Cervical Check Tribunal

Cervical Tribunal Act 2019

The Act provides for the establishment of an independent statutory tribunal to deal with claims arising from specified reviews related to the CervicalCheck Screening Programme and in doing so it implements the recommendations made by Mr Justice Charles Meenan in his Report on an Alternative System for Dealing With Claims Arising From CervicalCheck. Judge Meenan was asked by Government to make recommendations on how claims arising from CervicalCheck could be resolved outside the court process.

The Tribunal will only hear and determine claims in relation to CervicalCheck with the consent of all the parties to the claim. The legal principles as to liability and quantum of damages as applied in the High Court to such cases will apply to claims before the Tribunal. The Act sets out who may make a claim and the time period in which claims may be made.

Procedures

The Act enables the Tribunal to determine and adopt pre-claim protocols and also enables the Chairperson to issue practice directions in relation to the conduct of claims. These particular provisions are in the interests of hearing and determining claims in a manner which is just and expeditious while also being less adversarial than the current court process. The constitutional entitlement of all parties to a fair hearing will be fully respected.

Hearings will be conducted in private but the claimant will be able to seek the agreement of the Tribunal to a request that a hearing , or part of a hearing , be held in public. The Tribunal will submit Annual Reports to the Minister and may also make recommendations on matters relating to the work of the tribunal. The Act also provides that the Tribunal will facilitate restoration of trust meetings, to facilitate discussion and the provision of information.

CervicalCheck Tribunal. The Tribunal may sit in divisions, is independent in the performance of its functions and will regulate its own procedures. The Tribunal will consist of a chairperson and not less than 2 ordinary members, appointed by the Minister

The Tribunal shall hear and determine claims made to it, facilitate restoration of trust meetings and report on and make recommendations as it deems appropriate on any matter relating to its work. The Tribunal is to appoint people with expertise to provide it with advice or assistance. The Tribunal may appoint its own counsel.

Claims before Tribunal

Claims may be made by an appropriate person and an appropriate person under the Act is defined as a relevant woman, or where the woman is deceased, a dependent of the woman

In the case of a woman identified as part of the Review of Cervical Screening, a claim must be made within 9 months of establishment day for the Tribunal or within 6 months of being notified of findings of the Review of Cervical Screening, whichever is the later. In the case of other women within the scope of the Tribunal, a claim must be made within 9 months of establishment day for the Tribunal.

The Tribunal will hear and determine only claims in respect of which there is an agreement in writing from the relevant parties. The relevant parties are the claimant, the HSE and the cytology laboratory services retained by the HSE for CervicalCheck.

Awards

The Tribunal will hear and determine claims in the same manner as such matters are determined by the High Court in respect of claims for personal injuries. The Act provides for applicable principles to awards of the Tribunal.

Any award of the Tribunal shall be of the same force and effect as a judgment of the High Court. An award shall be made on the same basis as an award of the High Court.  A claimant will have 21 days, or such longer period as the Tribunal may determine, from the making of the award to accept or reject the award or to appeal the award.

The Tribunal may grant an application to join a third party to a claim in the same manner as such applications are determined by the High Court. The claim will proceed before the Tribunal only where the third party consents to having all issues arising in the claim determined by the Tribunal.

The Tribunal to take into account any sum paid or payable to a claimant under the CervicalCheck non-disclosure ex gratia scheme when considering whether an award should be made in relation to non disclosure.

Manner of determination of issues

Parties appearing before the Tribunal shall be entitled to be legally represented. The Tribunal may award costs in relation to a claim.

The Tribunal may determine and adopt pre-claim protocols. These are procedures governing requirements to be complied with before claims are brought and are intended, among other things, to promote timely communications and facilitate early identification of issues in dispute. The Chairperson to issue directions – practice directions – in relation to the conduct of claims, in the interests of hearing and determining claims in a manner which is just and expeditious. The Tribunal to make rules to regulate practice and procedure and the conduct of claims.

Hearings are generally to be otherwise than in public. However, a hearing or part of a hearing will be conducted in public where a claimant requests and the Tribunal agrees that it would be appropriate to do so.

The Act provides for the form and manner in which evidence may be given. It  provides for powers relating to witnesses and documents.

A person who gives evidence to the Tribunal or who produces or sends documents to the Tribunal as directed by the Tribunal has the same immunities and privileges in respect of that evidence or those documents, and is subject to the same liabilities, as a witness in proceedings in the High Court.

The Tribunal may apply to the High Court for directions relating to the performance of its functions or for the approval of the court of an act proposed to be done by the Tribunal for the purposes of performing its functions. The High Court may hear an application otherwise than in public having regard to the subject matter or any other matter relating to the nature of the evidence to be given at the hearing of the application.

Appeals

An appeal may be made to the High Court from a determination of the Tribunal not later than 21 days from the date of making the determination, or such longer period as the Tribunal may determine. An appeal lies from a decision of the High Court to the Court of Appeal on a point of law only. Appeals must be heard otherwise than in public, except where a claimant requests otherwise and the High Court agrees.

Where no appeal to the High Court from a determination of the Tribunal is made in the allowed time period, the Tribunal will apply to the High Court for confirmation of the determination. On hearing an application, the High Court shall confirm the determination unless the Court considers that it is not in the interests of justice to do so.

Where an appeal from a determination of the Tribunal is made to the High Court, rules of court may make provision for the hearing and determination of those appeals in a timely and efficient manner.

Facilitator of meetings

An appropriate person – that is a relevant woman or her dependant – may make a request to the Facilitator irrespective of whether the appropriate person has made, or intends to make a claim.

The  Minister to appoint a Facilitator to carry on and control generally the administration and business of restoration of trust meetings. The Facilitator will be independent in the performance of his or her functions.

These meetings are for the purposes of documenting experiences, facilitating discussion and providing information to the appropriate person in respect of that person’s experience in relation to CervicalCheck. An appropriate person may be accompanied by a person or person of his or her choice when attending a restoration of trust meeting.

There are appropriate protections for participants at meetings. Evidence will not be admissible in any court or the Tribunal of any information, statement or admission disclosed or made in the course of a restoration of trust meeting.

Relationship with Minister

The Tribunal many make recommendations to the Minister and the Minister will publish these recommendations. The Tribunal to prepare annual reports and submit them to the Minister. These reports will be published by the Minister. There is provision for  the dissolution of the Tribunal and that the Minister may by order dissolve the Tribunal. This would be done following consultation with the Tribunal.

Offences & Information

There are provision for offences and penalties for offences.

The Data Protection Regulation is restricted to enable the Tribunal, the Facilitator and moderators to perform their functions. The Act  amends the Freedom of Information Act 2014 to provide that the 2014 Act does not apply to certain records relating to the Tribunal.