A consultant gynaecologist who was placed on administrative leave three years ago has issued proceedings against the Health Service Executive (HSE) alleging it has failed to commence his retraining at the National Maternity Hospital in line with a confidential settlement agreement.
Prof Ray O’Sullivan claims a legally binding agreement, reached in September of this year, required him to commence certain retraining at Holles Street hospital in Dublin no later than October 10th, but this has not been facilitated.
Eoin Clifford SC, with Frederick Gilligan BL, told the court on Friday the matter was “extremely urgent” as the consultant obstetrician gynaecologist must complete his training before his contract with the HSE is terminated at the end of February next year.
The settlement agreement followed a Court of Appeal ruling last March that found Prof O’Sullivan was entitled to an order cancelling his suspension and reinstating him with immediate effect.
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The court ruled that his suspension should have been lifted when the HSE received a report in late 2019 that identified no patient safety concerns.
It upheld a High Court finding that it would be premature to quash the HSE’s decision to refer a recommendation to a committee established by the Minister for Health that Prof O’Sullivan should be dismissed from his post at St Luke’s Hospital in Kilkenny, where he worked since 1992.
The proper course was for the committee to consider all relevant issues and reach its own conclusion, the court held.
The Supreme Court has agreed to hear the HSE’s appeal against the Court of Appeal’s ruling.
Prof O’Sullivan was suspended with pay in August 2019 after a nurse raised concerns in connection with five patients who attended for hysteroscopy procedures on two dates in September 2018.
It was alleged that unauthorised and unapproved procedures were conducted for research purposes on the patients without their knowledge.
As part of what he called a “feasibility study”, Prof O’Sullivan sought to measure the internal pressure on the vaginal wall of patients by inserting a small balloon catheter into their vaginas. This was done during planned internal vaginal examinations using a hysteroscope, which is a narrow telescope with a camera at the end.
The equipment used for the study was not hospital equipment but had been bought by Prof O’Sullivan, and the results were not recorded on the patients’ charts, the Court of Appeal said.
The court noted Prof O’Sullivan had not informed any of the relevant hospital authorities of his intention to undertake the feasibility study on the patients. The patients were not informed, nor was their consent sought.
Prof O’Sullivan acknowledged an “error of judgment” in not seeking advice as to whether full ethical approval was required for the activity.
He said no patient’s safety, health or welfare had been put at immediate and serious risk, which is the criteria for placing a consultant on administrative leave.
The doctor alleges the investigations into his conduct were flawed and claims the HSE did not give adequate reasons for why it recommended his dismissal. The recommendations, he further asserts, are irrational and unreasonable.
In his fresh proceedings, Prof O’Sullivan seeks an order directing the HSE to immediately commence his retraining at Holles Street hospital in accordance with the settlement agreement.
He also wants an order for specific performance of the agreement and damages for breach of contract.
Carrie McDermott, of MDM solicitors, said in a sworn statement that it was a significant element of the settlement agreement that her client was to undergo training as his skill set had been deteriorating since he was placed on administrative leave.
The settlement imposed an obligation on Prof O’Sullivan, and it was “absolutely crucial” that he was signed fit to return to surgical duties on or before February 28th, she said.
Prof O’Sullivan was advised on October 10th, the date he was due to commence his retraining, that the programme was still being finalised. He was later told to contact the hospital master, Prof Shane Higgins, but he had not responded to multiple emails, said Ms McDermott.
Counsel for the HSE, Mairéad McKenna SC, said the organisation “fully appreciates” the urgency and importance of the situation.
She said the HSE would not be able to perform one aspect of the agreement and it wanted to invite Prof O’Sullivan into another mediation process. It was better the matter was resolved privately than through the courts, she said.
Mr Justice Brian O’Moore noted the urgency of the case and scheduled for it to return to court early next week.
