WERE it not for cancer patient Vicky Phelan’s refusal to be gagged by a confidentiality clause that was part of a proposed settlement offered to her before she went ahead and won her case in the High Court, the details of the incorrect result of her cervical smear test and the subsequent attempted cover-up of the error may never have come to light in the public domain. Her courage and selflessness have resulted in the exposing of a scandal that has seen hundreds of other women similarly affected and which has shown up a lot of heretofore trusted agencies in a very poor light.
Even though she was the victim of a ‘false negative’ in a smear test carried out in 2011 under the HSE’s Cervical Check scheme, which – seemingly deliberately – she was not told about until a year after the error was discovered, she bravely urged women to continue to avail of the free scheme. However, after all that has emerged in the past two weeks, it will be understandably difficult for women to have confidence in the scheme now.
After the since discredited negative result of her 2011 smear test, Ms Phelan (now just 43 years of age) was shocked to be diagnosed with terminal cervical cancer in 2014. Unknown to her, the smear sample she gave seven years ago was re-tested in 2016 and found to have been positive for cancer, but she was not told about it for a further year.
Fortuitously, she spotted correspondence about it on her medical file while in a waiting room for an appointment and photographed documents which seemed to indicate that there was some form of dispute over who should tell her the results of the re-test. This hard evidence of the lack of communication with her – the person most affected by the error – copper-fastened her grounds for taking a court case and being awarded €2.5 million compensation from the US laboratory which carried out the test on behalf of the HSE’s Cervical Check.
The episode showed that Vicky Phelan was fully justified in acting on the information that came her way more by accident than design. In fact, all patients should realise that information about them on medical files is theirs and they are entitled to know the content of same.
When she took the legal proceedings against the lab, and the HSE initially, they were defended robustly to the last, which only added to the stresses of her own situation, especially considering that, at the end of January last, she was told by oncologists in her native Limerick that she had only six to 12 months to live.
The State Claims Agency’s policy of defending everything to the last is to be relaxed as a result of the Phelan case and it has undertaken not to adversarially contest cases where the State or its agents are deemed likely to be culpable. Own up earlier is its new mantra.
In the medical field, vindicating the rights of patients who have been wronged must be the priority and anything that adds unnecessarily to their suffering during litigation, even if done within the confines of the law, cannot be morally justified. Often, people taking cases may themselves be living on borrowed time and looking to ensure that there is financial provision for those left behind; unfortunately, most of these settlements are made without an admission of liability.
Accountability is still lacking and it is hoped that the call of Vicky Phelan to Taoiseach Leo Varadkar and Health Minister Simon Harris for ‘a Commission of Investigation that is both urgent and prompt but also public’ will be heeded and acted upon, because – as she stated in doing so – ‘Too much has already happened behind closed doors.’
It is proposed to start with a ‘scoping exercise’ by an expert from outside of Ireland, tasked to report by the end of June. This will form the basis for the follow-up investigation, which needs to be held in a public forum, but – unfortunately and despite time being of the essence – could become quite a protracted affair if the legal eagles get their claws into it.
In the light of the Phelan case, a redress scheme for all the hundreds of other women similarly affected is to be set up, but again no compensation will be paid out pending the findings of whatever inquiry or commission of investigation is set up and that could be quite a while away. For many, it may be too little too late.