At the request of the Minister for Health, Simon Harris, Mr Justice Charles Meenan published a recent Report recommending how claims arising from CervicalCheck could be determined outside of the courts process.  

Judge Meenan recommended that a Tribunal, headed by a sole Chairperson (a serving or retired Judge of the Superior Courts), be established to hear and determine claims arising from CervicalCheck. 

It is important to note that this proposal would not interfere with the right of access to the courts. It is proposed that it would simply provide a less adversarial, more informal, less costly and more efficient route for women and/or their families to seek to resolve their claim. However, if a woman and/or her family consent to a claim being heard by the Tribunal, this would result in the waiving of her/their entitlement to bring or maintain legal proceedings in respect of the claim.

Judge Meenan recommended the following key features of such a Tribunal:

  1. The Tribunal Hearings be held in private.
  2. The Statute of Limitations would apply to the Tribunal in the same manner as it does in legal proceedings.
  3. The Chairperson would have the power to determine liability, award damages and make orders as to costs.
  4. The Chairperson may be assisted by an expert if necessary. However, such an expert would not be involved in the decision making process.
  5. Cases can be “fast-tracked” where liability is not at issue.
  6. Orders of the Tribunal may be published, but with the parties remaining anonymous.
  7. A right of a full rehearing to the High Court would exist.
  8. The Chairperson would be tasked with publishing a Report detailing his/her determinations and findings.

In order for the Tribunal to be established, it will first need the approval of the Cabinet and then enabling legislation must be enacted. As ever the detail of the legislation will need to be seen before it is possible to say whether or not the proposed Tribunal will actually produce the desired effect.

Article by Jamie Hart, Partner, Medical Negligence Group. 

 

 


23 October 2018

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