A challenge to a new redress scheme, for survivors of a controversial surgical procedure on women, is unlikely to proceed following clarification on the rights of those who may no longer have the mental capacity to apply for it, the High Court heard.
The challenge was brought on behalf of two survivors of the symphysiotomy procedure carried out mainly in the 1960s on women during childbirth.
It was claimed the women, both aged in their 80s, lack the necessary mental capacity to make applications for compensation under the Surgical Symphysiotomy Payment Scheme (SSPS) and the imposition of a December 5 deadline discriminated against them.
However, following a hearing yesterday before Mr Justice Paul Gilligan, counsel for the women said in light of a clarification given yesterday by the Department of Health “it was fairly clear this is the end of the matter” although further instructions would need to be taken from his clients.
The judge said an affidavit sworn by Frances Spillane, assistant secretary in the department, made it clear applications can be made by proxies or solicitors on behalf of anyone who may qualify for what was an ex-gratia, non-adversarial, and expeditious scheme.
It had also been clarified that the proxy did not need to be a family member and that no other legal proceedings needed to be in being in order to make an application, Mr Justice Gilligan said.
In light of this, the judge noted the women’s application for injunctive relief against the Government over the scheme was not now being pressed.
The judge said the court was only dealing with these two cases and could not deal with the wider issue, argued by their counsel Patrick Dillon Malone SC, about how others lacking mental capacity were affected.
Conor Power SC, for the Government and the Minister for Health, said applying for the scheme was a simple procedure and claimants, or their proxies, should not delay in getting in their applications regardless of whether they have all their medical records in order.
The scheme allows for medical proof to be supplied later on and there was also a 20-working day grace period, up to January 14, for exceptional applications, he said.
In their actions, the women sought orders restraining the defendants imposing any deadline for applications until procedures are put in place which enable those who lack decision making capacity to apply to the scheme.
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