So much has emerged over the last few days in relation to the latest health care scandal to affect women in Ireland. Without Vicky Phelan’s insistence on seeking redress through the Courts and her refusal to sign a confidentiality agreement requested by the laboratory involved, these issues might never have become public. The women of Ireland are once more in debt to a courageous and awe-inspiring woman.

The deluge of new information emerging on a daily basis is simply frightening. Reports this morning have indicated that a further 1500 women are involved, as in line with current practices not all cases where there has been a diagnosis of cervical cancer have been re-examined. 208 women have been identified whose smear test gave a false negative result. Regrettably, 17 of those women have died and only 2 of these were informed of the misdiagnosis prior to their death. Further information emanated today which indicated that only 46 women have been told about the history of their smear tests.

Clearly further audits need to be carried to assess the level of error in relation to the examination of the tests. In order to establish medical negligence, it needs to be determined that any other reasonable medical practitioner diagnosing the results would have determined that abnormal cells were present.

Recent news reports have indicated that Vicky Phelan’s case is not the only one pending before the Courts arising from these errors. The Irish Independent reports today that there have been 9 other cases taken against the HSE and some of the laboratories involved in the testing process. Time will tell as to whether these flaws in the testing procedure will give rise to medical negligence cases.

However regardless of this issue, it is startling that in most cases the decision was made not to inform women (or indeed the families of those who died) of the results of the audit. To be clear this decision was not taken twenty years ago or forty years ago. As recently as 2014, the audit results were simply used for education and training. In 2015 the HSE made a decision that the results should be passed on to the relevant medical practitioners involved who could then pass these results on to their patients “as appropriate”.

On what basis did the HSE decide the criteria in disclosing such crucial information to women as being “as appropriate”. Was this decision taken in light of the likely litigation to follow? In 2016 it has been reported in the Irish Independent, that a circular issued from Cervical Check to medical practitioners that indicated as a “general rule of thumb” women should be told about the tests but that practitioners should use their judgement in selected cases where it is clear that discussions of the outcomes of the review could do more harm than good. The fact that such a circular issued is astounding. What right did Cervical Check have to keep this important information from women who have since been diagnosed with cancer?

Due to the Vicky Phelan case we have learned that there was ongoing dialogue in 2016 between Dr. Grainne Flannelly the Clinical Director of Cervical Check and Vicky Phelans’ gynaecologist about a difference in opinion about who should tell Vicky Phelan that her reviews of the smear tests demonstrated that they were incorrect. Dr. Flannelly sent an email stating that “a balance needs to be struck in deciding who needs a formal communication of the outcome of the audit”.

It is entirely unacceptable that no immediate decision was made to immediately inform these women of the audit results. Given the way that women in Ireland have been treated with the Hep C scandal, the symphysiotomy scandal and more recently the vaginal mesh issues, we have to again ask why are these issues arising? A fundamental part of any process is that of fair procedure. How can there be fair procedure without disclosure of all relevant medical information. It is unsurprising that this issue has caused such a media storm.

Where does this end? The Government have loosely referenced the possibility of a redress scheme which has to be welcomed. However, this has come simply too late for the 17 women that have already died.

If you have been affected by the Cervical Cancer scandal please don’t hesitate to contact Annette Sheehan or Sean O’Riordan of FitzGerald Solicitors for legal advice.

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