HSE board anxious over impact of legal cases on BreastCheck

Significant concern about the impact of legal cases on BreastCheck was expressed by the HSE board at a meeting in March.

The meeting heard an update from Mr Ciaran Breen, Director of the State Claims Agency (SCA), who presented on the judgement of the Supreme Court in the Morrissey case involving CervicalCheck.

There had been “multiple settlements” on cervical screening cases and further cases pending, the meeting heard. Additionally, the first breast cancer screening case had just concluded in the High Court and there were 11 more cases pending.

“Prior to the [CervicalCheck] crisis there were only a very small number of cases in both programmes,” the HSE board heard.

In May, a woman who sued for damages over her BreastCheck screening lost a High Court action, with the judgement finding that the case involved a true interval cancer, with normal or benign features in the screening mammogram.

At the HSE board meeting in March, Mr Breen said the SCA welcomed the Supreme Court’s “clarification” on the ‘absolute confidence’ test set out in the Morrissey High Court case. He said it confirmed there was no new test in clinical negligence cases.

The Supreme Court judgement also clarified that the level of conviction required for a cytologist to declare a cervical smear test as negative was specific to the interpretation of cervical smear slides and did not have wider application to other clinical negligence cases.

The Supreme Court found that the HSE was primarily liable for any negligence which might be found against the laboratories delivering CervicalCheck screening on its behalf.

However, it overruled the High Court’s finding that the HSE was  vicariously liable for any negligence established against the laboratories. This meant the HSE could continue to rely on contractual indemnities with laboratories.

“The board agreed that the greatest risk going forward relates to breast screening,” outlined minutes. “This is based on the nature of the test, existing recruitment challenges, impact of the recent High Court case on clinical staff, forthcoming recommendations from the expert group and the impact of this judgement.

“Going forward, the introduction of the HPV test for cervical cancer has much higher accuracy and therefore will reduce the level of risk of false negatives in the future. As an automated test it reduces some of the current manual screening risks and will not retain a sample in circa 85 per cent of the cases.

“All of this improves the risk profile considerably but there are several ‘legacy’ cases still in the pipeline awaiting judgment/settlement. The financial exposure in these legacy cases is very significant.”

Board member Prof Deirdre Madden said the implications for other screening programmes, particularly BreastCheck, could be “very significant because the potential application of the principle of ‘absolute confidence’ to mammography would cause a lot of anxiety to those working in the breast screening programme as well as financial exposure if cases were to proceed along similar lines”.

A comment was awaited from the HSE.

Meanwhile, the Executive recently announced that it plans to restart cervical screening from 6 July. Invitations to BreastCheck and BowelScreen are expected to resume in September.

It is hoped diabetic retinopathy screening will restart next month.

The screening programmes were suspended amid the ongoing Covid-19 pandemic.