FIFTH SECTION

DECISION

Application no. 61872/17 W.M. against Ireland

The European Court of Human Rights (Fifth Section), sitting on 10 November 2020 as a Chamber composed of:

Mārtiņš Mits, President, Síofra O ’ Leary, Stéphanie Mourou-Vikström, Latif Hüseynov, Jovan Ilievski, Ivana Jelić, Arnfinn Bårdsen, judges, and Victor Soloveytchik, Sectio n Registrar ,

Having regard to the above application lodged on 14 August 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, W.M., is an Irish national, who was born in 1935 and lives in Kells. The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 4). She is represented before the Court by Mr C. MacGeehin of MacGeehin Toale Solicitors, a lawyer practising in Dublin.

2 . The Irish Government (“the Government”) are represented by their Agent, Mr P. White, of the Department of Foreign Affairs and Trade.

3 . The facts of the present case, as submitted by the parties, may be summarised as follows.

4 . The applicant gave birth to her first child at Our Lady of Lourdes Hospital, Drogheda, on 7 June 1960. At the time, the hospital was run by the Medical Missionaries of Mary which was responsible for its administration and management. There is no indication in the case file whether or not the applicant signed a general consent form when admitted and because she abandoned her civil claim before the domestic courts factual details of this nature have not been established by the latter.

5 . Her baby ’ s weight at birth was 9lbs 6 ounces (4.25 kg). According to her contemporaneous notes on labour and delivery:

“At four fingers progress ceased and [illegible] were poor. Breech entering pelvic brim but it was felt that disproportion [between the baby ’ s head and the mother ’ s pelvis] was present. Symphysiotomy by Zarate ’ s method. ... Good [illegible] but slow progress. Vacuum extractor not effective. Buttocks delivered following generous episiotomy.”

6 . The background to the use of symphysiotomies in Irish maternity hospitals is set out in paragraphs 12-20 of the decision in L.F. v. Ireland (dec.), no. 62007/17 .

7 . The applicant claims that she was awake when the symphysiotomy was performed but was not told what was happening and was not asked to give her consent to the procedure. According to the information available to the Court, at the relevant time the procedure would generally have been performed under anaesthesia (ibid, paragraph 7). Following the birth of her son she was in severe pain and was unable to get out of bed for a week. She returned home after approximately two weeks but still required assistance getting in and out of bed and caring for her child. She stated that after six months she could start doing things for herself but that her health never fully recovered and she never regained her social life. She was no longer able to cycle or go dancing with her husband, her sexual relationship with her husband was also affected and she experienced very traumatic nightmares for many years.

8 . The applicant had five further children.

9 . According to the applicant, she became aware in April 2013 that she had undergone a surgical symphysiotomy. On 13 June 2014 she issued proceedings against the Medical Missionaries of Mary and the Health Service Executive, claiming damages for serious personal injury, loss and damage sustained by reason of the first defendant ’ s negligence and breach of duty in managing her labour and in failing to obtain her lawful and proper consent for all procedures carried out in that regard.

10 . Following the domestic judgments in both the case of Kearney v McQuillan and North Eastern Health Board (see L.F. v. Ireland (dec.), no. 62007/17, §§ 21-26) and the case brought by Mrs L.F. (see L.F. v. Ireland (dec.), no. 62007/17 , §§ 27-41) counsel advised the applicant, by letter dated 31 July 2017, that her medical negligence action had no realistic prospect of success. She followed this advice and abandoned her claim.

11 . In July 2014 the Minister for Health announced the establishment of an ex gratia payment scheme offering compensation to women who had undergone a surgical symphysiotomy or pubiotomy in any hospital in Ireland between 1940 and 1990. The applicant did not apply to the ex gratia payment scheme for an award because she believed that there was no possibility of any acknowledgement of a breach of her rights; the quantity of the awards did not reflect the gravity of the harm inflicted on her; and the application window was unreasonably short.

12 . Details of the relevant domestic law and practice, the public investigations into the use of the symphysiotomy procedure in Irish maternity hospitals, the ex gratia payment scheme implemented by the respondent State, and the relevant reports of international bodies are set out in paragraphs 43-90 of the decision in L.F. v. Ireland (dec.), no. 62007/17 .

COMPLAINTS

13 . The applicant complains under Articles 3 and 8 of the Convention taken in conjunction with Article 13 that as a result of the judgments of the domestic courts in Kearney v. McQuillan and North Eastern Health Board and in L.F. she was precluded from making any complaint to those courts about a symphysiotomy which she claimed had been performed without her free, full and informed consent . The applicant further complains that there has never been an independent and thorough investigation into the practice of symphysiotomy in Ireland from the 1940s to the 1980s.

THE LAW

14 . As explained in the decision in L.F. v. Ireland , cited above, the applicant ’ s case is one of ten applications introduced by women who underwent symphysiotomies in different Irish maternity hospitals in the 1960s and 1970s. Only the applicant in that case pursued her civil claim against the hospital which had treated her before the domestic courts (see L.F. v. Irelan d (dec.), no. 62007/17 , § 93) . Although the applicant in the present case had introduced a personal injury claim in 2014, she abandoned it in 2017 on the advice of counsel, who believed that it had no prospect of success following the judgment of the Supreme Court in Mrs L.F. ’ s case (see paragraph 10 above).

15 . For the same reasons as those outlined in §§ 94-97 of the decision in L.F. v. Ireland , the Court considers that the applicant ’ s complaints can be considered solely under the positive limb of Article 8 of the Convention.

16 . Article 8 of the Convention provides, as relevant:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

17 . The Government contended, inter alia , that the applicant had failed to exhaust domestic remedies because she had abandoned the civil proceedings before the defendant had even served its defence. In these proceedings, her claim as originally pleaded could have proceeded unless that would have resulted in irremediable prejudice to the defendant. The issue of prejudice was fact-specific and the fact that in the Kearney case the High Court found that such prejudice existed did not mean that the same outcome was inevitable in the applicant ’ s case. If prejudice had been argued by the defendant, the onus would have been on it to establish that the case could not continue as pleaded. Any determination on this issue would have been open to a further and full appeal.

18 . Even if such prejudice had been present, so that the applicant ’ s claim could not have proceeded as originally pleaded, she could still have pursued her claim on a reformulated basis (see Kearney v McQuillan and North Eastern Health Board and the L.F. case, details of which can be found in L.F. v. Irelan d (dec.), no. 62007/17 ). She did not, however, attempt to reformulate her claim. Although she has submitted an opinion of senior counsel which states that any claim would have had no prospect of success following Kearney and the L.F. case, this opinion does not take into account the fact that both of those judgments were fact-specific. In this regard, the Court of Appeal in the L.F. case had made it clear that its decision did not “necessarily mean that a court considering the circumstances in which another symphysiotomy procedure was performed on a different patient might not come to a different conclusion” (see reference to the Court of Appeal judgment in L.F. v. Irelan d (dec.), no. 62007/17, § 36 ). The Supreme Court in the same case had confirmed the fact and case specific approach to be followed in these cases (ibid, § 40).

19 . The applicant, on the other hand, argued that she had exhausted all effective domestic remedies which were available to her within the meaning of Article 35 § 1 of the Convention. In particular, in light of the decision of the domestic courts in the case of L.F., she contended that there was no reality to the Government ’ s contention that her civil claim would have had any prospect of success. Contrary to what the Government suggests, she would have been obliged to reformulate her claim, limiting it to a single plea: that in the circumstances prevailing at the time, there could have been no justification whatsoever for the performance of the symphysiotomy.

20 . However, even if she had reformulated her claim, it was clear that all but the rarest cases (for example, where the symphysiotomy was carried out after a successful caesarean section) were doomed to fail. Mrs L.F. ’ s symphysiotomy was carried out twelve days prior to labour, and prophylactic symphysiotomies were more controversial than those performed following a trial of labour. Given that her civil claim was rejected, the applicant submitted that her prospects of success would have been negligible.

21 . The applicant further noted that the full legal costs of the case were awarded against Mrs L.F. In her view she could not reasonably have been required to risk financial ruin in pursuing to its conclusion a case which, on the advice of senior counsel, had no reasonable prospect of success

22 . The applicant also submitted that the ex gratia payment scheme would neither have addressed her essential grievance nor provided her with an effective remedy. It provided no acknowledgment of wrongdoing, no compensation for non-pecuniary damage, no appeal mechanism and the compensation available was not commensurate with the gravity of the harm inflicted.

23 . In view of the Court ’ s conclusions in paragraphs 28-40 below, it considers that it is not necessary in the present case to determine whether the applicant failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention since in any event it considers that the case is inadmissible on other grounds.

24 . The Government submitted that the applicant had been able to seek redress through the civil courts but she herself had elected not to pursue this remedy, claiming that it had no prospect of success. In any case, as requires the reformulation of the applicant ’ s claim before the domestic courts, the Court ’ s jurisprudence did not prohibit the regulation of civil proceedings in order to prevent injustice to the parties, and there was not a failure in the procedural requirements of Articles 3 and 8 if a claim was barred because it could not proceed for such reasons. Finally, the Government argued that a credible assertion of a breach of Article 8 of the Convention did not give rise to a duty to conduct an investigation. Even if that were the case, the Government submitted that the duty had been fulfilled by the ex gratia payment scheme.

25 . The applicant submitted that she did not have a route by which she could have raised the issue of lack of consent before the domestic courts, or by which she could have obtained an acknowledgment of the alleged breach of her Convention rights. She further complained that there had never been an independent and thorough investigation into the practice of symphysiotomy in Ireland from the 1940s to the 1980s. In her view, none of the reports relied on by the Government fulfilled this criteria. The independence and impartiality of the Walsh report was undermined by the fact that the choice of author and terms of reference were settled by the Minister for Health in consultation with the Institute of Obstetricians and Gynaecologists, whose members had previously performed the symphysiotomies during the relevant period. The Murphy report was published in a redacted fashion and not all of its findings had been disclosed. Finally, the aim of the report by Judge Harding Clark had been to review the operation of the ex gratia payment scheme. Instead, in the applicant ’ s view, it had attempted to undermine women ’ s written testimony and demonstrate that the procedure was not harmful.

(a) General principles

26 . The relevant general principles are set out in paragraphs 103–109 of the Court ’ s decision in L.F. v. Ireland .

(b) Application of the general principles to the facts of the case at hand

27 . In the present case, the applicant complains in essence of the failure to provide access to effective proceedings allowing her to claim compensation for the damage alleged. She has not complained before the domestic courts or before this Court that the State did not have in place regulations requiring hospitals to adopt appropriate measures to protect patients ’ physical integrity. It is not known whether or not she signed a general consent form when admitted to hospital.

28 . The Court recalls that a civil remedy existed and the applicant did in fact issue a civil claim for damages. However, she abandoned those proceedings following the decision of the Supreme Court to refuse the applicant in the L.F. case leave to appeal. Even if the Court were to accept that the applicant ’ s civil claim would not have had any realistic prospect of success, it does not consider that there has been a breach of the State ’ s positive obligation under Article 8 of the Convention.

29 . The Court notes that the performance of the impugned procedure was noted in the applicant ’ s medical records (see paragraph 5 above) and, while the applicant lodged her claim in 2014, from some of the nine similar applications received by the Court, it is evident that some complainants issued domestic proceedings long before she did. Like the domestic courts in the case of L.F. , the Court does not suggest that the applicant was herself at fault for the delay in bringing her claim. Nevertheless, in view of the passage of nearly sixty years since the symphysiotomy was performed, the applicant ’ s claim inevitably posed considerable problems, both for the hospital, in defending it, and for the domestic courts, in ensuring – as Article 6 of the Convention requires – that the “equality of arms” principle was fully respected in the proceedings before it. In Kearney the High Court had considered that there would have been a real and serious risk of an unfair trial if the plaintiff ’ s original claim based on lack of consent had been allowed to proceed in the absence of the actual testimony of the person who carried out the symphysiotomy. The claim was, however, allowed to proceed after the plaintiff reformulated it so as to contend that there had been no justification whatsoever for the performance of a symphysiotomy following delivery of her baby by caesarean section. While this was certainly a more exacting standard, by removing any complaint about the manner in which the symphysiotomy was carried out, it rendered irrelevant the matter of any missing contemporary records.

30 . The Court has recognised the need to “protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time” (see Stubbings and Others v. the United Kingdom , 22 October 1996, § 51, Reports of Judgments and Decisions 1996 IV). On the basis of the material available, in its view the position adopted by the Irish courts was one which had been reasonably open to them when faced with the difficult task of balancing a plaintiff ’ s right of access to court in relation to a medical procedure performed several decades previously against the defendant ’ s right to a fair trial. As such, even if the applicant had been required to reformulate her complaint in order to avoid it being struck out, by virtue of this fact alone the Contracting State cannot be said to have exceeded the margin of appreciation afforded to it in ensuring that its positive obligation under Article 8 of the Convention was met.

31 . Furthermore, it would appear from the L.F. case that had the applicant reformulated her claim, the High Court would have given careful consideration to whether, having regard to the prevailing medical and practice standards in 1960, the symphysiotomy performed on her could have been clinically justified at that time (see L.F. v. Ireland (dec.), no. 62007/17, § 33 ). Even if, as stated above, this was a more exacting standard, it is clear from that case that the domestic courts, both at first instance and on appeal, engaged in a careful assessment both of those prevailing standards and of the application of the medical procedure in the individual case before them. As the Court has repeatedly held, the mere fact that civil proceedings concerning medical negligence have ended unfavourably for the person concerned does not in and of itself mean that the respondent State failed in its positive obligation under Article 8 of the Convention.

32 . The Court notes the insistence by both the Court of Appeal and the Supreme Court that the findings in the case of Mrs. L.F. were fact specific and case related and that the failure of her claim did not necessarily mean that a court considering the circumstances in which another symphysiotomy procedure was performed on a different patient might not come to a different conclusion (see paragraphs 36 and 40 of the decision in L.F. v. Ireland ). The Court notes the circumstances in which the applicant decided to abandon her claim, given the advice of counsel, and what she thought was her limited chance of success and the potential cost of proceeding. However, it remains the case that by abandoning the proceedings the medical evidence central to a judicial determination of her claim was never assessed or tested. Furthermore, as the Court pointed out in relation to the reformulation and consequent impugned limitation of the claim before the domestic courts in the case of Mrs. L.F., by abandoning her claim at no stage either before the High Court, Court of Appeal or the Supreme Court did the applicant call into question the adequacy, from a Convention perspective, of the basis on which she and other complainants were having to pursue their claims domestically (see paragraph 116 of the decision in L.F. v. Ireland ).

33 . The applicant further complains that there has never been an independent and thorough investigation into the practice of symphysiotomy in Ireland from the 1940s to the 1980s. In this regard, the Court reiterates that, in the absence of bad faith on the part of the doctors involved, it has found that the positive obligation to set up an effective judicial system does not necessarily require the provision of anything other than a remedy in the civil courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (see, for example, Calvelli and Ciglio , cited above, § 51; Vo, cited above, § 90; and V.C., cited above, § 125). This is so even in cases concerning a medical practice which affected a significant number of individuals. Therefore, in V.C., a case concerning a practice of performing sterilisations without consent which had a disproportionate impact on Roma women, where the Court had found a violation of the substantive limb of Article 3 of the Convention, the Court rejected the applicant ’ s complaint that the Slovak authorities had failed to carry out an effective investigation into her case, and it did not enter into any assessment of the more general investigation into the sterilisation of Roma women which had been initiated by the State (see V.C., cited above, §§ 126-129).

34 . As regards the very specific, historic circumstances of the present case, the Court emphasises, as it did in L.F. v. Ireland (dec.), that it is difficult to accommodate the applicant ’ s complaint within its existing case-law on the requirement to investigate. Viewed by the obstetric standards which now prevail, as well as the fact that the relevant legal standard of care and medical practice generally have evolved in the intervening decades, it is clear that symphysiotomies such as that performed on the applicant, given the physical and possible psychological trauma they might entail, might rarely be considered justified. However, as the Court has previously indicated, it must assess any related State responsibility from 2013 onwards without losing sight of the facts and standards which prevailed when the impugned medical procedure was performed in the 1960s (see, in relation to Article 3, O ’ Keeffe v. Ireland , cited above, § 143).

35 . The Court notes that in recent years the Irish Government has not remained inactive in the face of the considerable controversy which, in recent years, has surrounded the use of symphysiotomy in Irish maternity hospitals in the second half of the twentieth century (for details of the measures taken since 2003, see L.F. v. Ireland (dec.), no. 62007/17 , §§ 119 ‑ 124 ).

36 . As regards in particular the ex gratia payment scheme, examined in detail in L.F. v. Ireland (dec.), the Court considers that its value lay in the fact that it allowed those women who did not want to bring civil proceedings, or whose claims might have been unlikely to succeed, to obtain redress for the perceived injury without having to take the risk, or accept the burden, of pursuing a claim through the courts (see, for the establishment of a similar ex gratia payment scheme, Allen, cited above). The burden of proof required was much lower than would have been the case in legal proceedings and applicants were assisted in the location of their records and in meeting some of the legal costs incurred. It remained open to those who considered that they had a good prospect of obtaining a higher award through the civil courts not to apply to the scheme, as the applicant decided to do, or to decline an award offered under it. The Court notes that the report on the operation of the scheme was met with concern by some of the women who had undergone the procedure and was criticised by the Commissioner for Human Rights for, amongst other things, its tone. As the Court observed in the decision in L.F. v. Ireland , cited above, § 124, it is not for it to judge the latter or to speculate whether sections of the report might or should have been expressed in a different manner. From the perspective of the respondent State ’ s possible obligations pursuant to the Convention and on the basis of the material before it, the report ’ s key findings related to those who had or may have undergone the procedure and the operation of the scheme and were based on an individual assessment of almost 600 applications.

37 . Although the parties in the present case and related applications dispute the availability and effectiveness of judicial review proceedings in relation to an ex gratia payment scheme such as that at issue in the present case, the Court notes the grant by the High Court of leave to issue judicial review proceedings in relation to the ex gratia payment scheme at issue in Allen (cited above, §§ 45 and 73). According to the information available to the Court, what was being challenged in that case was precisely whether the relevant ex gratia payment scheme, as operated, was compatible with the State ’ s obligations under Articles 3, 8 and 13 of the Convention in the light of this Court ’ s judgment in O ’ Keeffe (cited above).

38 . The Court has great sympathy with the plight of women who only became cognisant of the fact that they had undergone an obstetric procedure several decades after the event. In the field of medical negligence, domestic courts and commentators have referred in recent years to attitudes of an earlier age, when medical paternalism was more widely accepted. In a case under Article 8 involving the field of gynaecology and obstetrics, the Court has emphasised that giving birth is a unique and delicate moment in a woman ’ s life, encompassing issues of physical and moral integrity, medical care, reproductive health and the protection of health-related information (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § § 163 and 189, ECHR 2016). In that case, the Court found it appropriate to invite the authorities of the respondent State to keep the relevant legal provisions under constant review, so as to ensure that they reflect medical and scientific developments whilst fully respecting women ’ s rights in the field of reproductive health (ibid, § 189).

39 . Nevertheless, it would now be next to impossible for the domestic courts to conduct any meaningful – and, from the point of view of the defendant hospital, fair – inquiry into whether in her case the symphysiotomy had been performed with her full and informed consent. In these circumstances, where the actions complained of were not directly attributable to the State or to any of its agents, the Court considers that in the particular circumstances of this case the possibility of bringing civil proceedings, which were able to establish whether the procedure was unjustified when judged by the relevant practice standards in a complainant ’ s specific case, supplemented by the independent Walsh report, the ex gratia payment scheme, which enabled all the women who had undergone a symphysiotomy to obtain a not inconsequential award of compensation, and the provision of access, free of charge, to healthcare and individual pathways of care, sufficed to meet any obligation the State may have been under to provide redress.

40 . In light of the foregoing, the applicant ’ s complaint under Article 8 of the Convention must therefore be rejected as manifestly ill-founded pursuant to Article 35 § 3(a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2020 .

Victor Soloveytchik Mārtiņš Mits Section Registrar President