A Supreme Court judge has concluded that the Health Service Executive (HSE) unlawfully used its contractual power to place consultant obstetrician and gynaecologist Professor Ray O’Sullivan on administrative leave with pay. In a dissenting judgment delivered on 10 May 2023, Woulfe J. said the decision was unreasonable and would dismiss the HSE’s appeal.
The judgment addresses an appeal concerning the HSE chief executive’s August 2019 decision to suspend O’Sullivan while an investigation into his conduct was completed. The contractual provision allowed paid administrative leave where a decision-maker considered that a consultant’s conduct might pose an immediate and serious risk to patients. Woulfe J. said the test required an assessment of future risk, not simply the seriousness of past conduct.
The case arose from a research study carried out during hysteroscopy procedures involving five patients at St. Luke’s General Hospital on 4 and 5 September 2018. Reviews found that the study lacked ethical approval and informed consent. The later systems analysis review concluded, on the balance of probabilities, that the patients had not faced an infection-control risk. It identified no immediate patient-safety concerns, though it recommended that O’Sullivan complete training on clinical research and consent.
Woulfe J. said the HSE had not invoked the suspension clause for about eleven months after the study. During that period, O’Sullivan said he would no longer conduct clinical research at the hospital. He later accepted that failing to obtain consent and ethical approval was an error of judgment, undertook not to repeat the conduct and agreed to comply with the review’s recommendations.
The judge criticised the reliance placed on a further assessment by Dr. Peter McKenna, who raised concerns about patients’ psychological distress, a breakdown in trust and O’Sullivan’s insight. Woulfe J. considered that assessment flawed, including because the systems review had not identified an ongoing risk and O’Sullivan had not yet been given its findings and recommendations to address.
Woulfe J. said the HSE chief executive failed to take relevant matters into account, including the historic and isolated nature of the incidents, the absence of identified ongoing risk, and O’Sullivan’s undertaking. He concluded that no reasonable decision-maker could have found an immediate and serious risk on the material relied upon.
This was Woulfe J.’s dissent. He agreed with the Court of Appeal’s conclusion but differed from the Supreme Court majority. He considered it unnecessary to decide a separate question about whether a suspension must be reviewed when new material is received. His proposed disposition was to dismiss the HSE’s appeal; the source does not set out the majority’s operative order.