Supreme Court refuses to hear appeal over symphysiotomy

The Supreme Court has refused to hear a woman's appeal over the dismissal of her claim a symphysiotomy carried out on her at a Dublin hospital in 1963 was unjustified.

The procedure was carried out on the woman 12 days before her first baby was born.

In a published determination, a three-judge Supreme Court said the 77-year-old woman had not established her case raised issues of general public importance or that an appeal was in the interests of justice.

While the practice of symphysiotomy has attracted much public attention in the relatively recent past, and has been examined by the UN Human Rights Committee, that was not the gateway for a further appeal to the Supreme Court, Mr Justice Donal O'Donnell, Mr Justice William McKechnie and Ms Justice Elizabeth Dunne said.

The woman's case had been fully examined by the High Court and Court of Appeal and the outcome had no wider implications outside her particular case, they said.

In seeking a Supreme Court appeal, the woman argued, when determining the standard of care owed to her, the Court of Appeal effectively disregarded international practice and instead relied almost exclusively on local conditions in Dublin hospitals in the 1960s.

Onus of proof

She also argued the courts have never fully considered exactly what onus of proof applies in relation to having to establish this symphysiotomy did not reflect a general and approved practice at the time.

The Supreme Court said those issues had to be considered in light of the single allegation of negligence in this case – whether this symphysiotomy was unjustified at the time it was performed.

That issue was not subject to any contingency such as a “failed trial in labour” but was “absolute” in its unconditional terms. If it could be established circumstances existed in 1963 which could have justified the carrying out of this procedure, the case on liability could not succeed.

The Court of Appeal held there was credible evidence concerning the prevailing standard regarding symphysiotomy in 1963 on foot of which the High Court dismissed the claim of negligence. In reaching those decisions, both courts also applied well-established legal principles.

Even if there was an international flavour to it, the evidence ultimately had to focus on the practice which gave rise to what occurred to this woman here. At issue was the specific procedure performed on this woman.

There was no error in how the lower courts applied the relevant legal principles to justify an appeal to the Supreme Court, it held. It also rejected arguments that a reference by the Court of Appeal to a “heavy” onus on a person to prove a practice was not a general and approved one merited an appeal to the Supreme Court.

Hospital’s costs

It also refused to hear an appeal against orders requiring the woman pay the hospital’s costs of her appeal to the Court of Appeal. Because the hospital had not appealed the High Court’s decision not to award costs against her in that court, the only costs at issue were those before the appeal court.

The Court of Appeal was told symphysiotomy was carried out rarely, as an alternative to Caesarean Section, from the mid 1940s to mid 1960s in the three Dublin maternity hospitals when a baby was considered likely to be too big to pass through the mother’s pelvis. It involved partly cutting fibres joining the pubic bones to increase pelvic capacity with a view to facilitating vaginal delivery.

The woman claimed her symphysiotomy, done without a trial of labour, was done without her knowledge, was unjustified and she suffered lifelong consequences, including incontinence, back pain and mental health difficulties.

The Court of Appeal said this type of symphysiotomy had long since been abandoned “for good reason” but, by 1963 standards, and the woman’s “very particular” circumstances including a “high probability” of obstructed labour, there was credible evidence she had not established this symphysiotomy could never, in any circumstances, have been justified.