Court of Appeal dismisses decision to put Kilkenny consultant doctor on leave

The Court of Appeal has ruled that a consultant gynaecologist who had been suspended from his job over two years ago following allegations of misconduct to immediately return to work.

The CoA, however, upheld the lower court's findings that the HSE was entitled to recommend that Prof Ray O'Sullivan be dismissed from his job at St Luke's Hospital in Kilkenny.

An investigation into those allegations, which are denied by Prof O'Sullivan, by a committee established by the Minister for Health remains ongoing.

Prof O'Sullivan was placed administrative leave on full pay in August 2019, by his employer, the HSE, after complaints were made against him by other members of staff. He allegedly carried out unauthorised and unapproved actions and procedures on five female patients in September 2018. 

None of the patients were informed about the research or consented to the procedure, nor were they aware of it until afterwards, it is claimed. The court heard the women were not physically harmed by the procedures but on learning what happened were psychologically injured. 

It is also alleged that Prof O'Sullivan did not obtain clearance from the hospital's ethics committee and had sourced the instruments for the procedures outside of the hospital's usual procurement channels with his own funds.

Following an investigation into the complaints Prof O'Sullivan was placed on administrative leave. The HSE's CEO Paul Reid recommended to the ministerial committee that Prof O'Sullivan be dismissed from his role.

Prof O'Sullivan has strongly rejected all allegations of wrongdoing against him and says that a report conducted on the HSE's behalf states that he does not pose any risk to patient health and safety.

He claims the investigations against him were flawed because he has been an 'outspoken advocate for patients' rights and in particular pregnant women' and has made public remarks critical of St Luke's management. 

He also claimed that proper reasons had not been given by the HSE why the recommendation that he be dismissed was made.
He further claims the recommendations is irrational and unreasonable.

Represented by Eoin Clifford SC and Frederick Gilligan Bl Prof O'Sullivan brought judicial review proceedings seeking to have the decision to suspend him and the recommendation quashed.
 
In a judgement last year Mr Justice Anthony Barr dismissed Prof O'Sullivan's action, after holding that the HSE as entitled to take the decisions it had regarding the consultant. That ruling was appealed to the CoA and was opposed by the HSE.

In its decision the CoA comprised of Mr Justice Seamus Noonan, Ms Justice Mary Faherty and Mr Justice Brian Murray ruled that Prof O'Sullivan's suspension should be lifted immediately.

Giving the court's unanimous decision Mr Justice Noonan said Prof O Sullivan had been suspended for some time, and the process of investigation would 'a considerable' number of months to complete.

"By any reasonable standard, this could not conceivably be considered to be an investigation that is taking place expeditiously or with all practicable speed," the judge said.

The judge said that the suspension should have been lifted when the HSE received a report in late 2019, which identified no patient safety concerns regarding Prof O Sullivan.

"I am quite satisfied, for the reasons I have explained, that the applicant is entitled to an order terminating his suspension and reinstating him with immediate effect."

The court also noted the reputational damage that can occur when a suspension gains high profile in the media. In this case the judge said the damage to Prof O'Sullivan by the 'deliberate leaking' of confidential information to the media about the disciplinary process had been 'amplified'.

The CoA was not prepared to quash the HSE's recommendation to the Minister. He agreed with the High Court that quashing that decision would be premature and that Prof O'Sullivan's rights will be fully respected protected by the committee.

The Ministerial committee he added was not bound by any findings made by Mr Reid and it is 'entirely at large to its own conclusions on these issues', he added.

The CoA said that Prof O'Sullivan was entitled to his costs of both the High Court and CoA hearings. The outcome of the CoA's judgement will impact on a second set of judicial review proceedings commenced by Prof O'Sullivan earlier this week.

In that action he seeks orders against a decision made by the HSE keeping him on administrative leave. He had asked the HSE to review his suspension.

However, the HSE decided last December that Prof O'Sullivan should remain on leave pending the conclusion of a process being currently undertaken by the Ministerial Committee. He claims that decision is flawed and that no proper reasons were given as to why his suspension should be continued. 

That action, which is aimed at quashing the HSE's decision in December, will return before the High Court in May.