The Trouble with Redress – Symphysiotomy and Other Failures.

In recent days, we have heard a lot from the Government about the scars of past institutional abuses of power in Ireland. We know that women and children were subjected to routine and varied abuses of power in schools, religious penal institutions and hospitals. These violences were bodily, intimate, painful and entirely beyond reduction to any talk of shared scars. Increasingly, the Government takes a firm line on these matters. On its view, they belong to a past which is simultaneously unrecognisable to ‘modern’ Ireland, but which extends out into the 1970s and 1980s; into the middle of living memory. The state professes to share survivors’ wounded memory, but cannot be held responsible for it. Instead, we are to become reconciled to our shared hurt by the offer and acceptance of apology to selected victims and by the offer and acceptance of limited redress. Survivors of Symphysiotomy are asking us to reconsider this position.

Yvonne Murphy is due to report soon on her deliberations on a possible ex gratia redress scheme for women who were subjected to symphysiotomy. Survivors of Symphysiotomy have pre-emptively rejected such a scheme and with good reason. There is every danger that it will be a re-run of its predecessor; that prescribed by John Quirke for the surviving Magdalene women. Quirke showed us how redress schemes enable  the State and powerful interest groups to deny liability for past wrongdoing, refuse proper compensation and – without regard for transparency or publicity – discourage recourse to law.

First, like Quirke’s, a Murphy scheme would follow on a flawed prior investigative process; like the McAleese report, the process leading to the compilation of the unpublished Walsh report has been shielded from public scrutiny. Like the McAleese report, the draft Walsh report was criticised as attempting to explain away gendered violence by reference to prevailing cultural norms. While McAleese ignored swathes of survivor testimony, Walsh excluded it entirely. Survivors of Symphysiotomy are now  following Justice for Magdalenes’ path to the UN Committee Against Torture. That Committee confirmed the inadequacies of McAleese, and no doubt will respond sharply to Walsh.

Second, payments under an ex gratia scheme are intended to express regret, but not responsibility. An ex gratia scheme operates entirely outside the relationship of recognition, contestation and repair available within the ordinary legal system to individuals who have suffered singular and meaningful harms. First, any money paid to the women will not be commensurate with that available through litigation. It will not be enough to put them – financially – in the position they would have been in had they been spared these operations.If anything, Yvonne Murphy’s terms of reference suggest a hierarchical administrative scheme, likely to take as much account of the financial demands of State, insurers and indemnifiers as of survivors’ needs. We already know how these juggling acts pan out. It is obvious now that Government’s priority is to restrict the amount of money paid to survivors, and past experience with religious orders must cast doubt on its ability to hold private hospitals and their insurers to account as part of any redress scheme. Troublingly, the experience of women within the Quirke scheme suggests that payments may be roughly calculated, poorly tailored to individuals’ needs, and badly administered. Last week, James Smith and Maeve O’Rourke wrote that, now that the time has come for Quirke to be implemented, Government does not even appear to be willing to comply with his recommendations. Finally, an ex gratia redress scheme will not produce any finding of medical negligence, or associated liability, in relation to the harms suffered by these women. The private hospitals where many of the women’s injuries were inflicted will not be held directly responsible. And of course, as survivors have said again and again in the past, their claims have as much if not more to do with the establishment of a public narrative of responsibility as with any monetary compensation. Indeed, if the purpose of these performances of restorative justice is to enable societal engagement with the causes and repetitions of institutional abuse in Ireland, an ex gratia redress scheme can only be part of the puzzle.

Third, the government has offered Yvonne Murphy’s deliberations as a substitute for lifting the Statute of Limitations. The measure had wide cross-party support and would have enabled some women to more easily pursue civil claims. In a related vein, John Quirke asked participants in the Magdalenes redress scheme to forego their access to the courts as a condition of receipt of payment. A number of symphysiotomy cases have begun in the High Court. One or more successful claims would definitively establish the law on liability for symphysiotomy, and provide – at least partially- the narrative of responsibility the victims require.[1]  Recourse to law is often represented as a matter of greed or folly. Louise O’Keeffe might disagree; often litigants are compelled to go to court against a background of state intransigence. The Government, keen to show the more caring of its faces, now says that it did not lift the Statute of Limitations, because doing so would not have assisted these women, but would instead have exposed many of them to a long and difficult course of litigation. This is a disingenuous and paternalistic argument. It clothes many of the women who can establish a claim, and who are currently on their way to the High Court to do so, in broad brush assumptions of vulnerability and fragility which minimise the importance of each singular case. In Kearney v McQuillan, Ryan J. noted that Olivia Kearney’s symphyisotomy case could have been obstructed by procedural concerns around delay, of the kind which motivate the Statute of Limitations. He said: ‘it is disturbing to consider how close this victim of grave medical malpractice  came to being sacrificed on the altar of fair procedures.’ In other words, each victim matters, and when an individual’s case is destroyed on the edges of a general principle of public policy, it needs to be for very good reason.

In a sense, government paternalism is a softer, but no less dangerous, version of the tactics adopted with Louise O’Keeffe. In her case, successive governments actively used the threats of emotional distress and impoverishment through costs to deter her claim. Here, the argument is reversed: Government claims that its refusal of assistance is  ‘for the victims’ own good’ – they are being spared the pain of court cases. Both approaches betray the Government’s assumption that wronged citizens have no right to seek justice in the courts, and that access to the legal system is – one way or another – in its sole gift. In any event, Survivors of Symphysiotomy are not insisting on litigation, on its inequalities or expense. Instead of an ex gratia scheme, they are asking for alternative dispute resolution. They want a statement of truth, access to relevant records, support in establishing their legal claims, and speedy settlement of those claims. Government is ignoring this demand, and so the courts- for all their failings – remain the only appropriate forum for pursuit of these cases.

As a movement, Survivors of Symphysiotomy represents a watershed in the Irish approach to past institutional abuse. There is speculation that the O’Keeffe judgment may, in due course lead to new causes of action on foot of institutional abuse by non-state actors. When this issue is being debated, we should expect Government to work and rework its current tactic: opposing redress to litigation, while casting itself – in the language of concern and regret – as making up for the ills of the past. It will be important to listen to Survivors of Symphysiotomy then. Women who survived symphysiotomy are not relics of an ever-extending ‘past’. They are entitled to reject the ‘closure’ offered by the State, and to make live and wilful claims to justice in the present, on the present’s terms.

[1] The judgment in Kearney v McQuillan concerned a woman who had undergone a symphysiotomy after a caesarean section, and who did not present with the ‘foeto-pelvic disproporation’ which, in some medical views, might have justified the operation. Therefore, there is some need for additional litigation.

The Trouble with Redress – Symphysiotomy and Other Failures.

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