Two elderly women who underwent symphysiotomy operations have brought a legal challenge to the Government redress scheme announced recently.
The scheme was approved by the Government on 29 October and published on 10 November.
It provides for payments of between €50,000 and €150,000 and is being assessed by retired judge Maureen Harding Clark.
In a challenge to the constitutionality of the scheme, it is claimed the women, who are in their 80s, lack the necessary mental capacity to make applications for compensation under the Surgical Symphysiotomy Payment Scheme.
It is claimed the scheme discriminates against the women and breaches their Constitutional rights because it does not provide for applications to be made on behalf of people without capacity and allows just 20 days to apply.
One of the women also alleges the scheme breaches her rights under Section 3 of the European Convention on Human Rights Act.
Mr Justice Donald Binchy granted leave to lawyers for the women to serve notice of the proceedings on the Government, Minister for Health and the Attorney General.
The Irish Human Rights and Equality Commission is a notice party to both sets of proceedings, which return to court on Friday.
The court was told the case was urgent because the closing date for applications under the scheme is 5 December, although that deadline may be extended in exceptional cases by 20 days.
The women want orders restraining the defendants imposing any deadline for applications under the scheme until procedures are put in place that enable those women who lack decision-making capacity to apply to the scheme.
They also want declarations that the scheme breaches their constitutional rights as a result of its failure to make such provision.
Other schemes such as the Residential Institutions Redress Scheme and the Magdalene Redress Scheme made such provision, it is claimed.
Lawyers for the women had written to the Minister for Health and State defendants on 12 November, two days after the scheme was published, saying their clients had impaired decision-making capacity and could not apply under the scheme.
The letter asked that the deadline for applications under the scheme be stayed until procedures were put in place to allow applications be made on behalf of the women.
The solicitors were later told their letters had been communicated to the assessor of the scheme.
The solicitors wrote again on 20 November, reiterating their concerns about the women's position, but had not yet received a response, it was stated.
In a sworn statement on behalf of the 81-year-old woman, her husband said she underwent an involuntary and unnecessary symphysiotomy when having the couple's first child at Our Lady of Lourdes Hospital, Drogheda in 1960.
He said as a result of this she suffered lifelong personal injury, including incontinence, and physical and mental suffering, "affecting almost every element of her daily life".
She only learned from media reports in 2010 that she had undergone the procedure and issued proceedings in 2012, he said.
However, she was no longer able to instruct solicitors to prosecute her case.
The second woman underwent a symphysiotomy in 1961, also suffered lifelong injuries and has not the necessary capacity to apply under the scheme after having a stroke last year, the court was told.
