When the cervical cancer controversy first broke with news of the Vicky Phelan case back in May, there was a huge public reaction to the tragic circumstances described by her.
The prospect of a life shortened by medical errors horrified people and generated a huge wave of public sympathy. Politicians did what politicians do – they reflected the public mood.
Taoiseach Leo Varadkar went on the Six One news and declared that the State would be on the side of victims. If the laboratories declined to settle with the women, the State would settle the claims, he said, "and pursue the labs later".
Yesterday, solicitor for Vicky Phelan and other women reiterated that this was exactly what he wanted – the State to settle with the women, and then to sue the laboratories.
But the more Government officials have examined the issue, the more they see that this model is unlikely to be a runner.
For a start, there is the issue of negligence. Mr O’Carroll has said that in the “vast, vast majority” of the cases of the 221 women whose screening was questionable, it was the result of negligence.
In recent weeks, that view has been privately – but very firmly – rejected in Government.
Court determination
Last night, in answer to a series of questions from The Irish Times, the Department of Health said: "A determination of negligence is one which can only appropriately be made by a court, and the department is not in a position to comment beyond acknowledging that no such determination has been made at this time."
The view in Government, instead, is that only a small proportion of the 221 cases is characterised by negligence.
But this is a very difficult thing to ascertain. And ultimately, as the department says, only a court can absolutely decide negligence where the two sides of a dispute disagree. But that requires lengthy and traumatic court cases for women who may be sick and vulnerable – precisely what everyone says they want to avoid.
Significantly, it is understood that the laboratories have recently taken a firmer view of their potential negligence – and therefore legal exposure – after recent court cases. The view of one person who has been briefed regularly by medical and legal experts in Government is that the idea of the State settling with the women and then suing the laboratories is simply a non-starter. The laboratories would say “You have no case”, the person says. And in most cases they would be right, the person adds.
The current idea for dealing with the controversy is a no-fault redress scheme that would offer compensation to the women involved. In most cases, it would offer compensation on the basis that the women should have been informed that the audit of their smears had revealed a “discordance” – an umbrella term which means the smears could have been (or in some cases should have been) read differently.
But in only a handful of cases, officials say, will there be a case for large compensation payments which would arise from clear negligence. “We cannot have medical negligence-type payouts for what is in most cases just the failure to inform people about their smears [which were the subject of the lookback]. That is not medical negligence,” says a senior source.
This is not just the reflex parsimony of the Department of Finance. There is a growing feeling in Government that any package of measures to deal with the cervical cancer controversy – and to look after the women affected – must take account of the need to protect the screening programme itself, and other present and potential future programmes.
“We can’t have a programme that costs us €20 million a year to run, but gives us liabilities of €200 million,” said one high-ranking source in Government.
Medics, officials and politicians stress that a screening process is not a diagnosis, and that errors are an unavoidable part of every screening programme. “If you are paying out on false negatives, no screening process would be financially viable,” said one official.
The difficult political tightrope is to defend and preserve a viable screening programme while at the same time being seen to be on the women’s side – as the Taoiseach originally said he wanted to do. It is unlikely to get any easier to traverse.
