What's Wrong With The Murphy Redress Scheme?

The report of the Independent Review of Issues Relating to Symphysiotomy is out. So too, at long last, is Prof. Oonagh Walsh’s final Report on Symphysiotomy in Ireland 1944 -1984.  If you need a reminder of what symphysiotomy is, and of the human rights abuses which characterised its practice in Ireland, you can see Survivors of Symphysiotomy’s submission to the UN Committee Against Torture here. In just under two weeks’ time, Survivors of Symphysiotomy will put their case when Ireland is examined under the ICCPR. Doubtless, the redress scheme, which is the primary outcome of Judge Murphy’s review will be a topic of conversation there.

Here are 9 talking points on the Murphy redress proposals, which she presents as a tentative sketch for a potential scheme. Comments are most welcome.

  1. Ex gratia: Payments under the scheme will be made without any finding of liability. I noted the difficulties with ex gratia schemes back in February.
  2. Walsh and truths The Walsh Report is not an adequate substitute for an individualised finding of liability. It cannot vindicate  women’s right to an effective remedy. Section 1 of the Report repeats the Draft Report already published, and roundly criticised by Survivors of Symphysiotomy. Section 2 makes some amendments, but does not change the overall tenor of the draft. It explains and clarifies the draft’s arguments, and buttresses them with testimony obtained from survivors who were members of Patient Focus,  of Survivors of Symphysiotomy Ltd., or of no organisation at all. It is important to note that the largest survivor group – Survivors of Symphysiotomy – boycotted the second stage of the Walsh Report, as a means of demonstrating their objection to its draft findings. The second part of the report criticises perceived misrepresentations of the Draft (82-83). However, it is interesting to note that, by and large, the testimony of those survivors  interviewed by Walsh chimes with that submitted by Survivors of Symphysiotomy to the United Nations Committee Against Torture, particularly on issues such as the outcome of symphysiotomy (pp 87-95) and the impact on family members (98-103) . Where the Walsh report breaks away, in my view, is in its interpretation of the reasons why symphysiotomy was performed. She places more exculpatory emphasis on a particular reading of the interaction of a rigid form of Catholic moral teaching and medical care, and on the good faith practice of medical practitioners. There is insufficient space here to discuss the Walsh report in detail.  But what is clear is that we now have two very different public  readings of the harm done to these women, only one of which  has been rubber-stamped by the state. When the government talks about ‘closure’, it is important to bear this ongoing contestation in mind.
  3. Payment: Survivors of Symphysiotomy had asked for individualised assessment of women’s financial entitlement. Judge Murphy has not met this request. There are three bands of payment under the scheme (€50,000 for surgical symphysiotomy with no long-term effects, €100,000 for surgical symphysiotomy with long-term complex effects, and €150,000 for symphysiotomy ‘on the way out’ or post-birth). Most will receive €50,000. Judge Murphy notes at p.46, based on precedent,  that the sort of claim which she values at €100,000, would likely reap damages of €250,000 to €275,000 in court. Survivors of Symphysiotomy had valued the women’s negligence claims at between €250,000 and €450,000. It is also worth noting that in order to qualify for the higher awards, a full medical assessment will be required, to prove, on the balance of probabilities, that the woman’s additional injuries are attributable to the symphysiotomy rather than to e.g. subsequent births or difficult delivery. It will be interesting to see what form those standard examinations take, and whether women will be offered the opportunity to select independent medical assessors. Many women, of course, have already undergone medical assessments and are already receiving treatment for injuries which have been diagnosed as the result of their symphysiotomies.
  4. Giving up legal claims: Participants in the scheme will have to discontinue any legal claims, including those against the state. Interestingly at p.49, and following the example of the Lourdes Hospital Redress scheme, Judge Murphy advises that those currently involved in High Court litigation who wish to discontinue it, should receive sums towards the costs already incurred. She recommends that applicants to the scheme should also receive money to cover the cost of legal advice in respect of an application to the scheme.
  5. A better deal in the High Court? This is a particularly interesting redress scheme because it emerges against a backdrop of (in March) 154 ongoing cases in the High Court. Judge Murphy presents her scheme as unburdening vulnerable women who are, on her reading, unwilling to accept the complexity of their predicament. At page 48 she describes the legal claims which survivors of symphysiotomy have brought in the High Court as ‘frail’, worrying, stressful and risky. She is not in a position, given the nature of the report, to assess the individual claims for herself. However, it is by no means clear that every woman will receive a better deal under this sort of scheme than she would obtain in the High Court.
    1. First, she cites the Statute of Limitations as a particular obstacle to success in the courts. Of course, the Statute remains in place for these women because the government made an abrupt U-turn on original plans to lift it. Moreover, some judges will be unwilling to allow questions of delay to upset every historical symphysiotomy claim. This is particularly true of symphysiotomies ‘on the way out’. In just such a case –Kearney v. McQuillan – the Supreme Court held in 2010 that the defendant cannot be prejudiced by delay where the justifiability of the procedure even on the basis of the standards prevailing in obstetrics at the time of the operation is in issue. This is because witnesses are not necessary to determine that sort of claim.
    2. Second, she suggests that it will be difficult for negligence claims to succeed. In 2012, again in the Kearney litigation, the Supreme Court accepted that, even by 1969, symphysiotomy was not a generally approved practice in Ireland. It was supported by a minority of doctors, who only considered it justified in a small number of circumstances. In their submission to UNCAT, Survivors of Symphysiotomy document the essentially experimental nature of symphysiotomy in Ireland at certain periods. There are likely to be cases which fall outside the limits which that minority of doctors set for themselves and which, accordingly, could ground successful negligence cases.
    3. Third Judge Murphy devotes significant time to discussing whether claims could be based on the absence of informed consent to symphysiotomy. This is a very real issue – many women did not discover the true nature of the procedure performed on them until decades after the event. Here again, Judge Murphy emphasises (at p.29) the impact of delay, and the death of the doctors involved, on attempts to establish whether reasonable efforts were made to obtain women’s informed consent. (At pp.28-30 the report discusses whether women would likely have consented to symphysiotomy anyway, even knowing the risks, because they were reluctant to have Caesareans. It strikes me as very odd that this line of reasoning is substantiated by extensive quotation from the writings of the doctors who performed symphysiotomies. There is also an incongruous reference at p.16 to a resurgence in modern interest in certain kinds of surgical symphysiotomy – presumably performed under circumstances vastly different to those documented in Ireland – as alternatives to Caeserean. At p. 20, the report notes that many survivors now feel that Caesareans would have been safer. Judge Murphy here  may be misreading the Walsh report in assuming that a certain set of Catholic views on reproduction was as persuasive to all women, in all relevant decades, as it was to powerful doctors and laity.)
    4. Finally, in the High Court, litigants would obtain a statement of liability, whether they win or lose.
  6. A better deal for the State: On Judge Murphy’s reading, the State is set to assume a central role in the symphysiotomy litigation. Following O’Keeffe v. Ireland,litigants are likely to argue that the state should have done more to supervise the hospitals which it funded (though Judge Murphy notes at p.33 that it might be possible to refine this reading of O’Keeffe to let the state off the hook). The point of an ex gratia scheme is that it is cheaper for the State to create one than to defend claims in court. Judge Murphy sets out the calculations at p.50 of her report. She sets out a scenario in which 10 symphysiotomy claims are successful at an equivalent rate of damages to the cases already litigated, and the remainder settle. In this scenario, she estimates the potential cost to the state at €95m. The redress scheme is a relative bargain at €34m – cheaper, for instance, than the LE Samuel Beckett.
  7. Who pays? Should the State lose some of the cases in which it is involved, it would be entitled to seek contributions from relevant insurers.  However, the review was unable to assess the likely financial value of these contributions, because the necessary information was not made available to it. Most insurers were unwilling, in the absence of direct instruction from the hospitals where symphysiotomies were performed, to discuss specific cases. Large portions of the report containing ‘commercially and litigiously sensitive material’ relating to insurance are redacted. The report also notes at p.30 that a large majority of hospitals are unable to trace their insurance records, and so may be unable to make use of their insurance, assuming, of course that insurance taken out decades ago would be sufficient to meet awards of damages calculated at today’s rates. The report devotes a little time to the financial circumstances of the hospitals where symphysiotomies were performed, and suggests that they would find it difficult to meet the cost of litigation.
  8. Apologies: Judge Murphy notes that the Institute of Obstetricians and Gynaecologists have twice apologised to women who underwent symphysiotomy. In fact, the Institute has offered its ‘unreserved sympathy and support’ to the women, while maintaining the line that symphysiotomy was justifiable in most circumstances. The Medical Missionaries of Mary, who ran the hospital at Drogheda where many of the procedures were carried out, similarly regret women’s ‘hurt’ and ‘trauma’. (p.65) The women who suffered this procedure have received no formal apology or admission of liability. Any state apology, Judge Murphy says, will be a matter for the government and the Attorney General. Perhaps confident that a redress scheme will resolve the matter, the Minister for Health says the question of an apology ‘does not arise’.
  9. Death of a baby: P. 19 briefly raises the issue of babies who died during symphysiotomy, and whose parents were never informed of their place of burial.

Early on in the report, Judge Murphy says that ‘there was nothing at all furtive’ about the practice of symphysiotomy. That says as much about the power of the men who performed these operations as it does about their bona fides. I have suggested before that there is something furtive about the way in which Ireland deals with past wrongdoing. These are the terms on which demand for a public inquiry into symphysiotomy is to be defused, and they deserve public scrutiny.

What's Wrong With The Murphy Redress Scheme?

Abuse Redress, Property and the Catholic Church in Ireland.

In 2002, the Irish Ministers for Finance and Education entered into a binding ‘Congregational Indemnity Agreement‘ with the Conference of Religious in Ireland, which was then representing 18 religious orders. The State had established the Residential Institutions Redress Board (RIRB), which was intended to provide redress to the former inmates of religious residential institutions. Pat Rabbitte ably summarised the difficulties with the agreement as follows:

[This was an] extraordinary deal concluded by the then Minister for Education, Dr. Michael Woods, on his final day in office in 2002. The deal was agreed without a memo being brought to government and with limited involvement of the Office of the Attorney General. While the original recommendation of the Department of Finance was that the liability for financial compensation for the damage done to these children should be shared 50:50 between the state and the Religious Congregations.

Under the 2002 agreement, the congregations agreed to contribute €128 million in cash, property (to be handed over to the HSE, the Department of Education and other bodies) and counselling services to the scheme. In exchange, the State agreed to indemnify the orders against any legal actions which former residents might bring against them during the lifetime of RIRB. The State did so; in 2006 it paid out €745,000 to former residents of St Joseph’s Orphanage in Kilkenny, on foot of a High Court action.

It seems fair to say that the State indemnity was a mistake. It is worth noting that, in the UK, the state has not stepped in to subsidise Church payments to successful litigants. Insurers have been central both in ensuring access to litigation, and in ultimately paying compensation in sex abuse cases in ways which preserve diocesan and parish funds for social and charitable purposes.

By 2009, following the Ryan Report and a larger-than-expected number of successful claims before the RIRB, another mistake was in evidence. It had become clear that the indemnity agreement fell far short of meeting the needs of abuse victims, and would only meet about 10% of the costs of the Board’s payments. In 2009, a unanimous Dail motion demanded that the Orders increase their contribution. The Orders offered an increase to €348.5 million, comprising of €111m in cash, €2m in a rent waiver, and €235.5m in property. These offers were made on a voluntary basis and are not legally binding. The property has since significantly diminished in value, and not all of it is of use to the State. The state has rejected some offers of property, but expects to receive further substantial cash payments and property from the congregations between now and 2015.

These offers did not go far enough for the government. The cost of redress now stands at €1.5 billion. The last, late, applications to the Board have only recently been processed and funds are required to meet the costs of the new Residential Institutions Statutory Funds. The impact on the taxpayer is huge. The former policy of the current government was that the costs of redress should be shared 50:50 between the congregations and the State. In April 2010, the Government made a request to this effect.

The Minister for Education Ruairi Quinn, with cabinet support, had originally taken a hard line on this point, arguing that the congregations should make up the shortfall between the original indemnity and the 50% threshold by transferring schools infrastructure to the State. He proposed that school property should be subject to blocking orders, to prevent transfer of title without the prior consent of the state. Today’s Irish Examiner reports that this policy has now been abandoned, since the congregations were simply unwilling to negotiate around it.

An important issue here is the schools’ patronage debate, especially as it bears on reputation and social esteem. It seems that some of the congregations, particularly the Sisters of Mercy, wish to move on from the issue of redress and guilt. They will not transfer assets to government on that basis. However, some will participate in the schools patronage debate on a ‘clean slate’ basis, which recognises them as important stakeholders who have made a long-standing contribution to Irish education. The government is now seeking to decouple the question of redress from that of school patronage and control.

The inventory of correspondence published by the Examiner gives a sense of the firmly dismissive tone taken by the congregations in response to the government’s attempts to modify the indemnity agreement. Many of them feel that the 50:50 principle is a unilateral modification of what was agreed in 2002. Securing timely compliance with the original indemnity agreement has always been a problem. By July, only €70 million of the compensation (property and cash) promised to the State under the 2002 agreement had left the hands of the congregations, although the Department expects that the bulk of the remainder will have been paid by the end of this year. Some orders say that the collapse of the property market has made it difficult for them to comply, and note that they have other financial commitments – particularly charitable and social purposes. A document published in today’s Examiner details each of the congregations’ significant assets. Some individual orders have further complained that it is not clear which of them were the subject of the greatest number of successful claims to the RIRB, and appear to feel that compensation obligations should be distributed on that basis.

On the other hand, the abandonment of efforts to enter into legally binding agreements with the congregations is troubling. The congregations have performed better in the area governed by the indemnity than in the context of the Magdalene Laundries: the relevant orders were not bound into an agreement in advance of the establishment of a compensation scheme, and simply refused to contribute. The constitutional protection of the right to property – and the special protection of the church’s property – prevents the State from confiscating church assets to meet the cost of a redress fund. But the point remains that the route of private bargain, negotiation and persuasion, has left us with a very lop-sided distribution of responsibility for abuse in Roman Catholic institutions.

The orders drive a hard bargain, and are well-advised. It is interesting to note, as Broadsheet does today, that the Sisters of Mercy have transferred school properties worth €412m to the CEIST Trust. The question of how church institutions maintain control of property which might otherwise be the subject of compensation paid on litigation, or which might come within the ambit of redress schemes, has taken on significant weight in other jurisdictions. In the United States, in July, District Judge Rudolph Randa held that clerical abuse victims – the primary creditors of the bankrupt Archdiocese of Milwaukee – could not access $55m which, in 2007, the then Archbishop had placed in a cemetery trust for the perpetual care of the deceased of the Archdiocese. The Judge held that any interference with the trust would compromise the constitutional protection for free expression of religion. The former Archbishop, now Cardinal Dolan, maintains that the transfer of this enormous sum was not an attempt to avoid compensation claims. In New South Wales and in Victoria, campaigners have advocated reform of the Roman Catholic Church Trust Property Act, which the Catholic Church has used to avoid paying compensation in sexual abuse claims. The church has successfully argued, using the so-called ‘Ellis defence‘ – that diocesan statutory property trusts cannot be sued except on property claims. Victims must rely on mediation with dioceses to obtain redress under the controversial Towards Healing‘ scheme and this raises controversial issues of oversight and bargaining power, similar to those which arise on settlement of a lawsuit. (These are just the tactics than can be used to avoid paying out on successful claims. There are other means to avoid claims altogether – statutes of limitation, charitable immunity, and bishops’ invocation of the doctrine of corporation sole among them). To get the full story on redress, we may need to look far beyond the indemnity agreement and its successors.

Abuse Redress, Property and the Catholic Church in Ireland.

Symphisiotomy and the Statute of Limitations

We are delighted to welcome the following guest post from Marie O’Connor, Chairperson of  Survivors of Symphysiotomy (SoS) and author of Bodily Harm: symphysiotomy and pubiotomy in Ireland 1944-92

The Statute of Limitations (Amendment) Bill 2013 for survivors of symphysiotomy is now before the Select Committee on Justice of the Irish Parliament. Its passage at Second Stage reflects the fact that these were effectively clandestine – as well as abusive – operations, performed without consent, that breached human, constitutional and other legal rights. Laws protecting human subjects in clinical research were also flouted: hospital clinical reports and medical writings show that these procedures were often experimental. Moreover, carried out before, during and after labour, the surgery amounted to cruel and inhuman treatment.    Continue reading “Symphisiotomy and the Statute of Limitations”

Symphisiotomy and the Statute of Limitations

Guilty Until Proven Innocent: Miscarriages of Justice in the UK

When it comes to human rights instruments, miscarriages of justice occupy somewhat of a nebulous position. A miscarriage of justice occurring is not of itself a breach of a persons human rights. It may involve a breach of one of many rights (most commonly the right to a fair trial) but it can happen that a court finds someone has been the subject of miscarriage of justice and no rights have been breached. Take for example the 2009 Irish case of Feichín Hannon. No claim was ever made that the police did anything wrong or that the trial was improperly conducted. A witness lied and the jury believed her. And a man was convicted of sexual assault. Years later she recanted and a miscarriage of justice was declared. No rights breached. Continue reading “Guilty Until Proven Innocent: Miscarriages of Justice in the UK”

Guilty Until Proven Innocent: Miscarriages of Justice in the UK

Guest Contribution: Conway on Compensation for Miscarriages of Justice

vickyWe are very pleased to feature this guest contribution from Dr Vicky Conway of QUB School of Law on compensation for miscarriages of justice. You can find out more about Vicky on the ‘Guest Contributors’ page.

The Irish Times reports today that the Minister for Justice has failed to make a determination on compensation to be paid to Nora Wall for the miscarriage of justice which occurred in her case. This brings into serious question the operation of the compensation section of the Criminal Justice Act 1993. This legislation provides individuals with recourse to the Court of Criminal Appeal where new or newly discovered facts show that there may have been a miscarriage of justice in their case. Under s.9, where the Court declares that there is has been a miscarriage of justice the individual is entitled to compensation, and they can choose either to apply to the Minister who determines the amount or to institute High Court proceedings. This brings Ireland in line with requirements under Article 3 of Protocol 7 of the European Convention on Human Rights and with similar statements in the International Covenant on Civil and Political Rights.

Sister Nora Wall was convicted in 2005 of rape (the first female in the state to be found guilty of this offence) and sentenced to life imprisonment. Six weeks after her conviction, and four days after sentencing, her conviction was quashed by the Court of Appeal and the DPP agreed to retrial when it became apparent that there had been non-disclosure of evidence in relation to one witness. Within four months the DPP announced that he would not be pursuing the retrial and supported her application to the Court of Appeal for a declaration of miscarriage of justice, which was granted later that year ([2005] IE CCA 140). One of the complainants had a history of making false complaints of assault and a key witness had been declared unreliable prior to the trial and should never have appeared in court. Continue reading “Guest Contribution: Conway on Compensation for Miscarriages of Justice”

Guest Contribution: Conway on Compensation for Miscarriages of Justice