Communicated on 18 March 2019
FIFTH SECTION
Application no. 61836/17
Kathleen O’SULLIVAN
against Ireland
lodged on 10 August 2017
statement of facts
The applicant, Mrs Kathleen O’Sullivan, is an Irish national who was born in 1934 and lives in Beara. She is represented before the Court by Mr C. MacGeehin of MacGeehin Toale Solicitors, a lawyer practising in Dublin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The birth of the applicant’s first child
On 13 April 1965, when she was forty-two weeks pregnant, the applicant gave birth to her first child at the Bon Secours Hospital in Cork. The delivery register recorded that it was a vaginal delivery assisted by symphysiotomy. A surgical symphysiotomy involves partially cutting through the fibres of the pubis symphysis (the joint uniting the pubic bones) so as to enlarge the capacity of the pelvis. The procedure allows the pubis symphysis to separate so as to facilitate natural childbirth where there is a mechanical problem.
According to the applicant, the symphysiotomy was performed without her knowledge or consent.
The applicant claims that following the birth she was unable to sit up in bed and was unable to look after her baby. When she was discharged from hospital she had a bad limp and described feeling the pelvic bones rubbing together when she moved. In addition, she continues to complain of frequency and incontinence of micturition.
The applicant subsequently gave birth to two other children.
2. Controversy surrounding the use of symphysiotomies in Ireland
Symphysiotomy was first introduced in the eighteenth century for selected cases of obstructed labour. Although its use continues to be indicated in certain specific situations, by the mid-twentieth century it had largely been abandoned in Western Europe, due, in large part, to the fact that caesarean sections had become much safer. In the 1940’s, however, the practice was reintroduced in certain Irish maternity hospitals and it continued to be used there, to varying degrees, until the mid-1980s.
Concerns regarding the prevalence of symphysiotomies in these maternity hospitals and the long-term effects of the procedure emerged in 2001. Many women who had undergone symphysiotomies reported chronic health problems which they attributed to the procedure. Moreover, there was believed to be a strong correlation between the use of the procedure and the acceptance of Catholic doctrine regarding sterilisation and contraception. In particular, it was suggested that symphysiotomies were favoured over caesarean sections because it was believed that in cases of mild to moderate disproportion a symphysiotomy would enable subsequent children to be delivered vaginally. A caesarean section, on the other hand, would not address the underlying problem and a fear of repeat sections might cause women to resort to contraception, which was illegal in Ireland until 1980.
In the 2000s patient advocacy groups called for an independent inquiry into the use of symphysiotomies in Irish hospitals from the 1950s through to the mid-1980s. No review was carried out at this time. There were two attempts to commission reports to evaluate the practice, but in each case the reviewer(s) withdrew from the project, due either to concerns about partiality or to disagreements over the scope of the review.
Following a meeting in late 2003 between the Minister for Health and a patient advocacy group, the Health Service Executive put in place a support system for women who had undergone symphysiotomies. This included the appointment of regional liaison officers to meet with the women to discuss their healthcare needs; the issuing of General Medical Service cards providing women with access to free healthcare, regardless of means; a refund of any medical expenses directly related to symphysiotomy; and the organisation of individual pathways of care, including gynaecological, urological and orthopaedic assessment, a home assessment by an occupational therapist or physiotherapist, the fast-tracking of applications for home help and home modifications, and the provision of physiotherapy, reflexology, acupuncture and counselling.
On 18 February 2010 a television documentary (“Primetime”) revealed that in the second half of the twentieth century some 1,500 women had symphysiotomies performed on them in Irish maternity hospitals. A second documentary about the use of symphysiotomies (“Tonight with Vincent Brown”) aired in June 2011.
In 2010 both the Medical Missionaries of Mary (who were responsible for the Hospital of Our Lady of Lourdes in Drogheda, one of the maternity hospitals in which the procedure was most frequently employed) and the Institute of Obstetricians and Gynaecologists of the Royal College of Physicians in Ireland issued apologies to anyone who suffered hurt or complications as a result of a symphysiotomy. Representatives from the Institute have since met with some mothers and their families to talk through their experience of the procedure.
In 2011 the Department of Health commissioned a report by Professor Oonagh Walsh, at the time a Senior Research Fellow in Medical History in the School of History at University College Cork (see section on “Relevant public investigations into the use of symphysiotomy in Irish maternity hospitals” below). According to the terms of reference, the purpose of the report was to document the rates of symphysiotomy and maternal mortality from 1944 to 1984 and, in particular: to assess symphysiotomy rates against maternal mortality rates during that period; critically appraise international reviews of symphysiotomy practice and associated rates in a number of comparable countries and in Ireland; review any guidelines and protocols that applied in Ireland on symphysiotomy over the time period; and write a report based on these findings, providing an accurate picture of the extent of the use of symphysiotomy in Ireland, and an examination of the Irish experience relative to other countries.
On 29 November 2013 the Minister for Health appointed Judge Yvonne Murphy to conduct a non-statutory review with the aim of finding closure for women who had undergone a symphysiotomy procedure (see section on “Relevant public investigations into the use of symphysiotomy in Irish maternity hospitals” below). The terms of reference were to: examine all relevant reports and information relating to symphysiotomy; meet women who had undergone surgical symphysiotomy procedures to assess what, in their opinion, would bring closure for them; assess, in conjunction with the State Claims Agency and other relevant bodies, the relative liabilities of insures, indemnifiers, and/or other parties in relation to cases pending, or which might arise, as a result of surgical symphysiotomy procedures; and meet insures, indemnifiers and/or other parties to explore and negotiate a quantum representing a fair contribution towards the fund in order to establish an ex-gratia scheme to put closure on the issue for the women involved.
In July 2014 the Minister for Health announced the establishment of an ex-gratia payment scheme offering compensation to women who had undergone a surgical symphysiotomy or pubiotomy in any hospital in Ireland between 1940 and 1990 (see section on “The ex-gratia payment scheme” below).
3. Kearney v McQuillan and North Eastern Health Board
A symphysiotomy was performed on Mrs Kearney in 1969, immediately after her first child was born by caesarean section (an “on the way out” symphysiotomy). She was eighteen years old at the time. In 2004 she brought a claim for medical negligence against the hospital, arguing that the procedure had been carried out without her knowledge or express consent and she had been left with a legacy of problems which had a significant adverse effect on many aspects of her life. She claimed that in the days and weeks after the procedure she had suffered profound pain; as she had been bandaged from her waist to her pelvic area, and could not get out of bed, she was unable to visit her new-born son for six days after his birth; and she had been unable to take care of him and bond with him following his discharge from hospital. In the longer term, she complained of continuous back pain, incontinence, and pain during sexual intercourse. Furthermore, she had been unable to face the prospect of further pregnancies and became depressed and anxious.
The hospital argued that it was prejudiced due to the fact that many of the witnesses, including the consultant gynaecologist, were deceased or their whereabouts were unknown. The High Court found that the question of consent could only be determined having heard the evidence of those who were present when the plaintiff had given her written consent to the caesarean section. Moreover, having regard to the principles in Dunne (an infant) v. National Maternity Hospital (see section on “Relevant domestic law and practice” below), it would be necessary to debate the appropriateness of the procedure in the plaintiff’s case, and that could only be done in light of the actual testimony of the person who carried it out. The High Court therefore struck out the claim on the basis that the hospital would be severely prejudiced on account of the delay, and that there was a real and serious risk of an unfair trial.
On appeal, Mrs Kearney reformulated her claim and contended that the principal issue was that there had been no justification whatsoever for the performance of a symphysiotomy following delivery by caesarean section.
In a judgment of 26 March 2010, the Supreme Court held that the reformulation of the claim removed any prejudice to the defendant in defending the claim as it removed any complaint about the manner in which the symphysiotomy was carried out (as opposed to the decision to carry it out at all) and it rendered irrelevant the matter of any missing contemporary records. As a consequence, the claim could be defeated by the defendant if it could establish any circumstances prevailing in 1969 which would have justified carrying out a symphysiotomy and/or by establishing by means of credible evidence some realistic reason for the carrying out of the procedure in the circumstances of the case.
The High Court subsequently found that there could be no justification whatsoever for the use of the procedure in the plaintiff’s case as her baby had already been delivered when the symphysiotomy was performed. Moreover, there was no evidence of disproportion between the size of the baby’s head and the plaintiff’s pelvis. The caesarean section had been performed because there was a failure in the pregnancy to progress and there were difficulties in the presentation of the baby’s head; however, unlike disproportion, the evidence established that such a presentation was a “phenomenon of first labour” which would be rare in a subsequent pregnancy. On this basis, the obstetrician could not have diagnosed any need for future caesarean operations or inferred that a future pregnancy would not go to full normal delivery. The court awarded the plaintiff EUR 450,000.
The defendant appealed to the Supreme Court, which delivered its judgment on 11 July 2012. It upheld the High Court’s findings on liability, but reduced the award of damages to EUR 325,000. While it accepted Mrs Kearney’s truthfulness and credibility as a witness, the court noted that she had, despite her medical problems, carried on a relatively normal life and worked for a period of some twenty-five years. Therefore, without underestimating the very serious nature of her injuries, it considered that they fell short of the highest category described.
4. Farrell v. Ryan
Mrs Farrell had a surgical symphysiotomy in September 1963, twelve days before her first child was delivered. She issued a personal injuries summons against the hospital on 6 September 2012, claiming damages for personal injury flowing from the management of her labour and/or for the failure to obtain her lawful or proper consent for all procedures carried out. The defendant hospital raised a plea that the claim was statute barred as it had been issued after the expiry of the two-year time-limit; or, in the alternative, that it should be dismissed by reason of “inordinate and inexcusable delay”. In an effort to avoid the risk that the claim might be struck out, the plaintiff agreed that it would proceed on one issue only: that there had been no justification whatsoever, in any circumstances, for the performance of an antenatal symphysiotomy in her case.
The judgment of the High Court was delivered on 1 May 2015 following a fifteen-day hearing. Although the judge had no doubt that the procedure would not have been carried out either at the start of the reintroduction of symphysiotomy into Dublin or after the introduction of “active management of labour” in the mid-to-late 1960s, he accepted that in the Dublin maternity hospitals at the relevant time a trial of labour was not always required for a consultant to conclude that a vaginal delivery would not be possible and in those cases a prophylactic symphysiotomy without trial of labour was a reasonable though limited option. In the plaintiff’s case a pelvimetry and the examination under anaesthetic had convinced the treating doctors that a vaginal delivery would not be possible and this view was supported by the defendant’s medical experts. Consequently, the judge was not satisfied that a symphysiotomy could not have been justified in the applicant’s case.
On 14 October 2016 the Court of Appeal dismissed the plaintiff’s appeal as it was fully satisfied that there was credible evidence to support the judge’s finding that, by the standards which prevailed in 1963, the prophylactic symphysiotomy performed on her could have been clinically justified. The Court of Appeal sought to explain why the plaintiff had failed in her claim while the plaintiff in Kearney had succeeded. It observed:
“The fact that the plaintiff in this action failed in her claim relating to a symphysiotomy performed on her in 1963 does not necessarily mean that a court considering the circumstances in which another symphysiotomy procedure was performed on a different patient might not come to a different conclusion.
...
In Kearney, the baby had been delivered before the symphysiotomy was carried out. Accordingly, the procedure was not performed to protect the mother and baby from the risks involved in an obstructed labour. In Mrs Farrell’s case, where the procedure was carried out prior to the onset of labour, all of the clinical indications suggested that she was likely to have an obstructed labour. Dr [B] and Professor [B] said it was 90% likely that she could not have delivered without a caesarean section or a symphysiotomy.
In Kearney, the High Court found no evidence of any obstruction or pelvic deformity likely to cause the patient difficulty in the course of any future delivery. Thus, there could never have been any justification for carrying out a procedure which had the consequential benefit of making the pelvis a little more accommodating on future deliveries ... In Mrs Farrell’s case the position was entirely different. X-ray pelvimetry and examination under general anaesthetic provided objective evidence which strongly suggested that Mrs Farrell was suffering from mild to moderate CPD. Further, her pelvis was not normal. It was anthropoid in presentation and she also had signs of outlet contraction.
The evidence clearly established that Mrs Farrell’s symphysiotomy was performed to avoid an obstructed labour and to allow her to deliver vaginally thus facilitating her avoidance of all of the risks that she might otherwise be exposed to in the course of one and probably several more caesarean sections in the course of her lifetime. No such considerations arose in Mrs Kearney’s case.
Thus, unlike in Kearney where the procedure was carried out in the absence of any clinical indications that might justify its performance, in Mrs Farrell’s case the symphysiotomy was performed for a range of clinical reasons which at the time were generally approved of by those at the very top of the obstetric profession in this country.”
The Court of Appeal also dismissed the plaintiff’s claim on the ground that the statutory limitation period had passed by the date of commencement of the proceedings.
The costs of the appeal were awarded to the defendant hospital to be taxed in default of agreement.
The Supreme Court refused the application for leave to appeal on 17 February 2017. It noted, in particular, that:
“There can be no doubt that the practice of symphysiotomy, in general, has attracted much attention in the relatively recent past, including media scrutiny, public discussion and debate in the Dail, as well as an examination by the United Nations Human Rights Committee, with many suggesting that an independent inquiry is required so as to provide an effective remedy for those women who have or who intend to pursue this issue legally. As important as this debate might be, however persuasive the argument may present, such is not the gateway to a further appeal to this Court.”
5. The applicant’s legal proceedings
According to the applicant, she first learned that she had undergone a symphysiotomy in 2005. On 13 April 2006 she issued proceedings against the Bon Secours Hospital, claiming damages for pain suffered as a result of the defendant’s negligence and breach of duty. In particular, she claimed that the hospital had failed to take reasonable care for her health and safety; that it had failed to perform a caesarean section when it knew or ought to have known that a caesarean section should be carried out; that it had failed to inform her of the operation or seek her consent; and that it had failed to provide her with adequate care after the operation.
In a defence delivered on 15 December 2015, the defendant hospital made a preliminary objection on the grounds that the claim was statute-barred and that its right to a fair trial would be severely prejudiced by reason of the severe delay in the commencement and prosecution of the proceedings.
By letter dated 8 August 2017 the applicant’s counsel advised that in light of the Supreme Court judgments in Kearney and Farrell, which had been handed down in July 2012 and February 2017 respectively, her claim for damages had no realistic prospect of success.
6. The ex-gratia payment scheme
The applicant did not apply to the ex-gratia payment scheme for an award because she believed that there was no possibility of any acknowledgement of a breach of her rights; the quantity of the awards did not reflect the gravity of the harm inflicted on her; and the application window was unreasonably short.
B. Relevant domestic law and practice
1. Actions in tort
A tort is a civil wrong which causes someone to suffer loss resulting in legal liability for the person who commits the tortious act. The tort of negligence requires proof that there was a duty of care between the plaintiff and the defendant (which involves establishing the existence of a relationship of proximity between the parties such as would call for the exercise of care by one party towards the other), that that duty was breached and that that breach was causative of damage (see, for example, Beatty v. The Rent Tribunal [2005] IESC 66).
In Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91 the principles applicable to medical negligence actions were set out as follows:
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant...”
Section 3(1) of The Statute of Limitations (Amendment) Act 1991, as amended by section 7 of the Civil Liability and Courts Act 2004, introduced a limitation period of two years from the date on which the cause of action accrued or the date of knowledge (if later) for actions for damages in respect of personal injuries caused by negligence, nuisance or breach of duty.
2. Actions for breach of Constitutional rights (constitutional tort actions)
In Meskell v. CIE [1973] IR 121, the Supreme Court stated:
“... if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right that person is entitled to seek redress against the person or persons who have infringed that right.”
In Ireland, there is an unenumerated constitutional right to bodily integrity.
The limitation period for bringing an action for damages for breach of constitutional rights is six years (McDonnell v. Ireland [1998] 1 IR134).
3. The European Convention on Human Rights Act 2003
Section 3 of the 2003 Act provides as follows:
“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.”
4. The interrelationship between tort law, the Constitution and the European Convention on Human Rights Act 2003
Resort to constitutionally created torts and the 2003 Act only occurs if there is a gap in existing tort law which needs to be supplemented. In DF v Garda Commissioner (no 3) [2014] IEHC 2013 (App. 10) the applicant had brought actions in tort for assault and false imprisonment; constitutional claims; claims under the 2003 Act; claims under the Charter of Fundamental Rights of the European Union; and claims under the United Nations Convention on the Rights of Persons with Disabilities 2006. The defendants contended that some of these claims should be struck as either unsustainable in their own right or as otherwise merely replicating claims for damages in respect of the nominate torts of assault and false imprisonment. In response, the High Court Judge indicated that
“if the claims simply duplicate or cannot add anything to the well-established nominate torts of false imprisonment, assault and battery or if they present no justiciable issue, I propose to strike them out pursuant to the courts’ inherent jurisdiction at this preliminary stage.”
The judge accepted that a complaint of a breach of the constitutional right to liberty added nothing to the claim for false imprisonment, but considered it possible that the nominate torts of assault and battery would insufficiently vindicate the constitutional rights to the integrity of the person. However, in the circumstances of that case the claim based on Article 3 of the Convention was struck out as it was considered that it added nothing to the existing claims for damages for assault and battery as well as to those for breach of constitutional rights.
C. Relevant public investigations into the use of symphysiotomy in Irish maternity hospitals
1. The report by Professor Oonagh Walsh (“the Walsh report”)
The Walsh report was prepared in two phases. The first phase was an independent academic research report, compiled with reference to printed sources and analysis of medical reports and research. Once that was completed, the second phase involved interviews with individuals directly involved in symphysiotomies, such as mothers, practitioners and midwives.
(a) Phase one
A draft of the first phase of the report was delivered in June 2012. It noted that while symphysiotomies might have been more prevalent in Ireland than in other countries during the relevant period, it was nevertheless a rare intervention in comparison to caesarean sections, which rose steadily during the same period. The suggested figure of 1,500 symphysiotomies between 1944 and 1992 translated to a rate of 0.05 percent of total births, or 60 per 100,000 births. In comparison, caesarean sections accounted for just under two percent of deliveries in 1944 and over four percent in 1984.
The 2012 report acknowledged that Irish obstetrical practice was heavily influenced by, and constrained within, a religious framework which was widely accepted by doctors and laypeople alike. The revival of symphysiotomy – a procedure which appeared to offer the possibility of safe repeat deliveries – therefore had to be considered within a context in which multiple births were the norm, artificial contraception and sterilisation were illegal as well as ethically unacceptable, and repeat caesarean sections were believed to carry great dangers. Indeed, the lack of options in the control of fertility was acknowledged to be one of the key factors behind a return to symphysiotomy in the 1940s.
The report further noted that symphysiotomy was statistically a far safer procedure than caesarean section, with lower maternal and foetal mortality rates. At the relevant time the economic situation of many Irish families was “dire” and the Dublin hospitals in particular served areas of significant deprivation. Poor diet and nutrition was not only a common cause of contracted pelvis, but it resulted in many women presenting in labour with other complications that made them poor candidates for general anaesthetic. Moreover, up until the 1960s there were concerns about the safety of repeat caesarean sections. Irish obstetricians – like their Western-educated colleagues – were trained to the so-called “three caesar rule” and believed in the saying “once a caesar, always a caesar”. In Britain, it was common to perform several sections and then advise the mother either to be sterilised or to use artificial contraception. This was not an option in Ireland.
According to the report, the indications for symphysiotomy remained generally constant over the review period (being mild to moderate disproportion). From the outset, therefore, it was viewed as a means of coping with this very specific cohort, and was never proposed as an alternative to caesarean section. The fact that it was more prevalent in some hospitals than in others was due in large part to the fact that some obstetricians had greater faith in the procedure than others.
The report considered that the use of symphysiotomy as a prophylactic procedure (either in advance of labour or even, in the case of the “on the way out” symphysiotomy, in advance of a further pregnancy) was a deviation from good practice as the degree of disproportion could only be evaluated during labour, and a woman diagnosed with disproportion in one pregnancy might have a normal delivery in the next. In Professor Walsh’s opinion, the non-emergency application of symphysiotomy, while the mother was under general anaesthetic, appeared “indefensible”. No scientifically credible research proposed prophylactic symphysiotomy or any equivalent to symphysiotomy “on the way out”. Furthermore, while there were no clinical guidelines governing the use of symphysiotomy in Irish maternity hospitals at the time, the generally accepted policy appeared to be to first perform a trial of labour.
With regard to the long-term effects of the procedure, Professor Walsh was in no doubt that some women had suffered adverse consequences, some of which may have been exacerbated by having more children. She noted, however, that it was difficult to assess the long-term problems resulting from symphysiotomies as many of these were similar if not identical to the long-term complications of multiple pregnancies.
On the issue of consent, the report noted that during the period under review there were no guidelines in Britain or Ireland for obtaining consent to medical procedures and during the 1940s and 1950s implicit or explicit consent was not required for medical interventions. Indeed, the report described an “overwhelming culture of deference that militated against patient engagement”. Moreover, it would be impossible to determine from this historic distance whether patients were informed when a symphysiotomy was about to be performed or if they were made aware of potential long-term health risks. Given the hierarchical nature of medical practice in the 1950s and 1960s, however, Professor Walsh accepted that it was unlikely that patients were consulted to any significant degree.
The report noted that the use of symphysiotomy had gone into increasing decline from the early 1960s due to improvements in maternal health, increasing use of repeat lower section caesarean sections, increasing use of drugs to shorten labour, and a growing realisation that pelvic disproportion had been over-diagnosed. The report did, however, give special consideration to Our Lady of Lourdes Hospital in Drogheda, where symphysiotomy persisted twenty years after it had largely ceased elsewhere. It found that this was specifically linked to the tenure of the founding obstetrician, who was obeyed by management and nursing staff “without question”. He created an ethos which was “unswervingly Catholic” and was a firm believer in carrying out symphysiotomies in the hope of avoiding caesarean section. According to the report, it was “unacceptable” that the procedure had persisted for so long at this hospital when alternative methods were available for dealing with difficult deliveries.
(b) Phase 2
Following her interviews with persons affected by symphysiotomy, Professor Walsh considered that by far the greatest sense of disquiet related to the lack of knowledge regarding the procedure. In particular, there was a strong and widely held feeling that an explanation why a symphysiotomy was being performed in their case would have substantially eased patients’ subsequent adjustment to any resulting physical and psychological problems. Without exception, the most favourable outcomes had been recorded in those cases where either the symphysiotomy had been discussed with the obstetrician beforehand, or when women were told what the procedure was and why it had been used in their cases. By contrast, the women who reported the worst outcomes were those who had not been consulted in advance and were not informed after their deliveries that a symphysiotomy had been performed. Almost twenty percent of respondents had not been told that a symphysiotomy had been performed, and these new mothers could not understand why their recovery was so different from that of other women.
Another important theme that came out of the interviews was the wide divergence in the standard of aftercare, which impacted significantly upon long-term health outcomes. Women who were adequately bound, given bed rest and pain relief, and allowed to become mobile gradually after delivery reported the best immediate and long-term outcomes. However, despite the fact that the importance of bed rest was commonly known in the 1950s, many respondents were told by nursing staff to get out of bed and walk within a day or so of delivery. Many were also discharged from hospital with no guidance or support to ensure proper healing. In Professor Walsh’s view, instructing a newly delivered mother who had just undergone a symphysiotomy to walk without support was an “incomprehensive failure in duty of care”. Moreover, the resulting instability led to long-term side effects for some women, and even to the incorrect fusion of the pelvis, leaving them with chronic pain and locomotive problems.
The most significant difficulties reported in the aftermath of the procedure were chromic pain, difficulty walking, and problems with continence. Many of these were the same as those experienced following a normal but difficult labour, a fact which prevented many women from asking the questions that might have revealed that they had had a symphysiotomy, and from seeking additional specialist care.
The report also considered the impact of symphysiotomies on husbands and children. Many women noted that they had experienced difficulties bonding with their babies, which was exacerbated by the fact that they were often unable to nurse or hold them while they were recovering from the procedure. Husbands were also affected, having to play a role in childcare after deliveries and, for the most part, being ill-equipped to deal with the complications that their wives were experiencing. Symphysiotomies also had a serious impact on many couples’ sexual relationship, for two principal reasons: first, sex was often painful because of pelvic instability; and secondly, there was a great fear of falling pregnant again.
Finally, in respect of redress, the report recommended the establishment of an independent specialist needs assessment team to evaluate individual cases, advise on care requirements and determine suitable levels of compensation.
2. The report by Judge Yvonne Murphy (“the Murphy report”)
In her report published in 2014, Judge Murphy acknowledged that although symphysiotomy had been “an exceptional and rare intervention in obstetric practice in Ireland”, many women who had undergone the procedure did not have good experiences. She noted that more than 150 women had instituted proceedings in the High Court and significantly more cases could follow. Such proceedings were, however, fraught with difficulties for both plaintiffs and defendants. A large percentage of plaintiffs were between 75 and 91 years of age and their ability to pursue actions through the courts was limited. In addition, they might face significant difficulties in establishing liability.
First of all, the issue of consent was problematic. If a court decided that a procedure was wholly unnecessary or inappropriate, the question of consent would be irrelevant, but if a symphysiotomy was clinically indicated and within acceptable medical standards at the time, the courts would then have to decide if there had been lawful consent to the procedure. In emergency situations it may not have been possible to obtain consent, and the central question would then be whether a caesarean section ought to have been performed instead of a symphysiotomy. In non-emergency cases consent should have been given. At the relevant time, however, the practice of obtaining consent would have differed from obstetrician to obstetrician and any discussions were unlikely to have been recorded. During the relevant time period it was not unusual for women to be unaccompanied during labour and with the passage of time, and the death of many of the obstetricians and nursing staff concerned, it would now be all but impossible to make any useful inquiry into the issue of consent. As the inability to counter allegations of a lack of consent would place the defendants at a significant disadvantage, they could therefore seek to have the proceedings struck out on the grounds that the defence was irreparably compromised.
Secondly, there was the issue of causation. Even if the absence of consent could be established, the plaintiffs would also have to show that if they had been given the appropriate information, they would have decided against the procedure.
The report also considered the problem defendant hospitals were facing regarding insurance. The passage of time had left many hospitals unable to identify the relevant insurers and, even if they could be traced, the limits of indemnity were in many cases very low as the anticipated value of claims was much lower then than it would be today. Many hospitals would therefore have to conduct litigation out of their own budget. If this were the case, it would subsequently be open to the hospitals to seek to recover the award from the State under the Clinical Indemnity Scheme. As a consequence, the report indicated that the State risked exposure to the burden of a large proportion of any damages and/or costs awarded to successful litigants. In addition, following O’Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014 (extracts) there was also a possibility that the State could be directly involved in litigation on the basis that it should have adopted a greater supervisory role over the maternity hospitals.
According to the report, the potential cost to the State of litigation could be in the region of EUR 94,750,000. The report therefore recommended that the State implement an ex-gratia payment scheme, with the sum of EUR 50,000 being paid to women who could demonstrate that they had undergone a surgical symphysiotomy, rising to EUR 100,000 if they suffered from a more complex array of injuries; and EUR 100,000 being paid to women who had a surgical symphysiotomy “on the way out”, rising to EUR 150,000 if they suffered from a more complex array of injuries. Some legal costs would also be covered. It was proposed that applicants would have to discontinue any legal proceedings before accepting an award. The estimated cost of such a scheme would be in the region of EUR 33,482,000.
Finally, the report noted that apologies had already been given by the Medical Missionaries of Mary and the Institute of Obstetricians and Gynaecologists of the Royal College of Physicians in Ireland. The question of any further apology was a decision for the Government to take on the advice of the Attorney General.
D. The ex-gratia payment scheme
1. The operation of the scheme
The scheme was extensively advertised. The opening date for applications was 10 November 2014 and the closing date was 5 December 2014. A determination by the Independent Assessor of the amount of an award was final and not subject to appeal.
There were four categories of payment:
1A: award of EUR 50,000 for symphysiotomy
1B: award of EUR 100,000 for symphysiotomy with significant disability
1C: award of EUR 100,000 where the symphysiotomy was carried out in advance of labour or where there was a combined operation of caesarean section and symphysiotomy; if significant disability resulted from such a procedure, the award rose to EUR 150,000.
P1 and P2: EUR 100,000 – EUR 150,000 for pubiotomy with or without significant disability.
Where legal advice was sought in relation to the making of an application, certain costs would be payable. However, before accepting an award claimants had to discontinue any legal proceedings.
The ex-gratia scheme was administered by Judge Maureen Harding Clark, who had been appointed by the Minister of Health as the Independent Assessor. She was tasked with making awards available to eligible applicants as expeditiously as possible.
2. The report into the operation of the scheme
Judge Harding Clark subsequently prepared an extensive report on the operation of the scheme which was published by the Minister for Health in November 2016.
The report indicated that almost 600 women had applied to the scheme and nearly 400 had received awards, totalling more than EUR 30,000,000. The awards made included 216 payments of EUR 50,000 to women in category A, and 168 of EUR 100,000, mostly where significant disability resulted from the procedure. Fifteen women received the maximum of EUR 150,000 under the scheme, having been found to have suffered significant disability following an elective symphysiotomy carried out after childbirth, or to have received a pubiotomy. One hundred and eighty five applicants were unable to establish their claim, despite being assisted by the Independent Assessor.
Twenty-seven applications submitted after the closing date underwent full investigation to establish whether a symphysiotomy could be established from the existing records and from medical examinations. Twelve were rejected on the basis that no qualifying procedure was established. The remaining fifteen applications were accepted.
According to the report, each application had “received an individual, careful and fair assessment” and once symphysiotomy or pubiotomy was established, a “compassionate and generous view” had been applied to the assessment of each claim. All applications capable of being examined, including those received after the closing date, underwent full investigation to determine if symphysiotomy could be established from medical records or medical examinations. Although each application had been fully investigated, following the operation of the scheme Judge Maureen Harding Clark was “confident” that symphysiotomy was almost invariably recorded on birth registers and in annual clinical reports.
In respect of the 185 applicants who were unable to establish their claim, Judge Harding Clark expressed surprise that so many women mistakenly believed that they had undergone a symphysiotomy. In addition, she observed that a large number of applicants reported seeing or hearing a saw, or feeling as though they were being “sawn in half”, even though symphysiotomy was never performed with a saw. She considered it possible, however, that a traumatic birth experience and exposure to other women’s stories might have helped create a “self-convincing confabulation of personal history”.
Judge Harding Clark’s report also provided an in-depth overview of the long-term effects many women experienced following a symphysiotomy. Having assessed each of the 600 applications to the scheme, she concluded that no general pattern of immediate or developmental injury was seen. The evidence did not confirm that symphysiotomy inevitably led to lifelong pain or disability, or that symphysiotomy patients aged in a manner which was different to that of non-symphysiotomy women. The majority of applicants who underwent symphysiotomy made a good recovery and went on to have normal pregnancies and deliveries and to lead a full life. Indeed, in most cases radiology showed that the pubic joint had fully approximated and normalised and there were very few cases of pelvic instability and premature hip degeneration. These results were supported by international medical studies into the use of the symphysiotomy, which also found no evidence that it led to a lifetime of pain or disability if carried out correctly.
That being said, a small number of applicants suffered from pelvic pain and a slightly larger group from urinary issues. She found that whether the conditions were associated with prolonged labour, the use of forceps, parity, age or the symphysiotomy procedure was not possible at this remove to determine. It was, however, noted that many symphysiotomy procedures were carried out after “failed forceps”, and many of the applicants who could not establish that they had undergone either a symphysiotomy or pubiotomy nevertheless reported harrowing memories of long-term side effects, such as difficulty walking and taking care of their babies, incontinence and pelvic organ prolapse.
Pain and/or discomfort over the pubic joint during sexual relations in the first twelve months post-symphysiotomy was a very common complaint, although the vast majority of applicants became pregnant again within a year of the symphysiotomy. Several claimed that the procedure caused cessation of all sexual relations and the end of their reproduction, and a small number claimed that their reluctance to engage in sexual intercourse had led to the breakdown of their marriages.
In light of her findings, Judge Harding Clark considered that the premise of the scheme – namely the widespread assumption that symphysiotomy was a surgical procedure which, as a matter of near certainty, created lifelong suffering – was unsupported by evidence. In fact, she found herself lowering the criteria for what constituted significant disability in order to help women “over the line”. For the purposes of the scheme, significant disability was generally assumed where radiological findings disclosed joint abnormality or a continuing diastasis (abdominal separation) of fifteen millimetres or more.
With regard to the issue of knowledge, Judge Harding Clark found it “very difficult to believe” that any patient who had actually undergone a symphysiotomy would not have been told of the procedure. To be unaware that a symphysiotomy had been performed would have required “resolute and conspirational silence” on the part of nurses who removed catheters, bindings and incisions; from physiotherapists who encouraged patients to mobilise; and from the obstetrician who conducted the six-week check-up. It was also standard practice at the time for consultants to write to General Practitioners notifying them of patients’ births.
Finally, Judge Harding Clark considered whether the use of the procedure in certain Irish hospitals was “a Catholic practice or an Irish phenomenon”. Although some evidence could be found of religious motivation for reintroducing symphysiotomy into Irish obstetrics in the 1940s, very detailed and forensic examination of available contemporaneous medical records failed to find evidence of a religious as opposed to obstetric reason when a symphysiotomy was performed. Some of the maternity hospitals in which symphysiotomies were performed were non-Catholic institutions and therefore unlikely to have been motivated by Vatican dogma. While many hospitals operated a “Catholic ethos”, regardless of whether a particular obstetrician was a practicing Catholic, the reality for the patient was the same, since contraception was not legally available. The route taken in United Kingdom hospitals (of sterilisation following one or two repeat caesarean sections) was not an option.
Judge Harding Clark provided the following context:
“Ireland of the 1940s was a very different place to the modern, clean, prosperous and mainly secular European State it is today. In 1943 when the first symphysiotomy was performed, the war was raging, rationing was in operation, malnutrition was common and TB was a major disease and a significant cause of early death. Living conditions for the poor in the slums of Dublin, Limerick and Cork were appalling. 30% of mothers giving birth at the Coombe and the Rotunda suffered from iron deficiency anaemia. Blood supplies were extremely expensive. The almoners’ reports in the Dublin hospitals show that many mothers required assistance in the provision of free meals for themselves and clothing for their babies. More than 200 maternity deaths occurred every year in Ireland and even more babies were stillborn or died shortly after birth. Antibiotics were only becoming freely available. Ultrasound and vacuum extraction did not exist. However, the most relevant feature of Irish society then was that the laws and Constitution fully reflected the then strong religious practices and the conservative outlook of the general population. The Constitution recognised the special position of the Roman Catholic Church. Being Irish and being Catholic were almost synonymous. The vast majority of the Catholic population accepted without question the strict application of Catholic teaching on birth control, marriage and sexuality. Few women occupied positions of power in the patriarchal society where most professions were male dominated, divorce was prohibited and married women were expected to stay at home and raise children. Shortly after the religious direction in a Papal Encyclical in 1930 that any form of birth control was a grave sin, the State introduced laws criminalising the sale or importation of any contraceptive. Ireland was a Catholic country where religion was happily embraced by the bulk of the population.”
E. Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Ireland from 22 to 25 November 2016
The report included the following section on symphysiotomy:
“4.3 SYMPHYSIOTOMY
184. It is estimated that 1,500 women underwent symphysiotomy in Ireland mostly between the 1940’s and the 1980’s. Symphysiotomy is a surgical procedure that involves sundering the mother’s pelvis to enable difficult childbirth. This procedure was not performed in other European countries during the same time period, as caesarean section was the procedure generally used in cases of difficult births. Symphysiotomy is said to have various health consequences including in some cases life-long pain, disability and emotional trauma. There have been three reports commissioned by the government on this practice. On the basis of the first two reports, the government set up an ex-gratia redress scheme for the victims. The third report dealt with the operation of the scheme itself.
185. During his visit, the Commissioner was informed of a number of concerns from civil society about the way the redress scheme works. The scheme admits no wrongdoing or liability on the part of the state and public authorities, any private hospitals or nursing homes, or any medical staff. The level of compensation offered is considered to be very low compared to the level of abuse endured. In addition victims had to accept a legal waiver by which they agree not to question the amount of the indemnity allocated and they had to abandon their right to take further legal action against any responsible individual or body in order to obtain a payment under the scheme. Lastly, the window of opportunity for applying for compensation was of 20 working days since the commencement date of the Scheme, which was 10 November 2014.
186. The above mentioned report on the operation of the scheme (The “Clark Report”), which was published during the Commissioner’s visit, was subject to particularly strong criticism from human rights NGOs and other stakeholders. The Commissioner himself was particularly struck by the patronising tone and the kind of information provided in the report. The report does not give acknowledgement to women’s suffering and seems to perpetuate some gender stereotypes against (elderly) women. This is all the more unfortunate as the aim of the report was in principle only to describe the operation of the compensation scheme. The Commissioner notes that the government has chosen to endorse this report without giving any credit to the wide criticism that it had generated among human rights stakeholders in Ireland.
187. For survivors of symphysiotomy who seek to obtain an effective remedy through the courts, evidential barriers represent a serious obstacle, as noted by the IHREC. In one of the cases brought to courts, the High Court accepted that the claimant suffered from a range of physical and psychological difficulties caused or contributed to by the antenatal symphysiotomy which took place in 1963 but rejected her claim that it was done without any justification”
F. Reports of International bodies
1. United Nations Human Rights Committee: Concluding observations on the fourth periodic report of Ireland
This report, dated 19 August 2014, provided, insofar as is relevant:
“Symphysiotomy
The Committee expresses concern that symphysiotomy, a childbirth operation which severs one of the main pelvic joints and unhinges the pelvis, was introduced into clinical practice and performed on approximately 1,500 girls and women in public and private hospitals between 1944 and 1987 without their free and informed consent. While noting the publication of a report by Oonagh Walsh in 2012, the review of the findings of the report by Judge Yvonne Murphy and the planned establishment of an ex gratia scheme for the survivors of symphysiotomy, the Committee expresses concern at the State party’s failure to: (a) initiate a prompt, comprehensive and independent investigation into the practice of symphysiotomy; (b) identify, prosecute and punish, where still possible, the perpetrators for performing symphysiotomy without patient consent; and (c) provide effective remedies to survivors of symphysiotomy for the damage sustained as a result of these operations (arts. 2 and 7).
The State party should initiate a prompt, independent and thorough investigation into cases of symphysiotomy, prosecute and punish the perpetrators, including medical personnel, and provide the survivors of symphysiotomy with an effective remedy for the damage sustained, including fair and adequate compensation and rehabilitation, on an individualized basis. It should facilitate access to judicial remedies by victims opting for the ex gratia scheme, including allowing them to challenge the sums offered to them under the scheme.”
2. Committee on the Elimination of Discrimination against Women: Concluding observations on the combined sixth and seventh periodic reports of Ireland
In this report, dated 19 March 2017, the Committee made the following observations:
“Access to justice
14. The Committee notes the numerous recommendations on the unresolved issue of historical abuses of women and girls by other United Nations human rights mechanisms such as the Human Rights Committee (CCPR/C/IRL/CO/4), the Committee Against Torture (CAT/C/IRL/CO/1) and the Committee on Economic, Social and Cultural Rights (E/C.12/IRL/CO/3). While noting the efforts by the State party to resolve the issue of historical abuses regarding ... the medical procedure of symphysiotomy, the Committee regrets that the State party has not implemented the aforementioned recommendations. The Committee regrets:
...
(b) That, notwithstanding the publication of the Walsh and Murphy reports and the establishment of an ex gratia scheme in 2014, no effort has been made to establish an independent investigation to identify, prosecute and punish the perpetrators who performed the medical procedure of symphysiotomy without the consent of women;
...
15. The Committee observes that the historical abuses in relation to ... the medical practice of symphysiotomy give rise to serious violations that have a continuing effect on the rights of victims/survivors of those violations. The Committee, therefore, urges the State party:
(a) To conduct prompt, independent and thorough investigations, in line with international human rights standards, into ... allegations of symphysiotomy in order to prosecute and punish the perpetrators of those involved in violations of women’s rights, and ensure that all victims/survivors of such abuse obtain an effective remedy, including appropriate compensation, official apologies, restitution, satisfaction and rehabilitative services;
(b) To provide information in its next periodic report on the extent of the measures taken to ensure the rights of victims/survivors to truth, justice and reparations.”
COMPLAINTS
The applicant complains under the substantive aspect of Article 3 of the Convention that the State knew or ought to have known that symphysiotomies were being performed in certain maternity hospitals and was therefore in breach of its positive obligation to protect women from inhuman and degrading treatment. She further complains under the procedural aspect of Article 3 of the Convention that there has been no independent investigation into the use of symphysiotomy in Ireland. Finally, she complains under Article 13 read together with Articles 3 and/or 8 that as a result of the Kearney and Farrell judgments she was unable to pursue a claim for damages based on the performance of the operation without her consent.
QUESTIONS TO THE PARTIES
1. In view of the fact that the applicant did not continue with her civil action for damages against the hospital, and has not pursued any other legal proceedings, has she exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention? If, as she contends, this action would have had no prospect of success, was there any other remedy available to her which could have provided redress for the complaints now raised before this Court?
2. More particularly, could – or should – the applicant have brought a constitutional tort or a Convention action either from the outset or following the conclusion of proceedings in Kearney and/or Farrell? Or would such a claim have been statute-barred?
3. Did the use of symphysiotomies amount to “ill-treatment” within the meaning of Article 3 of the Convention? If so, was the State under a positive obligation to protect women at risk of undergoing the procedure, and can it be said to have failed to take reasonable steps to do so?
4. If the use of symphysiotomies amounted to “ill-treatment” within the meaning of Article 3, can the State be said to have satisfied its procedural obligation under that Article to conduct an effective and independent investigation into its use? Could such a duty arise in respect of a “credible assertion” of a breach of Article 8?
5. Did the applicant have an effective domestic remedy for her complaints under Articles 3 and/or 8 of the Convention as required by Article 13 of the Convention?
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