CervicalCheck Tribunal Act 2019

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the CervicalCheck Tribunal Act 2019.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Definitions

2. In this Act—

“Act of 1961” means the Civil Liability Act 1961;

“appropriate person” means—

(a) a relevant woman, or

(b) where a relevant woman has died, a dependant of the relevant woman concerned;

“CervicalCheck” means the national cervical screening programme initiated in 2008 by the National Cancer Screening Service Board and, since the dissolution of the Board on 1 April 2010, provided by the Executive;

“CervicalCheck cytology” means the cytology laboratory services retained by the Executive for the purposes of CervicalCheck;

“CervicalCheck non-disclosure ex-gratia scheme” means the scheme administered under that title by the Minister in furtherance of a decision of the Government of 11 March 2019;

“Chairperson” has the meaning assigned to it by section 6;

“claim” means a claim made in accordance with section 11;

“claimant” means a person who makes a claim in accordance with section 11;

“dependant” has the meaning assigned to it by Part IV of the Act of 1961;

“establishment day” shall be construed in accordance with section 4;

“Executive” means the Health Service Executive;

“Facilitator” has the meaning assigned to it by section 31;

“Minister” means the Minister for Health;

“notice of acceptance” has the meaning assigned to it by section 17;

“prescribed” means prescribed by Rules;

“relevant parties” means, in relation to a claim—

(a) the claimant,

(b) the Executive, and

(c) the cytology laboratory services retained by the Executive for the purposes of CervicalCheck;

“relevant woman” means—

(a) a woman—

(i) identified as part of the Review of Cervical Screening as having CervicalCheck cytology review findings that were discordant with those of the original cytology examination in relation to the woman concerned, or

(ii) whose cytology slides were sought, by the Review of Cervical Screening, to be re-examined as part of its review but where one or more of those slides could not be re-examined as part of that review by reason of circumstances beyond the control of the woman concerned,

or

(b) a woman who received a diagnosis of cervical cancer—

(i) who had a screening history through CervicalCheck,

(ii) whose diagnosis of cervical cancer was notified to CervicalCheck,

(iii) whose cytology slides were re-examined as part of the retrospective CervicalCheck cytology clinical audit, and

(iv) whose cytology review findings, following the re-examination in accordance with subparagraph (iii), were discordant with those of the original cytology examination in relation to the woman concerned;

“restoration of trust meeting” has the meaning assigned to it by section 32;

“retrospective CervicalCheck cytology clinical audit” means the lookback clinical audit of cytology slides in relation to 1,482 women carried out by CervicalCheck between 2008 and prior to 5 May 2018;

“Review of Cervical Screening” means the review commissioned by the Minister and conducted by a Clinical Expert Review Panel under the auspices of the Royal College of Obstetricians and Gynaecologists of the results of screening tests of all women who have developed cervical cancer since 2008 who participated in CervicalCheck;

“Rules” means rules made under section 26;

“Tribunal” has the meaning assigned to it by section 5;

“waiver” means, in relation to claimant, a waiver by the claimant of any right of action which the claimant may otherwise have had or maintained against any other relevant party or parties to the claim concerned in respect of the circumstances of the claim before the Tribunal.

3. Expenses

3. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.

PART 2 CervicalCheck Tribunal

Chapter 1

4. Establishment day

4. The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.

5. Establishment of Tribunal

5. (1) There shall stand established on the establishment day a body, which shall be known, in the Irish language, as An Binse um CervicalCheck or, in the English language, as the CervicalCheck Tribunal (in this Act referred to as the “Tribunal”), to perform the functions conferred on it by this Act.

(2) The Tribunal may sit in divisions of itself.

(3) The Tribunal shall, subject to this Act—

(a) be independent in the performance of its functions, and

(b) regulate its own procedures.

6. Membership of Tribunal

6. (1) Subject to subsection (2), the Tribunal shall consist of a chairperson (in this Act referred to as the “Chairperson”) and not less than 2 ordinary members, each of whom shall be appointed by the Minister.

(2) The Minister may, if he or she considers it necessary, appoint additional persons to be ordinary members of the Tribunal.

(3) The Chairperson shall hold or have held judicial office in the Superior Courts.

(4) Each ordinary member of the Tribunal shall—

(a) hold or have held judicial office in the Superior Courts, or

(b) be a practising barrister or solicitor of not less than 10 years practice.

(5) Each member of the Tribunal, other than a member who is the holder of a judicial office in the Superior Courts, shall be paid such remuneration (if any) as may be determined by the Minister, with the consent of the Minister for Public Expenditure and Reform.

(6) Each member of the Tribunal shall be subject to such terms and conditions and be paid such allowances for expenses as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine.

(7) If the Chairperson is for any reason unable to continue to act as Chairperson, the Minister may designate another member of the Tribunal as Chairperson.

(8) Without prejudice to the generality of subsection (2), if a member of the Tribunal is for any reason unable to continue to act as an ordinary member of the Tribunal, the Minister may appoint a person to be an ordinary member of the Tribunal in that member’s place.

(9) In this section, “judicial office in the Superior Courts” means the office of judge of the High Court, the office of judge of the Court of Appeal or the office of judge of the Supreme Court.

7. Functions of Tribunal

7. (1) The Tribunal shall, in addition to the other functions conferred on it by this Act—

(a) hear and determine claims,

(b) subject to section 31 (4), facilitate restoration of trust meetings, and

(c) report, and make such recommendations as it deems appropriate, on any matter relating to the work of the Tribunal.

(2) Notwithstanding the generality of subsection (1), the Tribunal may provide such recommendations as it considers appropriate on any matter relating to the work of the Tribunal to the Minister, whether or not it has received a request in that behalf from the Minister.

(3) The Tribunal shall have all such powers as are necessary or expedient for the performance of its functions.

(4) The Chairperson may delegate any of the Tribunal’s functions (other than a function specified in subsection (1) (a)) to any member of the staff of the Tribunal duly authorised in that behalf by the Chairperson and that member of staff shall be accountable to the Chairperson for the functions so delegated.

(5) The Chairperson may revoke a delegation made in accordance with subsection (4).

8. Staff of Tribunal

8. (1) The Tribunal may, with the consent of the Minister, given with the approval of the Minister for Public Expenditure and Reform, appoint such and so many persons to be members of staff of the Tribunal as it may determine.

(2) The terms and conditions of service of a member of staff of the Tribunal and the grade at which he or she serves shall be such as may be determined by the Tribunal with the consent of the Minister and the Minister for Public Expenditure and Reform.

(3) The members of staff of the Tribunal shall perform their functions under the direction and control of the Chairperson.

9. Experts and research

9. (1) Subject to subsection (2), the Tribunal may, if it considers that it requires the advice or assistance of experts (including legal experts) in respect of any matter—

(a) appoint such and so many persons having expertise in relation to that matter as it thinks fit, and

(b) determine the terms and conditions of appointment of such persons.

(2) Before making an appointment or a determination under subsection (1), the Tribunal shall obtain the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform.

(3) Where the Tribunal appoints a person under subsection (1) for the purposes of assisting or advising the Tribunal in respect of the hearing and determination by it of a claim, a party to the claim shall be entitled to examine the person so appointed.

(4) The Tribunal may, for the purpose of the performance of its functions, subject to the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform, conduct, or commission the conduct of, research.

10. Tribunal may retain legal counsel and solicitor

10. (1) The Tribunal may if it considers it necessary for the performance of its functions—

(a) appoint its own counsel or solicitor, and

(b) determine the terms and conditions of appointment of such persons.

(2) Before making an appointment or a determination under subsection (1), the Tribunal shall obtain the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform.

Chapter 2

11. Claims before Tribunal

11. (1) Subject to section 12 and subsection (2), an appropriate person may, in the prescribed form and manner, make a claim for compensation to the Tribunal—

(a) seeking damages for negligence, breach of duty, breach of statutory duty or breach of contract arising from any act or omission concerning CervicalCheck, or

(b) seeking damages for the alleged negligence or breach of duty arising from an alleged failure to inform the relevant woman concerned or, where she has died, a dependant of the relevant woman concerned of the results of the retrospective CervicalCheck cytology clinical audit.

(2) Where a person has received an award (other than an award under the CervicalCheck non-disclosure ex-gratia scheme) from any court or settlement in respect of any action arising out of any circumstances which could give rise to a claim before the Tribunal, the person shall not be entitled to make a claim to, or be heard by, the Tribunal.

12. Reckoning of time for purpose of Statute of Limitations, etc.

12. (1) Subject to subsection (2), a claim shall be made—

(a) in the case of a claim in respect of which, as part of the Review of Cervical Screening, the relevant woman or, where she has died, a dependant of the relevant woman concerned, was notified in writing that the cytology review findings in relation to the woman were discordant with those of the original cytology examination in relation to the woman—

(i) within 6 months of the date of notification, or

F1[(ii) on or before the 26th day of January 2022 or such later date, being a date not later than the 26th day of July 2022, as the Minister may by order specify undersubsection (3A),]

whichever is the later, or

F1[(b) in any other case, on or before the 26th day of January 2022 or such later date, being a date not later than the 26th day of July 2022, as the Minister may by order specify undersubsection (3A).]

(2) A person may not make a claim where—

(a) the person was entitled to institute proceedings in respect of a relevant claim, and

(b) the limitation period in respect of instituting those proceedings has expired.

(3) In reckoning any period of time for the purpose of any applicable limitation periods in relation to a relevant claim—

(a) the period beginning on the date of the making of a claim and ending 6 months from the date on which the Tribunal notifies in writing (in this section referred to as the “date of Tribunal notification”) the claimant that one or more of the relevant parties have failed to agree in writing to the claim being determined by the Tribunal and accordingly that the Tribunal is not in a position to hear and determine the claim, or

(b) the period beginning on the date of the making of a claim and ending 6 months from the date on which the Tribunal notifies in writing (in this section also referred to as the “date of Tribunal notification”) the claimant that one or more of the relevant parties have notified the Tribunal that there is no longer consent to the claim being determined by the Tribunal and accordingly the Tribunal is not in a position to continue to hear and determine the claim,

shall be disregarded.

F2[(3A) The Minister may—

(a) if and only if he or she is satisfied, having regard to the purposes of this Act, that there is good and sufficient reason for so doing, and

(b) after consultation with—

(i) the Minister for Public Expenditure and Reform,

(ii) any other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister of the Government, and

(iii) the Tribunal, by order specify a later date for the purposes ofparagraphs (a)(ii)and(b)ofsubsection (1).]

(4) In this section—

“date of making of a claim” means the date on which an application under section 11, made in the prescribed form and manner, is received by the Tribunal;

“date of notification” means the date on which a notification referred to in subsection (1)(a) is issued by the Executive;

“date of Tribunal notification” means the date on which the Tribunal issues, in the prescribed form and manner, a notification under subsection (3) (a) or subsection (3)(b), as the case may be;

“limitation periods” includes any limitation period under the Statute of Limitations 1957, section 9(2) of the Act of 1961 and the Statute of Limitations (Amendment) Act 1991;

“relevant claim” means a civil action by a person—

(a) seeking damages for negligence, breach of duty, breach of statutory duty or breach of contract arising from any act or omission concerning CervicalCheck, or

(b) seeking damages for the alleged negligence or breach of duty arising from an alleged failure to inform the relevant woman concerned or, where she has died, a dependant of the relevant woman concerned of the results of the retrospective CervicalCheck cytology clinical audit.

13. Agreement of parties required to enable Tribunal to hear claims

13. The Tribunal shall hear and determine only claims in respect of which there is agreement in writing from each of the relevant parties to submit the claim concerned to the Tribunal for determination by the Tribunal.

Chapter 3

14. Manner of determination of issues

14. Subject to the provisions of this Act and such Rules (if any) in relation to conduct of claims as may be prescribed by the Tribunal under section 26, the Tribunal shall hear and determine claims (including any such other necessary interim, interlocutory or matters ancillary arising in those claims) in the same manner as the High Court hears and determines claims for personal injuries arising from the alleged negligence, breach of duty, breach of statutory duty or breach of contract.

15. Third party procedures

15. (1) Without prejudice to the generality of section 14, where a respondent wishes to join a third party to a claim, the Tribunal may grant such application in the same manner as such applications are determined by the High Court.

(2) Where the third party referred to in subsection (1) consents to having all issues arising in the claim determined by the Tribunal, the claim will proceed before the Tribunal.

(3) Where the third party referred to in subsection (1) does not consent to having all issues arising in the claim so determined by the Tribunal, the Tribunal—

(a) shall not continue to hear and determine the claim, and

(b) shall, in the prescribed form and manner, notify the parties concerned of that fact.

16. Account to be taken of ex-gratia payments

16. Where, in respect of a claim before the Tribunal, the CervicalCheck non-disclosure ex-gratia scheme had previously determined that an ex-gratia payment should be made in respect of the claim, the Tribunal, in considering whether an award should be made in respect of the claim, or in what amount, shall take into account any sum paid or payable in respect of the circumstances giving rise to the claim under the CervicalCheck non-disclosure ex-gratia scheme.

17. Awards of Tribunal - applicable principles, etc.

17. (1) An award may be made by the Tribunal to a claimant.

(2) An award of the Tribunal shall be made on the same basis and calculated by reference to—

(a) the same principles which govern the measure of damages in the law of tort, breach of statutory duty, breach of contract, and

(b) the same enactments,

as would be applicable to an assessment of damages, were proceedings to be brought in the High Court in relation to the claim concerned.

(3) Where the Tribunal makes an award to a claimant, the claimant shall have a period of 21 days, or such greater period as the Tribunal may for good and sufficient reasons determine, from the making of the award to accept or reject the award or to appeal the award under section 27.

(4) Where a claimant in respect of whom an award has been made neither accepts or rejects the award nor appeals the award under section 27, within a period of 21 days or such greater period determined by the Tribunal under subsection (3), the claimant shall be deemed to have rejected the award.