The High Court refused all relief sought by consultant gynaecologist Ray O’Sullivan in a judicial review of decisions arising from an investigation into procedures carried out on five patients in September 2018. The court held that his challenge to being placed on administrative leave was out of time and that his challenges to later decisions by the HSE chief executive were premature. It also rejected his substantive grounds for setting those decisions aside.
The procedures involved inserting a balloon catheter with a pressure pad into the vaginas of five patients during hysteroscopy care. The patients had not been told about the feasibility study or consented to it. The study had no hospital ethics committee approval, and equipment was obtained outside the hospital’s usual procurement channels. The judgment records that testing found none of the patients had been infected.
The CEO placed O’Sullivan on administrative leave on 6 August 2019, citing concern that he might pose an immediate and serious risk to patients. O’Sullivan did not seek judicial review of that decision until 24 February 2020. The court found he had not shown good and sufficient reason for missing the three-month deadline, or that the delay arose from circumstances beyond his control. The court therefore declined to extend time. It said he could make a separate request to the CEO to reconsider his continued administrative leave in light of new evidence, including an expert report.
The CEO’s letters of 23 December 2019 and 31 January 2020 proposed recommending O’Sullivan’s dismissal. The decision was not a final dismissal: under the process described in the judgment, the proposal had to go to a committee appointed by the Minister for Health. That committee stage had not taken place because the judicial review proceedings had stayed the investigation.
O’Sullivan argued that he had not been able to comment on the expert report before the CEO’s first letter and that the CEO acted irrationally by departing from the expert’s view. The expert considered the conduct an error of judgment and below, but not seriously below, the expected standard; he also considered that O’Sullivan did not pose an immediate or serious patient-safety risk. The court found that the CEO had sent the report, later allowed submissions on it and explained why he disagreed. It held that the CEO was entitled to reach his own decision after considering the report and other material.
The court also rejected allegations of bias against hospital and HSE decision-makers. It found no evidence supporting them. It proposed lifting the stay on the investigation and invited submissions on the final order and costs within two weeks of receipt of the judgment.