Information Note on the Court’s case-law 246

December 2020

K.O'S. v. Ireland (dec.) - 61836/17

Decision 10.11.2020 [Section V]

Article 8

Positive obligations

Possibility of civil proceedings and supplementary measures providing adequate redress for women subjected to symphysiotomies, in light of time elapsed: inadmissible

[This summary also covers the decisions W.M. v. Ireland , no. 61872/17 and L.F. v. Ireland , no. 62007/17, 10 November 2020].

Facts – The applicants had undergone symphysiotomies in Irish maternity wards during the 1960s – a procedure which involves partially cutting through the joint uniting the pubic bones, so as to enlarge the capacity of the pelvis. According to the applicants, they only became aware that they had undergone the procedure in the early 2010s.

All initially brought civil claims before the domestic courts against the hospitals which had treated them. A civil remedy existed at the domestic level, whereby applicants could contend that the symphysiotomy performed on them could not have been justified in any circumstances prevailing at the relevant time. L.F. voluntarily reformulated her claim in this way, in order to avoid the risk o f it being struck out by the High Court. However, it was rejected, as the court did not consider that the symphysiotomy performed on her could not have been justified in any circumstances. Following the outcome of other cases before the Supreme Court, incl uding L.F .’s (refusal of leave to appeal), W.M. and K.O’S. abandoned their proceedings, believing that they had no prospect of success.

Law – Article 8:

(a) Access to effective proceedings to claim compensation for damage

The applicants complained of the failure to provide access to effective proceedings allowing them to claim compensation for damage.

There had been no suggestion that the applicants had been at fault for the delay in bringing their claims. Nevertheless, in view of the passage of significant amounts of time since the symphysiotomies had been performed, their claims would have inevitably posed considerable problems, both for the hospitals in defending themselves, and for the domestic courts, in ensuring that the “equality of arms” principle had been fully respected in the proceedings before them. The position adopted by the Irish courts in L.F. (in the application of the more exacting standard of whether there had been no justification whatsoever for the perfo rmance of a symphysiotomy in the individual case) was one which had been reasonably open to them. Most witnesses, and in particular medical personnel who had performed the procedure in L.F. were either deceased or their whereabouts unknown. As such, by vir tue of the fact of hearing L.F. ’s reformulated claim alone, the State could not be said to have exceeded the margin of appreciation afforded to it in ensuring that its positive obligation under Article 8 had been met. Similarly for W.M. and K.O’S , even if the applicants had been required to reformulate their complaints in order to avoid them being struck out, this fact alone could not lead to a violation.

Further, in L.F , the High Court had given careful consideration to the prevailing medical standards at the time of the procedure, before finding that the symphysiotomy performed on the applicant could have been clinically justified at the time. It would appear from this that the same careful consideration would have been given to their specific circumstances, had W.M. and K.O’S. brought such claims.

W.M. and K.O’S. had abandoned their claims in light of the advice of counsel, and what they thought had been their limited chances of success and the potential costs of proceeding. However, by abandoning the proceedings, the medical evidence central to judicial determinations of their claims had never been assessed or tested.

Further, at no stage at domestic level had L.F. c alled into question the adequacy of the reformulated and narrower basis on which she had decided to pursue her claim. Nor had W.M. or K.O’S. sought at any time to argue before domestic courts that that the judgments in other cases (including L.F. ) had viol ated their Convention rights because they had been precluded from making any effective complaints about their symphysiotomies. If they had considered that the formulation of civil claims had itself given rise to a violation, it had been open, and indeed it would normally have been incumbent upon them, to challenge that.

(b) Other measures of redress

L.F. and W.M. further complained that there had never been an independent and thorough investigation into the practice of symphysiotomy in Ireland from the 19 40s to the 1980s. In the absence of bad faith of the doctors involved, the Court has found that the positive obligation to set up an official judicial system does not necessarily require the provision of anything other than a remedy in the civil courts to be obtained. This was so even in cases concerning a medical practice which affected a significant number of individuals.

Regarding the very specific, historic circumstances of the present case, it was difficult to accommodate the applicants’ complaints wi thin the Court’s existing case-law on the requirement to investigate. Viewed by the obstetric standards which now prevailed, as well as the fact that the relevant legal standard of care and medical practice generally have evolved in the intervening decades , it was clear that symphysiotomies such as that performed on the applicants, given the physical and psychological trauma they might entail, might rarely be considered justified. However, the Court had to assess any related State responsibility without los ing sight of the facts and standards which had prevailed when the impugned medical procedures had been performed. In L.F, that is what the domestic courts had done and it was not possible for the Court to refute their position in relation to the standards of practice and medicine in the respondent State at the relevant time, and as regards the justification or therapeutic necessity for the procedure in the applicant’s case.

The State had not remained inactive in the face of considerable controversy which, in recent years, had surrounded the use of symphysiotomies in Irish maternity wards during the second half of the twentieth century.  The Health Service Executive had put in place a support system for women who had undergone such procedures, and a report h ad been commissioned to appraise the practice, comprised of both academic research and interviews with individuals directly involved. A non-statutory review had been conducted with the aim of finding closure for women who had undergone the procedure, and a n ex gratia payment scheme had been implemented, which had been subject to a report on its operation.

While the report on the operation of the scheme had been met by some concern and criticism, it was not for the Court to judge it or to speculate on wheth er sections of it should have been expressed in a different manner. The report’s key findings had been based on an individual assessment of almost 600 applications to the scheme.

As to the ex gratia payment scheme itself, while it did not provide for a fu lly individualised assessment of non-pecuniary damage, its value lay in the fact it had allowed those women who had not wanted to bring civil proceedings, or whose claims might not have succeeded, to obtain redress for the perceived injury, without having to take the risk, or accept the burden, or pursuing a claim through the courts. 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 had 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 or to decline an award offered thereunder.

(c) Overall

The Court had great sympathy with the plight of the applicants and the other women who only had become cognisant of the fact that they had undergone a symphysiotomy several decades after the event. However, regarding K.O’S , the Court could not simply ignore or abandon t he exhaustion rule and deny a national legal order the opportunity to address Convention arguments later raised before the Court.

With regard to L.F. and W.M. , it would have been next to impossible for the domestic courts to conduct any meaningful – and, from the point of view of the defendant hospitals, fair – inquiry into whether the procedures had been performed with their full and informed consent. In those circumstances, where the actions complained of had not been directly attributable to the State o r any of its agents, the possibility of bringing civil proceedings, which were able to establish whether the procedure had been unjustified when judged by the relevant practice standards in a complainant’s specific case, supplemented by the other measures taken by the State, had sufficed to meet any obligations that the State may have been under to provide redress.

Conclusion : inadmissible (failure to exhaust domestic remedies; manifestly ill-founded)

Article 3: The applicant K.O’S. had argued that the St ate knew or ought to have known that symphysiotomies were being performed in certain maternity hospitals and that the respondent State had therefore breached its positive obligation to protect women from a procedure which in her view amounted to inhuman an d degrading treatment.

However, she had brought a civil claim for damages only against the hospital. It would have been possible for her to have joined the State and/or its agents as defendants to the claim and argued that it had failed to protect her from the hospital’s negligence and/or its breach of its duty of care, but she had not done so. A substantive complaint of this type was of an entirely different nature to that pursued against the hospital and it could not even arguably be said to have been rai sed by the applicant in substance in her civil claim for damages. Nor had such a complaint had not been examined by the domestic courts in other cases. As such, nothing that had been said by the domestic courts in previous cases could have predetermined or had any impact whatsoever on the prospects of success of a substantive complaint relating to a violation of Article 3 of the Convention against the State by the applicant. In these circumstances, the Court did not need to deal with the question whether a positive obligation under Article 3 might arise in the circumstances of the case

Conclusion : inadmissible (failure to exhaust domestic remedies).

(See also Allen v. Ireland (dec.), 37053/18 , 19 No vember 2019)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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