The Government’s draft law being passed through the Oireachtas in memory of the late campaigner Vicky Phelan “does not pass the Vicky test”, the Dáil has heard.
Several opposition TDs said they had “no issue” with the Bill before the Dáil or amendments proposed, but felt it was being “rushed” through without proper scrutiny.
Addressing the Dáil at the beginning of the four-hour debate, Minister for Health Stephen Donnelly said that “many aspects of this Bill have been informed by the very serious learnings from what happened with CervicalCheck”.
In 2018, Vicky Phelan’s High Court case revealed that hundreds of women who used Ireland’s cancer screening programme CervicalCheck, and who were later diagnosed with cervical cancer, had not been told that their previous smear results had been audited, or that in some cases, the results found that their smears had been misinterpreted.
The case of Ms Phelan and others revealed that the screening programme did not have a system in place to ensure women would be told an audit had been carried out or be offered the audit results.
In the wake of the death of Ms Phelan three weeks ago, the Government and politicians pledged to pass legislation that would address the issue before the end of the year.
Addressing the Dáil on Wednesday evening, Mr Donnelly said that one of the most “substantial” amendments he was bringing forward allowed for mandatory open disclosure in relation to cancer screening.
Prior to Wednesday’s amendments, the majority of the Bill provided for mandatory open disclosure in cases where the patient had died.
“All reviews will have to be disclosed irrespective of whether there is a discordance and this is the nub of it,” Mr Donnelly told TDs.
“All reviews must be disclosed to the patient where the patient has requested the review.”
This would be in cases where the patient had been diagnosed with cancer.
Mr Donnelly told the Dáil that based on data from the UK, it was estimated that around half of patients would choose to see the review of their smears after a cancer diagnosis.
He added: “Every single woman who has a diagnosis of cancer would be informed that there is a patient review process available to them should they want it.”
Among the issues raised by opposition politicians was that there was no legal “duty of candour” contained in the Bill, and that there was no legal obligation on healthcare professionals to tell women diagnosed with cancer that they had a right to review their smear slides.
Advising patients on their right to review would be contained in guidelines for healthcare staff, the Dáil heard.
Former Labour leader Alan Kelly said during an emotional contribution that the Bill “doesn’t pass the Vicky test”.
He said that two other CervicalCheck campaigners, Stephen Teap and Lorraine Walsh did not support the Bill in its current form.
“We shouldn’t be here minister. This is rushed, so rushed. We got these 40-something pages of amendments on Friday.
“I want to support this Bill. We shouldn’t be here doing this like this. It’s just not good practice.
“This is not open disclosure,” he added, while acknowledging that it was a difficult “balancing act” on what was “a very, very technical piece of legislation”.
He said that based on the current legislation, in Vicky’s case there “wouldn’t have been an obligation” to tell her about the findings of her audited smears unless she had requested them.
“That’s the reason why we can’t support it as it’s currently drafted,” he said.
“This doesn’t pass the Vicky test, and that is so, so, so important to me.”
Sinn Féin TD Mark Ward said the Bill had to be made “Vicky proof”, and asked why a duty of candour was not enshrined in it.
“The bottom line is that we are not giving everyone the right to information unless you seek it, and I think that’s very unfair,” Patricia Ryan said.
“Why should we have to be going to seek it – we should have the right to automatically be getting this information.”
In a separate issue raised during the debate, independent Limerick TD Richard O’Donoghue told the Dáil he had submitted three patient safety incidents to University Hospital Limerick (UHL) a year ago.
“I have three incidents put into UHL myself, more than 12 months ago, and the HSE wrote to me and asked me could I disclose the information myself and they already have it on file for 12 months,” he said.
“Minister, if you’re not willing to ask people from outside of the HSE to investigate cases, we will never rectify the problems that we have in Ireland.”
