We were all greeted on Sunday morning, 07 October 2018 with the sad news of the untimely needless death of Emma Mhic Mhathuna, a courageous Mother who left the world and her five children behind her at the young age of 37.
Emma has clearly left behind a personal and private legacy to her family, friends and especially her five children in all that she has achieved.
I didn’t have the pleasure of knowing or acting for her, however I was asked to comment on her legacy for the Last Word Show on Today and these were my thoughts.
Her public legacy was articulated perfectly by her family when they stated that:
“Emma will be long-remembered by the thousands of people who have been inspired for her fight for justice, transparency and improved services.”
These words sum up, better than anyone else can, Emma’s public legacy. She fought for justice for herself and her family but also for others by raising awareness of the failings in our CervicalCheck Screening Programme through her public battle fighting her case through the High Court and speaking out in the media.
Emma was eventually successful in her legal case. She received an admission of negligence from the laboratory - Quest Diagnostics - who caused the negligent error and she received an apology from them for their failings. She also received a substantial award which should ensure financial stability for her children. This was a very public vindication for Emma and her family for the wrongs done to them. Her victory in turn has raised public awareness of the errors within the Cervical Check screening programme.
Emma was lucky enough to reach a financial settlement during her lifetime which one hopes brought some small comfort to her in her last days, to know that her children would be provided for, in financial terms at least, for the rest of their lives. There are a number of victims who are currently battling through the Court system and we hope that the laboratories will cooperate in furnishing slides and records without delay to allow a speedy resolution of these cases where possible, to allow sick and sometimes dying individuals concentrate on more important matters than legal battles.
Transparency was at the heart of what Emma fought for. She did this by bringing her case through the Courts in a very public way. On the date of her settlement in June 2018 Emma attended Court wearing an elegant red dress, which symbolised to all that she will not be remembered as a victim. It also demonstrated she wanted to receive a very public vindication. From this, it seems that Emma would not have been happy with a settlement behind closed doors.
In the current climate, there are calls for cases to be dealt with privately for example, by an Alternative Dispute Resolution (‘ADR’) scheme or other mechanism outside Court and behind closed doors. Advocators of this system propose that victims “don’t want to be dragged through the courts” and want private settlements. Some do, yes. But many others, including Emma want their day in Court, they want their voice to be heard. A day in Court exposes the errors of a flawed system and raises further awareness to benefit others.
Without our public courts system, and courageous litigants such as the late Emma and before her Vicky Phelan, the errors within the Cervical Check system may have gone unreported.
Emma also fought for improved services for all. Currently we are aware that the HSE is in negotiations with the relevant Laboratories – Quest Diagnostics and MedLab Pathology to renew their contracts. We understand that there are difficulties regarding indemnities and/or insurance which are stumbling blocks in finalising these contracts. However, we question whether it is correct to renew these contracts at all? These laboratories perform 90% of the testing of cervical samples in Ireland and yet the laboratories have not been investigated or validated. We need laboratories to continue our Cervical Screening Programme but not at all cost. Not if we cannot be assured that they will provide an appropriate service and certainly not if we cannot be assured that the negligent errors which caused Emma’s death will not be repeated. It was not within Dr Scally’s remit to investigate these laboratories and we believe that the Royal College of Obstetricians and Gynaecologists will not be examining the laboratories either. Why is this so? Who will be reviewing these laboratories and how can we improve our services if we do not ask the questions that need to be asked.
Finally, Emma was said to have had a ruthless pursuit of the truth thus if we are to do justice to her legacy at all we need to continue the pursuit of truth and again call on our Government to enact the current Bill to make open disclosure mandatory. Currently the law states that it is optional for a Doctor to tell the truth to a patient and if they do tell the truth that it cannot be used in any subsequent legal proceedings. The law that is promised will make it mandatory for a Doctor or health professional to tell the truth but it will still be protected and cannot be used in subsequent legislation. It seems mad that we need to legislate to force professionals to tell the truth, but that is what Emma’s experience and the fact that the truth was hidden from her has shown us.
And why should the admission be protected and not able to be referred to in subsequent cases? Is an admission that is protected a true and valid admission at all? One would still have to prove their case but if someone admits an error why can they then be permitted by law to say that this admission is not to be used at a later date? This negates the admission in our view and it does not aid Emma’s ruthless pursuit of the truth.
To honour Emma, I hope we can continue her pursuit for justice for all victims in an open and transparent way, if that is their choice, and improve the cervical screening services for all women in Ireland.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.