State continues to inflict pain on symphysiotomy victims

The State has offered inadequate redress to symphysiotomy victims and these women continue to suffer human rights abuses, writes Máireád Enright.

LAST Friday was the closing date for applications to the symphysiotomy redress scheme. The fact so many women have made an initial application does not demonstrate that they are happy with this scheme.

On November 16, Survivors of Symphysiotomy (SOS) voted overwhelmingly to reject it. They know that it is incompatible with the requirements of international human rights law.

There has been no independent inquiry capable of explaining to these women why they were subjected to inhuman and degrading treatment by individuals employed by the State.

Such public investigations as were carried out relied on incomplete records, allowing the State to downplay the extent and seriousness of the abuses perpetrated in its hospitals. The women have been denied the opportunity to participate in the process of investigating and redressing these abuses.

In breach of its human rights obligations, the State has offered inadequate redress payments without admission of any liability. Accordingly, these women remain the victims of continuing human rights abuses.

But suppose, for a moment, we accept the scheme is an appropriate response to these women’s experience. Even then, it is far from the best of its kind.

Certainly it is working very quickly. Redress offers were made even before the deadline passed, and a small number were accepted. Such speed is possible because assessment is done entirely on paper and payments are not individualised. The sole question for the assessor is whether to put an applicant in one payment band or another, or none at all. There is no hearing, and no finding of liability. Some applications have been rejected, and there is no appeal from the assessor’s decision.

In many cases, the assessor will be working with an incomplete picture of women’s experiences. Women had 20 working days to apply. The effect of the time limit is to ensure that women will find it exceptionally difficult to gather the records they need to demonstrate their entitlement to redress at all, or those needed to prove their entitlement to a higher payment.

Access to medical records is a bigger problem than many might appreciate. The progress reports published on the scheme’s website indicate “a large number’ of the applications received are awaiting records from hospitals or the preparation of specialist medical reports. This was to be expected.

The Government insisted that most women would already have the necessary documentation because they have been preparing to sue the relevant hospitals and the State, so that the scheme could operate quickly by becoming parasitic on abandoned litigation. It is clear this belief was mistaken.

Some 70 women have joined SOS since the summer. If an elderly woman is applying for her records for the first time, or from abroad, 20 days is obviously not enough time to get them. Many other women do not have their records because hospitals had levied unaffordable charges to provide them, or had said they were unable to locate them; that they had been lost, burned or transferred to other organisations.

Better consultation with SOS would have highlighted these problems and the scheme could have been designed accordingly. Certainly, applications made after the deadline may be considered in ‘exceptional circumstances’, but these will not be considered if they are made after January 15, 2015.

Even if these extra days were sufficient to acquire the records, we do not know which circumstances would be treated as ‘exceptional’. The upshot is that women who, in the State’s view, deserve redress, or deserve a payment larger than €50,000, may not obtain it.

The State is the defendant in many of the upcoming High Court symphysiotomy actions. The first two will be heard early next year. When the State says it is offering this scheme to spare women the burden of litigation, it is claiming to protect them, not from some abstract set of court processes outside its control, but from itself.

Another tranche of time limits underscores the State has its own interests in mind throughout. The 20-day time limit for application, as the Irish Human Rights and Equality Commission has noted, made it very difficult for women to seek independent legal advice before submitting their application.

A further 20-day time limit applies once an offer is made under the scheme. A woman must sign a waiver to accept the offer, in which she agrees to discontinue any legal actions against the State and agrees not to pursue any such claims in the future.

The waiver requires the woman to give up constitutional and Convention rights, and accept the State’s redress payment as full settlement of any claims she might have against non-State actors. Even assuming this waiver is acceptable, it is crucial the woman waives voluntarily and with full understanding of the consequences. The pressurised time limit at play here should be a source of some concern.

Moreover, if a woman had been allowed a proper period of time in which to apply to the scheme, she might at least be able to judge the progress of her civil claim and to weigh the associated risks and benefits against the possibilities of a redress payment.

As things stand, the scheme is designed to deny her the opportunity for reasoned comparison. The requirement of acceptance within 20 days, similarly, is designed to kill litigation off at the earliest possible opportunity.

This is not a decent redress scheme. It is an exercise in bullying and opportunism. It is a source of distress to a group of wounded, brave and persistent women who deserve much better.

  • Máireád Enright is lecturer in law at University of Kent

 

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