Wednesday, 13 June 2012
Joint Committee on Justice, Defence and Equality DebatePage of 3
Chairman: Apologies have been received from Senator Ivana Bacik. I ask everybody to turn off his or her mobile phone as such devices interfere with the recording and broadcasting system. Leaving them in silent mode is not sufficient.
I welcome the delegates who should be aware that this committee deals with matters of justice, defence and equality, not health. The purpose of the meeting is tight and focused - to have a discussion on the proposal to amend the Statute of Limitations. Any health issues involved will be or have been dealt with by the health committee. We have been asked to focus on the proposal before us.
On behalf of the committee, I welcome Ms Marie O’Connor, chairperson of Survivors of Symphysiotomy, Mr. Ruadhán Mac Aodháin, its legal adviser, Ms Catherine McKeever, Ms Margaret Conlon and Ms Marie Crean. I thank them for their attendance and the information supplied to the committee so far. They will be invited to make some opening remarks which should be as short and focused as possible and which will be followed by a question and answer session with committee members.
Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or persons or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded that under the salient rulings of the Chair, they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.
Ms Marie O’Connor: Symphysiotomy is a childbirth operation about which all committee members may now know. It unhinges the pelvis, severing the symphisis joint or sundering the pubic bones. Ireland was the only country in the developed world in which these high-risk procedures were practised in the mid to late 20th century. At least 1,500 procedures were carried out in this country, mostly in Catholic private hospitals. Fewer than 200 of the women affected survive today, many of whom are permanently disabled, incontinent and in pain.
It is important to emphasise that these operations were carried out as procedures of choice, in preference to caesarean section, by doctors who viewed that procedure as a moral hazard. As we know, caesarean section was the standard treatment in difficult births from the end of the 1930s in this country. The revival of sympysiotomy was driven by a determination to control women’s reproductive health. Caesarean section was associated with what Archbishop John Charles McQuaid described as the crime of birth prevention. Doctors wrongly saw symphysiotomy as a gateway to childbearing without limitation. The operation was revived in Holles Street Hospital in 1944 as an elective or non-emergency procedure designed to replace caesarean section in certain cases. Pregnant women were used as guinea pigs to perfect the surgery for exporting to Africa and India. The operation was also carried out for teaching purposes. We know this from the testimony of our members.
We may ask how this mutilating surgery was allowed to persist for nearly five decades in this country. The answer is regulatory failure. The State has yet to acknowledge these operations were wrongful, unjustified and unjustifiable. Official briefs perpetuated the myths propagated by a body with a vested interest in the area, the Institute of Obstetricians and Gynaecologists, some of whose members carried out the surgeries. The Walsh report perpetuates many of the myths.
Ms Marie O’Connor: I accept that. Almost all of these operations were grossly negligent because they were carried out in preference to a much safer standard procedure, the caesarean section. Many women experienced a lifetime of ill-health and physical and psychological pain, suffering and disability that was so multifaceted that the surgery constituted a form of institutional abuse. It breached constitutional, human and other rights. Justice demands the lifting of the Statute of Limitations for a one-year period to enable survivors to begin to access redress through the courts. In many cases, the date of knowledge, which is the yardstick by which eligibility is measured under the statute, presents particular difficulties. There is also the problem of delay. All operations go back at least 25 years and up to 62 years. These were covert operations and three, four and five decades elapsed before women learned through the media that they had been subject to the operation.
These were involuntary operations and there was no question of informed consent. Not one such case has ever been reported to our organisation. Women were not informed prior to surgery and the masking of the surgery continued after the operation. Nearly every woman was discharged from hospital not knowing that her pelvis had been broken.
After women left hospital, it was difficult for them to discover what happened because medical practitioners they consulted for a range of problems were reluctant to address the matter. These problems ranged from bowel and bladder injuries, walking difficulties, incontinence, organ prolapse, neurological disorders, chronic pain and mental health issues. History shows these aberrant operations were hidden from public view until 1999, when they were revealed by the work of the historian Dr. Jacqueline Morrissey, who studied the relationship between the Catholic beliefs and clinical practice in obstetrics and gynaecology in Ireland. The dissemination of knowledge depended on the media and it was haphazard and uncertain. Depending on whether people read the Irish Examiner or saw something in the Evening Herald, survivors may not have been aware of the surgery.
The Statute of Limitations was lifted in Ireland in 2000 for victims of institutional sexual abuse. There are close parallels between survivors of symphysiotomy and victims of residential abuse. The majority of women were having their first child in hospital and their innocence was abused by doctors in whom they placed their trust at a time in their lives when they were most vulnerable. These were involuntary operations and they were carried out on women at the height of labour or under general anaesthetic, which serves to underline their abusive character. In no case was informed consent obtained prior to surgery. The deceptions wrought upon women were occasionally shameful. Some women were told, fraudulently, before being brought to the theatre that they were about to have a caesarean section. Consultant obstetricians, often in Dublin, told patients that they were going to stretch the pelvis or that they were going to give them a bit of help. The psychology of abuse is also relevant to these cases. Psychological abuse was one of the grounds cited for lifting the Statute of Limitations for survivors of sexual abuse.
Survivors of symphysiotomy are extremely vulnerable to procedural argument over delay. We have already seen that in the case of Kearney v. McQuillan. The case was dismissed in the High Court for a period of time on the grounds of delay. It is possible that all of these cases could be dismissed on such grounds. If that were to happen, we submit it would be a travesty. The dangers with time-based and procedural arguments about limitations is that they take up an enormous amount of the time and resources of the courts. Such resources would be better employed discussing the substantive issues.
The temporary lifting of the Statute of Limitations would ensure survivors’ access to the courts, at least to enable them to get cases off the starting blocks. It would also serve as a signal from the Legislature that these cases should, at a minimum, be allowed to get off first base. I emphasise the urgency of these cases. If the statute is not amended, there is a grave danger many of our members will go to their graves without seeing justice. Some 1,300 women have already done so in this country. Less than 200 women survive so there is no question of opening the floodgates. Many of our members are in their 70s and 80s and delays will prove fatal. Justice delayed is justice denied.
Deputy Seán Kenny: I welcome the group to the committee. I have heard its submissions and these harrowing accounts before. Everyone who listens to the presentation is in some way affected by it. Ms O’Connor said this practice was reintroduced in Holles Street hospital in 1944. When did it end? I was a member of the board of Holles Street hospital, appointed by Dublin City Council, in the early 1980s. I was never aware this had taken place in the hospital. My two children were born in the hospital and thankfully there was never any difficulty. I would like to know when that practice ended in the hospital.
Ms Marie O’Connor: It is impossible to give a conclusive answer to the question. The mode of reporting annual clinical accounts has changed. In the earlier years, tables refer to symphysiotomy in the heading and it is easy to identify. In later years, the table headings refer to “disproportion”. Under that heading, there are cases of symphysiotomy. One of the members of our group present today had an operation in Holles Street in 1972. Her case was listed under disproportion. It is difficult, if not impossible, to answer the question with complete accuracy but we know these operations were carried out sporadically into the 1980s.
Deputy Seán Kenny: How will lifting the Statute of Limitations for one year help to progress the cases? People are looking for justice for what was done to them. Other questions, such as compensation, also arise. Ms O’Connor mentioned the model of the abuse in the religious institutions, which is comparable. Where will it lead us if we lift the Statute of Limitations for one year?
Mr. Ruadhán Mac Aodháin: Many of the survivors are vulnerable to procedural issues. For example, the first is the Statute of Limitations and, second, is delay, a separate but connected issue. Only one case, that of Ms Olivia Kearney has been successful but the award has been appealed to the Supreme Court. The Supreme Court has reserved its judgment in that case. That case was allowed to proceed on a very narrow ground, namely, that symphysiotomy could never be justified post a caesarian section. In those particular circumstances the doctor in question performed a symphysiotomy, having already delivered the child by way of caesarian section. Lifting the Statute of Limitations enables the survivors of symphysiotomy to have access to the courts and have access to justice.
When child abuse came into the public domain, members of the then Opposition, Deputy Alan Shatter and Deputy Jan O’Sullivan, had introduced a Private Members’ Bill to lift the statute temporarily for victims of institutional abuse in residential institutions. It was recognised that these people would be denied access to justice on the basis that they had repressed memories of their abuse. In this case we are seeking that the victims of symphysiotomy have access to the courts. This has been done in numerous jurisdictions for victims of child abuse, for example, in Canada, Australia and America. Most Commonwealth countries introduced that type of legislation. Ireland is unique in terms of this medical abuse through the practice of symphysiotomy in hospitals.
Mr. Ruadhán Mac Aodháin: It would be mirroring the Statute of Limitations (Amendment) Act 2000. The point of having a Statue of Limitations is to have some sort of certainty. There is enough information out there now that the greater proportion of women have come forward. It would simply provide a period in which people could go forward and then the Legislature would have certainty, so that cases would not be taken ten years from now. A year would be enough time for people to take cases.
Deputy Dara Calleary: Is Mr. Mac Aodháin confident as the legal adviser to the organisation that anybody who would be affected by symphysiotomy would be able to access justice and that women would not be coming along in two years hence saying they should have take action earlier?
Mr. Ruadhán Mac Aodháin: No. Since the “Prime Time” programme in February 2010, public awareness of symphysiotomy has risen substantially. Even the “Tonight with Vincent Browne” programme last night brought this to public attention. It might be the case there is a need to hold public meetings on symphysiotomy and to get the word out to ensure that everyone who suffered the procedure knows they now have a way to access the courts. This is where public representatives may be able to assist the public. Many of the survivors that we have spoken to never believed they could take a case, because it happened so long ago. People have a general awareness of procedural issues around delay. Limiting it to one year would provide a level of certainty to the court.
Mr. Ruadhán Mac Aodháin: No. It would be very difficult. A case could be launched based on special damages if those people were earning money. In many instances, the survivors of symphysiotomy were not in paid employment. I imagine such an action would be unlikely to be taken.
Deputy Anne Ferris: I join with members in welcoming the group and the people in the gallery. I am a member of the all-party group on symphysiotomy and I heard all the stories when the group came into the Oireachtas a number of months ago. We had a very good debate in the Dáil when statements on symphysiotomy were taken.
I am a mother and what these women went through following symphysiotomy does not bear thinking about. Ms O’Connor stated that of the 1,500 women who had a symphysiotomy only 200 have survived. That beggars belief. When I listen to the account of these survivors, I could have been unlucky enough to be sitting with them. I am celebrating my daughter’s 30th birthday today. I was a lucky mother, but the witnesses were unlucky.
The Joint Committee of Justice, Defence and Equality is very supportive of the work of Survivors of Symphysiotomy and will work tirelessly to press the case in regard to the Statute of Limitations. The case of the survivors of symphysiotomy is a matter for both the Departments of Health and Justice and Equality. The women affected by this procedure have a right to redress and we must enact legislation to get justice for them.
Deputy Alan Farrell: I welcome the group and the visitors in the gallery. I do not need to try to describe what it is like to sit here and listen to the testimony of our witnesses. I have read some of their stories as I had an opportunity to get my teeth into the book this morning. I thank the Chairman for sending me a copy of Ms O’Connor’s book and I presume it was she who facilitated us. I listened to the debate when statements on symphysiotomy were taken in the Dáil. I could use words such as “barbaric” and “unnecessary” but I do not think I need to because I know the group knows this already.
The purpose of this committee is to facilitate the administration of justice and to ensure that the survivors of symphysiotomy get justice. Deputy Calleary has commented on the 1,300 women who have passed away and will never see justice. Perhaps their families and children may take heart from the action the Dáil will take by allowing the extension by one year of the Statute of Limitation, so that the surviving members may take their case to court.
Most of my questions have been answered, but may I ask Mr. Mac Aodháin how many survivors of symphysiotomy are members of the group and how many are ready to take a potential case? What is his view of the cases of women who will become aware that they also underwent a symphysiotomy?
Mr. Ruadhán Mac Aodháin: In response to the Deputy’s question on how many survivors of symphysiotomy have joined the group, I will ask Ms O’Connor to respond and then I will deal with the other questions.
Ms Marie O’Connor: The membership of Survivors of Symphysiotomy is 188 persons and comprises a number of daughters of deceased survivors and at least one widower. The majority, 185, are women who survived the procedure. Not all of our members are interested in pursuing legal action, but the vast majority are and have initiated proceedings. Mr. Mac Aodháin will elaborate.
Mr. Ruadhán Mac Aodháin: Following the “Prime Time” programme in February 2010, a number of survivors instructed two solicitors, primarily Colm McGeehan and Julie O’Donnell, who are here, to launch cases. In the majority of cases, we have prima facie evidence that the symphysiotomy was carried out on them because that is stated in the medical records. It would be a case of the summons being ready to be served. However, there are difficulties with other cases. It is not clear when the victims understood symphysiotomies had been carried out on them. That is why it is crucial for the statute to be lifted. We have to ensure all survivors have a chance. There is a significant danger that many of them will be shut out by the courts on the basis of procedural issues. It is interesting that in the Kearney decision Mr. Justice Ryan said it would be a travesty if people were to be denied their greater right of access to justice on the basis of procedural issues. There is a danger that the existing procedural rules will block people. That is why it is imperative that we move quickly. It normally takes three years to have personal injury actions taken. Many of the women concerned are in their late 70s or early 80s. Therefore, the Legislature has to move as quickly as possible on this issue. It needs to decide whether it will assist the survivors.
Deputy Finian McGrath: I welcome the members of the delegation and commend their work. I wish them, their families and those directly involved in this campaign well in their quest for justice and truth. During my ten years as a Member of the Oireachtas we have dealt with the Dublin and Monaghan bombings, cases of child abuse and victims of crime. Many members of the committee believe this issue needs to be treated as seriously as those matters. As an Independent Deputy, I strongly support the delegates on the core issue of the lifting of the Statute of Limitations. I would like to ask a brief question about the purpose of the meeting. Is the delegation calling on all political groups in the Dáil and the Seanad to support their quest for access to the courts? Is that the bottom line? Is that the most important aspect from a justice point of view?
Ms Marie O’Connor: That is our objective from a justice perspective. Legal action was not really what our members had in mind when they said they were looking for justice and truth. They wanted truth more than anything else, but they have found it difficult to access it in the past ten years. This reflects the regulatory capture that has taken place. The Department of Health has traditionally allowed itself to be led by the Institute of Obstetricians and Gynaecologists on this issue and there has been no sign of a change in this pattern. The view of our members is that they have been left with no choice other than to go down the legal road, even at their age. We hope our efforts to lift the statute bar for this small group of ageing women will receive all-party support in both Houses. I do not like to use the word “ageing” because I am not getting any younger.
Senator Katherine Zappone: I welcome the members of the delegation and those in the Visitors Gallery. I acknowledge the power and strength of women’s experience in this regard. I also acknowledge the moral agency of women to seek justice and truth, as highlighted by Ms O’Connor. As an Independent Senator, I strongly support the lifting of the statute. Would Ms McKeever, Ms Conlon or Ms Crean like to take the opportunity presented by this meeting to make a statement or offer a view on what it might mean to them to access justice by means of the lifting of the statute?
Ms Marie Crean: We have been fighting for justice for ten years. In the beginning we looked for redress or an independent inquiry, but the Department would not give us that. The lifting of the statute would allow us to take our chances and see how we would get on. After ten years, we are tired of fighting.
Senator Katherine Zappone: I appreciate that all three women share the sentiments expressed by Ms Crean. Would they like to comment on the type of support women might need if this statute were to be lifted and they were to proceed with cases? What supports might they require to bring forward their cases?
Ms Marie O’Connor: Legal support is obviously required. It is fair to say they have legal support of a high calibre already. The other supports relate to health and disability issues. Of course, we cannot address them here today.
Senator Martin Conway: I will not ask about matters covered already. I welcome the delegates and those in the Visitors Gallery. I support the lifting of the statute bar. I agree that there is a difference between legal action and justice and truth. I note what has been said about not all of the members of the organisation wishing to take legal action. However, I am sure all of them want to see justice and truth. That is an important distinction. I am sure we all want to see justice and truth in memory of the 1,300 people who have died also. I would like the delegates to comment on the work of the all-party committee established to deal with this issue. Are they satisfied with the progress being made? Obviously, the age of many members of the organisation means time is of the essence in this regard.
Ms Marie O’Connor: The all-party Oireachtas group on symphysiotomy has done sterling work. The formation of the group at the beginning of this year was a step forward. It marked a change of gear in our campaign. If Deputies and Senators wish to expedite matters, they can bring this issue to their respective parliamentary parties to try to widen the support base for the nub of our campaign - the lifting of the statute bar in the first instance.
Senator Rónán Mullen: Cuirim fáilte roimh na finnéithe. I would like to be associated with the welcome extended to the members of the delegation. I support what they are looking for. All of us feel badly about the unnecessary suffering to which the women concerned have been subjected for many years. We admire their tenacity, too. It is difficult to keep knocking on a door that seems to be locked.
I would like to ask a question about the delegation’s request for the Statute of Limitations to be lifted. As representatives of the Legislature, we are relatively powerless. We have an authoritarian system in place and the Government gets what it wants. I would be grateful if the delegates elaborated on their feeling that there has been a degree of capture. They have criticised the manner in which the recent report was leaked. Is there-----
Senator Rónán Mullen: That is clear, but what I am trying to establish is whether Survivors of Symphysiotomy will get what it wants. The decision on the Statute of Limitations will not be made by members of this committee but by the Government in the corridors of power. The delegates obviously feel let down as a result of the way this issue has been managed. Do they have better news for us in terms of the responses they have been given in meetings with Ministers or civil servants? What have Ministers or civil servants said on the specific issue of the Statute of Limitations and what rationale have they given for their response?
Ms Marie O’Connor: I believe there is support among Ministers for our position. It is not clear what the views of officials are at this point. We have been extremely heartened, as a national organisation, by the support shown for our campaign by Deputies and Senators from all parties and none. Were it not for that support, we would feel considerably more dejected this week than we have been feeling since last Monday when the report to which the Senator referred emerged.
Senator Rónán Mullen: I am not asking for names. It is important, however, that members are made aware of the type of response Survivors of Symphysiotomy is receiving from the Government on the specific question I asked, if possible.
Chairman: I cannot permit the question to be answered as people could be identified, which would be unfair, given that the individuals in question are not present. The Senator received a general answer to his question indicating that support was shown. If we were to delve into the issue, we could run the risk of identifying individuals which, as the Senator will understand, we are not allowed to do.
Senator Ivana Bacik: I welcome representatives of Survivors of Symphysiotomy and apologise for arriving late - I was chairing another meeting. I had the privilege of meeting the group on a previous occasion, on which I heard many testimonies. I pay tribute to all of those present, particularly the women who have so bravely shared their experiences, not only with the joint committee but also the Dáil and the Seanad and at informal briefings. The Seanad debated the issue of symphysiotomy when it heard statements on the issue on 16 May. It was important that we had such a debate and that a similar debate was held in the Dáil. Both Houses of the Oireachtas have heard the stories and rationale for the case made for changing the Statute of Limitations. I add my support to the campaign, as others have done.
Deputy Jonathan O’Brien: Almost everything I had intended to say has been said. I add my support and that of my party to the campaign to have the Statute of Limitations lifted. From speaking to Deputies and Senators of all parties, it is clear that all parties and none support efforts to make progress on this matter. We must translate this support into action because without action justice will not be served. This view was expressed very well in the opening statement when we heard that justice delayed was justice denied. We can no longer allow justice to be delayed or denied in this case.
Chairman: If members feel strongly about the issue, we will hear brief testimonies. As the Joint Committee on Health and Children wants to address this issue, we must avoid delving into areas specific to its brief.
Chairman: The issue on the joint committee’s agenda is the Statute of Limitations. If members of Survivors of Symphysiotomy have something to say on that matter, they may do so. We are all aware of what happened and are sympathetic and supportive of the women present.
Ms Marie O’Connor: The survivors wish to focus not on their health but on the justice aspects of what happened to them in terms of their knowledge, the date on which they acquired that knowledge, the failure to give them information and so forth.
Chairman: That is fair enough, but the testimony must be focused on the Statue of Limitations. We are acting outside our terms of reference if we delve into any other matters. I must be clear that the issue we are discussing is timelines and the Statute of Limitations, as agreed by members before we commenced the meeting. The Statute of Limitations is our focus and the joint committee has no other role in this regard. If the delegates wish to discuss the reasons the Statute of Limitations should be lifted, they may do so.
Ms Catherine McKeever: I went into hospital in June 1969 to have my baby. When I went in, my waters had broken and I was in labour. I was brought immediately to the waiting room. Labour went off me completely on the Tuesday night. On the Tuesday evening I was brought to surgery where the doctor examined me and told me my baby would be born that night. She was born on the Wednesday morning at around 6 a.m. Afterwards, I was lying on a stretcher bed with my legs in stirrups. I could not really see what was going on, only that the doctor was at the end of the bed. I did not realise what was happening. There was a nurse at my side and I kept asking whether the baby was coming. She was trying to give me gas and air, which I did not want, and the doctor said to her, “Leave her alone, she does not want it.” The nurse told me the baby was coming. A foot was out and the doctor pushed it back. All I know is that I saw him with an instrument which I thought was a bit brace because my father was a wood turner. I felt a crack and said, “the hernia is down,” as I had had an operation for a hernia. Nobody answered me or said anything and I did not realise what had happened because I was not told. I was a private patient and there were students in the room. I was not even asked if they could come into the room.
Chairman: It was quite a while later. That is the focus. I thank the delegation for coming before the joint committee and the information provided. I propose that the committee adjourn until next week when we will discuss this matter again and decide how to proceed.
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