Symphysiotomy survivors and supporters outside the Department of An Taoiseach last September (top) and Kent Law School lecturer Mairéad Enright (above)

Law lecturer Mairéad Enright has written about the symphysiotomy redress scheme on the Human Rights in Ireland blog.

From her piece:

The closing date for applications to the symphysiotomy redress scheme is this Friday. Assessment has already begun, some redress offers – a very small fraction of the total projected value of the scheme – have already been made and a very small number of those have been accepted.

I have written before about the core problem which has dogged this scheme since it was first proposed – it is simply incompatible, in principle, with the requirements of international human rights law. In particular, these women have not been offered any adequate remedy for breaches of their European Convention rights by the Irish state. O’Keeffe v. Ireland confirms that ex gratia redress without an acknowledgement of state liability cannot be considered an adequate remedy.

Since the scheme was announced, less than a month ago, it has been roundly criticised by expert commentators including, most recently, Sir Nigel Rodley of the UNHRC.

The devil is in the detail of the implementation. The time limit for application is unconscionable. The women had 20 working days to apply. This is the shortest time limit in the history of any State redress scheme: for example, the Residential Institutions Redress Board time limit was 3 years. The rudimentary progress reports published on the scheme website indicate that 70 women only received their application forms in the first week, because they requested them by telephone. The forms are, of course, available to download from the website, but the survivors of symphysiotomy are often very elderly and may not be computer literate.

Applications made after the deadline may be considered in ‘exceptional circumstances’, but in any case will not be considered if they are made after January 15 2015. ‘Exceptional circumstances’ is not defined within the terms of the scheme. It is worth noting that the same phrase affected the RIRB, and was interpreted in a very conservative fashion, to the particular detriment of applicants who took longer to apply because they were socially isolated, had intellectual or psychiatric difficulties, or lived abroad.1 It is beyond doubt that some women who deserve, in principle, to have access to state redress will go without it because the government refuses to give them more time. 70 women have joined Survivors of Symphysiotomy since the UNHRC hearings in July and there may be others. Two women recently brought a High Court challenge to the scheme because it was not clear that women with dementia could have a representative apply on their behalf.

The Department of Health said yesterday that 257 applications have already been made to the scheme. The progress reports give some indication of what is going on. It is not clear that the scheme can be considered a success. Certainly it is working very quickly. For example, in Week 1, 10 applications were made and 7 of these were assessed and offers made.

Everything is moving so quickly, not only because the volume of applications was very low in the beginning, but because assessment is done entirely on paper and payments are not individualised. The sole question for the assessor is whether to put an applicant in one payment band or another, or none at all. There is no hearing, and no finding of liability. Some applications have been rejected, and there is no appeal from the assessor’s decision.

The fact that so many women have made an initial application does not demonstrate that they are happy with this scheme or that they accept that it offers a better compensation package than they might obtain in court. On November 16, the majority of members of Survivors of Symphysiotomy (S.O.S.) voted overwhelmingly – not for the first time – to reject it. They have no obligation to accept any offer made under the scheme – they may yet withdraw.

The progress reports indicate that ‘a large number’ of the applications already received are awaiting medical records from hospitals or the preparation of specialist medical reports. This sort of problem was to be expected. Some women, for example, do not have their records because hospitals had levied unaffordable charges to provide them. Better consultation with Survivors of Symphysiotomy would have made this clear and the scheme could have been designed accordingly.

There are about 400 survivors of symphysiotomy known to S.O.S. The women who have not yet made an application may be experiencing related difficulties. How many have the necessary support to travel for medical and legal appointments, gather hospital documentation and so on? It will be very interesting to hear about women’s experiences of compiling and submitting their applications.

For now, the scheme trundles on. But this is not what proper redress looks like.

What’s (Still) Wrong with the Symphysiotomy Redress Scheme (Mairéad Enright)

Previously: What The Man From The UN Said

Nightmares

Sam Boal/Photocall Ireland