The Supreme Court allowed the Health Service Executive’s appeal over the paid administrative leave of consultant obstetrician and gynaecologist Professor Ray O’Sullivan. Chief Justice O’Donnell delivered his judgment on 10 May 2023. The appeal concerned whether the HSE chief executive’s decision of 6 August 2019 to suspend Professor O’Sullivan on full pay was lawful. The Court held that the decision had not been shown to be arbitrary, capricious or irrational.
The dispute followed procedures carried out on five women at St Luke’s Hospital in Kilkenny on 4 and 5 September 2018. The judgment records that a feasibility study involving a balloon catheter and pressure pad was conducted during hysteroscopies under Professor O’Sullivan’s supervision. The patients had not been asked for consent to the additional study, ethical approval had not been obtained, and the equipment had been privately purchased. The study was not recorded in patient notes; data was collected on a mobile phone and later deleted.
Two reviews identified serious failures. The Doran/Brennan report concluded that the study did not meet several principles of the Declaration of Helsinki, including requirements for ethical approval and informed consent. The later systems analysis review identified failures including the lack of ethical approval and consent and use of non-approved equipment. The judgment says Professor O’Sullivan did not challenge those reports’ findings. The patients were informed and offered testing for infection; the judgment records that they were distressed by learning of the procedure.
After considering the reviews and expert advice, the HSE chief executive placed Professor O’Sullivan on paid administrative leave in August 2019, pending investigation. In January 2020, the chief executive proposed his removal from office. The Court of Appeal later held that the chief executive should have reviewed the suspension after receiving a separate clinician’s report and ordered it ended from 23 December 2019. It did not quash the decision to commence the removal process.
The Supreme Court appeal was limited to the suspension question. The parties had resolved their differences before the hearing, and no disciplinary panel made a final determination on the seriousness of the incident or its consequences for Professor O’Sullivan’s practice. The Supreme Court held that the contract required the chief executive’s decision to meet the Braganza standard: it had to be honestly and genuinely made, and not irrational. The Court also said basic fairness required an explanation and an opportunity to respond; it found those requirements were met.
The Court concluded that the chief executive had genuinely believed the conduct might pose an immediate and serious risk to patients’ health, safety or welfare, and that this view was not shown to be irrational. It allowed the appeal. Chief Justice O’Donnell also noted that the original 2019 suspension decision had not been properly challenged within these proceedings, while explaining the Court’s conclusion on its validity once the issue had been raised.