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.

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?

Reflections on the Public Life of Private Law: ESRC Seminar Series.

By the end of Friday, Illan Wall of this parish and I will be half-way through our ESRC seminar series ‘The Public Life of Private Law’. The programme for our second seminar is here. The focus of the second seminar will be on the uses of private law in seeking reparations for ‘human rights abuses’. In setting this theme we had in mind a variety of legal scenarios. To name three, we are interested in:

The challenge is to bring discussion of these issues together with the (overlapping and intersecting) broader theoretical and conceptual questions which we identified during our first seminar. Readers are of course very welcome to engage with these questions in the comments.

The Risks Of Using Private Law

  • How can we ‘think’ strategically entering into private law, to use it for political ends? (Think of how, as Davina Cooper reminded us, public bodies have, in the past,  used private law to advance radical political agendas). Do we always rub up against problems of juridification: what is the position of law in political struggle, and what are the political risks of insisting on law’s importance to life?
  • Are we trying to ‘hollow out’ spaces for political action? Are we sometimes trying to drive the operations of private law to their absolute conclusion? Can acts of over-identification with private law collapse it into itself or transform it into something more useful? Consider Adam Gearey’s presentation on the pension trust.
  • What problems of co-option and reversability does private law present for political struggle? Must you always cede more than you can gain by engaging with it? To what extent does engaging with private law mean that you lose the grounds on which you struggle? Can even creative engagements with private law (see Anne Barron’s discussion of CopyLeft) be brought back within capitalist relations? Is there anything which guarantees private law for the Left?
  • Does the ‘private form’ close down ‘public’ ideas? Does private law inevitably mean a removal of political practices from the space of public oversight? See Kristen Rundle’s discussion of the Jimmy Mubenga and the ‘contracting out state’.
  • What – in a normative sense – are we trying to recover when we talk about reintroducting the ‘public’? What if the ‘public’ itself is tainted with or corrupted by some of what – individualism, commercialism, irresponsibility – we associate with the failings of the ‘private’?  (See Emilios Christodoulidis’ presentation)?
  • What do we assume about the separation of, or distinction between the ‘public’ and ‘private’ of private law when we speak of ‘reintroduction’? Contrast the notions of ‘public’ at work in Alan’s, Emilios’ and Adam’s presentations. How can we reconcile our interests in these terms with the long tradition of critique of the public/private divide?
  • Who is the subject of these political private law claims? Who bears the burden of bringing the political to private law? How do we understand the individual citizen who uses private law for the political? This looks to be a significant theme ripe to emerge from our second seminar.

What do we want from private law?

  •  What is lost, by contrast, where there is a failure to juridify or a withdrawal of law; where spaces or actions go apparently without law? What values do we tie to the ‘reintroduction’ of law? ‘Publicness’? ‘Oversight’? ‘Rights’? How do we think about contexts in which private law facilitates a withdrawal of law (as in privatisation through contract) and ‘blocks’ further penetration? (See See Kristen Rundle’s  presentation)How do we ‘unblock’?
  • What aspects of ‘the legal’ do we insist on keeping to the fore, particularly when we follow private law into spaces of privatisation and social dumping? Do we, in these contexts, associate law with the ethical, or the relational? (See Alan Norrie’s presentation). Do private law notions of obligation, duty and responsibility help or hinder us here? How does it feel to be obligated, and how does law conceive of these obligations?
  • To what extent does a desire to use law reflect a certain demand for solidarity or identification with community, or with shared normative position? (See Emilios Christodoulidis’ presentation). To what extent does private law entail exactly the opposite; a claim to break out of the public and its demands? (See Matthew Stone’s presentation).

Bringing Private Law Concepts Into New Spaces

  • If we want to appeal to private law, to what extent are we free to preserve or re-orient some of its desirable concepts (see Davina Cooper and Sarah Keenan’s work on rethinking property and read it agains Matthew Stone’s)? And if we can ‘play with’ private law’s concepts, as Cooper and Keenan do, to what extent can we bring them beyond their traditional domains and redeploy them as analytical tools in examining unexpected or new forms of political contest. What will they look like when we bring them ‘back’?

We very much welcome PhD students, academics (in all disciplines), teachers of private law andpractitioners and activists working in relevant areas to get in touch with us at m.enright[at]kent.ac.uk or i.r.wall[at]warwick.ac.uk and/or to express interest in participating in the later seminars in the series (details at www.publicprivatelaw.co.uk).

To receive updates on the seminar series, you can follow us on twitter @pubprivlaw and on facebook here.

Reflections on the Public Life of Private Law: ESRC Seminar Series.