The Supreme Court has said the courts have not created a new standard to be met in screening programmes.
In a lengthy judgment delivered on Thursday in respect of appeals against a finding of negligence in the case of the cervical cancer screenings of Ruth Morrissey, who is terminally ill, Chief Justice Frank Clarke addressed at length concerns that have been expressed about the High Court ruling.
Clinicians and the HSE expressed fears in the wake of the ruling that a new test of “absolute confidence” had been created that could cause significant problems for screening programmes generally.
The Chief Justice said that although the issue of screeners having to have “absolute confidence” before declaring a slide clear did arise in the Supreme Court appeal, “in the course of the oral hearing it became clear that there was no significant dispute between the parties on this question”.
Nevertheless, the judge decided to try bring clarity to a matter that had been the subject of "a significant amount of public comment, some of it unfortunately misinformed" since the ruling last year by Mr Justice Kevin Cross.
The way the medical negligence system works in Ireland is that professionals and experts give evidence to the court about the way they approach certain matters, such as the assessment of a screening slide, and the court then decides if the professional against whom an allegation of negligence has been made has met those standards.
"A court has no role in imposing a standard of approach on a professional," Mr Justice Clarke said. "Rather it is the standards of the profession itself, as demonstrated by the evidence, which impose the standard required."
In screening programmes, a screener should not pass a slide if there is any doubt. The expert witnesses who gave evidence in the Morrissey trial were all in agreement on this point, the Chief Justice said.
He said the suggestion that Mr Justice Cross had applied an “absolute confidence” test in a way that effectively meant that every error (even with the benefit of hindsight) must result in a finding of negligence, “is demonstrably wrong and would clearly be seen to be such to anyone who had taken the trouble to read the judgment”.
The requirement that a slide analyst have “absolute confidence” in a smear arises from English case law.
Absolute ‘gravity’
The examination of the issue during the High Court case saw all the expert witnesses agreeing with the principle, although one American expert said he was trained, as a scientist, to be wary of the word “absolute”, and that physicists might be wary of saying they had “absolute confidence” in the law of gravity.
Mr Justice Clarke said it was clear that the standard applied in the United Kingdom was one of “absolute confidence”.
“Given some of the doomsday predictions which followed on from the judgment of the High Court in this case, I do feel it necessary to say that at least some of the more extreme comments are very hard to reconcile with the fact that there was clear evidence that such a standard is actually applied in the United Kingdom generally and, to the particular knowledge of an important expert witness, in Northern Ireland specifically, without the screening systems in those countries becoming unworkable.”
He pointed out that the UK is generally regarded as having one of the best cervical screening programmes in the world.
“I consider that the use of the term ‘absolute confidence’ may have created more confusion than clarity.
“However, it is clear that all of the relevant witnesses agreed that a screener should not give a clear result in respect of a slide unless they had no doubt but that the sample was adequate and did not contain any suspicious material.
“That standard is not one imposed by the court but rather one which stems from the profession itself,” Mr Justice Clarke said.