It is not too difficult to understand why Taoiseach Leo Varadkar took it on himself to pledge last May that women involved in the cervical cancer controversy would not have to go to court in pursuit of compensation. On the face of it, it was a compassionate gesture which would avoid the grim prospect of terminally ill women and their families giving evidence in an often adversarial setting. But at a practical level, his undertaking proved to be ill-judged, amounting to false reassurance in a scenario where the State was facing claims for which it was not directly and/or fully responsible, all the more so when the degree of culpability or liability was unknown and likely to be contested.
The State could calculate whatever liability exists on its part and, as a first step, enter into settlements in respect of that amount
To be clear, there is simply no excuse for the failure of the health services to inform women that they were the subject of false negative results as part of the CervicalCheck screening programme. That failure is rightly described as a scandal and it compounded the personal tragedy involved. For this, the State is responsible. The State must also face up to the consequences of CervicalCheck's failure to fully explain what its programme involves to women taking part in it. Cervical screening is designed to identify signs – or markers – that might help to reduce the incidence of cancer. It is not a diagnostic test. This has been a critical factor in the events that have followed and for it too, the State is responsible.
False results
All health screening programmes exhibit some degree of false results. Cervical screening, where slides of a woman’s smear are placed on a microscope and assessed by the human eye, is particularly associated with false negatives. False outcomes are not necessarily indicative of error or negligence and, as such, legal claims arising from them are likely to be contested. All the more so when there are several parties involved. But errors and mistakes are made. These factors create the potential for protracted litigation where a shortage of time – in cases of terminal illness – and financial firepower favour one side.
Whatever his original motives, Varadkar was correct to say he should have been clearer in promising to spare women the prospect of appearing in court. That objective, however, remains the optimum one. Genuine settlement negotations outside the confines of a courtroom offer the best prospect of success within the short time frame available in some cases. That, in turn, requires all parties – including the State, US laboratories and their insurers – to commit in good faith to reaching a fair resolution in what are the most testing of human circumstances. Public positions must be reflected in private discussions.
In the absence of swift progress, the State could calculate whatever liability exists on its part and, as a first step, enter into settlements in respect of that amount. Substantial interim payments are also an option. Logjams must be broken.