In late September, representatives of Survivors of Symphysiotomy met the Minister for Health. Most of the group’s 350 members are elderly women now. When they were young, their pelvises were broken before or during childbirth.
The Supreme Court has confirmed that the substitution of symphysiotomy for Caesarean section was never generally accepted medical practice in Ireland. We are now familiar with the harm that these women and their families suffered.
But we seem to have very little of substance to say about the State’s refusal to make proper reparation for unlawful symphysiotomy.
In July, the Minister for Justice admitted before the UN Human Rights Committee that symphysiotomies were often performed without women’s consent. The committee, in turn, affirmed symphysiotomy as practised in Ireland from the 1940s to the 1980s could be considered a violation of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits cruel, inhuman and degrading treatment. Accordingly, under article 2.3 of the ICCPR, these women have a right to an effective remedy.
Independent investigation
This right has two prongs. First, survivors are entitled to an independent and impartial investigation into the practice of symphysiotomy in Ireland, capable of determining who should be held responsible for these abusive operations.
Second, the women have a right to reparations, which must be proportionate to the violence done to them. Reparations ought to be satisfactory to the majority of survivors. They can also include a guarantee of non-repetition and appropriate law reform: for example, the Irish State might ensure that pregnant women will never again subjected to invasive medical treatment against their will.
So far, the Government has ignored these rights. The Walsh report on the practice of symphysiotomy makes no findings of responsibility. The ex gratia symphysiotomy redress scheme proposed in outline by Judge Yvonne Murphy is patently inadequate. It cannot meet the proportionality requirements of article 2.3. The €50,000 or €100,000 sums available to most women in the scheme are far lower than would be paid in damages in a successful medical negligence suit.
The scheme is based on broad bands of compensation, which do not allow for individualised assessment of women’s needs. There will be no appeal from an award under the scheme except by burdensome and expensive judicial review.
At the September meeting, the Minister made two procedural changes to the Murphy framework. Women will not be required to waive their right of access to the courts as a condition of participation in the scheme before they know how much money they might be offered. The scheme will also be administered by a judge or senior barrister rather than the State Claims Agency.
Core flaws remain
However, the core substantive flaws remain. Last week, the members of Survivors of Symphysiotomy voted to reject the amended scheme. Unless the Government admits the wrongfulness of symphysiotomy, and revisits the core redress provisions, a substantial number of women will be forced to continue with or initiate actions in the High Court.
The Government is likely to fail in its key objective of avoiding costly litigation.
Survivors of symphysiotomy have never insisted on their day in court. But it is little wonder that many – like Louise O’Keeffe before them, and the survivors of mother and baby homes who met in Brussels recently – see the courts as their only route to legitimate findings of liability and meaningful compensation.
The Government diminishes their efforts by insisting that they have no legal cases. But Judge Murphy’s redress scheme was designed on the basis that these women have realistic claims in medical negligence; that the State – given its relationship with public and private hospitals – is the primary defendant; and that there is every chance that enough survivors could win or successfully settle to raise the spectre of damages and costs far in excess of the expense of the proposed redress scheme.
These women are not objects of pity, but citizens asserting valid human rights claims against the State. The Minister should recognise them as such, and amend the scheme to give them what they are due.
Máireád Enright is lecturer in law at University of Kent