Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I am pleased to have the opportunity to address the House this morning and to have the opportunity to discuss the outcome of the symphysiotomy ex gratiapayment scheme and the report of Judge Maureen Harding Clark, assessor to the scheme. It is fair to say we have all been touched by the stories of the women who underwent symphysiotomy and the Government’s aim was to take as humane and dignified an approach as possible to help bring closure to as many of the women as possible. The scheme has helped to bring that closure to a large number of women and I welcome that. However, I will address a number of issues raised in the House on 1 December 2016, including the terms of reference for the scheme, the issue of consent by women undergoing a symphysiotomy, the level of proof required to seek awards under the scheme and the right to appeal. I will do so during the course of this speech, as well as setting out the background to the establishment of the scheme.

Following examination of two earlier independent reports commissioned by my Department, it was agreed by the Government in July 2014 to establish an ex gratiascheme for women who underwent a surgical symphysiotomy. The surgical symphysiotomy payment scheme was established in November 2014 following engagement by the then Minister for Health with the three patient advocacy groups that support women who underwent the procedure. It is an important point for the House to note in our discussions today that two of those advocacy groups welcomed the Government-approved scheme. One of those groups has stated its clients were happy to have been vindicated and to have had their suffering acknowledged. This support group also indicated that they had positive feedback concerning the scheme from the women and their families, and it stressed the importance of providing redress for the women, given the older age group to which many of the women belong. This group has indicated that it supported in excess of 250 of the women in 2015. One advocacy group rejected the scheme and continued to advocate for court settlements for the women. The scheme provided an alternative, non-adversarial and person-centred option for women, many of whom were elderly and did not wish to pursue their cases through the courts.

As Deputies are aware, the first independent report commissioned by my Department was undertaken by Professor Oonagh Walsh. Professor Walsh is a renowned medico-social historian with a special interest in female medical history. Professor Walsh outlined the history of symphysiotomy in Ireland and recommended that an ex gratiascheme be established. Importantly, Professor Walsh’s research also included a national public consultation process with the women themselves and with other interested bodies. The Walsh report noted that symphysiotomy was an exceptional and rare intervention in obstetric practice in Ireland. The procedure was used in mild to moderate disproportion and in obstructed labour. It occurred in less than 0.05% of deliveries between 1940 and 1985. The report estimates that approximately 1,500 symphysiotomy procedures were undertaken in Irish hospitals and that there were approximately 350 women still living who underwent the procedure. The second report was prepared by Judge Yvonne Murphy, who was commissioned by the Government in 2013 to undertake a further independent review on the legal aspects of symphysiotomy in Ireland. Judge Murphy advised the Government on the merits and costs of proceeding with an ex gratiascheme relative to taking no action and allowing the court process to proceed. Once again, Judge Murphy recommended that an ex gratiascheme be established.

Regarding the issue of consent, based on the evidence available to the Department of Health, it appears that in a number of cases the procedure was carried out without a woman's knowledge or consent.

However, this was not the case in all hospitals. It would also appear that the lapse of time, the demise of the clinicians involved and the paucity of records may have made it difficult to establish whether reasonable efforts to obtain consent were made. Hospital records in some instances showed that it was an elective procedure. The data on symphysiotomies in Our Lady of Lourdes Hospital in Drogheda include a high number of elective procedures, which would have been carried out with patient consent. A total of 20% of respondents to Professor Walsh during her research were private patients.

Until the 1960s, it was common for many women in the Dublin area in particular to only present for a hospital delivery once complications had set in. Professor Walsh alluded to cases where patients had been in labour for extraordinarily long periods before admission to hospital. A labour period of 50 hours was high but not exceptional in those early years. Judge Yvonne Murphy found that a court was not likely to hold that it was necessary to have obtained an informed consent in unexpected lifesaving emergency situations of obstructed delivery during labour.

Judge Harding Clark provided a comprehensive report and we now have available a thorough overview of the historical and medical context of symphysiotomy in the country. The report included several appendices containing information gleaned by Judge Harding Clark and her team during the operation of the scheme. Appendix I includes information on radiological imaging used in the assessment of symphysiotomy, entitled Symphysiotomy & Pubiotomy Review - an Imaging Perspective. Two further appendices contain historical documentation relevant to symphysiotomy in Ireland. Appendix II contains extracts from the Transactions of the Royal Academy of Medicine in Ireland between 1943 and 1967. Appendix III contains extracts from the annual clinical reports of four major maternity hospitals: the National Maternity Hospital, Holles Street; the Rotunda; the Coombe Women and Infants University Hospital; and Our Lady of Lourdes Hospital, Drogheda. It also contains medical papers published between 1940 and 1960. Contrary to some reports in the media, the information provided in appendix II and appendix III shows that symphysiotomy was not a secret procedure at the time. In fact, it was debated and discussed in many medical papers by eminent physicians.

The total cost of the symphysiotomy payment scheme was a little under €34 million and payments of €50,000, €100,000 or €150,000 were made to 399 women who met the criteria for awards. All of the women have received their respective payments, totalling €29.85 million. The majority of claimants were aged over 75 years and payments were made to women between the ages of 51 and 96 years. Many women took legal advice and the scheme provided for payment of their legal costs. The total legal costs were a little under €2.1 million. A breakdown of amounts paid to the solicitors involved is available in appendix V of Judge Harding Clark's report. A little under €1.25 million was expended on administrative costs. These included rent, telephone, fees and salaries, office equipment and supplies, utilities and broadband.

The scheme was designed to be simple, straightforward and non-adversarial. It was designed to offer to women an alternative to pursuing their cases through the courts if they so wished. The women were not expected to give oral testimonies, unlike in a court setting. Although the scheme was non-adversarial, the provisions took into account that women may have wished to consult a solicitor and take legal advice and assistance in submitting applications to the scheme. In the interests of accountability, the scheme required each applicant to prove that she had a surgical symphysiotomy or pubiotomy to be considered for the assessment of an award. The level of proof required to qualify for an award was clearly set out in the terms of the scheme. It is important to note that the proof required was, rightly, considerably lower than the burden of proof that would have been required by a court. Judge Harding Clark worked with each woman or her legal representative to locate medical records. When she considered it necessary, Judge Harding Clark met some of the women in different parts of the country. Where claims could not be reconciled with established facts, women were examined by relevant medical experts. Judge Harding Clark encouraged women who believed they had undergone a symphysiotomy to apply to the scheme, advising them that they did not give up their right to pursue their cases through the courts. It was only on accepting an award under the scheme that a woman had to discontinue her legal proceedings. The vast majority of women opted to do so.

The scheme was administered to the highest standards in line with its terms of reference. The scheme had an independent website to provide advice, assistance and information to interested persons as the scheme progressed. Applicants and their family members could contact the office of the scheme by telephone. Where an applicant was too infirm to apply herself, applications were accepted by proxy on her behalf. All awards were transferred electronically to the applicant's account. Importantly, at the end of the scheme, all applications and supporting documents were returned to the applicants or were confidentially shredded in line with the wishes of each applicant. The scheme did not hold any original medical records.

In order to undertake her role under her terms of reference in an informed manner, Judge Harding Clark drew on the professional expertise of certain medical specialists. These clinicians specialised in the areas of obstetrics, radiology, orthopaedic surgery, pelvic injury and urology. They advised on the scheme throughout the process. This ensured an effective, fair and well-informed method of assessment of the applicants by means of a comprehensive clinical case review in line with best practice, whenever this was required. Many hundreds of hours were spent examining the medical records of applicants. Each application received individual and careful assessment. Medical evidence was sought to explain delivery records. When claims could not be reconciled with established facts, the applicant was examined by relevant clinical experts. Some applicants were examined by several experts.

When all efforts failed to obtain records, the scheme moved to seeking secondary proof of symphysiotomy by evidence of a scar and radiology evidence. In 12 especially difficult applications, Judge Harding Clark held a discussion conference between her medical team and the medical expert representing the women. Consensus was reached based on the medical facts in each case. Out of almost 600 applicants, 185 women were unable to establish that they had a surgical symphysiotomy. The report states that all of these applicants were assisted by members of the team in trying to establish their claims. The resources relating to the scheme were applied in rigorous investigations before a claim was declared ineligible for the scheme. On reading Judge Harding Clark's report, I get a real sense that the team and the judge worked with each applicant to try to establish facts, obtain records and ensure that an applicant to the scheme had every support and opportunity to have records and medical evidence presented.

A total of 23 women experienced a spontaneous symphysiotomy during birth. While this condition is not particularly common, it is well recognised. These women did not quality for an award under the terms of the scheme because they did not have a surgical symphysiotomy.

Pubiotomy is a distinctly different procedure to symphysiotomy. It was also included in the scope of the scheme at the request of the support groups. Pubiotomy was frequently claimed by applicants but was established in only one case. Significant disability was established in that case.

It should also be noted that medical services, including medical cards, are facilitated for the women by HSE-nominated symphysiotomy liaison officers based throughout the country, regardless of whether a women has availed of the scheme.

In July 2014 one of the advocacy groups made representations to the UN Human Rights Committee concerning symphysiotomy. Ireland takes its membership of international organisations seriously. The country is absolutely committed to human rights. This is why we always engage with these processes in a meaningful way through providing information and updates, responding to recommendations and attending reviews held by these organisations. This gives us an opportunity to set out the Government position on Human Rights. Shortly, we will provide more details about the scheme to the Convention on the Elimination of All Forms of Discrimination Against Women. While the Government notes the comments made by the UN on symphysiotomy, it believes that the provision of the ex gratiascheme and the ongoing provision of medical services by the HSE represent a comprehensive response to this issue.

My Department has received the report that one of the support groups, Survivors of Symphysiotomy, has submitted to the UN Committee on the Elimination of Discrimination against Women, which has symphysiotomy on the agenda for its meeting on 15 February. There are serious inaccuracies in this report that cannot go without comment. The opening paragraphs refer to women having their pelvises broken during childbirth. A symphysiotomy does not involve breaking the pelvis. The procedure involves cutting the fibrous cartilage of the pubic joint. The report to the UN claims that no independent or thorough investigation has been carried out in Ireland into the practice of symphysiotomy. The contrary is the case, and I have already set out the background to the thorough work which has been done on the matter, most recently by Judge Harding Clark, but by others before her as well.

I urge anyone who wishes to get a fair and balanced view on the issue of symphysiotomy to read Judge Harding Clark's report. She was unfettered by Government in completing her work. She could have simply administered a payment scheme, and she would have been able to do so and fulfil the terms of reference. However, she chose to use her judicial skills and experience and that of her clinical team to examine all aspects of the issue and to review the evidence collected in the two years of her work. The report states that my Department has refused to supply information concerning the research conducted by Professor Leo Lawler, consultant radiologist at the Mater Misericordiae University Hospital, visiting consultant at the Rotunda Hospital and a member of Judge Harding Clark's clinical advisory team.

This is not correct. My Department was not involved in this study and therefore it has no further details other than the documents we have supplied in response to a recent freedom of information request.

It is important to emphasise the importance which we place on patient safety and quality in our modern maternity services. Ensuring that quality of patient care is at the heart of our health services and that we keep our patients at the centre of the provision of our services is key. We must continually learn and work to make our services safer. One year ago, my Department published Ireland’s first national maternity strategy in a concrete demonstration of a new, enhanced and long overdue focus on maternity care at both policy and service delivery level. Just before Christmas, I launched the new HIQA national maternity standards. Taken together, these initiatives provide a roadmap for how we can continue to improve maternity and neonatal care in the years ahead to promote and assure safe, standardised and high-quality care. In addition, I am pleased to note that all maternity services are now reporting monthly maternity patient safety statements and are participating in national data collections, including the Irish maternity indicator system.

More broadly, my Department remains fully committed to progressing a programme of major patient safety reforms. These measures are focused on legislation, the establishment of a national patient advocacy service, the introduction of a patient safety surveillance system, extending the clinical effectiveness agenda, commencing a national patient experience survey and setting up a national advisory council for patient safety. In December, I launched our new national patient safety office, which will be the driver behind many of these reforms. Within the programme of legislation we intend to progress the licensing of our public and private hospitals, the health information and patient safety Bill and provisions for open disclosure.

In conclusion, the brief given to Judge Clark in November 2014 was not an easy one. At that time, the advice to the Department of Health was that many women would face an uphill struggle in proving their claims in the courts and we did not want women to have to face that uphill struggle. Each woman would face an uncertain outcome, as each case would be adjudicated by the courts on its individual merits. We now know that this is the truth. For example, in one of the small number of cases that have gone through the courts, the judge in that case found that even though the woman had a symphysiotomy 12 days before her baby was born in 1963, this procedure was “not a practice without justification” at that time. This ex gratiascheme was to avoid the adversarial courts-based system. Judge Clark's independent report is a thorough body of work and I hope the implementation of this scheme has helped to bring closure to many women.

See this speech in context