The Supreme Court has allowed the Health Service Executive’s appeal and overturned a Court of Appeal order that had reinstated consultant obstetrician and gynaecologist Professor Ray O’Sullivan from 23 December 2019. The Court held that the HSE chief executive’s decisions to place him on paid administrative leave and propose his removal were lawful. The judgment did not decide that he should be removed from employment.
The case arose after Professor O’Sullivan conducted an additional vaginal pressure measurement study during hysteroscopy procedures on five women at St. Luke’s Hospital, Kilkenny, on 4 and 5 September 2018. The judgment records that the patients had not consented to the additional procedure and that ethical approval had not been obtained. The HSE accepted that the women suffered no physical harm; the judgment describes psychological distress after they learned what had occurred.
Reviews found no ongoing patient safety concerns and recommended training, which Professor O’Sullivan completed. A later clinical report by Dr Michael O’Hare said the additional physical risk was negligible, assessed the conduct as below but not seriously below the expected standard, and found no immediate or serious risk to patients. The HSE chief executive nevertheless concluded that the conduct was serious misconduct and proposed removal. That proposal was not a final dismissal decision: the consultant’s contract provided for further consideration by a committee.
The Supreme Court assessed the chief executive’s discretionary decisions using the Braganza standard, asking whether they were made in good faith and were rational, rather than substituting the Court’s view for the contractual decision-maker’s. It held that the chief executive had a sufficient basis to require paid administrative leave, including the lack of consent and ethics approval, patient welfare concerns, and the consultant’s responses. It also held that the chief executive could disagree with Dr O’Hare’s assessment and had given reasons for doing so.
The Court found that Professor O’Sullivan had been informed of the proposed leave and had an opportunity to make representations. It also held that, after a technical email error meant his solicitors had not received Dr O’Hare’s report, he was given further opportunities to respond before the chief executive’s final decision on 31 January 2020. The Court therefore disagreed with the Court of Appeal’s conclusions on the suspension, the continuing leave after the report, and procedural fairness.
The underlying dispute had been resolved, but the parties agreed that the Supreme Court should decide the issues on which appeal was granted. The Court allowed the HSE’s appeal and set aside the Court of Appeal’s reinstatement order. It did not order Professor O’Sullivan’s removal; the judgment states that the proposed removal would have required further consideration under the contractual process.