Supreme Court: HSE acted fairly when it suspended consultant doctor from job at St Luke's Hospital in Kilkenny

The Supreme Court has ruled that the HSE acted fairly and reasonably when it suspended and recommended that consultant gynaecologist Professor Ray O'Sullivan be dismissed from his former job at St Luke's Hospital in Kilkenny.

Late last year Professor O'Sullivan 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 had denied any wrongdoing, and following a mediation the consultant settled his action against the HSE on confidential terms and has resumed practising medicine. 

However, the HSE sought to have one discrete issue that arose out of the litigation, concerning the fairness of its decision to suspend Prof O'Sullivan and recommend to a Ministerial committee that he be dismissed, determined by the Supreme Court.

In a 4 to 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.

The High Court had previously ruled that Professor O'Sullivan was not entitled to orders quashing the decision to suspend him.

The Supreme Court deemed that the HSE's appeal against the CoA's finding regarding his suspension raised an issue of public importance regarding challenges to an employer's power to suspend an employee deemed to pose an immediate and serious risk to health safety and welfare of patients and staff.

The Court also considered what procedures are necessitated before an employee can be suspended from their job.
Giving the majority decision Ms Justice Elizabeth Dunne said that there was significant evidence available to allow the HSE place Professor 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, after several reports into the procedures allegedly carried out by the consultant were carried out, to recommend Prof O Sullivan's dismissal was not unreasonable, irrational, or arbitrary. 

In a concurring judgement the Chief Justice Mr Justice Donal O'Donnell held that the HSE was entitled to rely on several expert reports it had received regarding the allegations against Prof O'Sullivan, that recommended the Professor be placed on administrative leave.

The Chief justice said that the HSE had a 'bona fida' view that the behaviour of Professor O'Sullivan gave rise to an immediate and serious risk to the health, welfare and safety of patients or staff and that he should have been suspended. 

 That view was not irrational, the Chief Justice concluded.

Mr Justice Peter Charleton and Ms Justice Marie Baker concurred with the majority decision.

In a dissenting judgement Mr Justice Seamus Woulfe held that the HSE was not entitled to require Professor O'Sullivan to take administrative leave.

The Judge said that the HSE had 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 was so unreasonable, that no reasonable decision maker could ever have 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 the judge concluded bizarre and irrational having regard as to how matters had developed during that particular time frame. 

In his action against the HSE Prof O'Sullivan had argued that 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 Lukes' management. 

He had also claimed that proper reasons were not given by the HSE regarding its recommendation that he be dismissed.