The Health Service Executive has said it is considering a Court of Appeal ruling that it reinstate a consultant gynaecologist who has been on administrative leave since 2019.
Prof Ray O’Sullivan was placed on paid administrative leave from his position at St Luke’s Hospital in Kilkenny in August 2019 after concerns were raised by nursing staff in connection with five patients who attended the hospital for hysteroscopy procedures.
It was alleged unauthorised and unapproved actions and procedures for research were conducted on the patients without their knowledge.
Prof O’Sullivan, as part of what he called a “feasability study”, 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 a planned internal examination using a hysteroscope.
Prof O'Sullivan was informed in August 2019 by HSE chief executive Paul Reid that he was being placed on administrative leave.
The court ruled in late March that Prof O’Sullivan was entitled to an order terminating his suspension and reinstating him with immediate effect.
The HSE has as yet made no move to end the suspension. A spokeswoman said it was considering the Court of Appeal judgment and did not have any further comment to make at this time.
Prof O’Sullivan told The Irish Times he was very pleased with the ruling of the court.
In the 61-page judgment by the three-judge court, Mr Justice Seamus Noonan 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 their consent sought. The approval required from the hospital ethics committee was not sought.
The equipment used was not hospital equipment but had been bought by Prof O’Sullivan, and the results of the study were not recorded on the patients’ charts, the judge noted.
Mr Justice Noonan said Prof O’Sullivan had been suspended for some time, and the process of investigation would take “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 suspension should have been lifted when the HSE received a report in late 2019, which identified no patient safety concerns regarding Prof O’Sullivan.
Decision on dismissal
A recommendation to have him dismissed has been referred by the HSE to a committee established by the Minister for Health. This will decide if he is to be dismissed or not.
The Department of Health said the nature and functions of the committee were outlined in section 24 of the 1970 Health Act.
“As set out in the judgment the committee has been established by the Minister. The committee is independent. It would be inappropriate to make any further comment.”
The department declined to disclose the membership of the committee.
The Court of Appeal upheld a separate finding of the High Court last year that the HSE was entitled to recommend that Prof O'Sullivan be dismissed from his job.
However, Mr Justice Noonan said: “I am quite satisfied, for the reasons I have explained, that Prof O’Sullivan is entitled to an order of mandamus terminating his suspension and reinstating him with immediate effect.”
In his conclusion, the judge said he was satisfied that the proper course “is for the disciplinary process before the committee to proceed and continue to conclusion”.
Mr Justice Noonan said the committee had not yet sat “but it seems reasonable to assume that it is likely to take at least a considerable number of months before it will be in a position to issue a recommendation which may have the potential for a further appeal to the Minister”.
Prof O’Sullivan was awarded his costs for the case before the Court of Appeal and his earlier case before the High Court.