Today the Irish government announced details of the symphysiotomy redress scheme. This is yet another redress scheme coming on the back of the Magdalene Laundries scheme and industrial schools schemes.
But does it actually address the problem?
For the uninitiated, the symphysiotomy is an operation that took place at child birth which in essence unhinges the pelvis severing the synthesis joint and the underlying bone. In short the pelvis is deliberately broken or widened to allow the child to be delivered where the labour is not progressing properly.
This was an operation which started in the 18th century and was performed in Ireland from the 1940s onwards. It sounds barbaric and it is. It is hard to work out why an obstetrician would prefer to cause such damage when they could perform a caesarean section.
The general view is that it was preferred because it did not limit family size and introduce family planning. There are only so many caesarean sections a woman can suffer. Unhinge the pelvis and the woman can continue to have children. In countries where caesarean sections are dangerous due to poor conditions it is arguable that the procedure has or had its place though most would argue not. For Ireland even in the 1940s let alone the 1980s that simply never applied.
Consent to the surgery was somewhat shaky. Often anaesthesia was unavailable. General anaesthesia was non-existent. Of the women who underwent the operation many of them were left permanently disabled, incontinent and in pain.
The Irish state has continued to assert that symphysiotomy was medically acceptable albeit that this is becoming an increasingly more half hearted argument. Bizarrely in July 2014 the report of Dr Oonagh Walsh suggested that nearly all the operations performed had been appropriate and that in Ireland patient consent to medical intervention was not a legal requirement.
It was at that stage that the redress issue was put forward as a solution to the ongoing campaign by survivors.
In July 2014 the UN Human Rights Committee reported on the practice of symphysiotomy. It expressed deep concerns regarding the involuntary nature of these operations and asked serious questions about the legality of the state’s plan for redress. In particular at that time the plan had suggested that there would be a lack of judicial review of the process, an absence of individual assessment and claimants would have to give up individual legal rights once joining the scheme.
Quite rightly the survivors of symphysiotomy campaign point out that redress was not the same as compensation. An ex gratia scheme (which this is) does not deal with the issue of fault. Amongst the most important issues raised by the survivors are that they want a statement of truth from the government that the practice of symphysiotomy was wrong and breached their human rights.
Further they want individual assessment. The UN recommended that each individual who had suffered the procedure and went through the redress scheme should be individually assessed as to the nature of their difficulties. This should allow for funds to be properly allocated and all issues to be taken into account.
In addition they should have the right to professionals to advocate for them.
Redress tribunals certainly have their place, but they cannot be the answer to every issue. Where the medical profession has undertaken dangerous procedures in circumstances where there is a safer and more appropriate operation for dubious reasons why should they escape liability?
I would argue that this wasn’t a case simply of negligence. This was a process by which women were caused significant harm completely unnecessarily due to political and religious reasons. The doctors did not do the best for their patients. They did what was deemed best for the church and state. In doing so harm was caused. Significant harm. Obvious harm. For no valid medical reason. This was a complete disregard for the human rights and welfare of their patients. I would argue that this is the complete opposite of what a doctor should be doing.
In these circumstances it is hard to see how redress tribunals are the answer to the women, though no doubt they answer the problems for the medical professionals and the hospitals in which they worked. It doesn’t feel anything like justice.
The new scheme managed by a Judge has three levels of payment, €50,000, €100,000 and €150,000 depending on the circumstances. Few women will be eligible for the higher level and many will not receive anything than the lower level despite significant injuries and ongoing pain. Strict time restrictions apply. Advice to anyone affected is to investigate as soon as possible.
It is to be hoped that all the women affected and still alive obtain some financial redress but it creates more questions than it answers. How is it that in the current environment where professionals are becoming rightly more accountable, those who caused such and unnecessary significant harm are not?