There was considerable activity in the healthcare sector in 2019 with the CervicalCheck story continuing to take centre stage. The absence of a mandatory duty of open disclosure remains the subject of national debate. 2019 also saw the enactment of the long awaited Coroners (Amendment) Act 2019 and a move towards opt-out organ donation in Ireland with the publication of a general scheme of a Human Tissue Bill.
There is no denying that the fallout from the CervicalCheck controversy was still in sharp focus in 2019. The CervicalCheck Tribunal Act 2019 was signed into law in July 2019 and will provide a less adversarial system for women to have their claims heard. A non-statutory scheme has also been set up to provide ex gratia payments to women affected by the non-disclosure of the CervicalCheck audit results. The Royal College of Obstetricians and Gynaecologists (RCOG) in the UK has conducted an independent review of the cervical slides of women who participated in the CervicalCheck screening programme and subsequently developed cervical cancer. The RCOG review report, which involved a non-blind review of over 1000 Irish slides - in the sense that the reviewer was aware of the subsequent diagnosis - published in December 2019, found that the Irish programme was broadly in line with the well regarded UK programme.
2019 also saw Mr Justice Cross deliver his judgment in Morrissey v HSE & Ors where he had to consider the legal standard of care to be applied to the cervical screening process. Cross J. held that a screener should have “absolute confidence” that a cervical smear slide has no abnormalities before reporting it as clear. This judgment caused significant unrest in both the medical and legal spheres with the medical community concerned regarding the difficulties in making clinical and scientific decisions with absolute confidence and the possible wider implications of this judgment for other screening programmes and other areas of clinical medicine. The HSE and the two laboratories involved were permitted to make a leapfrog appeal directly to the Supreme Court on the appropriate standard of care and other issues. This appeal was heard in early November 2019 and the eagerly awaited decision of the Supreme Court is expected early in 2020.
Update on Scally Report
Following on from the Scally Report into CervicalCheck in 2018, Dr Gabriel Scally issued a supplementary report in March 2019. While noting that there had been progress on the recommendations set out in his 2018 report, Dr. Scally remained concerned that the existing system of open disclosure had not been overhauled. Mr. Justice Meenan issued an interim report in March 2019 from an Expert Group established to consider alternative mechanisms to the court process for resolving clinical negligence claims. It is understood that Mr Justice Meenan is scheduled to deliver a further report to the Government before end 2019, which may suggest changes to the present tort system.
Periodic Payment Orders
Periodic payment orders (PPOs) were introduced in 2018 and during 2019 the Courts made a number of PPOs in catastrophic injury claims. The future of PPOs has been thrown into doubt due to a very recent High Court decision in a medical negligence case of Hegarty v HSE. In this case, the Court acknowledged that the current indexation measure provided by the PPO legislation will result in under compensation of plaintiffs and will not provide for their future care and medical treatment needs. In circumstances where the High Court has inherent jurisdiction to assess the best interests of a catastrophically injured person, the Court determined that it is not in the best interests of these persons to apply for a PPO under the current legislative scheme.
Some recent judgments
During 2019 there were a number of judgments regarding what is deemed a good reason to renew a Personal Injuries Summons. From a recent decision of Mr Justice Meenan in Murphy & Cullen v AFR Management Limited & Ors it now appears that a Summons can only be renewed on one occasion. 2019 also saw a number of judgments in medical negligence cases looking at whether a plaintiff’s claim was statute barred depending on when the plaintiff had knowledge of the relevant facts.
Undoubtedly the CervicalCheck story will continue to unfold into 2020 with the awaited Supreme Court decision in the Morrissey case. The recent publication of The Patient Safety (Notifiable Patient Safety Incidents) Bill 2019 is a step towards mandatory open disclosure. We will be watching the progress of this Bill with interest over the coming year.
The challenge of tackling fraudulent and exaggerated claims continues. The recently established Judicial Council has tasked Ms Justice Mary Irvine to chair a committee to provide guidance on the levels of personal injury awards. The Law Reform Commission is also looking at ways to cap personal injury awards while safeguarding judicial independence. It is likely that 2020 may see further reform as Mr. Justice Meenan is due to issue a report addressing how those injured by medical mistakes are compensated.
Will 2020 see no-fault compensation schemes for certain cases, vaccine redress schemes, a Medical Injuries Assessment Board, a change to the PPO legislation or the long awaited introduction of pre-action protocols? Stay tuned.
To discuss these issues and other related topics, contact a member of our Healthcare & Medical team.
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