The HSE has commissioned external legal advisers to determine whether any of its staff should face disciplinary action arising from the cervical screening controversy.
It said that following the publication of the recent Scally report, it had approved the establishment of a preliminary scoping exercise “in order to determine whether there are people who have a case to answer” under the health authority’s disciplinary code.
The HSE said the review was being conducted by an external team with expertise in employment law. “Without any challenges, it is expected that the scoping exercise should take four months to complete.”
Taoiseach Leo Varadkar told the Dáil in May that open disclosure had been policy for all HSE staff since 2013. He said that “staff can be disciplined for not following open disclosure”.
The recently published report by Dr Gabriel Scally into the CervicalCheck controversy said the Medical Council’s guide for doctors, was “ill-defined” on open disclosure and allowed doctors to use their own judgement.
Audit
Meanwhile, Minister for Health Simon Harris has confirmed awards will be made to hundreds of women in the CervicalCheck controversy over the State's failure to disclose the results of an audit of their smear tests.
Mr Harris said the State will not contest liability for the non-disclosure of audit results to the women by the CervicalCheck programme because “it was wrong”.
The number of women who were not informed of the audit result until controversy broke this year currently stands at 221, but is expected to rise.
The women had originally been given the all-clear on their smear tests but after they subsequently developed cancer, an audit of the earlier tests was carried out, resulting in their recategorisation. For some, the change might have altered their treatment and the outcome of their cancer. Twenty of the women have since died.
Mr Harris said the level of award for non-disclosure would be determined by the chairperson appointed to a compensation tribunal the Government intends to establish shortly. This would enable these cases to be fast-tracked.
He said the tribunal, which was proposed in a report by Mr Justice Charles Meenan this week, would take a number of months to establish as primary legislation would be required.
Mr Justice Meenan proposed that hearings on the women’s cases take place in private, in a less formal setting than a courtroom. Participation would be voluntary.
Fast-track
A right of appeal to the High Court would remain and a fast-track mechanism would apply where liability was not being contested. Responding to criticisms that the proposed process is overly adversarial, the Minister said it was “right and proper” that women alleging negligence in the reading of their tests should have to prove negligence.
But this did not mean procedures had to be adversarial. “It’s about experts exchanging reports, and mediation,” he said.
The process would be significantly different from court, with a lot of preparatory work done in advance of a hearing.
Mr Harris has told fellow ministers the cost of establishing and operating the tribunal will be “significant”.
There are currently 72 active cases where legal proceedings related to the CervicalCheck programme have been initiated, Mr Harris has told the Cabinet in a confidential memorandum. Another five potential cases are pending while one has been closed.
Addressing the national patient safety conference in Dublin Castle on Thursday, Mr Harris said he planned to establish a new independent patient safety council whose first task would be a full review of open disclosure policies across health.
It was not acceptable that at present “the luck of the draw” across different hospitals and doctors determined how much was disclosed to a patient, he said.
The Medical Council is committed to making changes to its ethical guide for doctors, its chief executive Bill Prasifka told the conference.
