The UN Human Rights Committee has just published the Irish Government’s written response to the questions that they were asked in Geneva this week. They did not respond to all of the questions they were asked. They responded to some of the questions they were asked, on the following topics:
Question 1 – Domestic implementation of international obligations
Question 10 – Prosecutions for child abuse arising from the Ryan Report
Question 12 – Abortion
Question 13 – Prisons: capacity and alternatives to detention
Question 19 – Mental health
Question 22(e) – Direct Provision
Question 23 – Special Criminal Court
Question 26 – Access to education for non-faith and minority faith children
Question 29 - The Roma Community
Additional topics – Symphysiotomy and Mother and baby homes
I’ll write an analysis of it later, with particular emphasis on the issues most directly relevant to Atheist Ireland, and Atheist Ireland will be sending further information to the UN Human Rights Committee about the questions that Ireland has not answered.
The UN Human Rights Committee will publish its concluding observations next Thursday.
For now, here is the full text of the Government’s written response to this week’s questions in Geneva.
Additional responses following Ireland’s appearance before the Human Rights Committee, July 14-15 2014
Ireland is pleased to have had the opportunity to engage with the Human Rights Committee in Geneva and to present to the Committee responses to outstanding issues and follow-up questions, set out in the order of the List of Issues.
Question 1 – Domestic implementation of international obligations
In our interactive dialogue, the Irish delegation made reference, in response to comments by Mr. Shany, to a project by the Law Reform Commission. Established under the Law Reform Commission Act 1975, the Law Reform Commission is an independent body, whose role is to keep the law under review and to conduct research with a view to the reform of the law.
In 2013 the Law Reform Commission began work on its project concerning domestic implementation of international obligations (4th Programme of Law Reform, Project 10). This project will examine the methodology and models of implementing international obligations and the monitoring of and accountability for state obligations.
Ireland has ratified many international treaties and conventions, including the six core human rights treaties of the United Nations Organization (UNO) as well as treaties and conventions emanating from bodies such as the International Labour Organization (ILO), the International Maritime Organization (IMO) and the World Trade Organization (WTO).
The project will describe the effect of Article 29.6 of the Constitution which provides that “[no] international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.” The project will provide an inventory of methods of transposition used in Ireland and other jurisdictions, which will include whether some international treaties may be incorporated into the law of the State by secondary legislation or by endorsement by resolution of the Oireachtas. The project will also explore and evaluate such methods and make observations in terms of their efficacy and efficiency. The project may also explore some discrete areas, such as the law of state immunity in civil matters.
Question 10 – prosecutions for child abuse arising from the Ryan Report
In response to Mr. Iwasawa’s question about prosecutions arising from the Ryan Report, 15 files were sent to the DPP who directed no prosecution in the case of 14 of them.
In the case of the one investigation where the DPP directed a prosecution, the accused person was convicted of indecent assault and was sentenced to two (2) years imprisonment with eighteen (18) months suspended. There is one outstanding investigation file.
Question 12 – abortion
The Right to Travel
“Act Information” is information that is likely to be required by a person for the purpose of availing of services provided outside the state for the termination of pregnancies. “Act Information” may include information regarding the identity, location, and method of communication with a specified clinic or clinics providing abortion services. The Abortion Information Act defines a “woman” as a “female person” and hence does not distinguish between adults and minors. The Abortion Information Act does not prohibit the giving of “Act Information” to a young person without notifying her parents or without gaining their consent.
Irish law states that where a child is 16 years or over she is considered by the law to be old enough to give her consent to undergoing medical and/or surgical treatment. However, if a young person travels outside the state for the purpose of terminating her pregnancy the law of the state to which she travels will apply in relation to the giving of consent.
Any person who is processing a claim for asylum in this State requires the permission of the Minister of Justice and Equality to leave the State. If they leave the State voluntarily without this permission they will not be entitled to return to pursue their asylum application. However, it is permissible for such a person to leave the State for the purpose of availing of medical treatment that is not available in Ireland, provided they have obtained the consent of the Minister to do so.
It should be determined first as to whether the person concerned already holds a national passport. If the national passport was submitted as part of the asylum application, all that may be required would be the Minister’s consent for it to be released to facilitate her travel and a Re-entry visa inserted, if required, thereby negating the need to acquire a temporary travel document at first instance. This may require clarification by the HSE with the Department in advance.
If the above is not applicable, the person concerned may obtain a “Temporary Travel Document” from the Travel Document Unit of the Irish Naturalisation & Immigration Service (INIS), Department of Justice & Equality.
Supports for children in care in relation to abortion
The Child and Family Agency provides care services for over 6,400 children. These services are provided within the remit of the Child Care Act, 1991 and related legislation. Child Care Regulations and National Standards provide the framework within which services are delivered. Child and Family Services had prior to 1st January 2014 been provided by the Health Service Executive (HSE).
The Child and Family Agency has advised that since 1992 to May 2013 the number of young people in the care of the State who have been facilitated to travel abroad for an abortion is six. In all of the six cases a psychiatrist was involved in providing an assessment of mental health needs of the child. In four of the six cases a Court hearing had been convened.
The Child and Family Agency does not routinely collate the number of young people in care who become pregnant. However on foot of previous enquires, the Agency has provided information in relation to 2007, 2008 and 2012.
The number of children who became pregnant whilst in the care of the HSE:
* one child was pregnant on admission to care
Why information must be provided face-to-face
Strict conditions as set out in the “Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995” or “Abortion Information Act”, 1995, as it is more commonly called, surround the giving of information that is likely to be required by a woman for the purpose of availing herself of services lawfully available in another State for the termination of a pregnancy. Such information is referred to as “Act Information”, and this may include information regarding the identity, location and method of communication with a specified clinic or clinics for the purpose of termination of pregnancies. A fundamental condition of the giving of such information is that it does not ever advocate or promote, or is accompanied by any advocacy or promotion, of the termination of pregnancy. Under the “Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995” such information cannot be given in the
absence of counselling on all options available to the woman in relation to her particular circumstances.
If a crisis pregnancy counsellor chooses to give information on abortion services outside the State ALL the following conditions must be complied with:
“Act Information” may only be given where a woman indicates (or it is indicated on her behalf) that she is or may be pregnant and requests a counsellor to give information (this is not confined to Act Information), advice or counselling in relation to her particular circumstances
The services must be lawfully available in the relevant country
The persons providing such services must be acting lawfully in that country
The information and the method and manner of its publication must be in compliance with the law of that country
The information must be truthful and objective
The information must not advocate or promote abortion in any way whatsoever
Information, advice and counselling must be given directly to the woman on all options available to her in relation to her particular circumstances.
The crisis pregnancy counsellor, or their agency, must not have any interest, direct or indirect, in any body which provides services outside Ireland for the termination of pregnancies.
The crisis pregnancy counsellor, or their agency, must not benefit financially (whether by way of voluntary donation or otherwise), or in any other way, from any person or organisation that provides services for the termination of pregnancies outside of Ireland. It must be noted that the prohibition here is on the counsellor or his/her agency deriving such a benefit from the providers of services outside the State. It does not prohibit a woman herself receiving any discount or benefits from the service provider or any other body
Action taken to deal with fraudulent agencies offering biased advice on abortion
The HSE Crisis Pregnancy Programme is aware of the existence of organisations that provide services which can involve a hidden agenda and who attempt to manipulate the decision a woman might make. The Programme strongly encourages women to use services that provide high-quality counselling. These include those funded by the HSE and services provided by GPs and other reputable health care providers who have specific training and expertise.
The Programme promotes HSE funded services through the Positive Options information campaign. ‘Positive Options’ is a campaign that promotes free, non-judgemental crisis pregnancy counselling.
The ‘Positive Options’ campaign promotes the availability of free, HSE funded crisis pregnancy counselling services through a range of advertising channels; TV, radio, out-of-home and online advertising. 15 service providers operating out of over 50 locations nationwide are promoted through this campaign.
Members of the public can access lists of organisations that offer counselling by visiting positiveoptions.ie or freetexting the word LIST to 50444.
The Programme displayed the ‘Positive Options’ posters and leaflets in GP surgeries nationwide. Approximately 84,000 ‘Positive Options’ leaflets and over 61,500 ‘Positive Options’ wallet cards were distributed directly to women, mainly through GP surgeries, the Women’s Mini Marathon goodie bags and Studentcents.ie fresher goodie bags.
The Programme advertises the HSE funded crisis pregnancy counselling services in the Golden Pages/Truvo regional directories every year to mitigate against disingenuous counselling and/or information services which seek to influence a women’s decision with regard to her pregnancy.
In 2013, 66% of the target audience was aware of the ‘Positive Options’ campaign and its message that ‘talking to a counsellor can help’.
To raise awareness of the existence of certain crisis pregnancy services who may attempt to influence a woman’s decision surrounding her pregnancy, a dedicated section outlining the tactics used by such agencies is available on the positiveoptions.ie site (http://www.positiveoptions.ie/dont-be-manipulated/)
This section provides questions for people to ask before they make an appointment to assess the nature of the service being provided. The section also gives guidance on what to do during a session if people feel they are being pressured or influenced. It provides a mechanism for people to make contact with a State-funded service, a GP or other reputable service.
The site received over 100,000 visits and approximately 5,000 text messages were received requesting crisis pregnancy counselling information in 2013.
Question 13 – prisons: capacity and alternatives to detention
Mr Vardzelashvili requested information about numbers availing of the Community Return Scheme, a joint Probation Service and Irish Prison Service initiative, which provides a structured community alternative to detention whereby suitably assessed prisoners, serving sentences of at least one year and who have completed half their sentences, are granted reviewable temporary release conditional on them performing unpaid supervised community work.
The Community Return Scheme has been a very positive development, and as well as allowing prisoners to complete their sentence by way of performing a service to the community, has significantly helped these prisoners to successfully resettle in their communities. There were 396 participants in the Scheme in 2013.
Various alternatives to custody are being pursued, and in February 2014, the General Scheme of the Criminal Justice (Community Sanctions) Bill 2014 was published. This new legislation will replace the Probation of Offenders Act 1907 with modern provisions dealing with community sanctions and the role of the Probation Service in the criminal justice system. It will facilitate the effective and efficient use of community sanctions by the courts and will ensure that the courts have a wide range of appropriate options for dealing with persons who have committed minor offences. This should help to reduce the numbers of people unnecessarily imprisoned for minor offences. The legislation will take full account of the interests of victims of crime by making it a statutory requirement for the courts to have regard to the interests of victims when making decisions about community sanctions. The legislation will also abolish the Court Poor Box, as recommended by the Law Reform Commission, and replace it with a fair, equitable and transparent system of reparation that will apply only to minor offences dealt with by the District Court. The new Reparation Fund will be used to provide additional funding for essential victim support services and to the state-funded victim compensation scheme.
Question 19 – mental health
Mr Rodríguez-Rescia enquired about the Mental Health Act 2001 and the definition of a voluntary patient.
The Mental Health Act 2001 Act deals in the main with involuntary patients and provides considerable protections for that cohort. The Act defines a voluntary patient as a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order; it is a definition by default as it describes what a patient is not. The term ‘patient’ is defined in the Mental Health Act 2001 as a person who is the subject of an admission order.
There is currently a requirement to obtain consent for treatment from voluntary patients in a similar manner to persons availing of general medical/surgical treatment. The Mental Health Act also provides that consent of an involuntary patient is required for treatment except where, in the opinion of the consultant psychiatrist responsible for the care and treatment of the patient, the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering and because of the patient’s mental disorder he or she is incapable of giving consent.
We recognize that some voluntary patients in approved centres lack the capacity to consent to admission and treatment. Thus they are voluntary patients, not because they have consented to admission, but rather because they have not objected. They are what has become known as the ‘compliant incapacitated’ – they are de facto detained yet do not enjoy the protections provided to involuntary patients in the Act.
The shortcomings in the 2001 Act relating to voluntary patients which arise because of capacity issues will be addressed in part by the Assisted (Decision-Making) Capacity Bill, and in a full review of the Mental Health Act, which is already underway and is due to be completed by end September. This review is likely to recommend a new definition of voluntary patient in addition to proposing other provisions and protections regarding to the care and treatment of such patients. This will include greater clarity regarding the need to obtain consent at all times from a voluntary patient before treatment can be administered.
Procedures for the admission of voluntary and involuntary patients
As already stated, the Mental Health Act 2001 Act deals in the main with involuntary patients and provides considerable protections for that cohort. It does provide that there is nothing in the Act that should prevent a person from being admitted voluntarily or that would prevent a person receiving treatment as a voluntary patient after he or she has been detained. There are clear procedures laid down in the Act where it is intended to involuntarily admit a person to an approved centre for treatment. If a person is being admitted as an involuntary patient he/or she must be informed within a specified time period (24 hours) that he/she may be admitted as a voluntary patient if he/she indicates a wish to be so admitted.
We recognize that greater protections for both cohorts of patient could be improved and that is why the 2001 Act is being reviewed at the moment. The review is due to be completed by end September.
Are people in approved centres and other residential facilities allowed to leave?
Patients who are detained on an involuntary basis can only be treated in centres registered and approved for that purpose. These patients who are suffering from a mental disorder as defined under the 2001 Act, are detained under the provisions of the Act and are not free to leave of their own accord. Leave is permitted for such patients under the Act and such leave is authorised by the responsible consultant psychiatrist. The permission for leave may be subject to conditions considered appropriate by the psychiatrist.
Voluntary patients receiving treatment in an approved centre are entitled to leave when they wish. The Act does however allow a voluntary patient who wishes to leave to be detained on an involuntary basis if the Consultant Psychiatrist forms the view that the patient is suffering from a mental disorder as defined.
The review of the 2001 Act is examining ways to ensure that this provision is only used where absolutely necessary and when all other alternatives have been ruled out.
Why does legislation not provide for protection or preventive psychiatric care?
The Act already allows for a person to be detained and treated on an involuntary basis where he or she is found to be suffering from a mental disorder. Section 3 of the Act which defines ‘mental disorder’ includes the following, ‘where . . . there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or other persons’. Persons may be detained if they fulfil this criteria set out in the Act.
The review of the Mental Health Act 2001 is examining what additional protections and safeguards are required for those individuals who are deemed to need involuntary admission and treatment.
Why do patients not have more say in the treatment given?
Doctors and patients are encouraged to discuss the treatment options available and to agree where possible on the treatment approach to be taken. Section 57 of the 2001 Act allows patients who have capacity to refuse treatment if they so wish. The case is less clear cut where patients lack capacity. There are statutory regulations under the Mental Health Act one of which requires that voluntary and involuntary patients must have a care plan and the care plan must specify the treatment and care required for the patient and in so far as is practicable it should be developed in consultation with each patient. Under the Act, guidance for mental health practitioners, in the form of Codes of Practice is issued by the Mental Health Commission. There is a Code of Practice on Admission, Transfer and Discharge to and From an Approved Centre. This Code provides, inter alia that the voluntary / involuntary patient should be actively involved in the admission process and the development of his/her treatment plan. The voluntary/involuntary patient should be encouraged to involve his/her family in the development of the care and treatment plan and advocacy services should be provided to assist voluntary/involuntary patient. Compliance with Codes of Practice is ascertained on inspection by the Inspector of Mental Health Services.
It is anticipated that the shortcomings in the 2001 Act relating to consent to treatment which arise because of capacity issues will be addressed in part by the Assisted (Decision-Making) Capacity Bill which is before the Irish Parliament at present. The review of the Mental Health Act 2001 is also likely to recommend greater clarity regarding the need to obtain consent at all times before treatment can be administered.
ECT and consent issues
All voluntary patients must provide prior consent to ECT in accordance with a Code of Practice issued by the Mental Health Commission. The Code of Practice specifies the steps that should be taken in order to obtain an informed consent and the information that should be provided to the voluntary patient to enable them to make their decision. The voluntary patient is free to withdraw his/her consent at any time.
The 2001 Act requires that a patient (involuntary patient) must consent in writing to the administration of ECT. However, where such a patient is unable or unwilling to give consent, the treatment may be administered if it has been approved by the consultant psychiatrist responsible for the care and treatment of the patient, and also authorised by another consultant psychiatrist.
While there are diverging views both within and outside of the psychiatric profession on its necessity and/or its efficacy, ECT remains a recognised treatment for severe mental illness. The Mental Health Commission has published rules regarding the administration of ECT to involuntary patients and adherence to these rules is monitored on an annual basis by the Inspector of Mental Health Services. Adherence to the Code of Practice for the administration of ECT to voluntary patients is also monitored by the Inspector. There has been much public debate in recent times regarding the administration of ECT. On the one hand the perception is that ECT is a high-risk, low-benefit procedure, while on the other hand it is regarded as effective and safe, and particularly useful for severe, treatment resistant depression.
The Government accept that the reference to unwilling should be deleted and that ECT should not be administered without the consent of the patient. However there are reservations about the deletion of ‘unable’ which would mean that persons who lack capacity, and who therefore are not in a position to give informed consent, may be denied what some would consider to be, life-saving treatment.
The review of the Mental Health Act 2001 is to be completed by end September is likely to make clear recommendations in relation to the necessity to have consent before ECT can be administered.
Ireland is keen to respond to the specific questions about figures and statistics provided.
To what do we attribute the 40% reduction in voluntary admissions?
It is unclear what period the 40% reduction figure refers to. In 2012 the reduction of voluntary admissions was almost 10% over the previous year which in turn was almost 5% down over 2010. Reductions generally are likely to be due to increased community service provision with fewer being admitted as in-patients. Community activity data is not yet currently captured. The involuntary admission rates remain unchanged in 2012 and 2013.
In 2012 there was 29% compliance with the rules of seclusion and 49% in relation to physical restraint. Why is this not 100%?
The figure of 29% for Seclusion compliance in 2012 is correct. However, compliance has risen to 33% by 2013. The Mental Health Commission is in the final stages of a process of development of a Restrictive Practices Reduction Strategy to address this situation.
Why has the incidence of the use of physical restraint of minors increased by 100% between 2010 and 2011?
It is unclear how the increase of 100% suggested in the question has been reached. The Mental Health Commission point out that we have moved from measuring physical restraint of minors by EPISODE to by CHILD (individualisation) which may account for this. Physical restraint episodes did have a particular spike in 2010 but this may be due to one particular incident or child. There are a number of factors which impact on this measure including the increase in in-patient beds (hence more children are admitted and the question of physical restraint may arise more frequently in the case of particular individuals), and the change in measurement approach outlined. The Mental Health Commission has produced Rules governing the Use of Seclusion and Mechanical Means of Bodily Restraint and a Code of Practice on the Use of Physical Restraint in Approved Centres, which regulate the use of seclusion and restraint in approved centres.
Question 22(e) – Direct Provision
In response to Mr Iwasawa’s request for a comment on Direct Provision, Ireland is mindful of its national and international obligations and, in particular, of its obligation to meet the basic needs of protection seekers. These obligations are met through the Direct Provision system, managed by the Reception and Integration Agency (RIA), a unit within the Department of Justice and Equality.
The supports provided under the system ensure that the needs of all protection seekers are met comprehensively and to a high standard. These supports include:
- Accommodation at designated accommodation/reception centres while their application for asylum is being processed;
- All meals;
- No rent to pay each month;
- No heating charges to pay each month,
- No electricity charges to pay each month;
- No charges for television etc to pay each month;
- Free Laundry facilities;
- Regional pre-schools/crèche facilities at larger centres;
- Free primary and post-primary education;
- Additional resources for schools with special needs in the area of -English Language;
- Full access to public health service;
- Medical cards ensuring access to free medical services;
- Designated psychological service;
- Back to school clothing and footwear allowance
It is a largely cashless system. While the Direct Provision allowance paid to residents is €19.10 for adults (€9.60 for child) per week, this is only intended to cover incidental expenses. This payment has to be seen in the overall context of the above supports. Further, residents in the Direct Provision system are entitled to Exceptional Needs Payments under the Community Welfare Service.
Direct Provision provides accommodation and services for anyone who has made a claim for asylum and subsidiary protection and who chooses to avail of it. It is provided to such persons until such time as they are granted refugee or subsidiary protection status; or are granted leave to remain, or leave the State voluntarily or are removed, either by way of deportation or a Dublin II transfer.
The system is there for those who may arrive in the State claiming protection and who cannot provide for their basic needs themselves. It is not means tested. No protection seeker is refused Direct Provision and even if a protection seeker chooses not to avail of it, they can subsequently change their mind and avail of it should they so choose.
There is a considerable financial burden placed on the State in providing for the needs of persons who do not have genuine claims for asylum or subsidiary protection. In 2013, the expenditure outturn for the Reception & Integration Agency (RIA) – the administrative unit of the Department of Justice and Equality charged with managing the Direct Provision system – was €55.2m. This follows a steady decline in the cost of the system over the past few years, as follows:
The cost above of the Direct Provision system incurred by RIA is only one element of the State’s response to its international obligations on the asylum issue. As well as educational, health and welfare costs there is the asylum determination system itself, as well as the downstream judicial and policing costs. In a calculation done for the period 2005 to 2009 inclusive, the total amount spent across the whole of Government on protection seekers was €1.27 billion of which €424.43 million was spent on the Direct Provision system. This is an extremely significant expenditure and the State would be reluctant to change policy if this resulted in further significant expenditure in this area.
Ireland believes that the system of Direct Provision and dispersal is an appropriate method to meet the needs of protection seekers entering the State. There are several reasons why this belief is held, as follows:
It has to be acknowledged that a significant majority of persons who claim protection in this State are ultimately found not to have a valid claim for either asylum or subsidiary protection. Many of these people are effectively economic migrants who claim asylum as a basis for securing entry into the State. The State’s obligations to meet the basic needs of protection applicants extend to all applicants including those whose claims are not valid. The Direct Provision system was established for genuine protection seekers. It was not designed to serve economic migrants or persons choosing to relocate to the State in order to better their lifestyle or for other non-protection reasons. Since the system is designed for those seeking the protection of the State (either as refugee status or subsidiary protection) from persecution in their own country, by its nature the applicants will be from a variety of economic backgrounds. Some, although they may be fleeing persecution, will have their own resources and accordingly may not wish to avail of the Direct Provision system.
More significantly any genuine protection seeker fleeing persecution in their home country may be fleeing extremely difficult and disturbing circumstances. They may arrive in the State in a vulnerable condition, both physically and mentally, with language and communication difficulties. By virtue of a history of persecution they may be fearful of State authorities or bodies and reluctant to engage with such authorities to have their needs met. The Respondents are conscious that such persons may therefore arrive in this country and have difficulty in “fending for themselves” and providing for their own and their family’s basic needs. The Direct Provision system gives advantages in allowing such persons to be quickly and appropriately housed and in enabling services to be quickly provided to them by persons who have an expertise dealing with such problems.
In addition there is a natural tendency for protection seekers entering the country to gravitate towards the larger cities. This can lead to a variety of problems when a large number of persons heavily dependent on public resources congregate in a small number of areas.
Further, the State provides health care and education for all protection seekers. There is no separate system for protection seekers and they are absorbed into mainstream education and health facilities. The system of Direct Provision has the advantage of dispersing protection seekers around the country allowing them to access these resources in a balanced and proportionate manner without causing a problem in the managing of those resources. If a disproportionate number of protection seekers were to access resources such as education in any one area, this would have an adverse impact on the education system for all.
Question 23 – Special Criminal Court
In the year between 01/06/2013 and 31/05/2014, the number of people arrested for terrorist-motivated offences was 331. There were 22 convictions in this period. 95 people have been charged and/or are awaiting trial.
In relation to convictions by the Special Criminal Court in the period May 2013 to May 2014, two (2) of the convictions were for non-subversive offences. One of them was a murder case and the other was drugs related.
Question 26 – Access to education for non-faith and minority faith children
Patronage and admission
Historically in Ireland, religious authorities acted as patrons of primary schools and initiated the process of establishing a new school when needed. The vast majority of primary schools are therefore privately owned but publicly-funded institutions, although this is changing as new schools are built to cater for a growing population.
The Government recognises that the education system needs to adapt and evolve to reflect the changes in the society it serves and to uphold the rights of all pupils. This was acknowledged by the Government in establishing the Forum on Patronage and Pluralism in the Primary Sector, and also by representatives of the largest patron body, in supporting the process of divesting patronage of existing schools.
Under Section 15 (2) (d) of the Education Act 1998, each school is obliged to publish its enrolment policy. The enrolment policy must be non-discriminatory and must be applied fairly in respect of all applicants. Equality legislation outlaws discrimination in relation to the admission of a student. However, the legislation provides that, in exceptional cases, a school can refuse to admit a student who is not of the religion of the school, provided that it can prove that this refusal is essential to maintain the ethos of the school.
The Education (Admission to Schools) Bill 2013, which is currently being drafted, is aimed at improving the admissions process and to ensure that the way schools decide on applications is structured, fair and transparent. The legislation also proposes a mechanism for ensuring that every child receives a school place.
A New Schools Establishment Group was established in 2011 to advise on the patronage of new schools. The Group’s criteria place a particular emphasis on parental demand for plurality and diversity of patronage, to reflect changes in the diversity in society. There has been significant growth in recent years in the provision of multi-denominational primary schools, which cater for pupils of all faiths and none. Between the academic years 2007/08 and 2013/14, of the 61 new primary schools which were established, 44 were multi-denominational. There is no obstacle to the establishment of non-denominational schools, if such schools are sought by a sufficiently large number of parents and if the requirements for patronage are fulfilled.
The Report of the Forum on Patronage and Pluralism recommended that in areas of stable population, where there is evidence of demand for different types of patronage, this demand could be met by divesting patronage of existing schools. Surveys have been undertaken to assess parental demand for different types of patronage and the process of divesting has begun in some schools.
A paper on the follow up to the Forum on Patronage and Pluralism, entitled Forum on Patronage and Pluralism in the Primary Sector: Progress to Date and Future Directions, with a particular focus on how primary schools can respect the rights of all pupils regardless of their cultural and religious background, was published on 1 July 2014. The paper takes account of a public consultation, which was held in 2013, where parents, in particular, were asked for their views on how primary schools can make all children feel included and involved.
Provision for children who opt out of religious instruction
Under Article 44 of the Irish Constitution, all parents have the right to withdraw their child from religious instruction in school. Under Section 30 of the Education Act 1998, a student cannot be required to attend instruction in any subject which is contrary to the conscience of the parent of the student or, in the case of a student who is 18 or more, the student him/herself.
Schools are obliged to respect parents’ rights to withdraw their children from religious instruction classes. Different schools have different ways of facilitating parents who wish to withdraw their children from religious instruction classes. This depends on the individual circumstances of each school and the wishes of parents. The new Education (Admission to School) Bill 2014, which is currently being drafted, will require schools to publish an enrolment policy which will clarify the school’s arrangements for upholding the constitutional rights of parents in this regard.
Question 29 – The Roma Community
Further to Mr. Zlatescu’s question about the possibility of reinstatement of NCCRI, the anti-racism and migrant integration functions of the NCCRI were absorbed into the Office for the Promotion of Migrant Integration (OPMI) in the Department of Justice and Equality, which focuses on antiracism as a key aspect of integration, diversity management and broader national social policy. The Office works with all the relevant sectors to further progress the integration and diversity management agenda.
In addition, Ireland wishes to inform the Human Rights Committee that following the publication of Logan Report, the report of an inquiry into the circumstances surrounding the removal of two Roma children from their families, the Government has established an Implementation Group, chaired by the Department of Justice and Equality, tasked with ensuring the recommendations set out in the report in relation to engagement with and supports for the Roma community are delivered on. The Implementation Group will report to the Minister for Justice and Equality by year end, and implementation of the Logan Report recommendations will include consultation with the Roma community and with Traveller representatives. The Government fully acknowledges the need to improve interaction with the Roma community and is working on carrying out an up-to-date assessment of needs regarding support provided by the State to Roma in Ireland.
The Department of Justice and Equality is currently leading a cross-Departmental review of Ireland’s migrant integration strategy and the Government is committed to ensuring that this results in a more dynamic and effective approach to integration of all migrants in Ireland, including people of Roma background. Identifying practical measures to promote intercultural awareness and combat racism and xenophobia will also be an important element of the work of the Cross-Departmental Group.
Successive Irish Ministers and the Department of Health have aimed to find out the facts about symphysiotomy in order to bring closure for the women affected by it and their families. The Department’s Chief Medical Officer commissioned Professor Oonagh Walsh, (Professor of Gender and Medical History, University College Cork and now at the Glasgow Caledonian University) to draft a report in relation to the Practice of Symphysiotomy in Ireland, between 1944 and 1984. Ireland is willing to provide copies of these reports to the Human Rights Committee.
Research report by Prof Oonagh Walsh
The research was undertaken in two stages. The first stage was an independent draft academic research report, which was based on an analysis of published medical reports and research. The draft report contained information about how frequently symphysiotomy was carried out in Ireland and compares rates with other countries. The second stage in the research process was consultation on the draft report involving patient groups, health professionals and in particular the women who have undergone symphysiotomy. Prof Walsh produced her final report in May 2013.
Independent Review by Judge Yvonne Murphy
Judge Yvonne Murphy was commissioned in November 2013 to advise government, inter alia, on the relative liabilities of insurers, indemnifiers and/or other parties in relation to symphysiotomy and on options for finding closure which was person-centred for the women affected. She submitted her report to the Minister for Health in March, 2014. In this exercise she weighed up the costs, particularly the legal and other professional costs that would accrue, if around 250 women took their cases through the courts. While liability has been proven on the part of a particular hospital’s insurer in relation to a symphysiotomy carried out after the baby had been delivered by caesarean, no case has yet been taken in the courts where it was proven that a surgical symphysiotomy during labour was wrong.
On examining both reports, Government agreed on 1 July, 2014 to the establishment of an ex-gratia scheme to provide sums of between €50,000 and €150,000 to around 350 women who are survivors of symphysiotomy at an estimated cost to the State of €34million. In addition, since this issue first came to public attention, the State’s health service (the HSE) has provided a broad range of health and social supports for the women, including access to a General Medical Services Medical Card.
The Chairman raised the question of whether symphysiotomy in some hospitals falls within the category of medial experimentation.
The 1950s to the mid ‘60s was a period of transition in obstetric care, when maternal mortality was in decline, hospital deliveries were increasing and medical intervention in delivery more frequent.
Good practice was in the process of evolution. The role of published reports, discussion of practice between hospitals, as well as invited observers, were crucial in shaping the delivery of maternity care. Ireland, in common with the UK, had no formal system of audit of practice for obstetricians. The Institute of Obstetricians and Gynaecologists was founded in 1976. Prior to this the Royal College of Obstetricians and Gynaecologists in London fulfilled an oversight role and there were regular visits between maternity hospitals, with the 3 main Dublin maternity Hospitals (the Rotunda, Holles Street and Coombe) publishing annual reports on “the Transactions” in each. The Transactions reports were published until 1968 and give a clear picture of how symphysiotomy was extensively discussed and annual reports reviewed and debated with British obstetricians.
Until the 1960s it was common for many women in the Dublin area to only present for a hospital delivery once complications had set in. In cases of disproportion, where obstetricians were not confident of, or properly trained in undertaking caesarean section, or where it was too late to undertake that procedure, symphysiotomy may have saved the life of both mother and child.
Prof Walsh notes that Ireland was unique in the post-war western world in terms of the number of individual pregnancies and in home deliveries. In the 1940s and 1950s any young woman starting a family in Ireland could conservatively expect to bear five live children.
She refers to the allegations that symphysiotomy at Our Lady of Lourdes Hospital in Drogheda was employed for training purposes to improve techniques for use in the Medical Missionaries of Mary hospitals in Africa and the use of the procedure at a later stage than other hospitals has been described as “experimental”. Prof Walsh noted that there appeared to be no evidence to support the assertion, and that these allegations must be very distressing for the women. The Hospital was an approved centre by the Royal College of Obstetricians and Gynaecologists in London. The presence of trainee or junior doctors in theatre was common and the practice of securing permission from the patient for this purpose is a relatively recent development. The assertion does not appear to be supported by the patterns of delivery at Our Lady of Lourdes. Symphysiotomy declined steadily from the mid-1960s and the caesarean section rate rose at an equally steady rate. One particular obstetrician in Our Lady of Lourdes was highly experienced in the symphysiotomy procedure and it is notable that it largely ceased in the hospital when he retired.
Symphysiotomy was proposed for a specific cohort and was never proposed as an alternative to caesarean section. There were no guidelines or protocols for symphysiotomy in mid-twentieth century Ireland. This was not unusual, as they did not exist for many other aspects of medical care.
There was a general acceptance of the indications for syphysiotomy, which were “mild to moderate disproportion”, while a greater degree of disproportion indicated caesarean section.
Prof Walsh found that in the late 1940s and early 1950s lower segment caesarean sections were becoming more common, particularly as the development of antibiotics became a major factor in eliminating infection. She quotes a major study (Bjorklund, 2002) which shows that the practice was not uncommon in some European countries in the first half of the 20th century, but in the second half of the century its use was in marked decline. She notes that symphysiotomies were not being performed in England in the 1950s, because obstetricians there preferred caesarean sections for mild to moderate disproportion and did not have to contend with the prevailing Irish legislative and religious environment which banned artificial contraception and sterilisation for contraceptive purposes.
Bjorklund also reported from an analysis of 10 studies conducted between 1908 and 1995 that maternal mortality was four times higher with caesarean section than with symphysiotomy during the first half of the century and six times higher in the second half of the century. The Department is not aware that there is any evidence to suggest that symphysiotomies were carried out to meet institutional needs, for example training needs.
To address questions raised about whether consent was sought or given, based on the evidence available to the Department of Health, it would appear that in a number of cases the procedure was carried out without a woman’s knowledge or consent. However, this was not the case in all hospitals. It would also appear that the lapse of time, the demise of the clinicians involved and the paucity of records may make it difficult to establish whether reasonable efforts to obtain consent were made. Hospital records in some instances, show that it was an elective procedure. The symphysiotomies in Our Lady of Lourdes Hospital, Drogheda include a high number of elective procedures, which would have been carried out with patient consent. 20% of respondents to Prof Walsh during her research were private patients.
Until the 1960s it was common for many women in the Dublin area in particular to only present for a hospital delivery once complications had set in. Prof Walsh alludes to cases where patients had been in labour for extraordinary long periods before admission to hospital – 50 hours was high, but not exceptional in early years. Judge Yvonne Murphy found that a court is not likely to hold that it was necessary to have obtained an informed consent in unexpected lifesaving emergency situations of obstructed delivery during labour.
In her independent review on finding closure for the women Judge Yvonne Murphy recommended that a redress scheme should be established (which echoed a recommendation of Prof Walsh) and that any scheme should err on the side of simplicity and should be implemented as a matter of urgency. Government agreed with her recommendations and to the establishment of an ex-gratia scheme. There will be three types of award:
€50,000 to women who prove they had a surgical symphysiotomy, but with limited medical problems arising from the procedure;
€100,000 to women who had a surgical symphysiotomy who prove they have a complex array of injuries, of the type considered by the courts in previous cases;
€150,000 to women who had an “on the way out” symphysiotomy and who prove that they suffer from a complex array of injuries.
Because the majority of women are old it would be important that the assessment would be the minimum required to provide evidence for an award. For many this may be based on x rays or current medical records if suitable. However the exact parameters of the Scheme will be devised in conjunction with relevant medical experts, within the next few months and should commence in Q4, 2014.
Government has also committed to the continuation of the broad range of health and social care services, including the provision of Medical Cards to women who have had a surgical symphysiotomy.
Views of the Support Groups
There are three support groups representing the approximately 350 women affected by symphysiotomy in Ireland.
Survivors of Symphysiotomy (SOS) – this group is seeking a public statement that symphysiotomy and pubiotomy were wrong and amounted to medical negligence and that they were done without patient consent. It wishes women to receive damages ranging between €250,000 and €450,000 and individualised assessments involving independent medical reports and legal representation. SOS has also campaigned for the lifting of the Statute of Limitations so that cases could be brought to court. This group presented its case to the UN on 14/15 July.
Patient Focus – this group requested 200 of each of the reports, so its membership is around that number. It is supports the Government’s decision to establish an ex-gratia scheme and has indicated that it will work with the Department to ensure that the scheme is person centred and causes minimum upset for the women involved. It acknowledges that many of its members are old, their cases will be statute barred and some have not been able to locate their hospital records.
Survivors of Symphysiotomy Limited, a small group who split from SOS in 2011. Its members share office space with Patient Focus, but remain an independent entity. It also supports the Government decision.
The State is facing up to its responsibilities in relation to listening to the voices of women who have suffered following an event which should have been one of the happiest in their lives. It has attempted to find out the facts in commissioning an independent expert in gender and medical history (Prof Walsh), followed by a legal expert (Judge Murphy). During each review the testimonies of the women and family members were sought and the recommendations in each report reflect that.
Government has published both reports and acted on the recommendations. It could have waited for legal cases to take their course through the courts, given that in many cases liability rests with the insurers of the hospitals and in other cases no insurer can be identified, or even worse, there are no records at all. However, Government has decided, despite the tough economic environment, to introduce an ex-gratia scheme, aimed at bringing closure for the women and their families.
Ireland would like to respond to the following specific questions posed by Committee members:
Why do women need to waive their rights as a precondition to joining the scheme?
Women do not waive their rights as a pre-condition to joining the scheme. The Minister for Health, clarified this point when he met Survivors of Symphysiotomy on 1 July on the announcement of the scheme. Women may opt out of the scheme at any stage in the process, up to the time of accepting their awards. However, on accepting the offer of an award under the Scheme, claimant would have to sign a waiver to discontinue their legal proceedings against any party arising out of their symphysiotomy.
Why is there a lack of judicial review?
A woman is entitled to initiate a judicial review, if she is unhappy with the process or its outcome. The Scheme would not in any way limit the right of a woman, if she so wishes, to opt for a judicial review. It is important to note that Government announced the establishment of an ex-gratia scheme on 1 July, but the Terms of Reference for the process have yet to be worked out – this will take a period of approximately 8 working weeks. Judge Murphy, who recommended the outline of the process stressed “It requires input from a number of sources and takes some time to construct.”
Why is there a lack of assessment of women about the nature of the procedure?
An ex-gratia scheme is more flexible that the examination and assessment through the courts. It will be more person-centred. Women will be assessed in order to determine which award category they fall into – surgical symphysiotomy with limited or no problems, surgical symphysiotomy with a complex array of injuries, or “on the way out” symphysiotomy, with a complex array of injuries.
Because the majority of women are old it would be important that the assessment would be the minimum required to provide evidence for an award. For many this may be based on current medical records. Parameters for the scheme will be devised within the next few months.
Is this an effective remedy?
Government has stated that it profoundly regrets the serious and damaging effects symphysiotomy has had on many of the women and their families and hopes that an ex-gratia scheme, together with a commitment to continue providing health and social care supports, including access to a Medical Card, will finally help to bring closure for them.
By today’s standards symphysiotomy would not be indicated. Evidence shows that for some women, the procedure resulted in chronic pain and limited mobility, incontinence, neck and back problems and also psychological problems.
In the case of symphysiotomy carried out after the baby had been delivered by caesarean section, Government draws the Committee’s attention to the Supreme Court’s judgment that the procedure was indefensible and wrong. This Government itself strongly condemns this practice, which was not in keeping with best practice at any time.
Women may still opt to take their cases to the courts, as is their constitutional entitlement. However, because so many of them are old and cases may take years to move through the litigation process, others may not have been able to access their clinical records, or the persons involved in their care may be deceased, the establishment of the scheme provides a remedy which would not otherwise be available to them.
Mother and baby homes
The Chairman also referred to Mother and Baby Homes, and Ireland would like to inform the Committee members that the Government has undertaken to establish a Commission of Investigation into Mother and Baby homes. The Commission will be statutory and independent and will operate under the Commission of Investigations Act, 2004. The process of developing a detailed terms of reference for the Commission is being led by the Minister for Children and Youth Affairs who is being supported by a high level Cross Departmental Review Committee. The Minister announced on 16 July 2014 that Judge Yvonne Murphy has agreed to Chair the Commission of Investigation into matters related to mother and baby homes.
The Minister also published the report of the Cross Departmental Review Committee which was established in early June to assist the Government in scoping the necessary examination of this important issue. The Committee, which is chaired by the Secretary General of the Department of Children and Youth Affairs, comprises of senior officials from eight Government Departments and a number of state agencies. From consideration of this Report, it is apparent that comprehensive and precise terms of reference are required to facilitate an effective investigation into this complex range of issues. The Minister continues to consult with the Attorney General and other Government colleagues in relation to the detailed approach to the establishment of this Commission.
The appropriate model, including the debated matters to be investigated and the proposed membership of the Commission, is being considered as part of Government’s consideration of the Commission’s terms of reference. The Department of Children and Youth Affairs has received 120 Public calls to include a range of institutions, and concerns related to particular practices, are also being considered as part of this work. The Committee continues to meet in preparation for further detailed consideration by Government.
It has already been confirmed by the Taoiseach and the Minister for Children and Youth Affairs that it is intended that the scope of this Investigation will go beyond the home operated by the Sisters of Bon Secours in Tuam and will deal with other Mother and Baby Homes, including the Bethany Home. There have been calls for inclusion of a range of other institutions and concerns and these will be given consideration as part of the process underway.
As well as working closely with officials, the Minister for Children and Youth Affairs has already met with a number of opposition spokesperson and key advocacy groups and further meetings are planned in the coming days. The Government wishes to work on an inclusive basis on this important initiative and is seeking to put an effective Commission in place which will address these important matters on a sensitive and timely basis. Arrangements have been communicated for members of the public and advocacy groups who wish to make submissions on the proposed Commission’s Terms of Reference. Over 120 submissions have been received by the Department of Children and Youth Affairs from a range of individuals and groups and these will be of assistance, together with the report of the Cross Departmental Committee, in finalising terms of reference for the Commission.
It is important that establishment of this Commission takes account of previous experiences in establishing other Commissions, Tribunals and other reviews. There were a broad range of historical factors which contributed to the prejudice and mistreatment of unmarried mothers and their children during the last century and proper consideration of these is likely to be an important part of the work of the Commission, in addition to the required investigation of specific institutions. However, an effective and timely investigation must not be so open-ended and wide-ranging that its report is unduly delayed. Those who were in these institutions are deserving of a full account and the Commission must be established in a manner that will yield this in a reasonable time period.
Arrangements have also being put in place to provide further public information, including counselling for those affected by these matters.