Mairead Enright · @maireadenright
15th Jul 2014 from TwitLonger
What's Wrong With the Symphysiotomy Redress Scheme Take II #ICCPR
Survivors of Symphysiotomy have unanimously voted to reject the government’s offer of ex gratia redress. The government adopted the findings of the Murphy report last Tuesday. In that report, retired judge Yvonne Murphy outlined recommendations for a redress scheme. For now, these are simply recommendations: the State Claims Agency will take another eight weeks to finalise the administration of the scheme and to clarify the rules which will be applied to applicants. The devil is not only in the detail. The scheme is highly problematic, even in broad outline. To begin with, applicants to the scheme can expect to receive only the minimum payment prescribed by Yvonne Murphy: €50,000. The €150,000 band is only open to the tiny number of survivors on whom symphysiotomy was performed after a Caesarean section; a practice which the government now accepts was always indefensible. Both higher redress bands - €100,000 and €150,000 - are reserved for applicants who can demonstrate that they suffered a ‘complex array of injuries’, and who can prove on the balance of probabilities that those injuries were directly caused by their symphysiotomy. That threshold – between €50,000 and something better – is crucial to the operation of the scheme on its own terms. But at the moment, it is impossible to tell how it will be implemented. ‘Complex array of injuries’ is nowhere defined in the Murphy report. It seems to be an oblique reference to the fact that many survivors of unnecessary and poorly performed symphysiotomies have lived with multiple long-term complications: for instance, pain, mobility difficulties, incontinence, arthritis and bowel problems. There is a further hurdle in the requirement that a woman’s ‘complex array of injuries’ is proved to have been caused by the symphysiotomy. Will a woman’s claim to a higher payment be dismissed if her arthritis is attributed to ‘old age’, or if her incontinence is dismissed as an inevitable consequence of difficult labour? There is no possibility of individualised assessment under the scheme, and the chasm between €50,000 and €100,000 is easily opened. Moreover, the women’s injuries will not be allowed to speak for themselves. Applicants to the scheme would be obliged to submit to further medical examination. The Murphy report does not specify whether they would be entitled to select independent medical experts.
Over 200 members of Survivors of Symphysiotomy have begun High Court actions. We can expect the first of these to be heard this autumn. Most will argue that their symphysiotomies were acts of medical negligence. It is clear that many of these cases will be able to surmount the Statute of Limitations, which the government has chosen to leave in their way. Successful litigants can expect to obtain far more than €50,000 in compensation. In Kearney v. McQuillan the Supreme Court awarded €325,000 in a negligence action in a case of ‘post-Caesarean symphysiotomy’. If the High Court determined that other forms of symphysiotomy also fell below the appropriate standard of care, we could expect to see similar awards of damages. In fact, many of the women bringing cases suffered injuries so catastrophic that they would justify a much higher award. Of course, as Murphy and the Minister remind us, the women who have brought High Court actions are older women. Many are very ill. The prospect of protracted litigation is extremely daunting. But the Murphy proposals play on this vulnerability by asking applicants to the scheme to waive their right to bring independent legal claims as a condition of participating in the scheme. Women will have to give up the possibility of High Court litigation before they know whether they are being offered €150,000 or €50,000. Once a payment is offered, there is no right of appeal. There is no right to legal representation in the course of the process. Women are being asked to choose the redress scheme without really knowing what they are choosing. This will inevitably exacerbate their anxiety.
The High Court actions are not only about money. They are about the women’s entitlement to an effective remedy for the abuse they suffered in hospitals which were in the control of the State. The Murphy Report does not make any general or individual findings of liability. In order to obtain an effective remedy, each woman deserves an independent evaluation of whether her symphysiotomy was wrongfully performed, and a finding of responsibility in for that wrongdoing. Each woman deserves to know that her voice has been heard by those in authority. In a move reminiscent of Martin McAleese’s treatment of Justice for Magdalenes, Judge Murphy took no account of the testimony offered by Survivors of Symphysiotomy, even though they are by far the largest representative group in the state. The Walsh Report is a general, and inevitably partial, study of the practice of symphysiotomy across four decades. It simply cannot substitute for an independent fact-finding process.