Health, Gender-Based Violence and the Right to Reparations in Ireland.

I do not accept the Deputy’s comment that the Government is neither sympathetic nor decent in respect of the work it does here. As pointed out with regard to the Magdalen laundries, Priory Hall and many other sensitive serious issues the Government has been sympathetic and decent.

Enda Kenny, May 2014.

Redress is in the news again. The long-awaited Redress for Women Resident in Certain Institutions Bill will be debated in the Dail next week. Justice for Magdalenes Research have condemned the Bill for ignoring Mr. Justice John Quirke’s recommendation that the women receive the equivalent of a HAA medical card. ((For a very clear explanation of the difference between what the government is promising and what Quirke recommended, see Maeve O’Rourke here. See here for an especially patronising response to these concerns from the Taoiseach, suggesting that the state’s primary concern is to protect women from fraudulent ‘angel healers’)) At the end of January, the first of many symphysiotomy cases comes on for hearing in the High Court. Meanwhile, the Harding Clarke redress scheme is clearly stalling badly, judging by its own progress reports. Progress on the Magdalenes redress scheme is similarly sluggish.  Neither redress scheme has drawn much praise (see here and here). But now it appears that the government is unwilling even to fulfil the limited promises it made to victims.

In 2011, UNCAT said that the state must “ensure that all victims [of the Magdalene Laundries] obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.” Last summer, the UNHRC held that the state must “provide the survivors of symphysiotomy with an effective remedy for the damage sustained, including fair and adequate compensation and rehabilitation, on an individualized basis.” How do we understand the state’s current lacklustre responses to these obligations?

We already know that the state’s agents are willing to install, and vigorously police, essentially arbitrary distinctions between classes of citizen who have a claim to financial reparation for historical injury. A recent example is the State Claims Agency’s high-handed disregard for Louise O’Keeffe and another 135 adults who were sexually abused in primary schools before 1991. Others are written into the terms of reference of the inquiry into the mother and baby homes, which exclude both the Magdalene laundries, and private illegal adoptions from investigation. The state’s treatment of these issues is at an early stage. Indeed, it is not yet clear whether the mother and baby homes investigation will lead to a programme of redress, financial or otherwise. But the experiences of women who have applied to the state for redress gives us a sense of what awaits these groups in the future.

There has been almost no academic examination of the operation of established Irish redress mechanisms, or of the suite of practices which are already being used to minimise the redress paid to survivors of historical abuse. Such studies are badly needed. However, at the moment, we can clearly see that the state is undermining access to redress for both the Magdalene women and survivors of symphysiotomy and is using parallel techniques to do so.

Improper reliance on records which are untrustworthy or difficult to access:  Women who have applied to the Magdalenes redress scheme have reported difficulties in establishing their length of stay. The size of a woman’s redress payment under the scheme is based on how long she was in a laundry. The relevant records are held by the religious orders. In 58% of cases, according to the McAleese report itself, the date of exit was not recorded. In other cases, women’s own testimony as to their length of stay is contradicted by the religious orders’ records, often by a matter of some years. In such cases, the government says that it will explore records held by other departments. So far, it is not clear whether a woman’s own word – for instance in a sworn affadavit – will do. Some women will be required to submit to an interview – which presents clear difficulties for those who cannot travel, who still live the religious orders who ran the Magdalene Laundry where they were first incarcerated, or who otherwise lack capacity. If a woman disagrees with the provisional assessment of her length of stay, she is expected to request that her claim be reassessed by ‘an officer of a higher grade’ within the Restorative Justice Implementation Unit at the Department of Justice, whose decision can then be appealed to the Ombudsman. The state makes a minimal contribution to her legal fees.

The symphysiotomy redress scheme is, at least, overseen by a judge but both schemes are driven by bureaucratic, paper-based assessment. So, the same issues arise in relation to symphysiotomy. In order to apply for a payment of 100,000 euro under the symphysiotomy redress scheme, women must show that they suffered various injuries as a result of the procedure, and that the injuries continued for more than 3 years after the symphysiotomy was performed.  To demonstrate that temporal and causal link, the women must be able to provide records which date from the time of the symphysiotomy, including GP records. The Minister for Health believes that the women’s symphysiotomy-related disabilities are evident from looking at them, but that is not the sort of test the scheme applies.

“A current medical report based upon a subjective history of events as you tell them to a doctor is unlikely to be sufficient evidence to satisfy the requirements of 1B of the Scheme. Objective evidence showing medical investigations or treatment over the years attributable to the surgical symphysiotomy will be required.”

Many women did not approach a doctor for years because of the traumatic effects of the surgery. Others did not obtain, at the time, appropriate treatment or referrals which would indicate the types of injury which qualify for redress under the scheme. Some women’s GPs have since died, and they are being asked to trace records from other specialists, hospitals and pharmacists. In order to apply for any redress payment at all, of course, women must be able to identify the hospital where they underwent the procedure, and the date when it was performed. This is another hurdle. In December, a cache of unpublished records relating to the performance of symphysiotomy in three major maternity hospitals was released, but women are still experiencing difficulties in obtaining their individual files.

The state is, of course, aware of these problems. In a recent progress report, those administering the Symphysiotomy Payments Scheme admit that most of the 568 applications received by the scheme closing date were not accompanied by the required records. It is inevitable that, like the Magdalenes scheme, this scheme will need to alter its expectations if the very large number of outstanding applications can be properly processed.

In sum, both redress schemes require ill, elderly, and in some cases very vulnerable women to navigate inadequate systems of record keeping, and the burden of proof is firmly on them.

Closing off other avenues to recompense: Both the Magdalene and symphysiotomy redress schemes require the women to waive any future legal claims against the state (and in the case of symphysiotomy against a raft of other private parties). State-funded hospitals are, of course, defending symphysiotomy claims with astonishing energy, leading to unnecessary delays in cases’ coming on for hearing, and perhaps discouraging women who  would otherwise insist on their right to access the courts.  Justice for Magdalenes Research has argued that the waivers are on shaky ground now, because they were signed on the understanding that the state would make very particular provision for the women. If the state’s position has now substantially changed, the women may have claims in legitimate expectation, or may be able to revive other substantive legal claims by setting the waiver aside. Members of Survivors of Symphysiotomy are bringing a batch of civil claims to court in the coming year (though, as I have written before, the redress scheme is designed to back them into a corner and persuade them to give the claims up).

Inadequate investigation of wrong-doing: We have been over this point – about the inadequacy  of the McAleese and Walsh reports – many times before. Neither report was designed to establish liability, both reports ignored available routes to survivor testimony, and advocacy groups have repeatedly expressed disquiet about the ways in which both reports have downplayed the seriousness of the harms which women suffered. Justice for Magdalenes Research have been working on an alternative study which contradicts key findings of the McAleese report, while Survivors of Symphysiotomy look to the courts, and possibly other fora to produce better individualised narratives of the ‘truth’ of the practice. Women have also given important testimony to (largely foreign) media outlets such as the GuardianAl Jazeera and the BBC. The investigations left the state with too much room for manoeuvre, because they do not attribute real responsibility to anyone. Both redress schemes are ex gratia, and this leaves payments especially vulnerable to ‘claw-back’. The State can present itself as ‘looking after the women’ rather than as obliged to atone, and to compel others to atone, in concrete terms, for specific wrong-doing. It can present itself as ‘facing up to the past‘ when its systems of redress often serve to compound the harm women have already survived.

Hostile administration of the schemes: All of the above points to the establishment of schemes which are essentially hostile to women’s claims. But there is more. I have already written about the state’s use of unreasonable time limits to manage would-be applicants to the symphysiotomy redress scheme, by putting both them and their legal advisors under pressure. (The Minister for Health says that these time limits were put in place to help the women to come to a resolution quickly…) It has also repeatedly deployed Patient Focus – a HSE-funded group which has a very poor relationship with the majority of survivors of symphysiotomy – to make statements downplaying women’s valid criticisms of the scheme. Many women will require professional and familial support to engage with either scheme. In that context, some will be vulnerable to exploitation. Justice for Magdalenes Research have also noted that the forthcoming Bill does not make proper provision for women who still live with the laundry orders, and whose decision-making capacity is in question, to have proper advocacy support. These tweets from last week’s Justice for Magdalenes Research press conference speak to women’s sense of disappointment and exclusion. I imagine many members of Survivors of Symphysiotomy would identify with them.

Health, Gender-Based Violence and the Right to Reparations in Ireland.

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