We are delighted to welcome this Guest Post from Máiréad Enright, Reader in Feminist Legal Studies, Birmingham Law School @maireadenright
There is a lot to say about L.F. v. Ireland. Here, I offer some initial thoughts on the ECtHR’s approach to symphysiotomy under Article 3 ECHR.
Linda Farrell underwent a symphysiotomy – a procedure which severs the ligament at the front of the pelvis – at the Coombe hospital in 1963. The Master (head) of the Coombe was James J. Stuart. ‘Symphysiotomy’ here does not refer to the emergency last-resort practice still done today. Ms. Farrell’s symphysiotomy was antenatal, done 12 days before her daughter’s birth. She signed a general consent form, but did not directly consent to a symphysiotomy. A diagnosis of ‘disproportion’, suggested that a ‘natural’ vaginal birth was unlikely. The procedure was also considered ‘prophylactic’; capable of widening her pelvis slightly to avoid similar difficulties in future pregnancies. Some Irish obstetricians developed symphysiotomy in the 1940s as an alternative to C-section. C-section was considered risky for women expected to have several children in close succession. Irish legal restrictions on contraception meant that this was more likely in Ireland than elsewhere. Ms. Farrell suffered greatly in the aftermath of the procedure. It had life-long impacts on her mental and physical health and on her sexual and family relationships.
She argued that she had suffered violations of Articles 3 and 8 ECHR, that the state owed a duty to investigate those violations,[1] and provide an appropriate remedy.[2] Her argument chimes with the interventions of several international human rights bodies, including CEDAW and the UN Human Rights Committee. The ECtHR preferred to follow the Irish courts in treating Ms. Farrell’s injuries as consequences of medical negligence and thus as a matter for Article 8, rather than Article 3.
CIDT or Mere Negligence?
The ECtHR takes a minimalist approach to medical cases, avoiding finding breaches of Article 3. However, there are routes over the threshold between ‘mere’ medical negligence and more serious rights violations. Ms. Farrell’s case fits those routes for three reasons:
- Domestic law has not framed harms experienced by women because of the substitution of symphysiotomy for C-section as a matter of mere chance or negligence;
- Women subjected to symphysiotomy were extremely vulnerable, and under direct institutional control;
- Harmful symphysiotomies were produced and enabled by systemic institutional failings in the health service and the wider state apparatus.
1) Not ‘Mere’ Negligence[3]
The Irish courts’ surface categorisation of symphysiotomy as medical negligence should not prevent the ECtHR from exploring Article 3. The few symphysiotomy cases heard in the Irish courts are not really concerned with the sort of medical accident the ECtHR avoids; unfortunate injuries that can occur even within a well-regulated healthcare system. Rather than asking whether her individual doctor fell below the established standard of care in substituting a symphysiotomy for a C-section, or in performing the symphysiotomy, a successful claimant would have to show that there was no therapeutic justification whatsoever[4] for performing a symphysiotomy in a case of her kind.[5] This is much closer to intentional or reckless infliction of harm than to mere negligence.[6]
The Irish judgments assume that most, but not all, symphysiotomies were justified.[7] Justification is established in general terms, via expert examination of the publications and statements of respectable obstetricians working at major Irish hospitals at the time the claimant’s symphysiotomy was performed. As in Farrell, even if the procedure conflicted with a clear European consensus, and was only supported by a minority of Irish doctors working at the time, it may be considered ‘justified’.
These Irish cases take no account of the question of consent. The claims are deliberately limited in order to protect the ‘defendant’.[8] Because decades have passed since the symphysiotomy was done, the defendant may claim to be at a disadvantage: memories have degraded, key personnel have died, records have been lost. The ECtHR briefly endorses this approach, invoking Article 6 ECHR.
Surprisingly, the ECtHR declined to compare symphysiotomy to forced sterilisation cases where violations of Article 3 were found. The resonances are obvious. Following her symphysiotomy, Ms. Farrell suffered significant trauma[9] and was terrified of becoming pregnant again. Her realisation, many decades later,[10] that the injuries she suffered might not have been justified, was inevitably debasing. In common with victims of forced sterilisation, many women subjected to symphysiotomy experienced long-term social stigma; associated with ‘failed’ marriages, difficulty caring for their children, and exclusion connected to incontinence and disability. Like degrading sterilisation, Irish symphysiotomies objectified the pregnant woman; reducing her to her ascribed maternal role, without assessing the grave costs to the other aspects of her personhood.
The degree of physical violence inflicted is not determinative. The ECtHR takes account of the social context.For example, in Bouyid v. Belgium, the Grand Chamber found that a slap to the face could constitute degrading treatment because it, “affects the part of the person’s body which expresses his individuality, manifests his social identity and constitutes the centre of his senses…which are used for communication with others”. A similarly sensitive approach can be taken to unjustified pelvic surgery, affecting reproductive and sexual functions which were central to L.F.’s identity as a wife and mother in 1960’s Ireland.
Following the domestic courts’ lead, the L.F. judgment glosses over the question of presence or absence of consent. Ordinarily, non-consensual medical treatment will breach Article 3, unless it was (i) minimally invasive and (ii) necessary to preserve the applicant’s physical or mental health.[11] Neither can unambiguously be said of symphysiotomy. It is important to understand that L.F.’s symphysiotomy was not a life-saving emergency procedure. In V.C. v. Slovakia, the Court was not persuaded that sterilisation could be removed from the ambit of Article 3 because it was done to reduce risks associated with future pregnancies. The woman should be given the opportunity to choose less intrusive methods, where these are legal. Ms. Farrell should have been allowed to choose a C-section.
The ECtHR distracts from all of this by insisting that Ms. Farrell’s experience must be judged according to the medical standards prevailing at the time.[12] Because it avoids the question of consent, it misses a key point: Ms. Farrell’s symphysiotomy was performed a decade after the Supreme Court recognised that a patient’s informed consent must be sought before a dangerous operation.[13] The official legal standard for consent in Ireland in 1963 was, in principle, not radically different to that supported by the ECtHR today.[14]
2) Vulnerability
Even if L.F.’s symphysiotomy can be framed as negligence, the ECtHR has held that circumstances of intense vulnerability which diminish human dignity – can bring treatment which is not otherwise sufficiently intense to constitute inhuman or degrading treatment over the Article 3 threshold.[15] These argumentshave already been developed in some of the Court’s Article 3 abortion jurisprudence, but not considered in this case. In P and S v. Poland, a young girl denied an abortion was already vulnerable because of her age and because she had been raped. This vulnerability was exacerbated by (a) requiring her to endure the consequences of deliberate delay by medical professionals (b) requiring her to see a priest, which inevitably enhanced the sense of shame and stigma around her circumstances (c) separating her from family members and requiring her to remain in hospital against her will. Ms. Farrell was vulnerable and powerless in similar ways to P. She was giving birth for the first time, in pain, unaccompanied, under the complete control of hospital staff, intimidated by her surroundings and, of course, living in a country where restrictions on access to both contraception and abortion were such that she knew she had little control over her reproductive life. As discussed below, like P, her experience was affected by religious stigma; in her case, the suggestion that women would seek to avoid difficult births by seeking forbidden contraception.
In R.R. v. Poland, the court acknowledged that concerns for the foetus’ health and safety can increase a pregnant woman’s vulnerability. In that case, a combination of deliberate delay which inhibited her from accessing alternative care, associated confusion and humiliation, cumulatively constituted degrading treatment. All of these things were done to her in order to prevent her from seeking legal medical care of which some doctors disapproved. Like R.R. Ms. Farrell was inevitably distressed by the prospect of a very difficult labour. Like R.R. she was arguably denied the opportunity to choose alternative, legal, healthcare. Since she had been subjected to a symphysiotomy 12 days before labour began, she was effectively denied the opportunity to give birth to her daughter by other safer and legally available means.
Systemic Failings[16]
Ms. Farrell’s injuries were not wholly produced by any one individual’s or hospital’s actions. She suffered harm in the context of wider systematic interferences with her and 1500+ other women’s bodily integrity. In the domestic courts, these factors are effectively decommissioned by enfolding them into the medical negligence argument. The Irish courts acknowledged that symphysiotomy emerged as an alternative to C-section because restrictions on access to contraception meant that a woman might need multiple C-sections, and this was considered dangerous. This danger, bound up in state law,[17] is presented as external to the healthcare system. Its religious dimensions receive surprisingly little discussion.
It is possible to frame these issues differently.[18] First, unlike contraception, sterilisation was never overtly criminalised in Ireland, albeit it was forbidden under the religious ethos prevalent in most Irish hospitals. The decision to substitute symphysiotomy for an alternative treatment plan (C-section and sterilisation) can be framed as a deliberate and knowing denial of access to forms of medical care which would not have degraded women in the same way.[19] Some might identify that denial with the many influential Catholic doctors who supported both symphysiotomy and tight legal control over women’s reproductive agency. In any event, the state, by criminalising access to contraception and acquiescing in denial of access to sterilisation and C-section, supported systems which inevitably subjected women to degrading treatment; in hospitals across Ireland over decades. This was done knowingly; in public hospitals in receipt of state funding and subject to state regulation and oversight.
Conclusion
On the surface, the judgment in L.F. v. Ireland fits well with the ECtHR’s conservative approach to medical negligence. However, this comes at the cost of any effort to generate a gender-sensitive, picture of symphysiotomy as a systemic historical injustice, with continuing repercussions in the present. I do not suggest that, if these arguments were accepted at Strasbourg, Ms. Farrell could have won. On the other hand, the judgment will be read in Ireland as endorsing the continuing marginalisation of women wounded by symphysiotomy. When the Irish state apologises for historical gender-based violence, it conspicuously omits symphysiotomy: its connection to medicine makes it a violence apart. L.F. legitimates that omission, and offers little assistance to survivors of what, the ECtHR itself implicitly acknowledged, would today be considered obstetric violence.
[1] An effective investigation for the purposes of Article 3 will be (i) wholly independent of those implicated in the events (ii) open to effective participation by the victims (iii) open to public scrutiny (iv) prompt (v) effective in the sense of being capable of identifying those responsible, any justification for their actions, the systemic dimensions of the harm and any involvement of state authorities (vi) empowered to apply appropriate sanctions (vii) make accessible all evidence concerning the incident which is reasonably available to the state. Something of a ‘sliding scale’ applies: an investigation into degrading treatment may be less rigorous than an investigation into torture.
[2] In a separate case, KO’S v. Ireland, Kathleen O’Sullivan argued that the state had a duty in the 1960s, under Article 3, to prevent certain symphysiotomies from taking place. The ECtHR did not consider this argument, holding that she had failed to exhaust domestic remedies.
[3] The ECtHR held that, if Ms. Farrell wished to argue that this reformulation violated her rights, she could have argued that in the domestic court. My argument here is different; that the ECtHR misrecognises the harm suffered as medical negligence when it is something else.
[4] On the relevance of therapeutic justification see Ciorap v. Moldova
[5] In Kearney v. McQuillan, the claimant succeeded because the archive did not disclose any justification for performing a symphysiotomy in her case. She had just given birth by C-section, and she had not been diagnosed with any condition suggesting that she would have difficulties giving birth vaginally in future. Ms. Farrell was not able to meet this standard; records of her ‘disproportion’ diagnosis matched the published rationale for performing a symphysiotomy to facilitate this and future births. The Court accepted that Ms. Farrell’s symphysiotomy would not have been considered justified just a few years later, and was controversial even at the time it was performed.
[6] IG v. Slovakia
[7] Here they are indirectly acknowledging doctors’ experimentation with symphysiotomy and their efforts to extend its potential uses.
[8]The position would arguably be different if the harm had been unambiguously inflicted by a state agent. As an aside, it is worth noting the shift in the defendant’s identity over time; 50+ years after the operation was performed. In name this is the defendant hospital and its deceased staff but in practice it is the HSE, whose defence is managed by lawyers instructed by the State Claims Agency.
[9] Compare V.C. v. Slovakia
[10] See e.g. see e.g the controversial decision in Nicolae Virgiliu Tanase v. Romania, and contrast with I.G. v. Slovakia and V.C. v. Slovakia and N.B. v. Slovakia, emphasising that the perpetrators’ intention need not be to harm; paternalism can also produce violations of Article 3.
[11] Jalloh v. Germany; Herczegfalvy v. Austria
[12] There are shades here of the dissenting judgments in O’Keeffe v. Ireland.
[13] Daniels v. Haskins
[14] See similarly G.H. v. Hungary. As the ECtHR acknowledges in L.F., Article 8 provides wide protection for consent. Interventions in pregnancy and childbirth engage the right to private life, in part because they affect the woman’s health – her physical and mental integrity (Tysiac v. Poland). They also, of course, engage the right to family life: the Convention protects the right to self-determination; to decide whether or not to procreate (Evans v. UK). The ECtHR has affirmed that the state owes women a range of obligations. In principle, the woman is entitled to access the available information necessary to allow her to make decisions around pregnancy (AK v. Latvia). All medical interventions in her pregnancy, however minor, require her consent (Konovalova v. Russia). Unless it is an emergency, she should be involved in any medical decision-making process and informed of all relevant risks, even if the procedure is intended to save her life or preserve her health (Csoma v. Romania). She should be given time, where possible, to reflect on her decision before the decision becomes urgent or she is in significant pain (V.C. v. Slovakia).
[15] Bouyid v Belgium
[16] This is a controversial element of the threshold – see e.g. dissent in Lopes de Sousa Fernandes v. Portugal.
[17] Law here performs an analogous function to the popular will in A, B and C v. Ireland
[18] This argument may, admittedly be more difficult to make in Ms. Farrell’s case, because her symphysiotomy took place in the 1960’s, when sale and importation of most contraceptives were undoubtedly illegal, and ‘the pill’ was not yet widely available. The Dublin and Cork hospitals changed their practices in the late 1960s. However, as in Kearney’s case, symphysiotomies continued to be substituted for C-sections, particularly in Drogheda, into the 1970’s and 1980’s. The contraceptive pill was regularly prescribed to Irish women (albeit not always explicitly as a contraceptive) from the late 1960s. Married women’s entitlement to access other artificial contraceptives was established by the Supreme Court in 1973 and legislated for in 1979. Doctors who performed symphysiotomies instead of C-sections in this period were not merely acting in accordance with the existing law. The emphasis on the letter of the law is insufficiently sensitive to the dynamics of gender inequality. This is reminiscent of the ECtHR’s past treatment of harmful ‘traditional’ practices, which tends to conflate law and lived reality (e.g. Collins and Akaziebie v. Sweden).
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