ECtHR deems symphysiotomy cases inadmissible

The European Court of Human Rights (ECtHR) has deemed inadmissible complaints brought by three Irish women who underwent symphysiotomies in the 1960s.

The applicants complained that there had been breach of their human rights as they were prevented from pursuing domestic complaints and there had never been an independent and thorough investigation of the practice of symphysiotomies in Ireland.

A symphysiotomy was an alternative procedure to a caesarean section, which widened the pelvis to allow childbirth. It involved cutting through the cartilage and ligaments of the pelvic joint, and caused serious long-term health problems. Around 1,500 symphysiotomies were performed in Ireland between 1940 and the mid-1980s.

Each of the applicants, LF, WM and KO’S, had undergone symphysiotomies and had suffered significant back pain, hip pain, incontinence and psychological problems for the rest of their lives. The women, however, did not become aware that they were subjected to the procedure until 2003 when a support service was established by the Irish government. Two of the women brought proceedings in 2012 and 2013 after an RTE Primetime investigation, while the other brought proceedings in 2005. The proceedings were for medical negligence arising from a lack of informed consent.

These cases followed the decision of Kearney v McQuillan and North Eastern Health Board in which the Supreme Court held that there was undue prejudice to the defendants in defending specific allegations of negligence due to delay. The court did not accept fact-specific allegations, and instead sought the claim for damages to be reformulated to allege that there was no justification whatsoever for the performance of the symphysiotomy.

Proceedings were reformulated in LF, but the case was dismissed in the High Court and the Court of Appeal. The courts justified the procedures due to the prevailing medical wisdom at the time. Leave to appeal was refused by the Supreme Court, The cases of WM and KO’S were withdrawn following the Supreme Court refusal.

As a result, the three applicants brought their cases to the ECtHR, alleging that the decision in Kearney precluded them from determination of their claims that the symphysiotomies had been performed without their full, free and informed consent making them in breach of their Article 8 rights (respect for private and family life). They also complained that Ireland had never set up an independent investigation to the practice of symphysiotomies.

The ECtHR held that the Irish Supreme Court in Kearney was acting within its ‘margin of appreciation’ in ensuring Article 8 rights were respected. The Court noted that the length of the delay presented a real and serious risk of an unfair trial and that it was permissible to require LF to reformulate her claim. By extension, there was no rights breach in WM and KO’S.

The Court did not accept the criticism of the State investigation into symphysiotomies. It acknowledged the independence of the 2011 Walsh report and the review by Judge Yvonne Murphy which led to an ex gracia compensation scheme. While the applicants argued they were not fully compensated for their injuries under the scheme, the Court was of the view that the lower awards recognised that many women were not willing to go to court or could not prove their case to an adequate legal standard.

The Court also rejected a claim by KO’S of State failure, as the State was not made a party to the domestic proceedings.

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