The Government estimates that the cost of a scheme to compensate women caught up in the CervicalCheck controversy for the non-disclosure of the results of a smear test audit could be between €5 million and €15 million.
The cost is based on the State’s contribution of €25,000 to one case which was settled out of court. The scheme applies to compensation only for cases of accepted non-disclosure for the 221 women and families involved in the controversy.
While the Government has been told it is difficult to estimate exactly how much such a scheme would cost, the benchmark comparison of the case settled out of court was used in recent briefings to Ministers.
The €25,000 payout was made in respect of the issue of non-disclosure and to avoid further legal costs, it is understood.
The anticipated payouts would be made under a non-statutory ex-gratia compensation scheme where the State accepts non-disclosure.
However, the acceptance of such a sum would not preclude any women from pursuing other legal claims, although any further awards for non-disclosure would be subtracted by the amount granted under the ex-gratia scheme.
The State’s liability in the CervicalCheck cases is mainly said to be limited to issues of non-disclosure. This element has been separated from the substantive claim of reading the smear samples, and issues between CervicalCheck and the laboratories, so the issue of non-disclosure can be fast-tracked.
It is anticipated that laboratories involved in reading smear tests would be liable for any incorrect reading of smear tests.
The Government decided before Christmas to set up an independent statutory tribunal to deal with claims arising from the CervicalCheck controversy. It is intended that the tribunal will provide a less adversarial approach than pursuing cases via the courts. Hearings are expected to be held in private. Ms Justice Mary Irvine will chair the tribunal, which will be set up in late 2019 and will be voluntary for all parties.
Minister for Heath Simon Harris is also expected to appoint another retired judge to administer the separate ex-gratia scheme, and the judge will have the discretion to decide the level of payment per woman. The recent estimates given to Ministers were indicative only, it is understood.
Instead of the wider tribunal, one option that was considered was an adapted High Court process to deal with just CervicalCheck cases. This would not have been voluntary and it was argued privately that it would have avoided risks associated with a tribunal. These risks include its remit expanding to include all medical negligence claims, which would make such a tribunal potentially permanent in nature. However, this was rejected in favour of a tribunal.
Private briefings also acknowledged that the voluntary nature of the proposed tribunal may prove to be a disadvantage if laboratories concerned decline to participate in anything less than a formal court process.