Ireland, Symphysiotomy and the UNHRC

Máiréad Enright is a lecturer at Kent Law School and is completing a PhD at University College Cork which examines the legal treatment of questions in Muslim divorce practice in the UK and the United States from the perspective of a multiculturalist feminism.

 

Power is cautious. It covers itself. It bases itself in another’s pain and prevents all recognition that there is “another” by lopped circles that ensure its own solipsism.’ – Elaine Scarry, The Body in Pain

 Ireland was examined by the UN Human Rights Committee under the ICCPR last week. The state’s response to the Committee’s follow up questions has been published online. These written answers supplement the oral presentations made by the Minister for Justice and civil servants at the hearings in Geneva. This document is useful as a time capsule of the government’s position on redress for institutional abuse of women and children, because it contains several pages of defence of the official position on reparations for survivors of symphysiotomy. Symphysiotomy is a childbirth operation, which involves breaking a woman’s pelvis, usually before or during labour. It was revived in Ireland in the 1940s by a small group of conservative Catholic doctors, working in state-run or state-supervised hospitals, as an alternative to Caesarean section and was performed in hospitals all over Ireland into the 1980s. (If you need a reminder of the violence and abuse which characterised its practice in Ireland, see here.) On July 1, the Government published Judge Yvonne Murphy’s Independent Review of Issues Relating to Symphysiotomy (the Murphy Report) which outlines a possible redress scheme for survivors. The scheme draws on Professor Oonagh Walsh’s final Report on Symphysiotomy in Ireland 1944 -1984 (the Walsh Report) published on the same date. It is important to stress that the fine print of the symphysiotomy redress scheme has not yet been made public. The State’s written response to the Committee, unfortunately, has introduced yet more ambiguity into an already murky public discussion. Hundreds of women who are members of Survivors of Symphysiotomy, disappointed by the government’s approach to redress, have begun High Court litigation against the hospitals which performed their symphysiotomies, and against the State (invoking the law of negligence and the principles established in O’Keeffe v. Ireland at the ECHR).

It seems fair to conclude that the State either does not understand the concept of ‘effective remedy’ under Article 2.3 of the ICCPR, or is not interested in meeting that obligation. The treatment of survivors of symphysiotomy is part of an embedded pattern. Less than 48 hours after its examination before the ICCPR, the government announced an inquiry into abuses in state-run and state-supervised institutions focusing on the Mother and Baby Homes, which bears all the hallmarks of this government’s dogged disregard for survivors’ interests.  My point here isn’t to suggest that Article 2.3 ICCPR provides the only, or most important, or most effective lens through which we might look at the government’s approach to symphysiotomy. But it does usefully show up the state’s determined approach to managing an important set of political claims about gender, religion and power out of public existence.

As Sir Nigel Rodley, stressed in his concluding comments (video), the right to an effective remedy encompasses accountability measures as well as material provision. In its General Comment 31 the Committee explained the concept of effective remedy, and provided guidance on the shape which investigation and reparation should take. In applying the principles in this document to the proposed symphysiotomy redress scheme, it is important to bear in mind that Rodley spoke of some symphysiotomies on Tuesday in terms of violation of Article 7 of the ICCPR: the prohibition against torture, cruel, inhuman and degrading treatment, including forced subjection to medical experimentation. (The Minister for Justice admitted at the hearing that many symphysiotomies were performed without women’s consent, and the written response to the Committee retains this admission, while attempting to suggest, against the testimony of women, that many symphysiotomies were life-saving emergency surgeries, while others were elective.) That being the case, the State must also take account of the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.’ (the ‘Van Boven Principles’)

Investigation

• The right: The state has a positive obligation to ‘exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’.  ‘A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.’ The Committee has said that ‘[a]dministrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end.’ There is an inalienable right, under international law, to know the truth about human rights violations. Moreover, as the UNCAT has observed in respect of the ‘comfort women’  abused by the Japanese military, repeated denial of victims’ experiences by those in public office may have the effect of re-traumatizing victims. Similarly, in its 2008 observations on Japan, the UNHRC criticised politicians’ efforts to refute the claims of comfort women and deny the injuries done to them.

 

• What Ireland has done: In its response to the Committee, the State claims that ‘[s]uccessive Irish Ministers and the Department of Health have aimed to find out the facts about symphysiotomy in order to bring closure for the women affected by it and their families.’ There is a lot hidden in the vague phrase ‘aimed to find out the facts about’. (See here). Survivors of Symphysiotomy (S.O.S.) have been asking for an independent inquiry since 2002. The Irish Human Rights Commission have been asking for such an inquiry since 2008.  There is a strong argument that, given there are possible violations of Article 7 – in issue, the investigation should be judicial in nature, and set up on a statutory basis. However, successive Irish Ministers and Departments of Health have alternately refused to commission independent inquiries, or substituted brief comments from the Institute of Obstetricians and Gynaecologists (IOG) for such an inquiry. The Walsh Report is the closest we have come to an inquiry independent of the IOG.  It was finally published after 12 years of campaigning. And, as S.O.S. have argued, it does not meet established international standards. (See here at p.3).  The cumulative effect of these government tactics has been to drive partial readings of the history of symphysiotomy into the public sphere with the full weight of state backing, at the expense of other legitimate interpretations. None of these ‘efforts to establish the facts’ can substitute for independent examination of each individual case. The Walsh report is now being cited, by government, to varying ends without regard for the different experiences of women from hospital to hospital or from decade to decade. The state’s written response is marked by evident confusion about the practice of symphysiotomy.    A stunning example of this arises when the State says that ‘There was a general acceptance of the indications for syphysiotomy, which were “mild to moderate disproportion”, while a greater degree of disproportion indicated caesarean section.’ This statement directly contradicts the Supreme Court’s finding in Kearney v. McQuillan where the medical evidence was that symphysiotomy was only indicated for cases of ‘absolute disproportion’. The Court held there that ‘At times, the defence case seemed to suggest there was a then [in 1969] general ‘Irish view’ shared by all practitioners in the State. The evidence did not establish any such general acceptance, whether on the basis of religious belief or otherwise.’   Later in its response, the State accepts other aspects the validity of the same Supreme Court decision.  In another surprising turn, the Government also reverses a finding of the Walsh report when it says that symphysiotomy ‘was never proposed as an alternative to Caesarean section‘.

 

• There are also serious questions about the extent to which the Walsh and Murphy processes were accessible to all survivors. The State has told the Committee that ‘during each review the testimonies of the women and family members were sought and the recommendations in each report reflect that’.  Its response suggests that there are three equally influential survivors’ groups which made representations as part of those processes. S.O.S is by far the largest group. Its members boycotted the Walsh consultation process in protest at her exclusion of survivors’ testimony from the first stage of the reporting process, preferring to make written submissions to Judge Murphy. These submissions were, evidently, ignored.  S.O.S. members sent pro forma letters to Judge Murphy (reproduced in Appendix 4 to her report) informing her that the two other, smaller, groups who support the government position (the state-funded Patient Focus and S.O.S. Ltd.) did not represent them. S.O.S. were very shabbily treated at the launch of the Walsh and Murphy reports by government. Thus, when the government makes representations about the views of women who were subjected to symphysiotomy, it is bluntly excluding this majority group of non-compliant women. In its Concluding Observations on Japan in 2008, the UNHRC stressed that the state was obliged to find a redress solution for ‘comfort women’ which was acceptable to the majority of victims. This principle should also apply to the survivors of symphysiotomy.

 

• Finally, the proposed redress scheme is tainted by the appearance of bias. Under the scheme proposed by the Murphy Report, the State Claims Agency will devise procedures for the assessments individual women’s entitlement to compensation. Read against the backdrop of the High Court cases being brought against the state, this arrangement can only be interpreted as making the State a judge in its own case.

 

• Reparation

 

• The Right: General Comment 31 notes that  ‘Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated… The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.’ The right to  reparation is established as a matter  of customary international law. The State enjoys some discretion in its approach to reparation. However, given the serious violations with which we are dealing, it seems clear that certain minimum standards must be observed. Under the Van Boven principles, reparation must be ‘adequate, effective and prompt’ and ‘proportional to the gravity of the violations and the harm suffered’.  The General Comment also states that ‘[e]ven when the legal systems of States parties are formally endowed with the appropriate remedy, violations of Covenant rights still take place. This is presumably attributable to the failure of the remedies to function effectively in practice. …’ Thus, the State has an obligation to remove de facto obstacles which prevent survivors from accessing reparations.

 

• What Ireland proposes to do: The State is concerned that a symphysiotomy redress scheme should be simple and quick. However, it is not clear that the redress provided will be adequate or proportionate. The proposed awards under the redress scheme, ranging from a derisory 50,000 to 150,000 euros, are entirely out of line with those available under Irish civil law. In Kearney v. McQuillan the Supreme Court confirmed that general damages of over 450,000  euros could be paid to plaintiffs whose lives had been ‘effectively ruined’ by unjustified symphysiotomy. The Committee Against Torture in its General Comment No. 3  again, closely following the van Boven Principles, says that ‘the specificities and circumstances of each case must be taken into consideration and redress should be tailored to the particular needs of the victim and be proportionate in relation to gravity of the violations committed against them.’ It goes on to say that: ‘The right to prompt, fair and adequate compensation for torture or ill-treatment under article 14 is multi-layered and compensation awarded to a victim should be sufficient to compensate for any economically assessable damage resulting from torture or ill-treatment, whether pecuniary or non-pecuniary. This may include: reimbursement of medical expenses paid and provision of funds to cover future medical or rehabilitative services needed by the victim to ensure as full rehabilitation as possible; pecuniary and non-pecuniary damage resulting from the physical and mental harm caused; loss of earnings and earning potential due to disabilities caused by the torture or ill-treatment; and lost opportunities such as employment and education. In addition, adequate compensation awarded by States parties to the victim of torture or ill-treatment should provide for legal or specialised assistance, and other costs associated with bringing a claim for redress. It is quite clear from the Murphy Report that only physical and psychological injury are taken into account in the proposed redress scheme. The state claims that ‘[a]n ex-gratia scheme is more flexible that the examination and assessment through the courts. It will be more person-centred.’ This is a ridiculous statement. There are three bands of payment under the proposed scheme. A decision will be taken as to whether a woman fits in Band A, B or C. That is a formalist, bureaucratic, assessment mechanism and nothing more. Finally, it is important to note that the proposed scheme is ex gratia, so that there will be no finding of liability in any instance. When we consider that truth-seeking, in itself, may amount to the remedy of ‘satisfaction’ it becomes clear that an ex gratia scheme is a double denial of a remedy.

 

• In its defence the State argues that the scheme aims to relieve elderly women of the burden of litigation, and that it is doing its best to provide redress in straitened economic circumstances.

o  As to the burdens of litigation on the elderly, it is true that the Committee’s General Comment 31 has observed that ‘remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person...’ However, the line between adapting to complainants’ vulnerability and taking advantage of it is very fine. The Committee Against Torture in its General Comment No. 3 emphasises that the purpose of redress is to restore the dignity of the victim. Accordingly, the terms of the victim’s participation in redress schemes are important. Yuval Shany asked three questions about the terms of that participation. The State’s responses contradict or avoid discussing the position it took when it adopted the recommendations of the Murphy Report:

• How will redress scheme claims be assessed? Judge Murphy, at pp. 52-53 outlines that claimants seeking to access payments of 100,000 or 150,000 euro would have to submit to medical examination in order to prove that they have suffered a ‘complex array of injuries’ ‘directly’ attributable to the symphysiotomy. She suggests  that this would be done by psychiatrists, obstetricians, orthopaedic surgeons and geriatricians according to a model devised by the State Claims Agency. The State now says that ‘Because the majority of women are old it would be important that the assessment would be the minimum required to provide evidence for an award.  For many this may be based on current medical records.  Parameters for the scheme will be devised within the next few months.
• Must women waive their right of access to the courts in order to participate in the scheme? Judicial remedies must be made available to victims of rights violations, irrespective of what reparations mechanisms are put in place. Judge Murphy at p. 53 of her Report says that ‘[c]laimants would have to discontinue their legal proceedings and acknowledge that participation is in full and final settlement of claims they may have against any party arising out of their symphysiotomy procedure including the State’. (Emphasis mine). The State now says, publicly for the first time, that ‘Women do not waive their rights as a pre-condition to joining the scheme….  Women may opt out of the scheme at any stage in the process, up to the time of accepting their awards.  However, on accepting the offer of an award under the Scheme, claimant would have to sign a waiver to discontinue their legal proceedings against any party arising out of their symphysiotomy.’ The State does not mention the steps which it took to hamper women’s access to the courts in refusing to lift the Statute of Limitations to facilitate survivors’ claims. It is worth noting that the Committee Against Torture in its General Comment No. 3 says that where ‘public officials or State agents have committed violations of the Covenant rights referred to in this paragraph… impediments to the establishment of legal responsibility should also be removed, such as … unreasonably short periods of statutory limitation in cases where such limitations are applicable.‘
• Is there a right of appeal? The State dodges the Committee’s question when it says that a ‘woman is entitled to initiate a judicial review, if she is unhappy with the process or its outcome.  The Scheme would not in any way limit the right of a woman, if she so wishes, to opt for a judicial review.’ Judge Murphy’s proposals for a redress scheme do not provide for any right of appeal from a decision of the State Claims Agency under the scheme. It is entirely unreasonable to expect a limited procedural judicial review to substitute for an second opinion on the merits of a claim, especially given the State’s purported concern to spare women the financial and emotional cost of lengthy litigation.

o  The second claim is easily dealt with. The UNHRC has said that failure to take steps to give effect to rights under the ICCPR ‘cannot be justified by reference to political, social, cultural or economic considerations within the State.‘ As I have already argued, it is abundantly clear from the Murphy Report (see p. 50) that one of the primary goals of the redress scheme is to limit monetary payments by the State to survivors of symphysiotomy. The language which the government uses to make this point to the Committee in its written response is interesting: ‘Government has decided, despite the tough economic environment, to introduce an ex-gratia scheme, aimed at bringing closure for the women and their families.’  It is important to note that the Government now states that ‘it could have waited for legal cases to take their course through the courts, given that in many cases liability rests with the insurers of the hospitals and in other cases no insurer can be identified, or even worse, there are no records at all.’ The Murphy Report presents a different picture. On Judge Murphy’s analysis (p.32) ‘the State looks set to assume a central role in defending almost all symphysiotomy cases’. Indeed, precisely because Murphy was unable to fulfil one of her terms of reference -to assess the likely financial value of hospitals’ insurers’ contributions to the redress scheme – her recommended scheme proceeds on the basis that nobody but the State will pay redress. The State is squarely in the frame here, and is determinedly protecting its own coffers.

 

At Geneva, the state delegation seemed poorly prepared to discuss institutional gender-based violence. The common sense that Ireland is ‘facing up to its past’ is self-satisfied nonsense. True, the papers are happy to print stories of oppression and violence suffered in an Ireland neatly consigned to some long ago time. But it has proven too easy to swat away public scrutiny of the administrative systems which the state has devised for the management of the Magdalene women, the subjects of the Ryan report, the children abused in national schools, the women subjected to symphysiotomy, and, soon, the women and children circulated through and confined in the Mother and Baby Homes. Those systems are structured by a strange intertwining of paternalism and penny-pinching. In ‘the past’, the Irish state was frankly committed to containing, disciplining and directing the conduct of those considered unfit to think for themselves, and at the lowest possible cost. Today’s redress policy is a softer, but no less threatening, echo of that grim political economy.