The Supreme Court has ruled that the HSE acted fairly and reasonably when it suspended Professor Ray O'Sullivan from his former job at St Luke's Hospital in Kilkenny and later dismissed the consultant gynaecologist.
Late last year, Prof O'Sullivan settled his lengthy legal battle with the HSE over his suspension from his position on foot of complaints made against him in 2019.
It had been alleged that he carried out unauthorised and unapproved actions and procedures on five female patients in September 2018.
Prof O'Sullivan had denied any wrongdoing, and following mediation, the consultant settled his action against the HSE on confidential terms and has resumed practising medicine.
However, the HSE sought to have one discrete issue that arose out of the litigation, concerning the fairness of its decision to suspend Prof O'Sullivan and recommend to a Ministerial committee that he be dismissed, determined by the Supreme Court.
In a four-to-one decision, the Supreme Court overturned an earlier Court of Appeal (CoA) finding in March 2022 that Prof O'Sullivan was entitled to an order quashing the HSE's decision to place him on administrative leave in August 2019, and that he be allowed to return to work.
The High Court had previously ruled that Prof O'Sullivan was not entitled to orders quashing the decision to suspend him.
The Supreme Court deemed that the HSE's appeal against the CoA's finding regarding his suspension raised an issue of public importance regarding challenges to an employer's power to suspend an employee deemed to pose an immediate and serious risk to health safety and welfare of patients and staff.
The court also considered what procedures are necessitated before an employee can be suspended from their job.
Administrative leave
Giving the majority decision, Ms Justice Elizabeth Dunne said there was significant evidence available to allow the HSE to place Prof O'Sullivan on administrative leave.
This evidence included allegations that there was an absence of consent from the patients who were the subject of the study, the lack of ethical approval for the procedure and the use of non-hospital equipment in the course of the procedure, the judge said.
Ms Justice Dunne also found that the HSE's decision in January 2020, after several reports into the procedures allegedly carried out by the consultant were carried out, to recommend Prof O Sullivan's dismissal was not unreasonable, irrational, or arbitrary.
In a concurring judgement, Mr Justice Donal O'Donnell held the HSE was entitled to rely on several expert reports it had received regarding the allegations against Prof O'Sullivan, which recommended that he be placed on administrative leave.
The Chief Justice said the HSE had a 'bona fide' view that Prof O'Sullivan's behaviour gave rise to an immediate and serious risk to the health, welfare and safety of patients or staff and that he should have been suspended. That view was not irrational, he concluded.
Mr Justice Peter Charleton and Ms Justice Marie Baker concurred with the majority decision.
Dissent
In a dissenting judgement, Mr Justice Seamus Woulfe held that the HSE was not entitled to require Prof O'Sullivan to take administrative leave.
He said the HSE had failed to take into account certain relevant matters when forming the view that Prof O'Sullivan posed a risk to patient safety.
These failures included the fact that a report concerning the allegations did not identify any ongoing risk to patients.
Mr Justice Woulfe also found that the HSE came to a conclusion regarding Prof O'Sullivan that was so unreasonable, to which no reasonable decision-maker could ever have come.
The decision, the judge said, was made in circumstances where it did not appear to anyone in the HSE that there might be an immediate and serious risk to patients between September 2018 and August 2019.
It was, the judge concluded, bizarre and irrational having regard as to how matters had developed during that particular time frame.
In his action against the HSE, Prof O'Sullivan had argued that the investigation against him was flawed because he has been an "outspoken advocate for patient's rights and, in particular, pregnant women" and has made public remarks critical of St Lukes' management.
He had also claimed that proper reasons were not given by the HSE regarding its recommendation that he be dismissed.
