Women who received false smear test results face the prospect of contested court actions after the State’s legal defence agency said it could not settle claims where it was not legally responsible.
The State Claims Agency told the Oireachtas finance committee that it was constrained by its statutory remit and could not accept liability for incorrect tests carried out by US laboratories on behalf of the health service.
Ciarán Breen, the director of the agency, was testifying in the wake of the CervicalCheck scandal that came to light as a result of the contested case taken by terminally ill Limerick woman Vicky Phelan.
It emerged after her High Court settlement with Clinical Pathology Laboratories last month that 162 women were, like her, not told about false smear tests.
Mr Breen told the committee that Ms Phelan’s case had to endure the “trauma” of a trial because the US laboratory effectively took over the running of the case after indemnifying the State and collapsed mediation talks by insisting on a gagging clause, something she refused to sign.
The agency was facing a further nine claims and a potential 10th, he said.
He revealed that women at the centre of three of these cases were dead and that two US laboratories were responsible for the inaccurate testing outsourced by CervicalCheck, the State’s screening programme, in all of the cases.
In three cases, the State agency has been indemnified by the laboratories and was seeking indemnifications in the other cases.
He told the committee that where the State has any liability, it would seek to avoid cases going to a court trial and ensure that “injured parties don’t go through the kind of trauma” that Ms Phelan had to.
However, TDs criticised the agency’s policy on handling claims by seeking indemnities from the labs that could force the women or their families into traumatic court actions.
“The State is protected but the people who are directly affected are left to their own devices to take on in a legal challenge a third-party independent laboratory,” said Fianna Fáil TD Michael McGrath.
Sinn Féin TD Pearse Doherty accused the agency of operating like Pontius Pilate by telling the women to pursue the labs when there was a “moral responsibility” on the State to settle with them.
Meanwhile, pressure continued to mount on HSE director-general Tony O’Brien, whose future in the aftermath of the controversy has divided the Government. Three Ministers – Katherine Zappone, Finian McGrath and Michael Ring – called for Mr O’Brien to stand aside at yesterday’s Cabinet meeting.
It is understood the Taoiseach Leo Varadkar advised the Independent Alliance that Mr O’Brien’s contract allowed for three months’ notice and that he could could take a constructive dismissal case if forced out of his role.
Minister for Health Simon Harris yesterday declined to express confidence in Mr O’Brien and told of his fury at the misinformation given to the Government in recent weeks on the CervicalCheck controversy.
