The Court of Appeal has ordered the HSE to end the paid administrative leave of consultant gynaecologist and obstetrician Ray O’Sullivan, who had been suspended since August 2019. The court found that an expert report obtained by the HSE found no immediate or serious risk to patient safety, and that the chief executive was required to review the suspension in light of it.
The appeal arose from a feasibility study O’Sullivan conducted during hysteroscopy procedures on five patients at St. Luke’s Hospital in Kilkenny in September 2018. He inserted a balloon catheter to measure vaginal pressure without informing the patients or obtaining their consent. He had not sought ethics approval, and used equipment he had bought himself. The judgment records that the patients suffered no physical harm; the hospital’s review found no infection-control risk on the balance of probabilities.
A Systems Analysis Review identified failures concerning ethics approval, consent and equipment, and recommended training that O’Sullivan completed. It identified no ongoing patient-safety concern. A later report by obstetrician and gynaecologist Dr Michael O’Hare concluded that O’Sullivan had made an error of judgment but that his conduct had not fallen seriously below the standard expected of doctors. Dr O’Hare also concluded that O’Sullivan did not pose an immediate or serious risk to patients.
HSE chief executive Paul Reid disagreed with Dr O’Hare’s assessment of the seriousness of the conduct and proposed O’Sullivan’s removal from employment. The Court of Appeal found that Reid had failed to give O’Sullivan an opportunity to make submissions on Dr O’Hare’s report before making his December 2019 decision. It also found that Reid did not give clear and cogent reasons for departing from the expert’s view.
However, the court did not quash the decisions proposing removal. It held that the statutory committee established to consider the proposal could examine the misconduct issue independently and was not bound by Reid’s findings. The disciplinary process can therefore continue before that committee, which had not yet sat at the time of the appeal.
The court allowed the appeal on the suspension issue and ordered the HSE to terminate the suspension and reinstate O’Sullivan. It said the suspension should have ended from 23 December 2019, when Reid had sufficient opportunity to consider Dr O’Hare’s report. The appeal against the refusal to quash the removal decisions was dismissed. The court’s provisional view was that O’Sullivan should receive his costs in both the Court of Appeal and High Court, subject to the HSE’s right to request a further hearing on costs.