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Government has accepted Private Member Bill for symphysiotomy redress

Symphysiotomy victims have long been seeking a redress forum and a recognition of their suffering. This battle has been protracted and embittered.

Symphysiotomy is the surgical procedure which was carried out in hospitals throughout Ireland from the 1940s to the 1980s which involved a pregnant woman in labour having her pubic bone sawn in half to facilitate the opening of the birth canal in the belief that the procedure facilitated the safe delivery of the baby.

This controversial (some would say barbaric) procedure is no longer medical practice in Ireland but unfortunately it has left a legacy of women with permanent and on-going personal injuries including incontinence, back pain and difficulty walking.

The women affected and their families have tirelessly sought answers from our governments for over a decade through the lobbying of support and patient groups and more recently through their participation in Dail Debates.

In 2011 the Department of Health commissioned an independent academic report from Professor Oonagh Walsh, of University College Cork, to report on the practice of performing the Symphysiotomy procedure on women in labour in Irish hospitals between the 1940s and the 1980s.

Professor Walsh’s report, published in June 2012, is the first part in a two-part report. Professor Walsh states that the views of interested parties will be considered over the coming months.  The approach of Professor Walsh in this regard indicates a clear attempt to give a voice to the women who have been affected.  Professor Walsh has recently stated that her primary concern is that every woman who has been affected has the opportunity to make their comments in a supportive and respectful environment and that she has assured all contributors that their response will be both appreciated and valued.

While the victims of symphysiotomy may have won the battle thus far through their relentless campaigning and lobbying, they have not yet won the war. Whatever the recommendations of Professor Walsh’s Report may be, the question remains, as to whether the Government will have the political will to introduce a statutory redress scheme which has been called for and which these cases deserve.

These women do not have time on their side.  In 2012 during a Joint Committee on Justice, Defence and Equality debate, Mr. Ruadhan Mac Aodhain a legal representative for Survivors of Symphysiotomy,stated that many victims were vulnerable to procedural impediments in bringing  legal cases.

The first problem is the Statute of Limitations which prohibits a victim from bringing their claim after a period of 2 years has elapsed from the date of the occurrence of the procedure or the date of actual knowledge of the procedure.

The second impediment is the issue of delay in instituting proceedings. This is separate and distinct from the Statute of Limitations issue.

The Supreme Court decision on the 11th of July 2012 is a major breakthrough because it upheld a High Court finding in the case of Olivia Kearney in her case against The Medical Missionaries of Mary as owners of The Lourdes Hospital, Drogheda.This case arose from the symphsiotomy carried out on Olivia Kearney after the birth of her son on the 19th of October, 1969.

Mrs. Kearney’s journey through the Courts has been protracted. The hospital secured a High Court order striking out her claim on grounds of delay in bringing the proceedings. She successfully appealed that decision to the Supreme Court.

In that context, Mr Justice Ryan in the High Court judgement said it was disturbing to consider how close “this victim of grave medical malpractice came to being sacrificed on the altar of fair procedures.”

In March 2012 Mrs. Kearney succeeded in the High Court and was awarded general damages of €450,000.00. The Supreme Court in the judgement handed down on the 11th of July, 2012 unanimously rejected the appeal by the Defendant against the High Court finding that it was liable for the injuries suffered, but agreed to reduce the general damages awarded by Mr. Justice Ryan from €450,000.00 to €325,000.00.

The Supreme Court held that the symphysiotomy procedure carried out on Mrs. Kearney was “entirely unjustified” and “deeply flawled”. The Court further stated that the procedure should never have been carried out on Mrs. Kearney while she was unconscious and anaesthetised.   Mr. Justice John MacMenamin stated that the procedure “was wrong even by the standards of the time” and that there was “no rationale for it”.  The Court held that the “entire fault” for what happened to Mrs. Kearney lay with the obstetrician who performed the procedure “and no one else”.

While Mrs. Kearney had found redress through the Courts the legal status of hundreds of other injured women remained uncertain.

During the course of a Dail Debate in 2012, a comparison was drawn between the women affected by symphysiotomy and the victims of institutional abuse where the Statute of Limitations was lifted in 2002.  In my view, which is shared by many, the only prudent and effective solution is to lift the Statute of Limitations to facilitate the women affected in accessing the Courts to vindicate their constitutional rights which have so far been denied.

A cross party Private Members Bill published on the 9th April, 2013 came before the Dail on 16th April 2013.  The legislation proposes to set aside the Statute of Limitations for one year to allow victims to seek redress through the Courts and is similar to the law passed in 2000 allowing minors who were sexually abused in residential institutions to commence proceedings by temporarily lifting the Statute of Limitations for one year.

Minister Reilly confirmed to the Dail that the Government would not oppose the second stage of the Bill albeit that he considered that the proposed legislation to be seriously flawed.  Mr. Caiomhghin O’Caolain, Health Spokesperson for Sinn Fein who introduced the Bill noted that Minister Reilly did not identify or spell out the flaws.   The Department of Health has also indicated that work needs to be done on the drafting of the legislation.

It is not clear how long this process will take. Nonetheless the proposed legislation is a welcome and long awaited step towards vindicating the rights of an estimated 200 women who suffered debilitating and lifelong health issues as a result of this controversial childbirth procedure.

Trish Hynes is a solicitor in the firm FitzGerald Solicitors specialising in medical negligence.  FitzGerald Solicitors is located at 6 Lapps Quay, Cork


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