On 4 to 6 November 2019, the Supreme Court heard the first Appeal arising from the cervical smear scandal. Before the High Court, Mr Justice Cross found that two cervical smear tests undertaken upon Mrs Ruth Morrissey in August 2009 and in August 2012 respectively had been wrongly and negligently interpreted as being “normal” by laboratories situated in the USA and in Ireland. Because those screening tests were interpreted as normal, no diagnostic tests were subsequently undertaken which the High Court accepted would have identified a pre-cancerous condition at a time when curative treatment through the surgical removal of the cancerous cells could have been achieved. It was therefore found that due to the delayed diagnosis resulting from the negligent interpretation of the screening tests, Mrs Morrissey developed an aggressive form of cancer which required invasive treatments and she had been left with a very limited life expectancy.
The hearing before the Supreme Court was “leapfrog appeal” from the decision of Mr Justice Cross. The direct appeal to the Supreme Court, rather than to the Court of Appeal, was allowed because of a number of exceptional circumstances including the importance for there to be an authoritative decision of the Supreme Court on the appropriate test for negligence to be applied in such cases for the benefit of other claims which were pending before the High Court and for the claims which were in the process of being referred to the specialist CervicalCheck Tribunal established to determine liability and to award compensation for eligible claimants. The urgency arising for the personal circumstances of Mrs Morrissey was also an important consideration.
Following a three (3) day hearing, the Supreme Court has reserved its decision. This decision will determine whether the “absolute confidence” test applied by Mr Justice Cross to the assessments required to be made by the screeners who reviewed smear test samples in the first instance was the appropriate legal test. Whilst media reports have suggested that the HSE and the medical profession consider the “absolute confidence” test to be inappropriate as it applies too high a standard, it is important to emphasise that such screening decisions do not amount to a diagnosis by either a doctor or a pathologist but are merely a screener’s assessment that there may be an abnormality which requires further review. Mr Justice Cross followed the decision made by the English Court of Appeal over eighteen years ago in adopting the “absolute confidence” test and it will be of considerable importance whether this line of authority is approved by the Supreme Court as also representing the law in Ireland.
There are other legal issues which the decision of the Supreme Court is likely to clarify which are of general importance to medical negligence cases in Ireland. In particular, the Supreme Court has been asked to consider the nature and extent of the liability of the HSE for negligence of other parties who carry out services for or on behalf of the HSE, including pursuant to a contractual arrangement. Judge Cross found that the HSE was both directly liable for the negligence of the cervical screeners who were employed by private laboratories pursuant to their non-delegable duty of care, as well as being vicariously liable for the negligence of their “agents” who performed the screening assessments at their request. As there has not been an authoritative decision of the Supreme Court regarding the nature and extent of the liability of the HSE for the negligence of third parties who have been contracted to provide medical and other services to patients on behalf of the HSE, the Supreme Court’s decision in Morrissey is likely to provide important clarification of the law in this area.