The Supreme Court has ruled that the Health Service Executive (HSE) acted fairly and reasonably when it suspended and recommended that consultant gynaecologist Professor Ray O’Sullivan be dismissed from his job at St Luke’s Hospital in Kilkenny.
Professor O’Sullivan last year settled his lengthy legal battle with the HSE over his suspension from his position on foot of complaints made against him in 2019.
It had been alleged that he carried out unauthorised and unapproved actions and procedures on five female patients in September 2018.
Prof O’Sullivan denied any wrongdoing and, following mediation, the consultant settled his action against the HSE on confidential terms. He has resumed practising medicine.
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However, the HSE sought to have one issue that arose out of the litigation determined by the Supreme Court. This concerned the fairness of its decision to suspend Prof O’Sullivan and to recommend to a Ministerial committee that he be dismissed.
In a 4:1 decision, the Supreme Court overturned an earlier Court of Appeal finding of March 2022 that Prof O’Sullivan was entitled to an order quashing the HSE’s decision to place him on administrative leave in August 2019 and that he be allowed to return to work.
Giving the majority decision of the court, Ms Justice Elizabeth Dunne said there was significant evidence available to allow the HSE to place Prof O’Sullivan on administrative leave.
This evidence included allegations that there was an absence of consent from the patients who were the subject of the study, the lack of ethical approval for the procedure and the use of non-hospital equipment in the course of the procedure, the judge said.
Ms Justice Dunne also found that the HSE’s decision of January 2020 to recommend Prof O Sullivan’s dismissal was not unreasonable, irrational, or arbitrary.
In a concurring judgment, Chief Justice Donal O’Donnell held that the HSE was entitled to rely on several expert reports it received regarding the allegations against Prof O’Sullivan in recommending he placed on administrative leave.
He said the HSE had a ‘bona fide’ view that the behaviour of Prof O’Sullivan gave rise to an immediate and serious risk to the health, welfare and safety of patients or staff and that he should be suspended.
That view was not irrational, Chief Justice O’Donnell said.
Mr Justice Peter Charleton and Ms Justice Marie Baker concurred with the majority decision.
In a dissenting judgment, Mr Justice Séamus Woulfe held that the HSE was not entitled to require Professor O’Sullivan to take administrative leave.
The judge said the HSE failed to take into account certain relevant matters when forming the view that Prof O’Sullivan posed a risk to patient safety. These failures included the fact that a report concerning the allegations did not identify any ongoing risk to patients.
Mr Justice Woulfe also found that the HSE came to a conclusion regarding Prof O’Sullivan that no reasonable decision-maker could ever come to.
The decision, the judge said, was made in circumstances where it did not appear to anyone in the HSE that there might be an immediate and serious risk to patients between September 2018 and August 2019.
It was bizarre and irrational having regard to how matters had developed during that particular time frame, the judge concluded.
In his action against the HSE, Prof O’Sullivan argued the investigation against him was flawed because he has been an “outspoken advocate for patient’s rights and in particular pregnant women” and has made public remarks critical of St Luke’s management.
He also claimed proper reasons were not given by the HSE regarding its recommendation that he be dismissed.