Supreme Court Finds that HSE Was Reasonable in Suspending Consultant

The Supreme Court has recently considered the legal position relating to workplace suspensions in the case of Ray O’Sullivan v The Health Service Executive [2023] IESC 11. This was an appeal by the Health Service Executive (“HSE”) against the order of the Court of Appeal [2022] IECA 74 granting Professor O’Sullivan an order of mandamus terminating his suspension and reinstating him to his position as a consultant obstetrician and gynaecologist in St. Luke’s Hospital, Kilkenny, with immediate effect.

Facts: Professor O’Sullivan has been employed at St. Luke’s Hospital since 2006. In September 2018, Professor O’Sullivan conducted a “feasibility study” on five female patients during hysteroscopy procedures that they were undergoing. He had not sought or obtained the required ethical approval to undertake this study and the patients had not consented to this part of the procedure. The hospital authorities were not aware that he was carrying out this study and he used personal equipment rather than hospital equipment. A member of the nursing staff at the hospital raised concerns to senior hospital management and an external review was carried out.

The review concluded that the feasibility study had not been carried out ethically and in accordance with good clinical practice. However, it did not suggest that Professor O’Sullivan posed a risk to patients. A Systems Analysis Review (“SAR”) also concluded that there was no risk to patients. Hospital management then obtained the view of Dr Peter McKenna, Clinical Director of the National Women and Infants Health Programme. He expressed concerns about Professor O’Sullivan continuing in practice.

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