The CervicalCheck Tribunal was set up by the Government to investigate negligence in the State’s cancer screening programme and to assess claims by women affected by the controversy.
The investigation was initially sparked when Vicky Phelan, who has cervical cancer, settled a High Court action in April 2018 over the misreading of her smear test. It then emerged that potentially hundreds of women were not informed of an audit that the revised their earlier, negative smear tests.
The CervicalCheck Tribunal was established to allow claimants a less adversarial alternative to taking Court proceedings. I have outlined below some of the questions I have been asked regarding the CervicalCheck Tribunal and how it operates.
What is the CervicalCheck Tribunal?
The CervicalCheck Tribunal is a statutory Tribunal set up by the Government to provide and alternative system for dealing with claims arising from CervicalCheck.
What is the role of the CervicalCheck Tribunal?
The functions of the CervicalCheck Tribunal include hearing and determining claims in respect of CervicalCheck outside of the court process and facilitating Restoration of Trust meetings.
Where do CervicalCheck Tribunal hearings take place?
The Cervicalcheck Tribunal is located in Infinity Building, George’s Court, George’s Lane, Smithfield, Dublin 7, D07 E98Y.
Who is eligible to make a claim to the CervicalCheck Tribunal?
The CervicalCheck Tribunal Act 2019 allows for an appropriate person to make a claim for compensation to the Tribunal. The Act specifies that
“appropriate person” means—
- a relevant woman, or
- where a relevant woman has died, a dependant of the relevant woman concerned;
“relevant woman” means—
- a woman—
(i) identified as part of the Review of Cervical Screening as having CervicalCheck cytology review findings that were discordant with those of the original cytology examination in relation to the woman concerned, or
(ii) whose cytology slides were sought, by the Review of Cervical Screening, to be re-examined as part of its review but where one or more of those slides could not be re-examined as part of that review by reason of circumstances beyond the control of the woman concerned, or
- a woman who received a diagnosis of cervical cancer—
(i) who had a screening history through CervicalCheck,
(ii) whose diagnosis of cervical cancer was notified to CervicalCheck,
(iii) whose cytology slides were re-examined as part of the retrospective CervicalCheck cytology clinical audit, and
(iv) whose cytology review findings, following the re-examination in accordance with subparagraph (iii), were discordant with those of the original cytology examination in relation to the woman concerned.
How do I know if I am eligible to make a claim to the Cervical Check Tribunal?
If you are eligible as a result of the Royal College of Obstetrics and Gynaecology (RCOG) Audit – A copy of your results letter as issued by the RCOG will suffice to establish your eligibility.
If you are eligible as a result of the Review of Cervical Screening – The National Screening Service will be able to provide a letter on request confirming eligibility for the Tribunal. Requests of this nature should be sent by email to clientservices@screeningservice.ie
If eligible, for what can I claim before the CervicalCheck Tribunal?
A claim can be made to the CervicalCheck Tribunal seeking damages for:
(a) negligence, breach of duty, breach of statutory duty or breach of contract arising from any act or omission concerning CervicalCheck
(b) the alleged negligence or breach of duty arising from an alleged failure to inform the relevant woman concerned or, where she has died, a dependant of the relevant woman concerned of the results of the retrospective CervicalCheck cytology clinical audit.
How do I make a claim to the CervicalCheck Tribunal if the claim IS NOT the subject of proceedings before a court?
Before submitting a claim for compensation to the Tribunal the claimant must serve the proposed Claim Form (Form 1) on each respondent with a request to each respondent that they confirm agreement (in Form 2) to submit the claim to the Tribunal.
A Claimant must then lodge the following in the Tribunal Office:
- The Claimant’s completed Claim Form (Form 1) together with a duplicate copy of same for issuing.
- Where available, the Respondent’s (or Respondents’) written agreement to submit the claim to the Tribunal (Form 2)
- Proof of eligibility to have claim heard by the Tribunal
- Proof of service of proposed Claim Form on each intended respondent (i.e. Affidavit of Service exhibiting proposed Claim Form)
Every Claim Form received into the Tribunal Office will then be date stamped and assigned a Tribunal record number and will thereupon be deemed to be issued. On the date the Claim is issued the CervicalCheck Tribunal Office will assign a date for a case management hearing – this date will be marked on the issued claim form and on the duplicate copy.
The date for the case management hearing will be the earliest available date following the expiry of 30 weeks after the date of issue of the Claim Form.
Details of the process where a claim is not the subject of court proceedings can be downloaded here.
How do I make a claim to the CervicalCheck Tribunal if the claim IS the subject of proceedings before a court?
Before submitting a claim for compensation to the Tribunal, the Claimant must serve the proposed Claim Form (Form 1) on each respondent with a request to each respondent that they confirm agreement (in Form 2) to submit the claim to the Tribunal.
A Claimant must then lodge the following into the Tribunal Office:
- The Claimant’s completed Claim Form (Form 1), together with a duplicate copy of same for issuing.
- Where available, the Respondent’s (or Respondents’) written agreement to submit the claim to the Tribunal (Form 2)
- Proof of eligibility to have claim heard by the Tribunal
- Proof of service of proposed Claim Form on each intended respondent (i.e. Affidavit of Service exhibiting proposed Claim Form)
Every Claim Form received into the Tribunal Office will then be date stamped and assigned a Tribunal record number and will thereupon be deemed to be issued. On the date the Claim is issued the CervicalCheck Tribunal Office will assign a date for an initial directions hearing – this date will be marked on the issued claim form and on the duplicate copy.
The date of the directions hearing will be the earliest convenient date following the expiry of the time permitted for service of the Claim Form.
Details of the process where a claim is the subject of court proceedings can be downloaded here.
Are there time limits on making a claim to the CervicalCheck Tribunal?
Yes, there are time limits, and these are set out in the CervicalCheck Tribunal Act 2019.
Who will hear my claim?
It is anticipated that the first two or three claims ready for hearing will be heard by all three Tribunal Members sitting together. Thereafter all claims will be heard by a single Member sitting alone.
Am I entitled to Legal Representation?
Yes, those appearing before the CervicalCheck Tribunal are entitled to be legally represented.
Can I make a claim to the CervicalCheck Tribunal if I have already initiated Court proceedings?
Yes, you may issue a claim to the CervicalCheck Tribunal where that claim is currently the subject of Court proceedings.
What are the main differences between a hearing in the Tribunal and a hearing in the High Court?
A hearing before the CervicalCheck Tribunal will be shorter than if the same claim was heard in the High Court – the intended Rules of Procedure and Practice Direction of the Tribunal have been devised in such a way as to facilitate a rigorous yet speedy determination of claims.
A hearing before the CervicalCheck Tribunal will be conducted otherwise than in public unless the claimant requests that it be heard in public and the Tribunal considers it to be appropriate.
The CervicalCheck Tribunal can only hear claims in respect of which there is consent from all relevant parties to the claim being determined by the Tribunal.
Do I have a right of appeal to the High Court?
If any party is not satisfied with the determination of the Tribunal there is a right of appeal to the High Court by way of a complete rehearing.
Is Mediation and option?
The CervicalCheck Tribunal may, on the application of one of the parties to its proceedings, or of its own motion where it considers it appropriate, invite the parties to consider mediation or provide them with information about the benefits of mediation to settle the proceedings.
What is a Restoration of Trust Meeting and how do I request one?
Restoration of Trust Meetings will be arranged for the purposes of:
- Documenting experiences,
- Facilitating discussion, and
- Providing information to the appropriate person in respect of their experience in relation to Cervical Check.
Further information is available here.
If you have any questions on any of the issues raised in this article, or would like further information please contact Niamh Ní Mhurchú, Joint Managing Partner, Callan Tansey 071 9162032.