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Dublin: 22 °C Thursday 24 July, 2014

Column: Attempts to silence survivors of symphysiotomy must be fought

Reliance on ex gratia redress schemes should be read against a backdrop of Government reluctance to allow these victims – and others like them – to speak on their own terms about the recent past, writes Máiréad Enright.

Máiréad Enright

JUDGE YVONNE MURPHY is due to report soon on the possibility of an ex gratia redress scheme for women subjected to symphysiotomies in Irish hospitals by influential Catholic doctors.

The women in Survivors of Symphysiotomy have rejected proposals for an ex gratia redress scheme; instead, they have asked the Minister for Health to support structured settlement of their negligence claims. Under the proposed settlement agreement, an independent person would be empowered to evaluate their legal claims, based on representations from their lawyers. The defendant hospitals would be obliged to fund the women’s independent legal advice and expert reports.

In the alternative, many women are bringing High Court negligence cases which, if successful, will provide an equivalent remedy, but at much greater cost. The Government has hampered those cases by refusing to lift the Statute of Limitations.

It has tended to suggest that most of these women have no real cases, because the passage of time has eroded the necessary evidence, and because symphysiotomy was a generally accepted medical practice in Ireland at relevant times. However, in the Kearney v McQuillan judgments, the Supreme Court dismissed both points.

First, the Supreme Court held in 2010 that the defendant cannot be prejudiced by delay where the justifiability of the procedure even on the basis of the standards prevailing in obstetrics at the time of the operation is in issue. This is because witnesses are not necessary to determine that sort of claim. Second, in 2012, the Supreme Court accepted that, even by 1969, symphysiotomy was not a generally approved practice in Ireland. It was supported by a minority of doctors, who only considered it justified in a small number of circumstances.

Ms Kearney’s symphysiotomy, for example, was negligent because, as a post-caeserean operation, it did not fall within the defined set of circumstances. Other, more ‘routine’ symphysiotomies could also meet this test.

The Government claims to be concerned about the toll which protracted litigation will take on these women. But they have very good reasons to prefer it to the alternative.

Measuring the harm done

First, ex gratia redress is a voluntary payment, made without any admission or apportionment of liability. Participants in such a scheme would be denied an independent rigorous investigation and evaluation of actions which have ruined their lives. The government-commissioned Walsh report, as yet unpublished, cannot fulfil this function.

Second, as we know from the Magdalenes redress scheme, ex gratia redress typically does not aim to measure and correct the harm done to each individual. Payments may be arbitrarily capped or tied to broad brush criteria. Litigation, for all its flaws, provides some opportunities for contest and compensation. Individuals make claims on powerful institutions in public, they are recognised in their harm and can speak to it, and they can receive a judgment which allocates responsibility for their suffering and which can be heard by the rest of the community. This instinctive sense that justice is a matter of being heard by others cannot be satisfied by a bureaucratic payment scheme.

Assessment on a case-by-case basis

There is a precedent for meeting institutional negligence through the lens of contest and compensation. The Hepatitis C and HIV Tribunal was designed to provide full compensation for those infected by contaminated blood products, assessed on a case-by-case basis. Participation in the scheme did not preclude a later court award of damages. Applicants were entitled to government-funded independent legal representation and medical reports.

However, more recent schemes – the Residential Institutions Redress Board, the Lourdes Hospital ex gratia scheme and the Magdalenes ex gratia scheme- have all seen substantial deviations from this model. The most radical departure was the Magdalenes redress scheme. It allows for modest ex gratia payments which are not assessed on a case-by-case basis. Participants have no entitlement to funded independent legal advice or medical reports. The scheme is not grounded in a detailed independent fact-finding process, and participation in it is conditional on waiver of other legal claims.

This is the sort of scheme which Survivors of Symphysiotomy anticipate will be prescribed for them.

A new focus on ‘managing’ claimants

The thinning-out of redress suggests a new focus on ‘managing’ claimants; achieving ‘closure’ as efficiently as possible. Some may feel that there is a need to manage the amount of money paid as compensation to survivors of past abuses. They may point to the enormous costs of the Residential Institutions Redress Board as a partial justification, and murmur about austerity.

But there is no comparison between the thousands of cases before the Board, and the much smaller clusters of women who have sought compensation for abuse in hospitals and Magdalene institutions. And because symphysiotomies were performed in private as well as public hospitals, much of the cost of compensation would be borne by commercial insurers.

The fashion for ex gratia schemes is not a matter of stretching limited resources to do what justice we can. Rather, I would argue that the reliance on these schemes must be read against a broader backdrop of Government reluctance to allow these women, and others like them, to speak on their own terms about the recent past. The primary public effect of an ex gratia scheme would be to deprive them of a forum in which to articulate their experience of abuse and to discover – with the aid of independent advisors – something of the truth about the power structures in which it happened.

There is a silencing here which is striking in its likeness to the State’s intimidation of Louise O’Keeffe, to the omission of the Justice for Magdalenes oral histories from the McAleese Report, to the ‘gagging order’ placed on applicants to the RIRB. Survivors of Symphysiotomy are refusing to be silenced and we, in turn, deserve to hear them.

Mairead Enright is Lecturer in Law at the University of Kent, and blogs at www.humanrights.ie. She is currently visiting at the School of Social Justice at UCD. Twitter: @maireadenright

Main image: Symphysiotomy survivors Maureen Moore and Kathleen Conroy from Louth, Susan Aherne from Dublin and Lily McDonald from Drogheda pictured leaving the Dail – where the practise of symphysiotomy, the procedure whereby women’s pelvises were unhinged, was debated for the first time. Photo: Sasko Lazarov/Photocall Ireland

Read: ‘Flood of cases’ by symphysiotomy survivors expected in courts next year

Read: U-turn on statute of limitations as closure sought for symphysiotomy survivors

Read: “We’re victims of medical negligence” – Symphysiotomy survivors reject mediation

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