The CervicalCheck “crisis” has its roots is an “internationally unprecedented” decision by the HSE in 2008 to outsource 90 per cent of liquid based cytology testing to two multinational firms, the Supreme Court has been told.

In that context, the HSE must be found to have liability for the misreading of cervical smear samples of Limerick woman Ruth Morrissey, her counsel Patrick Treacy SC said.

He also disputed arguments that the High Court, in its judgment in favour of Ms Morrissey, departed from the applicable legal standard when assessing the standard of care to be applied by cytoscreeners.

The High Court had not set a legal “test” of “absolute confidence” for cytoscreeners in saying the “practical duty” of a screener when analysing what is on a slide is “absolute confidence”, he said.

There is “nothing wrong with absolute confidence” and, while the HSE argued that could have implications for other screening and medical situations, this case is only about cytoscreening.

The five judge court is hearing an appeal, regarded as a test case, against the High Court judgment in the case of Ms Morrissey and her husband Paul. The outcome will impact on other cervical cancer cases and the work of the CervicalCheck tribunal.

Misreading

The HSE and two laboratories — Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd, — have appealed judgment in which the High Court’s Mr Justice Kevin Cross last July awarded €2.1 million to the Morrisseys over the misreading of Ms Morrissey’s cervical smear slides.

The Government has guaranteed that, irrespective of the outcome of the appeal, the couple will get the entire award, some €2 million of which is against the labs, and their legal costs.

Ms Morrissey was diagnosed with cervical cancer in 2014 and her case concerned smears taken under the CervicalCheck screening programme in 2009 and 2012. She was not told until May of last year that a 2014 review showed two smears were reported incorrectly.

The core issues in the appeal include what standard of care should apply in cervical cancer screening and whether the HSE has liability for acts and omissions of laboratory screeners. The appellants’ particular concern is the High Court finding screeners should have “absolute confidence” about the adequacy of a sample and that there is no abnormality.

In submissions for Medlab on Tuesday, Eoin McCullough SC expressed sympathy to Ms Morrissey for “the very difficult position in which she finds herself” but disputed that Medlab has liability arising from its analysis of the 2012 smear.

He argued the proper approach to this case was to apply the Dunne test for negligence, which is based on principles set by the Supreme Court in the case of Dunne v the National Maternity Hospital.

Adequacy

He disputed High Court findings that the 2012 slide had not been properly tested by Medlab for adequacy and that a proper test would have found it was inadequate, with the effect Ms Morrissey would have been retested between one and three months later and had her cancer detected sooner.

There was evidence the slide contained more than 5,000 cells “which, by definition, meant it was adequate” as 5,000 is the number of cells required to be reasonably sure any abnormalities present in the cervix come into the sample being tested by the screener, he said.

Disputing the finding of causation of the cancer, Mr McCullough said the central issue, whether there were in fact abnormal cells on the 2012 slide, was not addressed by the High Court. He also argued the High Court erred in awarding €575,000 to Mr Morrissey for costs of care into the future, mostly for care of the couple’s daughter.

Beginning his submissions, Mr Treacy said it was important the court understand the history concerning the outsourcing from 2008 of liquid based cytology to Quest and Medlab, respectively subsidiaries of US and Australian multinationals, and the ultimate closure of all but one Irish cytoscreening laboratory.

A leading consultant cytologist here had resigned over concerns about quality assurance and all these matters were set out in the Scally reports on the Cervical Check controversy, he said.

The appeal continues on Wednesday.