Barriers to first trimester abortion care.

We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.

As the Citizens’ Assembly turn to the ‘when’ of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.

Barriers to access

A central problem in the timely administration and delivery of high quality care is the existence of ‘barriers to access’. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ‘getting’ here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.

Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.  

Access and abortion care

In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.

Abortion care access also needs to recognise the ‘timings’ of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.

What does this mean for a first trimester focused law?

The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow’s systematic review (; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute’s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.

Women’s perspectives Provider perspectives
Lack of proximate services Moral opposition
Lack of appointments/waiting lists Lack of training
Negative attitudes of staff Too few physicians
Associated costs of abortion Staff harassment
Insufficient hospital resources

Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)

What would this mean in practice?

If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.  


Barriers to first trimester abortion care.

The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities

Over the next two days, two pieces of legislation which the government has deemed necessary for Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities will be debated in the Dail. While several calls have been made by the disability community to ensure that Ireland ratifies the Convention without delay, there are ongoing human rights concerns with the legislation being proposed which will have a significant impact on the day to day lives of people with disabilities in Ireland.

The Criminal Law (Sexual Offences) Bill is going through its Report and Final stages in the Dail tonight. This Bill includes an amendment by Minister Fitzgerald to define sexual consent, which is vitally important and widely supported by civil society. The wording of the Minister’s amendment in respect of persons with disabilities could however be improved. For example, the amendment states that a person does not consent to a sexual act if “he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act.” The term ‘physical disability’ seems unnecessarily limiting here, as there are many different physical and psychological reasons that might prevent the person from communicating consent or refusal. Instead, it would be preferable if the amendment provided that a person does not consent if “he or she is experiencing an impairment which prevents him or her from communicating whether he or she agrees to the act.” Continue reading “The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities”

The Final Countdown: Ireland’s Ratification of the UN Convention on the Rights of Persons with Disabilities

Benefit Sanctions and Coercion Within the Irish Welfare System

We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.

In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving €44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.

This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.

This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.

Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of €44 will only be applied to jobseekers in receipt of the top rate of €188 per week, while those receiving, for example, a lower rate of €84.50 would see their benefit temporarily reduced to €64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.

A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).

Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.

The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon [2001] IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ‘reasonable expectation’ create a presumption of entitlement as established in Galvin v Minister for Social Welfare [1997] 3 IR 240, and Wiley v Revenue Commissioner [1993] ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.

The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.

Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.

It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom’s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland’s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.

Benefit Sanctions and Coercion Within the Irish Welfare System

Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

committeeTomorrow, the Assisted Decision-Making (Capacity) Bill finally progresses to Committee stage in the Dail. This Bill seeks to abolish the outdated ward of court system which currently provides the only mechanism in Irish law for removing the legal capacity of an adult and appointing a substitute decision-maker to take legal actions on that adult’s behalf. The introduction of this Bill has been broadly welcomed by civil society, organisations of persons with disabilities, healthcare professionals, families and state bodies – especially as it has been recognised by government as a key reform which is needed in order to enable Ireland to ratify the UN Convention on the Rights of Persons with Disabilities. However, many organisations and inviduals, including a coalition of NGOs working in the fields of disability, mental health and ageing – have identified changes which need to be made to the Bill to ensure that it fully respects the rights of adults in Ireland to make their own decisions, with support, if they wish.

The Department of Justice has published the amendments it proposes to introduce to the Bill at Committee stage here – where you can also read the amendments proposed by all members of the Dail Select Committee on Justice, Defence and Equality. Some of the amendments proposed by the Department are most welcome – and respond to the concerns highlighted by NGOs based on the text of the Bill as first published. One such amendment is the proposal to remove co-decision making agreements from the court process and to make them a more flexible and accessible instrument, similar to the decision-making assistance agreement. Another example is the change in the name of the state body which will oversee implementation of the new law, from the ‘Office to Public Guardian’ to the ‘Decision Support Service.’ While this might seem like a minor change, it can be viewed as an important reaffirmation of the purpose of the legislation – not to provide for paternalistic interventions into people’s lives – but rather to support individuals’ autonomy and self-determination.

However, other amendments proposed by the Department of Justice demonstrate that the ‘paradigm shift’ called for by the UN Convention on the Rights of Persons with Disabilities has not yet been fully achieved. The Centre for Disability Law and Policy, along with other NGOs, has argued that in order for the Bill to have practical and meaningful effect in the lives of people with disabilities – the threshold for ability to enter into a decision-making assistance agreement should be lowered from what was set out in the original text of the Bill. This has not been included in the Department’s proposed amendments to the Bill at Committee stage.

Further, the UN Committee on the Rights of Persons with Disabilities has now clarified in General Comment 1 that ‘perceived or actual deficits in mental capacity’ can never be used as a justification for a denial or restriction of legal capacity, ‘even in respect of a single decision.’ The Capacity Bill, as originally drafted, relied on an ‘assessment of mental capacity’ to determine what kinds of support an individual could access under the Bill, or whether an individual would have her legal capacity restricted by the appointment of a decision-making representative (a form of substitute decision-making). The amendments set out by the Department have not changed this approach – but the Department has proposed to replace the term ‘mental capacity’ in the Bill with the term ‘decision-making capacity.’ In my view, this change is no more than window dressing, as ‘decision-making capacity’ is given the same meaning as ‘mental capacity’ and continues to be used as a basis for restricting legal capacity. A similar critique can be made the Department’s proposal to remove the term ‘informal decision-making’ from the Bill, while retaining legal protection for third parties who make substitute decisions on behalf of persons who they believe ‘lack capacity’ (the very power which was originally provided to ‘informal decision-makers’ in the original text of the Bill). These proposed amendments therefore, do not address the concerns raised by civil society that those most in need of decision-making support will be denied the opportunity to make binding assistance agreements, and that an unacceptably wide power is granted to substitute decision-makers, who have not been chosen by the person or appointed by the court, to make decisions on behalf of a person they believe to ‘lack capacity.’

Based on the amendments proposed by the Department of Justice, the capacity/incapacity paradigm is now firmly embedded in the Bill – in decision-making assistance agreements, co decision-making agreements, decision-making representative orders, powers of attorney and advance healthcare directives. Again, while a number of submissions were made by NGOs to the Department to advocate that advance healthcare directives be recognised as legally binding in situations of involuntary detention (see here and here) – this proposal has not been reflected in the amendments introducing advance healthcare directives to the Bill at Committee stage. Finally, the relationship between this Bill and other areas of law where ‘mental capacity’ or ‘decision-making capacity’ is used as a criteria to restrict or deny legal capacity (for example in mental health law, sexual offences and eligibility for jury service) has not been clarified in the amendments proposed at this stage.

Along with many others, I will be watching the debate tomorrow with interest, and hope to see some of the concerns outlined here addressed by the members of the Committee. This debate is all the more significant since the Bill is one of the key pieces of legislation which government has deemed necessary in order to facilitate Ireland’s ratification of the UN Convention. In my view, if the Bill is not amended to ensure compliance with the UN Committee’s interpretation of Article 12 of the Convention, then it will remain a barrier to Ireland’s ratification of this important human rights treaty.

Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

NUI Galway to Host Conference Entitled 'Spending Socially- Achieving Social Value Through Public Procurement'

SSNUI Galway will host a conference entitled ‘Spending Socially- Achieving Social Value Through Public Procurement’ on Monday, June 15, 2015 from 10:00 AM to 4:00 PM.  This event will bring together, for the first time in Ireland, a unique range of experts in the fields of public procurement and the social economy. The aim is to explore the potential uses of social clauses in public contracts and to encourage a discussion on the social benefits that can be achieved through targeted government spending. This will support capacity building with respect to tendering processes, in particular for those interested in promoting social enterprises that focus on creating employment opportunities for marginalized groups.

Derek Nolan TD, will open the event and speakers will include members from the Office for Government Procurement, the Strategic Investment Board, (NI), the NOW Project, (NI), and the ‘Ready for Business’ Organisation, (Scotland), and many more experts.

The conference will explore the procurement landscape in Ireland with a view to understanding how social enterprises could be supported to offer their services and bid for tenders.  The Conference report will be presented to Minister Brendan Howlin, TD, Minister for Public Expenditure and Reform on later in June.

To find out more and register online please see here.

NUI Galway to Host Conference Entitled 'Spending Socially- Achieving Social Value Through Public Procurement'

Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives

unpoNext week Ireland will be examined by the UN Committee on Economic, Social and Cultural Rights (CESCR) – and the impact of austerity measures on the Irish public over the last several years will be scrutinised. In this post, I highlight some key issues from a disability and mental health perspective which might be addressed by the Committee, based on the concerns outlined by various civil society groups. Continue reading “Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives”

Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives

Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Supreme CourtThis note is based on MacMenamin J.’s decision, available here. SCOIRL have a succinct post on the outcome in this case. A decision was also given by McKechnie J, and is not yet available. However, I understand that McKechnie J. came to the same conclusion, albeit for different reasons. With thanks to Patricia Brazil for providing me with a copy of the available decision. As this is a longer post that usual, you can find a copy of this post here.

The Context

On Friday, 13 March 2015, the Supreme Court gave an important decision in the case of O’Donnell v South Dublin County Council (not yet on, Irish Times report here). The case revolved around the statutory duties upon South Dublin County Council (SDCC) in the area of housing and Traveller accommodation. The High Court, in a number of cases: Doherty v SDCC (2007), O’Donnell v SDCC (2007) (Laffoy J.) and O’Donnell v SDCC (2008) (Edwards J) (discussed here, pp 13-14), considered the duties of local authorities under Irish housing law and the impact of the ECHR Act 2003. The Irish Supreme Court have been exceptionally conservative when it has come to interpreting the Constitution as providing any form of socio-economic rights duties on the State.

The European Court of Human Rights has been reluctant to interfere with decisions of state/local housing authorities in the housing law arena. The ECtHR has stated that Article 3 and Article 8 ECHR cannot be interpreted as providing a duty on the State to provide everybody with a home, unless there are very exceptional circumstances at play (see, M.S.S. v Belgium and Greece, discussed in detail here).

The decision on Friday, 13 March 2015 in O’Donnell v South Dublin County Council provides at least a signal, that in very exceptional circumstances, legislative duties coupled with constitutional/ECHR rights may protect socio-economic rights. However, as will become clear below, the decision has not resulted in the provision of accommodation to Ellen (or other members of the O’Donnell family) and Ellen continues to live in accommodation that is inhuman and degrading. Continue reading “Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court”

Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Mental Disorder and Punishment in Criminal Law – Seminar

The Socio-Legal Research Centre,  within the School of Law and Government at DCU, in association with the Irish Mental Health Lawyers Association and the Association for Criminal Justice Research and Development, is pleased to announce that Mr.  Kris Gledhill, University of Auckland, will be the keynote speaker at the “Mental Health and Criminal Law” seminar THIS Friday in the Law Society of Ireland.

Venue:  Law Society of Ireland, Blackhall Place, Dublin 7.

Date:    Friday, 23rd January, 2015

Time:  5.30 pm – 8.00 pm

Mr. Tom O’Malley, National University of Ireland, Galway, and Ms. Aine Hynes, Irish Mental Health Lawyers Association, will respond to Kris Gledhill’s paper from an Irish perspective.  Mr. O’Malley will deliver a paper entitled “Mental Disorder and Proportionate Punishment” and Ms. Hynes will speak under the following heading, “Operating The Criminal Law (Insanity) Act:  a Legal Practitioner’s Perspective”. The seminar will be chaired by Judge John O’Connor.

An outline of Mr. Gledhill’s paper is as follows:

“This paper looks at developments in English statutory provisions and case law that are relevant to the question of the extent of criminal responsibility in the case of people with a mental disorder who are convicted of a crime. The focus is not on the situation when there is no responsibility (which arises when there is a successful claim of insanity) or the procedural question of whether a defendant cannot follow the trial process such that he or she cannot be put on trial (fitness to stand trial). Rather, the focus is on the level of responsibility when a defendant who is fit to stand trial is convicted.

One of the statutory developments relates to the circumstances in which responsibility is recognised to be reduced, namely the criteria for the partial defence to murder of diminished responsibility, which was amended in 2009. The other statutory development is two-fold: it involved the introduction of a new sentence under the Mental Health Act 1983, a hybrid order, which allowed the courts to combine a prison sentence with a direction that the defendant be placed in hospital, which was extended in scope by statutory amendments in 2007. As a result of these changes, there has been a significant body of case law, mainly in the context of sentencing decisions, as to whether a person who had a mental disorder at the time of the crime which played a role in the crime nevertheless retained responsibility that merited the punitive response of a sentence of imprisonment rather than the rehabilitative option of transferring the defendant simply to the hospital system (with release dependant on recovery).

What seems to be developing in the case law is the rise of the idea that it is possible to determine that even when a defendant has clearly been mentally unwell at the time of the offending and medical experts recommend that the proper response is that the defendant be transferred into the hospital system, it is possible for judges to discern a residual responsibility or a risk arising from criminality that makes proper a prison sentence even though the defendant clearly needs hospital treatment at the time of the sentence.

One question arising is the propriety of the approach in light of the rights of people with disabilities, including the formulation of those rights under the Convention of the Rights of Persons with Disabilities 2006. Some thoughts are offered on the application of the rights framework to this trend.”

The cost to attend this event is €5.00 per person.  Registration is required.  To buy your ticket and secure your place, please click here.

Mental Disorder and Punishment in Criminal Law – Seminar

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

9780415836937A new book entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’ published by Routlegde will be launched on the 12th of December 2014.  The book edited by Prof Gerard Quinn (NUI Galway), Dr Aisling de Paor (Dublin City University) and Prof Peter Blanck (Syracuse University) will be launched by Marian Harkin MEP at the European Commission Representation Office, Dawson Street, Dublin.

The book is timely as genetic technologies advance, genetic testing may well offer the prospect of detecting the onset of future disabilities. Some research also forwards that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed, or the propensity for risk-taking. As this technology becomes more prevalent, there is a danger that that genetic information may be misused by third parties and that particular genetic profiles may be discriminated against by employers, by providers of social goods and services, such as insurance companies and even by educational facilities.

This edited book explores the different forms and potential uses of genetic testing. Drawing together leading experts in disability law, bioethics, health law and a range of related fields, it highlights the ethical and legal challenges arising as a result of emerging and rapidly advancing genetic science. On examining transatlantic perspectives on the matter, chapters in the book ask whether the US Genetic Information Nondiscrimination Act (GINA) is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating fears of discrimination. The book also reviews what insights may be gained from GINA within employment and health insurance contexts, and asks how the UN Convention on the Rights of Persons with Disabilities (CRPD) may impact similar debates within the European Union. The book focuses particularly on the legislative and policy framework in the European Union, with an emphasis on the gaps in protection and the scope for specific legislative action in this area.

This book will be of great interest to scholars and students of discrimination law, bioethics and disability law, and will be of considerable use to legal practitioners, medical practitioners and policy-makers in this area.

The launch will take place on the 12th December 2014 at 5pm at the European Commission Representation Office, Dawson Street, Dublin.  If you are interested in attending please RSVP mary.faherty@nuigalway or telephone 091 – 495888.

You can order a copy of the book here.

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

What's (Still) Wrong with the Symphysiotomy Redress Scheme.

The closing date for applications to the symphysiotomy redress scheme is this Friday.  Assessment has already begun, some redress offers – a very small fraction of the total projected value of the scheme – have already been made and a very small number of those have been accepted. I have written before about the core problem which has dogged this scheme since it was first proposed – it is simply incompatible, in principle, with the requirements of international human rights law. In particular, these women have not been offered any adequate remedy for breaches of their European Convention rights by the Irish state. O’Keeffe v. Ireland confirms that ex gratia redress without an acknowledgement of state liability cannot be considered an adequate remedy. ((See also Romanov v. RussiaYeter v. Turkey))

Since the scheme was announced, less than a month ago, it has been roundly criticised by expert commentators including, most recently, Sir Nigel Rodley of the UNHRC. The devil is in the detail of the implementation. The time limit for application is unconscionable. Women had 20 working days to apply. This is the shortest time limit in the history of any state redress scheme: for example, the Residential Institutions Redress Board time limit was 3 years. The rudimentary progress reports published on the scheme website indicate that 70 women only received their application forms in the first week, because they requested them by telephone. The forms are, of course, available to download from the website, but the survivors of symphysiotomy are often very elderly and may not be computer literate.

Applications made after the deadline may be considered in ‘exceptional circumstances’, but in any case will not be considered if they are made after January 15 2015. ‘Exceptional circumstances’ is not defined within the terms of the scheme. It is worth noting that the same phrase affected the RIRB, and was interpreted in a very conservative fashion, to the particular detriment of applicants who took longer to apply  because they were socially isolated, had intellectual or psychiatric difficulties, or lived abroad. ((See AG v. RIRB [2012] IEHC 492 )) It is beyond doubt that some women who deserve, in principle, to have access to state redress will go without it because the government refuses to give them more time. 70 women have joined Survivors of Symphysiotomy since the UNHRC hearings in July and there may be others.  Two women recently brought a High Court challenge to the scheme because it was not clear that women with dementia could have a representative apply on their behalf.

The Department of Health said yesterday that 257 applications have already been made to the scheme. The progress reports give some indication of what is going on. It is not clear that the scheme can be considered a success. Certainly it is working very quickly. For example, in Week 1, 10 applications were made and 7 of these were assessed and offers made. Everything is moving so quickly, not only because the volume of applications was very low in the beginning, but because assessment is done entirely on paper and payments are not individualised. The sole question for the assessor is whether to put an applicant in one payment band or another, or none at all. There is no hearing, and no finding of liability. Some applications have been rejected, and there is no appeal from the assessor’s decision.

The fact that so many women have made an initial application  does not demonstrate that they are happy with this scheme or that they accept that it offers a better compensation package than they might obtain in court. On November 16, the majority of members of Survivors of Symphysiotomy (S.O.S.) voted overwhelmingly – not for the first time – to reject it. They have no obligation to accept any offer made under the scheme – they may yet withdraw.

The progress reports indicate that ‘a large number’ of the applications already received are awaiting  medical records from hospitals or the preparation of specialist medical reports. This sort of problem was to be expected. Some women, for example, do not have their records because hospitals had levied unaffordable charges to provide them, or had said they were unable to locate them. Access to particular records will make the difference between the minimum award of 50,000 euro and the higher award. Better consultation with Survivors of Symphysiotomy would have made this clear and the scheme could have been designed accordingly. There are about 400 survivors of symphysiotomy known to S.O.S. The women who have not yet made an application may be experiencing related difficulties. How many have the necessary support to travel for medical and legal appointments, gather hospital documentation and so on? It will be very interesting to hear about women’s experiences of compiling and submitting their applications.

The government insisted that most women would already have the necessary documentation available because they have been preparing to sue the relevant hospitals and the state. From the progress reports published, it is clear that this belief was mistaken.  The government envisaged a redress scheme which would be frankly parasitic on the very litigation it purports to protect women from.  Indeed the scheme allows the state to ‘buy’ the results of preparatory work for litigation by providing that solicitors who have already undertaken it will receive some fees and expenses. In a similar vein, the application form also asks applicants to submit copies of all legal pleadings and orders connected with their symphysiotomy.

The 20 day time limit, as the IHREC has noted, makes it very difficult for women to seek independent legal advice before submitting their application, especially if they are starting from scratch. A further 20 day time limit applies once an offer is made under the scheme.  A woman must sign a waiver to accept the offer, in which she agrees to discontinue any legal actions against the state or any of a raft of private parties, and agrees not to pursue any such claims in the future. The waiver is a waiver of constitutional and Convention rights. ((It also, of course, cements the state’s refusal to ensure the possibility of prompt, independent and thorough investigation into the wrong done to these women, by closing off the possibility of private litigation. This was not done in the Magdalene compensation scheme. The waiver is the functional equivalent of an amnesty law, and we know that laws of this kind can be held inconsistent with the duty under the ICCPR to ‘exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’; see eg Case of Barrios Altos v. Peru. Judgment of March 14, 2001 ))  As such it is crucial that the woman waives voluntarily and with full understanding of the consequences. The pressurised time limit at play here should, accordingly, be a source of some concern. The initial 20 day time limit is crucial too. If a woman had three years in which to apply to the scheme, she might at least have more time to judge the progress of her civil claim and to weigh the associated risks and benefits against the possibilities of a redress payment. As things stand, the scheme is designed to deny her the opportunity for reasoned comparison. The requirement of acceptance within 20 days, similarly, is designed to kill litigation off at the earliest possible opportunity.

The State is the defendant in many of the upcoming High Court symphysiotomy actions. The first two will be heard early next year. So, when the State says that it is offering this scheme to spare women the burden of litigation, it is doing no more than claiming to protect these women from itself. Noreen Burns died last July while attempting to pursue her claim against Holles Street hospital, having been informed in terms reminiscent of the treatment of the late Brigid McCole, that the hospital would pursue her for costs. The ‘robust’ conduct of the defences in symphysiotomy cases has, so far, done the defendants little credit.

For now, the scheme trundles on. But this is not what proper redress looks like.

What's (Still) Wrong with the Symphysiotomy Redress Scheme.