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This blog continues a series of posts exploring symphysiotomies without consent. Aoife Finnerty considers the purpose of the doctrine of informed consent and the notion that, despite the decision of the European Court of Human Rights, a wrong has been done to the women upon whom these symphysiotomies were performed.

Informed consent can be understood as voluntary consent that is given by a person with the requisite capacity to do so after she has been given sufficient information. Though there may be differing tests internationally for establishing incapacity and for what constitutes sufficiently informed, the basic premise is the same; for informed consent to be given, the ‘giver’ must be competent to make a decision of that nature and must do so voluntarily having received the information necessary to make the choice. While the ECtHR may have ruled that the claims of the women involved in the three symphysiotomy cases were inadmissible, that certainly does not mean that there was informed consent to treatment in those cases. Rather, the ECtHR all but accepted the absence of informed consent in that it acknowledged that many women realised decades later that a symphysiotomy had been performed on them and sympathised with them for that. Indeed, Ms F only became aware in 2010 that she may have had a symphysiotomy in 1963 after a friend phoned her having watched a documentary on the topic. Ms O'S became aware of her 1965 symphysiotomy in 2005.

This blog post leaves the procedural legal issues aside, however, focusing instead on the purpose of informed consent itself. In the context of the symphysiotomy cases, three aims of informed consent are worth considering; the first is protection. One purpose of the doctrine of informed consent is the protection of the bodily integrity, autonomy and self-determination of the individual. While these may seem like abstract concepts, they are key to what makes an individual free; informed consent is about the right to choose what is best for ourselves, whether that is following medical advice or deciding to go against it for reasons that are personal to us or seeking a second opinion before deciding one way or the other. Though the prevailing tendency at the time may have been towards following medical advice, that still does not excuse the practice of failing to tell survivors what was happening to them. What strips the individual of this ability to choose this treatment without discussion. Without the right to consent to and refuse medical treatment, we lack the ability to make choices about the most intimate and personal of things - our own bodies. Thus, given that these women were either inadequately informed, or not informed at all, there was a considerable violation of bodily integrity and interference with autonomy, irrespective of the final ruling of the ECtHR.

Second, informed consent is about preparing the patient for what is ahead of her, whether that is in terms of recovery or possible complications or both. This helps to secure the best outcome for the patient, both physically and mentally. What is striking about many of the stories of the women who underwent symphysiotomies was the complete lack of awareness of what had been done to them and consequently, what they could have expected regarding recovery and long-term consequences. Many women spoke of incontinence, serious pain, arthritis and sexual difficulty, yet none appear to have been informed that these consequences were a possibility, let alone known physical risks of symphysiotomies, which have been performed since the 1700s.

Third, informed consent is about choice, whether that is choosing between two or more treatment options or between treatment and no intervention at all. In the symphysiotomy cases, one such choice would have been between the symphysiotomy and a Caesarean section. It is worth saying that there is considerable disagreement regarding the safety of the former versus the latter. At worst, a Caesarean section was a viable but riskier alternative to symphysiotomy. At best, it was the safer procedure, resulting in lower numbers of infant deaths and better recovery for women, representing the preferred option in most of Europe at that time. Somewhere in the middle is the belief that it was an appropriate alternative, depending on the circumstances of the woman. What is not in doubt is the culture that underpinned why symphysiotomies were the procedure of choice for physicians in many of these instances in Ireland. Quite simply, it was viewed as a morally superior procedure by those who had influence over hospital policy because it led to a lower likelihood of ‘the unethical procedure of sterilisation’ and of ‘the improper prevention of pregnancy’ being encouraged. Indeed, when the message from the top is one that places one option on a pedestal of morality and paints the other as opening the doors for a slew of immorality, it is unsurprising that no choice was given to these women. Thus, not only were these women denied choice but arguably there was also a denial of reproductive autonomy.

Even accounting for the very different attitudes towards patient choice that exist now, the lack of informed consent in these cases is apparent. Indicating its absence is the very fact that many women only realised decades later that they had undergone a symphysiotomy. Leaving the procedural findings of the ECtHR aside, it must be acknowledged that a wrong was done.

Aoife Finnerty, Researcher at University College Cork and PhD Candidate at University of Limerick


Series Editors: Zoe Tongue, Aoife Finnerty, and Camilla Pickles