Wednesday, 26 November 2014
Topical Issue Debate
The symphysiotomy payment scheme is due to close in eight days' time, yet victims of hepatitis C and the residential institutions had three years in which to apply for compensation. The redress scheme for the Magdalen women had no closing date for applications. However, in this instance, the survivors of symphysiotomy have been given an unprecedented period of 20 days. It has been said, and the Minister has responded to me, that late applications will be considered but at the discretion of the assessor, Judge Maureen Harding Clark. This is in marked contrast to the other instances I have cited and yet there are no appeals allowed. We need to recognise that some women still do not know that they were subjected to this horrific procedure. There are women who, for emotional reasons, cannot yet bring themselves to come forward. There are women who were operated on in this country, who were subjected to this procedure and who have since emigrated. There are women without records and women suffering from dementia. All of these are entitled to a caring and inclusive consideration.
This redress scheme is a pathetic effort which is cold and callous. That is the view of a number of the women with whom I have spoken. It is designed to force acceptance of its terms by women who are already weary, who are aged, many of whom are in ill-health. They know that if they do not accept the Minister's terms their entitlements die with them. It is a shameful way to treat innocent women who have already been so cruelly treated. I urge that at the very least the Minister arranges for the extension of time of notice of application to present to a period of three years, in line with the other instances I have cited and not the insulting and outrageous 20 days that currently is the case. The scheme is set to close at the end of next week. I ask the Minister if he will act now.
I ask the Minister to explain why he chose the route of such narrow parameters for the time period as outlined by Deputy Ó Caoláin. The women concerned have been waiting for years. It is an accepted fact that they were butchered as a result of the twisted theory that women could continue to have baby after baby, year after year, with the connivance of the medical profession and the acquiescence of the State. People gave sighs of relief when the scheme was announced. However, the short time period for making application is a concern.
The requirement to provide a specialist medical report is a difficulty for some women. They do not know how to access such a report. Deputy Ó Caoláin referred to women who will have difficulty making applications to the scheme. I ask the Minister to explain how a poor person with limited means will be able to access specialist medical reports. Only medical consultants will give these reports and State-appointed doctors will not. The scheme will not pay for independent medical reports so this is an attack on less well-off women. The scheme is procedurally flawed. Contrary to the UN human rights committee recommendation the scheme offers no individualised assessment nor any right of appeal. Why is this the case? If people are left out of a scheme, their hurt is compounded. It is a paper scheme with no oral hearings and no right of appeal against the decision of the assessor. People are asking why this is the case.
The surgical symphysiotomy payment scheme commenced on 10 November. The Government has agreed that the scheme will also include payments for the small number of women who have had a pubiotomy. The scheme is designed to be simple, straightforward and non-adversarial, and aims to minimise the stress for the women concerned. Many are elderly and may not want to experience the delay, publicity and financial risks that sometimes come with a court case. I met the three support groups representing the women last September and their views helped to shape the scheme. The scheme is supported by two of the three groups.
Ms Justice Maureen Harding Clark, a retired High Court judge. has been appointed as independent assessor for the scheme. Ms Justice Harding Clark, from her previous work on the Our Lady of Lourdes Hospital redress scheme, brings valuable experience to the role of determining the appropriate level of award for each individual.
The symphysiotomy scheme is open to women who are still living and who underwent a surgical symphysiotomy or pubiotomy in the State between the years 1940 and 1990, although we have no evidence of procedures occurring after 1984. Awards of €50,000, €100,000 and €150,000 will be offered.
It is not a requirement to retain a solicitor to make an application. However, the scheme provides for applicants to have legal and other advice available to them in preparing to submit an application if they wish. Applications must be made within 20 working days of the commencement date, which was 10 November 2014. The closing date, therefore, is Friday, 5 December 2014. In exceptional circumstances, Ms Justice Harding Clark has discretion to extend the time for receipt of applications by an additional 20 working days, to Wednesday, 14 January. I do not think it is necessary to extend the closing date for the scheme at this time.
It is important to say that in the event of a delay arising in the compilation of an applicant's supporting documentation due to a difficulty in obtaining medical records, as Deputy Crowe alluded to, the application may be submitted with an explanation of the reasons for the absence of the documentation. It is still possible to make an application even if it has not been possible to put together the medical records at the time. The details of this provision are set out in the terms and conditions of the scheme on the scheme's website.
The judge reported that by last Thursday more than 60 women had applied for awards under the scheme. There are eight working days left to apply and I urge every eligible applicant or her representative to submit her application within the appointed timeframe. My Department will make payments in the case of seven women shortly and others should have payments before Christmas.
The scheme is voluntary and I want to emphasise that women do not waive their rights to take cases to court as a precondition to participating in the scheme. Women may opt out of the scheme at any stage in the process, up to the point of accepting their award. It is only on accepting the offer that a woman must agree to discontinue her legal proceedings against any party arising out of a symphysiotomy or pubiotomy. The Government hopes the implementation of this scheme will help to bring a resolution on this issue for the women concerned and their families.
The assessor and her team are willing to assist and advise any applicants or survivors in getting their paperwork together. If somebody does not want to accept the award offered, she can take her case to the courts and have her individual case assessed as to whether medical negligence is proven and an award is justified.
The Minister said that in exceptional circumstances Ms Justice Harding Clark has discretion to extend the time for receipt of applications by an additional 20 working days, which is up to 14 January 2015. I do not believe the Minister's hand is entirely across all of this. I believe some of it most certainly was devised before he took up the health portfolio. Why does he believe these very restrictive opportunities have been laid down in this particular case regarding this particular cohort of victims? It compares terribly with the State's position on the other cases I have instanced, such as hepatitis C, residential institutions and Magdalen laundries. It is intolerable this is the situation that applies. Even if Ms Justice Harding Clark were to apply her discretion, it is only an additional 20 days.
In my opening contribution to this Topical Issues debate I instanced a number of possible situations that can arise where women may not be able to present to take up the offer of the terms of this redress scheme. Will the Minister please explain why he believes it is necessary to apply such a restrictive timeframe in this instance? Will he please, and I am asking sincerely, reconsider this particular element to allow more time?
I asked about independent medical reports and those women from a poor background who do not have the money to obtain them. How do they do so within the time period the Minister has outlined if they do not have money? It is a fair question and it has not been addressed by the scheme. The Minister stated there are other possibilities for people. I hope the Minister has an answer.
I agree with my colleague that the narrow parameters of the scheme by their nature will further compound the hurt and insult many people feel. Although this has never been about the money, the assessor is giving the impression that most of the women will receive €100,000, but nothing could be further from the truth. The way the scheme is set out, 96% of the survivors, if they apply, will possibly receive €50,000 for a lifelong disability. The higher sums will only be payable where a significant disability lasting three years or more can be shown to be directly attributable to the operation of symphysiotomy. Very specialised reports will be sought and these will cost money. In some cases people will have to go outside the State. How will people do this if they do not have the financial wherewithal?
The Deputies may not believe it, but the idea here genuinely is to bring about a resolution and draw to a close an issue which has been going on for far too long. It is to help women come to a resolution. The assessor and her team are there to help survivors get the award, and to get the higher award if possible. In my view most of the women will get the higher award because the definition of severe disability in the scheme is three years of symptoms including instability in walking and back pain. On meeting the women it is evident that in a very large number of cases they have had such a disability and will therefore qualify for the higher award.
I will certainly check up on the issue of medical reports. My understanding is the vast majority of survivors already have reports. More than 150 of them have or had cases before the courts and others have records from their GPs or consultants. In the past, they were offered the services of a consultant urologist, consultant gynaecologist and triple assessment at Cappagh National Orthopaedic Hospital. I do not see why anyone would have to travel outside the State for such an assessment. I will certainly check up on the issue. I would not like it to be the case that anybody lost her opportunity to apply because she could not obtain a medical assessment of some sort.