Symphysiotomy and human rights

This article first appeared in Human Rights Ireland and is by the Chairperson of SOS, Marie O’Connor.

The Statute of Limitations (Amendment) Bill 2013 for survivors of symphysiotomy is now before the Select Committee on Justice of the Irish Parliament. Its passage at Second Stage reflects the fact that these were effectively clandestine – as well as abusive – operations, performed without consent, that breached human, constitutional and other legal rights. Laws protecting human subjects in clinical research were also flouted: hospital clinical reports and medical writings show that these procedures were often experimental. Moreover, carried out before, during and after labour, the surgery amounted to cruel and inhuman treatment.

The specialty (of obstetrics and gynaecology) has staunchly defended these operations since Dr Jacqueline Morrissey first exposed them inThe Irish Times in 1999: the State has followed suit. Since May 2001, the Institute of Obstetricians and Gynaecologists – some of whose members carried out these acts of surgery – has maintained that these procedures were appropriate, a theory backed by the Department of Health, if not by the Supreme Court. Last year, in a unanimous five-judge decision delivered by MacMenamin J in Kearney v McQuillan, the Court  found that symphysiotomy was not a ‘generally approved’ practice. International medical opinion bears this out: among those who signed a petition to lift the statute bar for survivors were 500 doctors, whose often coruscating comments on the practice of symphysiotomy stand in stark contrast to the official line.

Last year, a draft report commissioned by the Department echoed that official line. Under terms of reference agreed with the author, and drawn up by the Department – that bore a curious resemblance to those previously devised by the Institute, Dr Walsh was tasked with writing a history of symphysiotomy that out-ruled the testimony of women subjected to the surgery. The report defends this exclusion by saying it was ‘central to the production of an independent report, compiled without influence or input from vested interests’ (page 2).

Libraries were contacted in a number of countries, databases searched, and hospitals approached for statistics that did not exist (in a largely pre-computer era), on a defunct procedure – stillborn in the 1800s – that never succeeded in overcoming its dismal reputation among doctors for high fetal mortality and consequent maternal morbidity (or ill health).

Symphysiotomy is a procedure that, as this report underlines, should only be performed during labour, yet Walsh invites us to see allintrapartum symphysiotomies as emergencies: only those done during pregnancy, prior to labour, and those done postnatally, after delivery, are defined as ‘non-emergency’ (page 21). As well as occluding the need for patient consent, this definition gives rise to a considerable expansion of the ‘emergency’ category, and leads the author to conclude that, as symphysiotomy was employed ‘mostly in emergencies’, its use was therefore appropriate.  Such a finding, however, flies in the face of the evidence: survivor testimony, medical records, historical writings and published case histories (not analysed by the author) show that these surgeries were nearly always planned, and, in some cases, aimed selectively at young, vulnerable women and girls.

While Walsh denies that symphysiotomy was proposed as an alternative to Caesarean section, many of these procedures formed part of ‘the symphysiotomy experiment’, well documented by Dr Morrissey and ignored by Walsh, which was aimed at replacing Caesarean section with symphysiotomy in selected cases.

Hospital clinical reports also show the experimental nature of some of these operations. At the International Missionary Training Hospital in Drogheda, for example, in 1962-3, symphysiotomy appears to have been tested at both ends of the human gestation cycle: the Lourdes’ report notes that the surgery was carried out on two patients at 27 and 29 weeks of pregnancy, respectively, when the baby had less than a 50:50 chance of survival, and in two other cases at 43 and 44 weeks’ gestation, when fetal viability was also at risk.

This 20-year experiment raises significant human rights issues. These operations, insofar as they were experimental, did not meet the legal requirements for medical research, which were codified in 1947. The Nuremberg Code upheld the human rights of human subjects involved in medical experimentation and stressed the absolute need for voluntary and informed consent. Such consent was never sought by the practitioners of symphysiotomy, a fact excused in this report.

Its author found that ‘lack of regulation’, which she narrowly equates with the absence of protocols in obstetrics, led to the practice of this involuntary surgery; that patient consent was ‘not required’ in the 1940s and 50s; and that, consent ‘is still not a legal requirement, except in relation to mental health’ (Walsh:68). This is wrong, both internationally and nationally (in Ireland). The need for patient consent was documented in 1832 in Italy: doctors planning to perform the first ever pubiotomy* (severing the pubic bone) on a living woman in Naples were stymied by her initial refusal to consent to the surgery. The patients’ right to autonomy was enunciated in Schloendorff v Society of New York Hospital in 1914 by Judge Cardozo, who declared that ‘a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages’.  And in relation to Ireland,  Walsh ignores Article 40.3.2 of the Constitution, which was adopted in 1937, and further safeguards the legal requirement to obtain the patient’s informed consent to medical intervention.

Indeed, the discussion on consent raises the issue of how far Walsh has been trumped by the Supreme Court, and to what extent, if any, the Government should rely on the final Walsh report to inform policy decisions on ‘redress’ schemes devised as a (preferable) – from the government’s perspective – alternative to legal action. As MacMenamin J said in the Kearney case:

“one must consider the human situation of a young 18-year-old mother who entrusted her own care, and that of her child, to Dr. Connolly. The Constitution identifies rights which are to be protected and vindicated because they belong to each human person because of their very humanity. Among the values which have been recognised by the Courts are human dignity, bodily integrity, and autonomy, that is the capacity to make informed decisions affecting one’s own health. The duty to protect those rights is not confined to the Courts. Each health professional is, and was always [emphasis added]under a similar duty. Although the finding of the Court is founded in negligence, what happened here was a betrayal of trust; it was an invasion and violation of the rights just identified; it was the gravest kind of negligence.”

Setting aside its errors of fact and in law, not to mention its rose-tinted glasses which privilege the defence of doctors over the rights of patients, Walsh’s failure to consider the surgery from a human rights perspective – arguably one of its most striking defects – stems from an apparent inability to consider the surgery from the patient’s perspective. Yet the cruelty of these operations was striking.

Survivor interviews would have elicited accounts of how women in the delivery unit, often in the height of labour, were prepared for surgery, wordlessly, by midwives, before being physically restrained and operated upon – some, by their own testimony, screaming as doctors incised the symphysis or the bone under local anesthetic – then left to labour until full dilatation was reached, before being required to birth that baby through the agony of an unhinged pelvis in what was often described, in hospital records, as ‘a normal birth’.

That Walsh can glide over such treatment, which by any standards amounted to cruel and inhuman treatment, beggars belief, even in a report that strains the credibility of the reader to the limits.

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