Today, on the deadline for applications to the ‘Surgical Symphysiotomy Payment Scheme’, Amnesty International has called on the Minister for Health to repeal the legal waiver women must sign before they accept any payment.
It further called for an extension of the deadline for applying for these awards so that women who have declined due to the waiver can reconsider applying if it is amended.
Colm O’Gorman, Executive Director of Amnesty International Ireland, said: “It is wholly unacceptable that these women must waive their right to take further legal action against any individual or body for what happened to them in order to accept this payment. It is an affront to the surviving women’s human rights that they should be obliged not to sue, and to “indemnify and hold harmless”, any individuals and bodies responsible for human rights abuses inflicted upon them.”
“This waiver and indemnity condition denies these women their rights to seek truth, justice and reparation from those who perpetrated human rights abuses against them – rights that are at the very core of the international human rights system.”
In July 2014, the UN Human Rights Committee recommended that the Government provide “an effective remedy to the survivors of symphysiotomy for the damage sustained, including fair and adequate compensation and rehabilitation, on an individualised basis. It should facilitate access to judicial remedies by victims opting for the ex-gratiascheme”.
“The UN Human Rights Committee could not have been clearer. It advised that Ireland must not only allow, but also facilitate, any woman opting for this ex gratia payment scheme to take legal action. What the Government has instead done is a trespass on their right to a remedy for human rights abuses,” said Colm O’Gorman.
“Particularly given the advanced age and poor health of most of the women involved, many will be faced with an invidious choice. They can decide to reject an award and have to pursue what could be years of litigation. Or they can accept the award knowing that their right to an effective remedy as set out in international human rights law has been utterly denied them by this State.”
The UN Committee had also told the Irish Government it “should initiate a prompt, independent and thorough investigation into cases of symphysiotomy, [and] prosecute and punish the perpetrators, including medical personnel”.
“The Government has failed to establish an independent investigation to identify and sanction those who conducted these abuses, as recommended by the UN Committee. This makes it especially cruel that women should be denied recourse to legal action against those directly responsible for human rights abuses against them,” said Colm O’Gorman.
The ‘Surgical Symphysiotomy Payment Scheme’, announced by the Department of Health on 6 November for the receiving and making of ex gratia awards to victims of symphysiotomies, contains a “deed of waiver and indemnity” form. In order to accept any award made, a woman must sign this form and thereby irrevocably waive her right to take further legal action and to discontinue any legal action already in train. The “deed of waiver and indemnity” requires her not only to irrevocably waive “all [her] rights and entitlements (if any) to claim or demand damages, interest, costs, expenses or any other remedy whatsoever (whether existing or otherwise) arising out of or relating to the carrying out of a surgical symphysiotomy or pubiotomy”, but also to “indemnify and hold harmless” the individuals and bodies responsible for human rights abuses inflicted upon her. The list of those individuals and bodies a woman must “indemnify and hold harmless” includes “all doctors, consultants, obstetricians, surgeons, medical staff, midwives, nursing staff, administrative staff”, any hospital, and the “Medical Missionaries of Mary and/or any Religious Order involved in the running of any hospital”