The proper standard of approach to cervical screening is set by reasonable competent professional screeners and is not a “court-imposed obligation”, the Chief Justice has said.
Chief Justice Frank Clarke said some “doomsday predictions” were made after the High Court said in Ruth Morrissey’s case that a competent screener should have “absolute confidence” a smear is normal before passing it as clear.
Some of the “more extreme” comments are “very hard to reconcile” with clear evidence that such a standard applied in the UK and in Northern Ireland specifically without the screening systems there becoming unworkable, he said.
There is no “absolute confidence” test for the standard of approach in cases such as this, the test is the same as in any professional negligence case and is based on evidence as to the standard actually applied by competent professionals in the area, he stressed.
The overall question a court must address is whether a reasonable competent screener could have given a clear result, both having regard to the adequacy of a smear slide and the absence of suspicious material.
Despite “quibbling” between expert witnesses in the Morrissey case whether the term “absolute” was appropriate, they all agreed that any doubt about whether what is seen on a side is normal must not allow the case to be reported as a clear result and there was evidence to support the High Court conclusion that a screener must not give a clear result when in any doubt, he ruled.
The proper standard of approach did not derive from the court but from an assessment of evidence given on all sides concerning the standard actually applied by the relevant professionals.
Those experts identified the standard expected of a normally competent screener as one “which precludes giving a clear result in case of doubt”.
The High Court had also clearly accepted that competent screeners, applying an appropriate standard of approach, could take different views about whether there was even a doubt as to whether a clear result could be given.
While the High Court had found Medlab laboratory was negligent concerning the adequacy of Mrs Morrissey’s 2012 smear slide, it was not satisfied Medlab was negligent in respect of the manner in which the screener did not identify any suspicious material on that slide.
This showed, even applying what the trial judge considered to be an absolute confidence test, there was room for a finding this was a case where competent screeners could come to different views and there was thus no negligence.
The suggestion the High Court was applying an absolute confidence test in a way which effectively meant every error, even with the benefit of hindsight, must result in negligence, is “demonstrably wrong”, he said.
The principles set out in the Supreme Court Dunne V NMH judgment continue to represent the law here concerning the standard of care in medical negligence cases, he stressed.
There are “significant similarities” between the Dunne principles and the absolute confidence legal test in the UK, he noted.
The “overarching” Dunne principle is that the standard of approach of a medical professional is a standard appropriate to a person of equal specialist or general status acting with ordinary care, he said.
The question of the standard of approach which should be applied by an ordinarily competent professional “is ultimately a matter of fact” requiring expert evidence.
In a case such as this, a court has no role in imposing a standard of approach on a professional and it is the standards of the profession itself, as demonstrated by the evidence, which imposed the standard required.
