Negligence, Symphysiotomy and Past Harm.

Women wrongfully subjected to symphysiotomy in Ireland have human rights to an acknowledgement and apology, to guarantees against repetition, to measures of restitution and rehabilitation and to monetary compensation. I have written about the symphysiotomy redress scheme on this blog and elsewhere on a number of occasions. It was recently reported that over 50 women who applied to the scheme have been denied redress because they were unable to provide the medical records which Judge Harding-Clarke demands. Al Jazeera recently reported women’s experience of the hostile administration of the scheme. A number of members of Survivors of Symphysiotomy decided not to participate in it, preferring instead to try their luck with civil litigation.  There have been three symphysiotomy negligence cases to date. The first, Kearney, initially heard in 2006, was a case of symphysiotomy after C-section, performed in Our Lady of Lourdes Hospital in Drogheda. Mrs. Kearney succeed in the High Court and Supreme Court. Her case is the origin of the test which enabled two further litigants to bring negligence cases to the High Court, against the Coombe hospital. Another plaintiff, Noreen Burns, died last summer before her case against Holles Street  could be heard. The first case to come to hearing, a Kearney-type symphysiotomy after C-section, settled. The second, a case of prophylactic symphysiotomy performed 12 days before the birth ended with a recent judgment by Cross J. As the term is used in this judgment, a prophylactic symphysiotomy refers to an elective, non-emergency symphysiotomy performed before labour begins, purportedly to slightly widen the pelvis and facilitate vaginal birth in the first instance and in future births.

Green shoots from the latest judgment.

What we have learned from these cases so far is that symphysiotomy litigation is not a hopeless strategy, as many TDs who support the redress scheme assert. In particular, we have learned that the Irish courts are likely to be open to hearing claims even where decades have passed since the symphysiotomy was performed.   In his recent judgment, Cross J. held that the relevant date of knowledge for the purposes of s. 2 of the Statute of Limitations was the date at which the plaintiff had sufficient knowledge to justify bringing a claim. This was not the date of the symphysiotomy itself, or the date on which she first began to suspect that a symphysiotomy had been wrongfully performed,  or the date on which she first made inquiries to the hospital. It was the date on which she received her medical records.  This point was not directly argued in Kearney and it is very helpful to have the clarification. Of course, two years remains a ridiculous limitation period for personal injuries of this kind, and many women will find their claims statute-barred despite this decision.

We have also learned that Irish courts are willing to accept that litigants’ injuries are attributable to symphysiotomy. In his recent judgment, Cross J. accepted, against the assertions of the defence, that the plaintiff had suffered life-long physical and psychological consequences as a result of the symphysiotomy.  Even though there were no records of the plaintiff raising her symphysiotomy with her doctor, Cross J. accepted evidence that she had discussed the resulting injuries with a friend long before the question of legal proceedings arose, and accepted the evidence of her medical experts which attributed her injuries to the symphysiotomy. In this respect, it is important to note that the High Court is less demanding than Judge Harding- Clarke’s redress scheme, which requires women to produce paper records going back to the time of the operation. Unfortunately, Cross J. repeatedly stresses that he makes no finding as to the general safety of prophylactic symphysiotomy. 

We have also learned that hospitals’ defence teams are willing to proceed very aggressively against elderly women. The government, of course, has not adopted ‘model litigant principles to moderate hospitals’ or the State Claims Agency’s dealings with victims of abuse. However, it is consoling to see that Cross J. dismisses some of the worst of the defence tactics deployed in this case; for instance, the implication that aspects of the plaintiff’s claim were concocted in collusion with Survivors of Symphysiotomy, and the argument that the existence of the redress scheme meant that he should be less willing to find in the plaintiff’s favour.

Difficulties in winning symphysiotomy cases under Kearney, and this latest judgment.

Inevitably, something is lost by framing a symphysiotomy case as a negligence case. The cost of litigation, and the emotional toll that it can take on litigants, and the campaigners who support them, are important considerations. We may be willing to accept that in exchange for some forms of success in litigation – a finding of liability and an award of meaningful compensation. But the latest symphysiotomy case suggests obstacles to recovery which are internal to Irish negligence doctrine.

There is no difficulty in establishing the duty of care in  a symphysiotomy case because it is clear that doctors owe duties of care to their patients. Other kinds of institutional abuse case are more likely to fail at the point of establishing duty of care, fiduciary duty, or vicarious liability (see e.g. O’Keeffe v. Hickey and a raft of cases in Canada and Australia). As already discussed, the most recent symphysiotomy case also suggests that causation requirements will be readily satisfied. Symphysiotomy litigants are more likely to struggle with establishing breach of the doctor’s duty of care. This is because, for women who gave birth in the 1960s at least, the court’s approach to the standard of care is deeply shaped by their desire to avoid prejudice to the defendants caused by the passage of time.  It is not only that the symphysiotomy is judged according to medical standards prevailing at the time that it was performed, but that the plaintiff’s case is dramatically circumscribed to the advantage of the defendant.

Excluding the consent question and misrecognising torture.

First, Cross J. accepted that the plaintiff was not told that a symphysiotomy would be performed on her. However, he could not hear further argument on this point. In Kearney, the High Court, and the  Supreme Court  held that the plaintiff could not base her claim in the failure to obtain her informed consent to the procedure because it could not be known what information had been given to her at the time the operation was carried out. Almost 40 years had passed since her symphysiotomy. All of those involved in her direct care were either dead, living elsewhere, or uncontactable and the records of the procedure were incomplete. It would be unjust to expect the hospital to defend itself against such a claim. There is therefore no argument in Kearney around assault, or around negligent failure to obtain informed consent along the lines of Walsh v. FPS. Last July, the United Nations Human Rights Committee emphasised failure to obtain women’s consent when it  categorised symphysiotomy in terms of terms of violation of Article 7 of the ICCPR: the prohibition against torture, cruel, inhuman and degrading treatment, including forced subjection to medical experimentation. The Committee advocates prosecution of surviving doctors who performed symphysiotomy. If older symphysiotomy cases are not consent cases, of course, then the  core of the injury done to many women is eliminated from  judgment. If we think of symphysiotomy  as the unlawful intentional infliction of pain and suffering on women for discriminatory reasons – as torture – then the  Kearney judgment is deeply flawed. The removal of the consent question allows the development of symphysiotomy to be presented as an essentially benign practice – part of the natural development of obstetric care in Ireland. In the process, it leaves many of the problematic narratives about the safety of symphysiotomy (embedded in the Walsh Report) untouched. One might almost say that in Cross J.’s judgment, the operating doctor is partially redeemed, without having to take any responsibility.  The judgment also, in Blackburn’s words, requires the divisibility of injuries that people experienced as indivisible. That much may undermine the value of litigation in the eyes of victims, who feel that they can only obtain an incomplete hearing; that their injury, to borrow from Nicky Priaulx, cannot be  ‘seen’ in full.

The ‘any justification’ approach

Second, Kearney prescribes a modified Dunne test, again intended to allow the plaintiff to bring a negligence claim without unduly prejudicing the defendant. The plaintiff’s argument must be that “there was no justification whatsoever in any circumstances for the performance of a symphysiotomy on her at the time that it was performed”. If the defendant can establish in credible evidence any realistic reason justifying the symphysiotomy she cannot succeed. As Hardiman J. confirmed in Kearney in the Supreme Court, hypothetical justification will suffice. Cross J. acknowledges that this is obviously a very high threshold for the plaintiff to meet. He finds that there were realistic reasons justifying the performance of the plaintiff’s symphysiotomy – examination of the plaintiff convinced the treating doctors that vaginal delivery would not be possible. Rejecting the plaintiff’s expert evidence, he holds that doctors were justified in their suspicion of multiple Caesarean sections (which were more difficult to avoid given that the same doctors would not provide sterilisation and the law restricted access to contraceptives), and that symphysiotomy was then considered an appropriate and safe  treatment in cases of the plaintiff’s kind by consultants at the Coombe and the National Maternity Hospital.  The plaintiff’s recorded diagnosis matched this prevailing rationale. We can contrast this with Kearney in which Ryan J. held that Mrs. Kearney’s pelvic measurements and presentation did not suggest, on the terms on which symphysiotomy was performed in 1969, that she was a proper candidate for symphysiotomy. Thus there had been no realistic reason for performing the symphysiotomy in her case.

It is important to clarify how Cross J. defines the procedure he is assessing. He works from the assumption that, in 1963, symphysiotomy could be preferred to Caesarean section in cases where the measurements of a woman’s pelvis relative to the size of the as yet undelivered baby’s skull suggested that vaginal birth would be too difficult.  First, he discounts the fact that the plaintiff’s symphysiotomy was performed 12 days before she gave birth. In Kearney, it was crucial to Ryan J.’s reasoning that the symphysiotomy was performed “on the way out” after the baby was already born – there could be no good reason, to his mind, for performing a symphysiotomy in these circumstances. We might have expected the 12 day delay to act as a similar indicator of irrationality in this case. However, the judge accepts that the defendants believed, at the time, that the plaintiff was overdue. So he characterises the symphysiotomy as a prophylactic symphysiotomy and treats it in the same way as any  prophylactic symphysiotomy performed shortly before labour began.  Second, finding justifying reasons does require the judge to select the community of knowledge which generates those reasons. Is it the British and Irish obstetric community of the time, or something narrower? Cross J. frames the justifying reasons very tightly in terms of time and place. He has some regard to the plaintiff’s expert evidence to the effect that a symphysiotomy should not be attempted before labour has been tried, since the most effective way to measure the pelvis is to attempt to put the baby through it. However, he characterises this type of prophylactic symphysiotomy, performed – perhaps erroneously – without trial of labour, as a stage in the evolution of symphysiotomy as a medical practice at the Coombe.  It was carried out during a period of trial-and-error expansion of the original terms on which symphysiotomy had been revived at the National Maternity Hospital, and as a practice was rapidly phased out when the Coombe introduced the (from a feminist perspective highly problematic) practice of active management of labour. Thus, it could be justified on its own terms in 1963 even though earlier and later Masters of the Coombe would never have done it. This indicates  that Kearney may require – in line with Cross J.’s refusal to draw any conclusion on the general consequences of symphysiotomy – that every symphysiotomy will be analysed very strictly on its own terms before any finding of liability will be considered. This is very problematic if we consider that the experimental nature of the practice of symphysiotomy – the tendency to play fast and loose with risk and necessity – is central to its character as a human rights abuse. If broad periods of experimentation are sliced down into ever finer periods of stabilisation and normalisation, that truth is lost.

The issue of ‘inherent defects’.

 Kearney affirms that there is another route open to the plaintiff, which also comes from the judgment in Dunne. She may argue that the type of symphysiotomy performed on her, as a procedure, albeit it was supported by a respected body of medical opinion, suffered from “inherent defects” that “ought to have been obvious to any person giving the matter due consideration” at the time. This element of the Dunne test ensures that the courts are empowered to declare even generally accepted medical practices as unsafe. Expert witness support for a minority practice is a very weighty matter to be taken into consideration, but it is not definitive. As  Sachs LJ held in Hucks v. Cole, ‘The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas”  In Donovan v. Cork Co. Co., Walsh J. held:

” If there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent. Neglect of duty does not cease by repetition to be neglect of duty.”

McCarthy J. elaborated on that test in some depth in Roche v. Peilow. In that case, Finlay P. in the High Court had held that “the universality of a particular practice adopted by an entire profession must itself be evidence that it is not a practice which has inherent defects which ought to be obvious to any person giving the matter due consideration”. Finlay P. suggested that “inherent defects” connoted “an act of gross ignorance such as could not have been committed by any other ordinarily informed member of the profession.” McCarthy J. demurred, holding that this test would impose too high a burden of proof on the plaintiff.  Professionals, in effect, are required to notice “clear and present dangers”.

This line of authority is not discussed in Cross J.’s recent decision. However, it looks to me as though his judgment is rather too close to the Finlay approach rejected by McCarthy. He defers, not as Finlay did, to universal or generally accepted practice, but to a minority school of respected obstetricians, and finds that their support of the practice was incompatible with the presence of inherent defects. He finds that given the wide acceptance of prophylactic symphysiotomy among what he calls “the Dublin school” of obstetricians at the time, and the existence of debates around the practice in hospital records and the proceedings of professional societies in which the practice was stoutly defended, it cannot be said that the practice was inherently defective. In Kearney, Ryan J. accepted that there was ‘outright condemnation’ of symphsyiotomy after C-section, but in this case Cross J. finds that prophylactic symphysiotomy was controversial, but defensible and was not the subject of peer criticism. Central to this conclusion, of course, is his acceptance of the defendants’ claim that these doctors at the time generally did not know of, and could not have foreseen, the serious health complaints that immediately and subsequently afflicted women subjected to symphysiotomy.

Whether, if properly applied, the McCarthy approach in Roche could be of much assistance to plaintiffs is an open question. It is not clear what “inherent defect” means in Irish law. Does the test invite a judge to evaluate the medical practice from his own lay perspective – to engage in his own evaluation of the risks and benefits of the procedure as they appeared in the light of international medical knowledge at the time, and perhaps to consider them in the light of the human rights norms then prevailing in Irish law?  Or is he merely entitled  to consider, against the evidence of the defence’s experts, whether the doctor’s decision was incapable of standing up to rational analysis? (as in the English test in Bolitho) If the latter, is there any real difference between the Kearney “no justification” test and the “inherent defect” test? It may be, following McCarthy in Roche, that inquiry into the presence of an  “inherent defect” should go primarily to the dangerous outcome of the procedure chosen, irrespective of the reasons for performing it. This seems to be the approach taken by Ryan J. in the High Court in Kearney where he emphasised the maternal morbidity associated with symphysiotomy after Caesarean section. (Indeed, Ryan J. was more willing than Cross J. to make general findings, based on expert evidence, about the consequences associated with symphysiotomy). Then, questions arise as to whether the dangers of prophylactic symphysiotomy  should have been obvious to doctors in 1963.  In Roche, McCarthy J. acknowledged, following Kelly v. Crowley, the risks of judging professional conduct with the benefit of hindsight. Nevertheless, he said , “it cannot be a legal principle that a profession is, so to speak, entitled to ‘one free bite’ – to wait until damage is done before taking an obvious means of avoiding that damage.” Arguably, with symphysiotomy, “the Dublin school” had more than “one free bite”, but never sought to properly test their results. Cross J. notes, for instance, that Master Kevin Feeney was interested in pursuing follow-up studies of symphysiotomy patients. But in practice this was never done.

The upshot

The upshot of Kearney as applied here is that (i) we judge the hospitals where symphysiotomy was performed according to a particular construction of  the standards of their former employees’ time and place (the Coombe and the NMH, in Dublin in 1963); (ii) we make them answerable only to a narrow range of claims shaped by the limited archive their practice generated; few records (because they were not kept,or not made) and no records of follow-up with women subjected to symphysiotomy (because it was not done, and they were discouraged from seeking it) and (iii) we evaluate their practice according to particular accounts of the development of particular kinds of medical knowledge, leaving no room to introduce considerations from women’s lived experience or from then-prevailing constitutional and human rights standards

Medical knowledge, hindsight and power.

Cross J. frames himself as dealing with a medical negligence case. The UNHRC would say he was dealing with an instance of historical systemic, institutionalised gender-based violence. There is some recognition of this in Cross J.’s judgment when he acknowledges the importance of allowing the plaintiff to tell her story, and when he apologises because, from his perspective, it is impossible to find in her favour.  He emphasises her good character throughout the judgment to show that she is deserving of respect. He quotes from Chief Justice Crewe (as he did in an essay on judicial reasoning in the Dublin Review of Books last year) when he says that he would have “taken hold of a thread or twine-twig” to support her, but the precedent in Kearney binds him. The quote is an interesting choice. The 17th century judge is lamenting the fact that he cannot find in favour of an established noble family in the Oxford Peerage case, battered by recent war, though he is from an old established family himself: “I have laboured to make a covenant with myself that affection may not press upon judgment”. Arguably, the choice of quote evidences some affection for women of the plaintiff’s class, and some collective shame, to borrow Anne Genovese’s emphasis, and a desire to atone for wrong. But tellingly, it is not a desire rooted in a sense of legal responsibility. It is obvious, on this judge’s view that it would be impossible to find for this plaintiff and still exercise judgment in line with our unassailable common heritage.

Chris Cuneen, writing about Australian efforts to use civil litigation to obtain justice for Indigenous victims of historical institutional abuse argues that processes of common law judgment effectively create a ‘defence of history’ which closes out the ‘worldview’ which motivated systemic injury and  operates to ‘reconstruct and obscure’ litigants’ experience of abuse. It seems that Cross J. has fallen into this trap. The judgment very much depends on forgetting the systemic characteristics of the deliberate revival and development of symphysiotomy by Catholic doctors practising in the 1960s in a state where, as is especially clear from the link between contraception and symphysiotomy acknowledged in this judgment, government was inseperable from projects designed to control women’s reproductive agency. First, the judgment gives great weight to medical records and  debates – he engages in much closer reading of these texts than either court in Kearney, with clearly significant consequences. He is impressed by the fact that the practice of symphysiotomy was “carefully recorded and subject to transparent review”, tending to suggest that they merited great weight. However, as Kune writes in the Australian context, official records are not always as regular as we might expect. They do not always disclose the true reasons for particular decisions. They are prepared for particular institutions’ purposes and legitimate particular institutional narratives. Until these narratives are put in a broader social context, the records are liable to be misread. Cross J.’s approach to that context is remarkable. Cross J. presents the development of medical knowledge in heavily masculinist terms. British and Irish doctors lay down intellectual challenges to one another in a series of robust exchanges, and over time both groups alter their views, to the betterment of medical science. What about the moments in this exchange which appear not to fit that pattern? He describes a recorded 1951 instance of outright British criticism of the Irish approach to symphysiotomy:

the truth of the conflict between the British and Irish experts, though couched in Biblical and religious terms, [was] more of a question of a clash between native obstetricians defending Irish practices, and visitors from the old colonial power.

Thus, symphysiotomy becomes part of an emergent national medical heritage, understandably defended against the English. But there is little examination of the historical reasons why the Irish medical profession defined itself against Britain in this way, or chose to make those distinctions visible on the bodies of women. In another exculpatory passage, he dismisses the claim that Catholic doctors performed symphysiotomies rather than C-sections as a way of avoiding the questions of contraception and sterilisation, by noting that the Rotunda hospital, which was not under the direct control of the Archbishop of Dublin, also performed symphysiotomies, but only after Caesarean section. He does not mention that the Supreme Court, and indeed the government, accept that this procedure generally could not be justified even at the time. Second, Cross J. gives the defendants the benefit of the doubt when he says that doctors performing prophylactic symphysiotomies believed that the operations had no serious consequences for women, even though in coming to that belief they had to ignore or discount women’s immediate responses to the surgery and afterwards  – their pain, difficulty in walking, difficulty in caring for their newborns, confusion, disbelief and shame. They had to ignore the reactions of these women’s mothers, sisters, friends and husbands. They had to neglect to conduct proper follow-up checks. They benefited from a medical and social system which, as Cross J. acknowledges, required women to accept their lot, and which sometimes accused women of imagining or falsifying their symptoms. They were, the judgment notes, “content with the good results and lack of complaints”. They had to engage in the sort of overt dismissal of women’s embodied experience that is only possible in a violently patriarchal society, such as the Ireland of the 1960s. “Time” as Chief Justice Crewe said “hath his revolutions” and so Cross J. accepts that a prophylactic symphysiotomy would not be done today, but he can nevertheless square it with the benificent practice of the ’eminent’ doctors of another time. We could argue that Cross J. finds it possible to treat this body of knowledge otherwise than as defective because he is a product of another iteration of same patriarchal society – a society in which it is at last possible to accept that these women’s suffering was genuine, but not to hold accountable the doctors who caused it.This would be a better judgment if it accepted that medical knowledge is genuinely contestable, and did not supplement the advantage already conferred on the defendants by the Kearney test with unnecessary deference to the official historical record. Borrowing from Nietzsche, Cross J. suggests that doctors were experimenting with symphysiotomy, and gradually coming to better knowledge of it: “philosophising with a hammer  and testing concepts and conclusions by striking them to see if they were hollow”. “Philosophising with a hammer” refers to Nietzsche’s efforts to irreverently dismantle old values; a process of self-overcoming which he acknowledges is necessarily destructive. Cross J. does not pick up any hammer of his own.

Policy arguments for a modified approach.

Kearney tends to de-contextualise women’s injuries in order to avoid prejudice to the defendant at the stage of gathering and presenting evidence. But it comes at too high a cost. In this case, a woman who arguably has a good case under Articles 3 and 8 ECHR , and plausibly under the equivalent provisions of the Constitution, was left without an appropriate remedy. A woman entitled, perhaps, to aggravated damages to take account of the experimental and non-consensual nature of the practice, was left without a remedy. Now, these are ultimately not run-of-the-mill tort cases. They involve intensely traumatic experiences. They are characterised by an imbalance of power between plaintiff and defendant at a perhaps uniquely vulnerable moment in the plaintiff’s life. The nature of childbirth is such that this imbalance necessarily persists into obstetric care in the present day. These cases have their origins, as the UNHRC recognised last July, in deeply gendered and abusive institutional processes.  They engage significant human rights violations perpetrated by men working under the supervision of the state; they are arguably O’Keeffe-type cases – or, in American terms, analogous to medical experiment cases in which the state was implicated, such as the  Cincinnati radiation case  or Heinrich v. Sweet. Precisely because they are so distinguishable from ordinary medical negligence cases, there should be no significant objection from public policy in adjusting the Kearney approach. Because prophylactic symphysiotomy is unlikely to be revived and has no significant comparators today, there should be no chilling effect on contemporary medical practice. (Cross J. accepts the evidence of Dr. Peter Boylan, for the defence,  that some experimentation is necessary for medical science to advance but as a matter of public policy, doctors must be subject to reasonable constraint.) There is no major cost either to insurers or to the state in permitting the small number of potentially successful cases a fairer hearing.  In other jurisdictions – particularly in Canada – courts have been willing to modify negligence doctrine where public policy compels it, in order to do justice in cases of historical institutional abuse. I would think that the “inherent defect” test provides some scope for this modification. If this cannot be done, then the case for a new public inquiry and a modified redress scheme is stronger than ever.

Negligence, Symphysiotomy and Past Harm.

Direct Provision: The Beginning of the End?

End Direct provisionOver the last number of weeks, there have been potentially significant developments in relation to the system of direct provision for asylum seekers in Ireland. Last week, the High Court case challenging the system of direct provision concluded. A decision is expected over the next number of weeks (see here for background). Speaking on 24 June 2014, the Government indicated the continuance of the system of direct provision in its current form. The Minister for Justice, Frances Fitzgerald noted:

Direct provision is a system which facilitates the State providing a roof over the head of those seeking protection or on other grounds to be allowed to stay in the State. The Reception and Integration Agency (RIA) of my Department is responsible for the accommodation of protection applicants in accordance with the Government policy. I acknowledge that the length of time that residents spend in Direct Provision is an issue to be addressed. My immediate priority is that the factors which lead to delays in the processing of cases are dealt with so that protection seekers spend as little time as necessary in direct provision.

Changes to the system of direct provision were indicated in mid July in the Statement of Government Priorities 2014-2016, where the following commitment was provided:

While ensuring continued rigorous control of our borders and immigration procedures, we will treat asylum seekers with the humanity and respect they deserve. We are committed to addressing the current system of Direct Provision for asylum seekers to make it more respectful to the applicant and less costly to the taxpayer.

In late July,  the new Junior Minister for Justice, Aodhán O’ Ríordáin stated:

Direct provision needs radical reform. It is unacceptable that a child could spend half their life in a direct provision centre – in poverty, marginalised, stigmatised. I  will be working closely with the Minister [for Justice, Frances Fitzgerald] and officials on this. A lot of work has in fact already been done, and there is an awareness within the department it has to change.

Within the space of one month, the system of direct provision, continuously defended by the current government heretofore (see, for example, here)  is now in need of serious reform. The UN Human Rights Committee of the International Covenant on Civil and Political Rights, expressed “concerns” with the system of direct provision, in particular recommending that an independent complaints mechanism needs to be established for those currently in direct provision centres and stated that stays in direct provision accommodation centres need to be for the shortest duration possible.

So what next?

An important stage has now commenced as regards discussions on what may replace direct provision. Any such discussions must include consultation with asylum seekers currently in direct provision, former asylum seekers who spent a period of time in direct provision and civil society organisations representing those in the protection status determination process. Away from the important questions on eliciting views of those most affected by direct provision, there are several other issues that I believe are important for the government to keep in mind: Continue reading “Direct Provision: The Beginning of the End?”

Direct Provision: The Beginning of the End?

Ireland before the UNHRC.

I am in Geneva as part of the Irish NGO delegation to Ireland’s 4th Periodic Review under the ICCPR.* Readers will be aware that the UN Human Rights Committee heard testimony early yesterday from some 12 Irish NGOs and civil society organisations, and from the Irish Human Rights and Equality Commission. It might be interesting to give a sense of how the day falls into place. The Committee meets in the Palais Wilson, which is down by the shore of Lake Geneva. People congregate in the cafeteria where the idea is that, as Tobias Kelly writes in This Side of Silence, it can be possible to buttonhole Committee members (if they appear, and if they are willing). There is a great collaborative buzz  in the room, as people mill around, revising their submissions, anxious in anticipation of the next event. The age profile is relatively young and there are a lot of women in the room.  There are very different levels of experience – from first time small campaigns to organisations like the IFPA which have been around for generations. By and large, the groups have a common agenda: the notable exception arrives in the form of two young men from Family & Life and the Pro-Choice Alliance, whose position on abortion is, of course, in conflict with that of the Irish Human Rights and Equality Commission, the other assembled interested NGOs, and on my reading, the Committee itself.  The Irish delegation also features several activists whose lives are directly affected by issues under consideration by the committee – particularly from TFMR Ireland, Survivors of Symphysiotomy and the Irish Traveller Movement. They do some of the most effective advocacy work of the day.

At midday, each of the NGOs has a two minute slot in which to make a briefing statement. The Committee has received written submissions from the NGOS in advance (see here under Ireland), but this oral statement is a chance to define your group’s priorities for the Committee. I learn a lot about what is possible in two minutes. The room in the Palais Wilson is a study in poor design. It is long, narrow, level and warm, with the Committee sitting in a rectangle at the top of the room, and the delegates – and press, if there are any, and perhaps observing students – arrayed in rows behind them. The State’s delegation, when they arrive later in the day, sit on a raised dais at the top of the room. The effect of the layout is that, from the back of the room, you can’t see any member of the Committee, even though they’re not that far away, and you would struggle to tell which of the suited gents from the Departments is speaking at any given time. I sat at the very back, with some of the group from Survivors of Symphysiotomy. The acoustics are poor. Without the translators’ headphones in, you often can’t hear a thing, except the steady typing of delegates taking notes, for themselves or for twitter.

Break for lunch, and then a short and informal briefing meeting,  in a smaller room at which members of the Committee can ask questions of the assembled NGO delegates, and of the members of the  Irish Human Rights and Equality Commission. As people find a space in the small room, an odd tableau assembles by the back wall – the young men from the pro-life NGOs leaning up against a marble mantelpiece, ready to interject, with the women and men of various pro-choice movements arranged in front of and around them.  At this meeting, you can get a strong sense of what is going to happen when the State presents for questioning. Several groups – particularly Doctors for Choice, the Irish Traveller Movement, and the Commission – were able to make very effective responses to the Committee’s queries.

Immediately afterwards, the Minister for Justice arrives, together with the Irish ambassador and a phalanx of civil servants from the Departments of Justice and Equality, Health, Foreign Affairs and the Office of the Attorney General. The Minister outlines Ireland’s efforts, such as they are, to comply with the International Convention on Civil and Political Rights and details some recent developments in Irish human rights law and practice. There is some surprise that she never mentions the issue of Traveller ethnic minority status as an achievement. After the Minister’s opening statement  the Committee asks a focused and demanding series of questions, based on the list of issues here. They are particularly strong, as I had hoped they would be, on the issues of historical reparations, and abortion rights. It is clear both that the NGOs and the Commission have done a hugely effective job, and that the members of the Committee are highly engaged and very well briefed. The State delegation has a 15 minute break in which to consider the questions, before presenting replies.

The mood is good. The quality of the questioning strikes home with everyone. How much of the domestic law-making process is based on rigorous, informed questioning of this kind?  How hard do NGOs like the IFPA or Survivors of Symphysiotomy have to work to get questions like the ones below on the domestic agenda?  It’s a pity, on reflection that Irish media outlets haven’t sent more journalists to these hearings, simply because the discourse on many issues is so different in this context. Too much media reporting of human rights issues begins and ends with the ‘human tragedy’ angle. There is much less interest in/engagement with/informed critique of the sorts of structures which might be proposed to address and prevent such violence.

Of the state replies, when they come, the less said, perhaps, the better.  The mood in our camp deflates a little. People are tired. I am told that in the ICCL Green Room back in Dublin there were audible sighs at some of the Government responses.  One of the Committee members has brought some of his Masters students to observe. Among them is a former student of mine. Later, after the State submissions, he expresses amusement at how little the government’s representatives are willing to give away. It is hard to tell how much of what is said is immovable government policy, and how much is stalling.

I will be paying special attention to three issues in the follow up questions tomorrow:

  • Professor Yuval Shany, having noted Ireland’s ‘disappointing’ refusal to bring our abortion law into compliance with the ICCPR, reminded the Minister that her predecessor had described the operation of the law in cases of fatal foetal abnormality as ‘unacceptable cruelty’.  He then asked a series of very detailed questions about the operation of the Protection of Life in Pregnancy Act 2013. These, by and large, mirror the joint submission of the Abortion Rights Campaign, the IFPA, Doctors for Choice, Lawyers for Choice and Termination for Medical Reasons, Ireland. The Government’s response ignored all of these questions. It simply asserted the legitimacy of the constitutional position as striking a ‘balance’ between the right to life of the mother and that of the unborn. The assertion is that Irish abortion law is the product of some sort of delicate evolutionary process which cannot be rushed. It is, to paraphrase the Minister, a nuanced and proportionate response to a profound moral question. Mary Jackson, the Principal of the Department of Health asserted that Irish abortion law is compatible with the ICCPR (even though it does not permit abortion in the cases of rape, incest or fatal foetal abnormality) because the convention must be read as a whole, and Ireland is complying with Article 25 ICCPR  (the right to vote and participate in elections….) by giving effect to the ‘will of the people’. Make of that what you will.
  • Christine Chanet raised the issue of the investigation of the Magdalene Laundries. She notes the narrow remit of the McAleese report and questions the degree to which it was independent of the State. The twist in the question is very telling: “Why is the state so reluctant to find out what happened in the laundries?” The Minister almost omitted to answer this question, but insisted again that the Magdalenes  report and scheme were on solid ground. UNCAT have already pressed this issue with the last government, and it isn’t going to go away.
  • Professor Shany also raised the issue of the symphysiotomy redress scheme. This was an especially useful question because he did not simply ask an open ended question about what the State proposed to do for survivors. He acknowledged the redress scheme, and asked what the State now proposed to do, given that the majority of survivors had refused to co-operate with it and had criticised its failure to produce accountability.  The tenor of Professor Shany’s question is important because it may suggest that survivors should be allowed to participate properly in designating the remedies they receive for human rights abuses. This is a refreshing perspective, because it directly contrasts with the government’s paternalism in respect of members of S.O.S. The government offered no response yesterday, but has promised to address ‘additional issues’ at tomorrow’s session. If we read this question together with Madame Chanet’s question on the Magdalenes, and Prof. Shany’s later question on proposals to investigate the Mother and Baby homes, it may be that the Committee is about to take a firm  stance on the state’s obligations to repair historical injuries, and on the right to an effective remedy.

*I am tagging along with Survivors of Symphysiotomy, and I am a member of the newly-formed Lawyers for Choice (@lawyers4choice). The delegation is led by the ICCL. The University of Kent have funded my trip. However, this is a personal reflection, and all errors, opinions and omissions are my own.

You can watch  tomorrow’s session live at http://www.treatybodywebcast.org/ from 9am. A number of people are live-tweeting from Geneva and elsewhere using the hashtag #ICCPR. Look out in particular for @Doctors4Choice, @SoS_Ireland, @ICCLtweet and @smullallylaw ( Prof. Siobhan Mullally of UCC Law and the IHRC). I’ll be tweeting at @maireadenright.

Ireland before the UNHRC.

Civil and political rights in mental health – Ireland's dialogue with the Human Rights Committee

Screen-Shot-2014-04-02-at-6.12.42-PM-475x280Ireland’s progress in implementing the International Covenant on Civil and Political Rights (ICCPR) is due to be examined by the Human Rights Committee next Monday. Many civil society organizations have provided information to the Human Rights Committee on the reality of civil and political rights protections in Ireland – including Amnesty, ICCL, IPRT, Survivors of Symphysiotomy, LGBT Noise, and others. However, relatively few of the submissions made focus on the violations of civil and political rights which affect people with disabilities and those with experience of the mental health system. One submission which does address these issues is that made by the Recovery Experts by Experience (REE) – a group of ‘experienced users/survivors of Mental Health Services, formerly known as the Expert by Experience Advisory Group (EEAG) to Amnesty International Ireland’s Mental Health Campaign.’ You can read the full text of the submission here. Continue reading “Civil and political rights in mental health – Ireland's dialogue with the Human Rights Committee”

Civil and political rights in mental health – Ireland's dialogue with the Human Rights Committee

Direct Provision and the International Covenant on Civil and Political Rights (ICCPR)

UN imageThe Seanad Éireann Public Consultation Committee is inviting public submissions on Ireland’s Fourth Periodic Report under the International Covenant on Civil and Political Rights (ICCPR). The issue of direct provision is one that the UN Human Rights Committee, the independent body responsible for assessing Ireland’s compliance with the ICCPR, has asked the Irish government to provide information on (see ICCPR list of issues and Ireland’s reply to list of issues).

The issue of direct provision was raised by a number of shadow reports from civil society organisations, in particular by the Free Legal Advice Centres (here), the Irish Human Rights Commission (here) ,  the Irish Council of Civil Liberties (here) and the Irish Refugee Council (here).  The enormous work  by these organisations have ensured that the issue of direct provision for asylum seekers remains on the UN human rights agenda.

I have made a submission on The System of Direct Provision and Ireland’s Obligations under the International Covenant on Civil and Political Rights to the Seanad Public Consultation Committee. In this submission, I note that all human rights are interdependent and indivisible, violations of economic, social and cultural rights may lead to violations of civil and political rights.  The three core arguments I make to the Seanad Éireann Public Consultation Committee  are:

  1. Ireland is fully aware of the significant negative impact that direct provision is having on a large number of families and individuals.
  2. The direct provision complaints system lacks any independent oversight. This must be remedied as a matter of urgency.
  3. The operation of the direct provision system is bordering on inhuman and degrading treatment, given the length of time individuals and families will have to remain in the system. Given the level of social control, poverty and enforced idleness imposed on asylum seekers for several years, the State is also violating rights to private and family life and rights to be treated equally before the law.

You can read my full submission here.

Direct Provision and the International Covenant on Civil and Political Rights (ICCPR)

Taking stock of Ireland’s international human rights reporting obligations

Ireland is often lauded for its human rights and development work abroad and has included human rights and accountability as a priority area for action in its new international development policy. When it comes to human rights at home, how is Ireland’s record tracked against its international human rights commitments and to what extent does the State engage with the monitoring system it has signed up to?

Where Ireland’s international human rights obligations come from
Over the past 70 years, the international community, through the UN, has agreed on nine core United Nations international human rights treaties and nine Optional Protocols, which are open to ratification and domestic implementation by all States. These treaties cover:

On ratifying these treaties, States commit to partaking in a review process, whereby their compliance with and implementation of the treaties is monitored on a periodic basis by UN committees, called treaty bodies.  Though nominated by his or her own State, a committee member sits on a treaty body as an independent expert. Two such committees have benefited from the expertise of Irish members: current Chief Human Rights Commissioner for Northern Ireland, Michael O’Flaherty who sat on the UN Human Rights Committee and the Head of Applied Social Studies at NUI Maynooth, Anastasia Crickley, who was recently re-elected to the UN Committee against Racial Discrimination.

The treaty bodies engage with States on their compliance with the treaties in both written format and through dialogue and make recommendations to each State (called Concluding Observations) as to how to further the full implementation of the relevant convention at national level. Each State submits a common core document which outlines the basic legal, economic, social and human rights infrastructure of the State as well as demographic and other basic information. Ireland’s common core document is currently in draft and is expected to be submitted to the OHCHR by the end of the summer.

Placing an international spotlight on national issues can be an important means of highlighting a violation of human rights. A good example of this is 2011 review of Ireland by the UN Committee against Torture which recommended that the Irish State conduct an investigation into the abuses at the Magdalene laundries. This international condemnation, together with a hard-fought campaign, helped to put the issue on the political agenda back home. NGOs have an important place within the system and have the opportunity to submit alternative reports and make representations to the treaty bodies. This allows the treaty bodies to receive an additional perspective to that of the State on the situation in a given country as well as highlighting issues that have not been addressed in a State Report. NGOs play a key role in educating the public about their human rights as well as disseminating the recommendations of the treaty bodies in their countries.

In many ways, having an international consensus on what is essentially the lowest common denominator of human rights, consolidated into international law, is nothing short of a remarkable feat. Many of the treaties entered into force decades ago and while the system is not without its problems, and represents many compromises, one cannot help but wonder whether similar attempts to find consensus on such agreements would be successful today.

The treaty body system today – reform on the way?
After three years of consultations, the UN High Commissioner for Human Rights, Navi Pillay, has proposed amendments in an effort to strengthen the treaty body system. The process of reform is politically charged – some see it as a means of necessarily improving a system built for earlier times while many see it as a useful opportunity to put manners on the treaty bodies themselves. Among the key issues faced by the system is that with 10 separate treaty bodies (including the Sub-Committee on Prevention of Torture, each has different procedures and reporting structures, leaving many States feeling overburdened by their duties to report. States that have ratified a large number of treaties, such as Ireland, feel the heavy burden of having to report to the various treaty bodies well as other fora such as the UN Human Rights Council’s Universal Periodic Review Process and regional bodies such as the Council of Europe’s Committee for the Prevention of Torture. These have a major impact on the timeliness and quality of reports.

From the perspective of the committees, because of the large number of States involved, and the proliferation of treaties and optional protocols, they faced challenges in their capacity to deal with reviewing States in a timely manner, particularly as they generally meet just a handful of times each year. For example, all but three of the 193 UN Member States have ratified the UN Committee on the Rights of the Child, who not only monitor the implementation of the UN Convention on the Rights of the Child but also two Optional Protocols to the Convention relating to the sale of children and children in armed conflict. A third Optional Protocol, providing for a complaints mechanism under the Convention opened for signature February 2012 and will enter into force, also coming under that Committee’s remit, once it has been ratified by ten countries. In order to get through the high number of reports it receives, the Committee has taken the approach of dividing itself to sit in dual chamber.

There is the prospect of a resolution between States on a number of basic reform proposals put forward by the High Commissioner. These include the use of new technologies such as webcasting of public meetings and translation costs. Other suggestions have been less well-received such as the High Commissioner’s proposal to adopt a calendar to coordinate the reporting obligations of the States across the treaty bodies to ensure they are evenly spread out and adding a degree of predictability to the process. The issue of the costs of reform has also not garnered agreement. Other proposals from the High Commissioner include increased consistency in the jurisprudence of the treaty bodies in individual communications; more simplified and aligned reporting with a focused set of questions by the treaty bodies on particular areas of concern rather than the traditional practice of reviewing each article under the convention in question, and capacity building for state parties in their reporting duties. The extent to which these and other proposals for reform become a reality depends on the deals struck at the negotiating table.

Until then, the show must go on
In the meantime, the reporting process continues. Having ratified six of the treaties, Ireland has undertaken to report to the various treaty bodies on a periodic basis. The State has not ratified the convention relating to people who have disappeared (signed but not ratified), migrant workers (neither signed nor ratified) or the disabled. With regard to the latter, while the State has signed but not yet ratified the treaty, a commitment has been made to do so. The Department of Justice and Equality is leading the way on drafting the necessary legislation to give effect to its provisions.

UN International Covenant on Civil and Political Rights (ICCPR)
The ICCPR was ratified in December 1989 and Ireland has thrice been reviewed by the UN Human Rights Committee in 1993, 2000 and 2008. The State has been involved in a follow-up process with the Committee since 2009 on the issues of the availability of non-denominational education at primary level, conditions in prisons and counter-terrorism measures. While the Committee was satisfied with responses received in relation to the first two issues, it found the State’s response in relation to counter-terrorism measures to be incomplete and requested further information on this issue to be included in the State’s fourth Report, submitted in July 2012. Ireland will be reviewed under the ICCPR in July 2014.

Ireland has ratified the two optional protocols to the ICCPR relating to a complaints mechanism to the Committee and the abolition of the death penalty. One case has been taken against the State through this complaints mechanism, Kavanagh v Ireland in 1998 and again in 2002.

UN International Covenant on Economic, Social and Cultural Rights (ICESCR)
Ratified jointly with the ICCPR in 1989, Ireland has submitted two reports to the Committee on Economic, Social and Cultural Rights, in 1997 and 2002. The State’s Third Periodic Report, due in 2007, was only recently submitted and somewhat arbitrarily covers the period up to the end of 2010. NGOs have been encouraging the State to submit an update in advance of the review to cover the intervening period. The Third Report is unlikely to be reviewed before 2015 due to the Committee’s backlog. Ireland has signed but not yet ratified the Optional Protocol on a communications procedure for complaints to the Committee.

UN Convention on the Rights of the Child (UNCRC)
Ratified by Ireland in September 1992, the State has twice been reviewed by the UN Committee on the Rights of the Child in 1998 and 2006. Now four years overdue, the State is due to submit its Consolidated Third and Fourth Reports this summer. The date of the review itself will be set once the Report is received by the Committee’s Secretariat and is expected to be in 2015-2016. The Committee also oversees the implementation of the three optional protocols to the Convention. Ireland has ratified the Optional Protocol on children in armed conflict and has been reviewed under this agreement once in February 2008. The State has signed the Optional Protocol relating to the sale of children. It is currently reviewing its position relating to the latest Optional Protocol on a communications procedure to the Committee which opened for signature in February 2012 and will enter into force once it has been ratified by ten countries – six countries have ratified or acceded to date. Work is being done behind the scenes to make the necessary legislative and other arrangements to ratify both.

UN Convention on the Elimination of All Forms of Racial Discrimination (UNCERD)
The UNCERD was ratified in 2000 and Ireland has been reviewed twice by the Committee on the Elimination of Racial Discrimination in 2005 and 2011. The State’s next report to the Committee is due in January 2014. The State partook in the follow-up procedure with the Committee by May 2012 on four issues arising under the Concluding Observations:

  • Reduction of financial resources for human rights institutions
  • Recognition of Travellers as an ethnic group
  • Improving certain pieces of legislation such as that relating to immigration
  • Incorporation of the treaty into domestic law under our dualist system.

The NGO Alliance against Racism has produced a monitoring tool of indicators to help track the implementation of the Committee’s recommendations annually in the period leading up to the next review.

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)
The UNCAT was ratified by Ireland in April 2002 and the State submitted its first report in 2005, four years overdue. Ireland was reviewed for the first time by the Committee against Torture in March 2011 and is scheduled to submit its Second Periodic Report in June 2015. The Committee requested follow-up information from the State within a year on:

  • Reduction of financial resources for human rights institutions
  • Follow-up to the Ryan Report on child abuse including implementation of the recommendations, investigations of all reported cases of abuse and redress.
  • Investigation into the Magdelene Laundries
  • Expedition of legislation banning Female Genital Mutilation.

Ireland has signed but not yet ratified the Optional Protocol to UNCAT which establishes the Sub-Committee against Torture. Unique among the treaty bodies, the Sub-Committee has a preventative role and conducts regular visits to States to engage with authorities on torture prevention.

UN Convention on the Elimination of Discrimination Against Women (UNCEDAW)
Ratified by Ireland in 1985, the State has been reviewed under UNCEDAW three times, having submitted reports in 1987, 1997 and 2005. The State’s next periodic Report was due back in 2007. Ireland ratified the Optional Protocol on a communications procedure for complaints to CEDAW in 2000.

While the State engages to varying degrees with the numerous treaty bodies, fundamental challenges remain for these interactions to have a meaningful impact for people on the ground struggling to exercise their rights:

  • The failure of the State to fully incorporate the provisions of human rights treaties into national law means that their provisions are not binding at national level or justiciable in Irish courts. This means that a child who is denied his or her right to access education in Ireland for example, cannot rely on the right to education under Article 28 of the UN Convention on the Rights of the Child in the courts.
  • State reports from Ireland do not provide the treaty bodies with a rights-based analysis of the situation at home. They tend to provide a compilation of activities, plans and strategies that exist rather than a comprehensive review of the impact of these activities, plans or strategies on the Convention rights of those affected by them.
  • A lack of up-do-date, disaggregated data and information presents not only the treaty bodies with difficulties in assessing the situation with regard to a particular right but also the State in its own assessment and planning.
  • Finally, without a commitment to the implementation of the various rights to which the State has committed itself, the treaty monitoring system itself is of limited value to vulnerable groups such as Travellers, asylum seekers and children, whose rights it was created to protect.
Taking stock of Ireland’s international human rights reporting obligations