Cervical Screening Scandal - How Can a Public Inquiry Provide Answers, Accountability & Reform?
By Enda McGarrity & Sarah Kirk
Over the last decade and beyond, several significant concerns related to the accuracy and reliability of the cervical cancer screening process have been raised in Northern Ireland. An independent report was commissioned to the Royal College of Pathologists (RCPath Consulting) on foot of these concerns. The review was initiated after laboratory staff raised significant concerns in relation to the screening system's performance in July 2022.
The assessment revealed that while most negative results were accurate, a considerable number of women might have received results that other laboratories would have flagged as potentially abnormal. The review revealed that this had been occurring since 2008. The review also identified that some of the cytology staff responsible for analysing the smear tests were underperforming.
Although concerns were raised by laboratory staff in July 2022, the review and response to these issues took several months to initiate. This delay potentially prolonged the period during which women received inaccurate results. As a result, approximately 17,500 women were required to have their smear tests re-examined.
Many women remain in limbo as they await the results of their review. Tragically, a number of women have died as a result of misread smears and their families continue the fight for answers and accountability on their behalf.
A public apology has been made by the Southern Health Trust to those who have been impacted. Campaigners believe the review does not go far enough and have been calling for a statutory public inquiry to investigate these issues in a robust and transparent manner.
What is a Public Inquiry?
Public inquiries are independent investigations, established in response to public concern about a particular event or set of events.
An inquiry typically sets out to establish:
What happened, and why?
What decisions went wrong, and what went right?
What lessons can be learnt to prevent a recurrence of any adverse impacts from these events?
A statutory public inquiry can be initiated under the Inquiries Act 2005 under the direction of a Government Minister. Once an Inquiry is set up terms of reference will be set up which set out the scope of what the Inquiry will investigate. An Inquiry chairperson will then be appointed, sometimes along with an expert panel who assist the Inquiry’s investigation.
A statutory public inquiry has the power to compel witnesses and evidence. People or groups of people who have been adversely impacted are also given a central role in statutory Inquiry’s by being designated as core participants. This gives victims the right to be central to the Inquiry’s investigation by reviewing evidence, giving evidence, making submissions and questioning witnesses via their legal representatives and shaping the nature of the Inquiry’s investigation more generally to ensure that it is as comprehensive as possible.
A non-statutory public inquiry does not enjoy these powers and is often an inappropriate mechanism for investigating contentious issues.
A public inquiry will generally conclude when the Chairperson publishes their report/findings which will typically include recommendations. The onus then shifts to the Government and other relevant public bodies who must consider whether to implement the recommendations. A recent parliamentary committee report recommended the implementation of a national oversight mechanism which would monitor the State’s implementation of Inquiry recommendations.
The recent commitment by the Labour Government to implement Hillsborough Law will greatly assist in improving the effectiveness of Inquiries as it would place a statutory duty of candour on public authorities and officials to tell the truth and proactively cooperate with Inquiries.
What other legal remedies are available?
In the context of the cervical screening scandal there are a range of potential remedies for investigating.
As discussed above, the Trust have initiated their own review processes which includes several Serious Adverse Incident (SAI) reports. This is generally not an effective remedy in circumstances where an internal Trust investigation lacks the independence and powers that are required to comprehensively investigate these issues. In addition, given that there have been a number of deaths arising from the scandal, internal Trust investigations are not sufficient to discharge the State’s obligations under Article 2 of the European Convention on Human Rights.
Medical negligence claims are another potential avenue that could be pursued. Unfortunately, this would be sub-optimal as medical negligence litigation is generally very expensive and lengthy which is an unacceptable barrier to participation. In addition, medical negligence cases would focus on the care and treatment provided to an individual. It is therefore not an appropriate forum to investigate in cases where there is significant concern around systemic failures which have had an impact on thousands of women.
Representative actions (sometimes known as class actions) are available where numerous people have the same interest in proceedings. This could in theory apply to those who have suffered adverse impacts as a result of misread smears. However, given that the impact on women has been variable the question of causation would likely need to be addressed on a case-by-case basis. In these circumstances it is unlikely that a representative or class action would be an appropriate remedy.
Coroner’s Inquests may be available in the most extreme cases where a death has occurred because of misread smear tests. The coroner can investigate the cause of death as well as the circumstances surrounding a death. However, there are obvious barriers to participation in circumstances where an Inquest would investigate individual cases and would be impeded from reviewing the wider spectrum of issues.
What next?
There is no dispute that the efficacy of the cervical screening programme in NI raises matters of significant public concern, and that urgent action is required to establish the facts of how these events came to pass and to put measures in place to ensure that a reoccurrence does not occur which would, in turn, help to restore public confidence.
Health scandals have plagued Northern Ireland in recent years and common themes have emerged from the investigations which have followed including:
Health services are in crisis and continue to lag behind the rest of the UK
A closed culture of defensiveness and a lack of transparency exists in the delivery of health services in NI. This creates an environment which increases the prospects of concealment and cover ups.
There is an absence of a built-in independent review mechanisms to ensure that mistakes are identified and rectified quickly.
Our Inquiries team have encountered these recurring issues in the course of our work on the Covid Inquiry and in representing patients of former BHSCT neurologist Dr. Michael Watt. Those who have been impacted by the cervical screening review will wonder if the same or similar issues contributed to the latest health scandal in Northern Ireland.
The question, then, is what is the most appropriate forum to investigate these issues? The scale and systemic nature of the failures mean that it is highly unlikely that anything short of a statutory public inquiry would suffice. In circumstances where families have already been bereaved and many women remain in limbo, the urgency could hardly be greater.
Contact us
If you have been impacted by the cervical screening review scandal and would like more information, reach out to our specialised inquiries team today to schedule a consultation.