tribunal settlement, to factor in a future chance of recurrence.
An advantage of the Tribunal over the courts is that, if a claimant does not wish to accept the amount awarded by the Tribunal, they can appeal to the High Court, an extra step that would not be available if the claimant had gone directly to the High Court. However, just like the Court system, a claimant cannot return with a second claim in respect of the same event years later. Providing for eligible women to return to the Tribunal for additional claims would also require the Tribunal to be in existence indefinitely.
In his Report Mr. Justice Meenan set out the necessary features of any alternative system for CervicalCheck claims, which in addition to recognising the issues of liability involved, included that participation in any alternative system must be on a voluntary basis.
It is unlikely that respondents or third parties would consent to participate in an open-ended process when the courts could offer certainty and finality, meaning that no cases would ultimately be heard by the Tribunal, leaving the eligible women with no option other than the courts.