A legal challenge to a new redress scheme for survivors of symphysiotomy is unlikely to proceed following clarification on the rights of those who may no longer have the mental capacity to apply for it, the High Court has heard.
The challenge was brought on behalf of two elderly survivors of the controversial surgical procedure carried out mainly in the 1960s on women during childbirth.
It was claimed the women, both aged in their eighties, lack the necessary mental capacity to make applications for compensation under the Surgical Symphysiotomy Payment Scheme and the imposition of a December 5th deadline discriminated against them.
However, following a hearing before Mr Justice Paul Gilligan, counsel for the women said in light of a clarification given by the Department of Health "it was fairly clear this is the end of the matter". He said further instructions would need to be taken from his clients.
The judge said an affidavit sworn by Frances Spillane, assistant secretary in the Department, made it clear applications can be made by proxies or solicitors on behalf of anyone who may qualify for what was an ex-gratia, non-adversarial and expeditious scheme overseen by retired High Court judge Maureen Harding Clark.
It had also been clarified the proxy did not need to be a family member and that no other legal proceedings needed to exist in order to make an application, Mr Justice Gilligan said.
In light of this, the judge noted the women’s application for injunctive relief against the Government over the scheme was not now being pressed.
The judge said the court was only dealing with these two cases and could not deal with the wider issue about how others lacking mental capacity were affected.
Conor Power SC, for the Government and the Minister for Health, said applying for the scheme was a simple procedure and claimants, or their proxies, should not delay in getting in their applications regardless of whether they have all their medical records in order.
The scheme allows for medical proof to be supplied later on and there was also a 20-working day grace period, up to January 14th, for exceptional applications, he said.
Mr Justice Gilligan adjourned the issue of costs to next week. The scheme was approved by the Government on October 29th and published on November 10th. It provides for payments of between €50,000 to €150,000.
In their actions, the women sought orders restraining the defendants imposing any deadline for applications until procedures are put in place which enable those who lack decision making capacity to apply to the scheme.
The husband of one of the two women, who is 81 and incapacitated, said in an affidavit she underwent an involuntary and unnecessary symphysiotomy when having the couple’s first child at Our Lady of Lourdes Hospital, Drogheda, in 1960.
As a result, it was claimed, she suffered lifelong personal injury, including incontinence, and physical and mental suffering, “affecting almost every element of her daily life”.
She only learned from media reports in 2010 she had undergone the procedure and issued proceedings in 2012, he said. However, she was no longer able to instruct solicitors to prosecute her case.
In that woman’s statement of claim, it is alleged at least 1,500 symphysiotomy, described as “18th century cruel and dangerous childbirth operations” were performed in Ireland from 1944 up to the 1980s and some 300 women survive today.
The second woman underwent a symphysiotomy in 1961, also suffered lifelong injuries and has not the necessary capacity to apply under the scheme arising from having a stroke last year.
The Survivors of Symphysiotomy group has welcomed the result.