Women who are caught up in the CervicalCheck controversy and have terminal cancer are no longer able to secure financial provision for their children through the courts during their lifetime.
The late Vicky Phelan and Emma Mhic Mhathúna both died with the consolation that their High Court settlement included not just their own compensation but also financial payment for the future needs of the children who they were tragically leaving behind.
Ms Phelan, who had two children, received a settlement of €2.5m and Ms Mhic Mhathúna, a mother of five, was awarded €7.5m.
However, Cian O’Carroll, solicitor for both women, said yesterday that following a Supreme Court ruling in 2020 an application for financial provision for the children of other mothers can now only be made after their parents’ death.
This is causing more worry and stress to women who are dealing with a serious illness and limited time.
He added that because there is still uncertainty over whether two actions can be taken – one by the mother seeking compensation for the alleged negligence and a second on behalf of her children after her death – some women are having to make “a cruel choice”.
“This presents a significant risk and some women are forced to make a decision on their deathbed not to proceed with their own case to be sure that their children can proceed with an action after they are gone.”
The Supreme Court ruling barring the taking of a case on behalf of the woman’s children during her lifetime was part of a wide-ranging judgment delivered arising out of the legal action taken by the late Ruth Morrissey.
The Limerick woman, who had one daughter, was diagnosed with cervical cancer in 2014 and had two CervicalCheck screening tests read incorrectly.
The part of the ruling on leaving a claim on behalf of children until after a mother’s death relates to section 48 of the Civil Liability Act, Mr O’Carroll said.
It could affect around 20 cases a year, not just those taken by women in the CervicalCheck controversy but other people who are alleging negligence, he added.
“Due to the uncertainty, it means a woman may have to forgo seeking compensation for her own injury and loss often needed to fund her end-of-life care.
“This may involve having a nurse looking after her or adapting a room in her house so that she can have that care at home with her family close by.”
He said often the children involved can be quite young.
The Supreme Court called for legislation to be brought forward to allow for children to be included in these cases during the parents’ lifetime.
Speaking after her court case, the late Emma Mhic Mhathúna, whose children were aged two to 15 years at the time of her death in 2018, said she was very proud to have achieved justice.
“From the outset, I was determined to find justice for my children,” she said.
The €7.5m represents the amount of damage done to them, she added.
So far, at least 378 cases arising out of the CervicalCheck controversy have been brought to the High Court. Around 130 have been closed.
A number of members of the families of the women involved have also brought cases for the pyschological stress they have endured.
Around 25 cases have been received by the private CervicalCheck tribunal which was set up by the Government as an alternative to going to the High Court, but it applied the same adversarial standard.
The claims made to the tribunal are a combination of new claims, which were not the subject of proceedings before the High Court, and also involve claims transferred from the High Court.
The setting up of the tribunal was delayed until October 2020.
On January 24, the CervicalCheck Tribunal Act 2019 extended the closing date for receipt of claims by the tribunal to July 26 last.
The act does not provide for a further extension of this date.
A number of cases have concluded and it is unclear how many have yet to be heard.