Ray O'Sullivan v Health Service Executive

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date27 April 2021
Neutral Citation[2021] IEHC 282
Docket Number[Record No. 2020/154 JR]
CourtHigh Court
Date27 April 2021
Between
Ray O'Sullivan
Applicant
and
Health Service Executive
Respondent

[2021] IEHC 282

[Record No. 2020/154 JR]

THE HIGH COURT

Administrative leave – Dismissal – Bias – Applicant challenging a number of decisions that were made by the CEO of the respondent – Whether the entire investigatory process had been tainted by bias

Facts: The applicant, Mr O’Sullivan, a consultant gynaecologist, challenged a number of decisions that were made by the CEO of the respondent, Health Service Executive, in connection with his investigation of certain events that occurred on 4th and 5th September, 2018. Certain unauthorised procedures were carried out on five patients by a doctor acting under the direction and control of the applicant. The applicant challenged the decision to place him on administrative leave on the basis that the decision was irrational having regard to the fact that it was made some 10 months after the events the subject matter of the investigation, during which time there had been no complaint or concern raised in relation to the applicant’s suitability to treat patients. The applicant challenged the decision made on 23rd December, 2019 to make a recommendation that he be dismissed from his position of employment as a consultant gynaecologist with the respondent. The applicant stated that the decision was fatally flawed, due to the fact that he did not have the opportunity to comment on an expert’s report which had been obtained by the CEO and formed part of the material on which he based his decision. The applicant challenged the subsequent decision made by the CEO on 31st January, 2020, which was also to the effect that he would make a recommendation that the applicant should be dismissed, because that decision flew in the face of the opinion that had been given in the report that had been commissioned by the CEO from a medical expert of international standing. It was submitted that as the CEO was not medically qualified, nor qualified in the area of medical ethics, his decision to ignore the opinion given by the expert was irrational and ought to be struck down. The applicant alleged that the entire investigatory process had been tainted by bias, due to the fact that he had been an outspoken critic of management at the hospital and of the respondent generally, over a long period of time.

Held by the High Court (Barr J) that the applicant was out of time to challenge the decision made on 6th August, 2019 to place him on administrative leave. Barr J held that it was appropriate that the administrative leave issue be reviewed in light of the fresh evidence that had come to hand and dealt with as a stand-alone issue, if and when the applicant makes a specific request for such review by the CEO. The Court held that this application was premature as the investigatory process had not come to a conclusion. The Court was satisfied that the CEO gave due consideration to all relevant matters and reached a decision that was open to him on the totality of the evidence that was before him in December 2019 and January 2020. Accordingly, the Court refused to strike down either the decision communicated in the letter from the CEO dated 23rd December, 2019, or his ultimate decision as set out in his letter of 31st January, 2020. Barr J held that there was no evidence that the CEO acted in any way that was unfair, unjust, or biased towards the applicant.

Barr J refused all of the reliefs sought by the applicant in his notice of motion. The Court proposed lifting the stay on the further progression of the investigation into the matter, which had been put in place by virtue of the order of Meenan J made on 24th February, 2020.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 27th day of April, 2021

Introduction
1

The applicant is a consultant gynaecologist. In these proceedings he is challenging a number of decisions that were made by the CEO of the respondent in connection with his investigation of certain events that occurred on 4th and 5th September, 2018.

2

The events the subject matter of the investigation, will be described in greater detail later in the judgment. Suffice it to say that certain unauthorised procedures were carried out on five patients, which procedures were carried out by a doctor acting under the direction and control of the applicant.

3

The applicant challenges a decision that was made by the CEO of the respondent to place him on administrative leave on the basis that that decision was irrational having regard to the fact that it was made some 10 months after the events the subject matter of the investigation, during which time there had been no complaint or concern raised in relation to the applicant's suitability to treat patients.

4

The applicant also challenges a decision made by the CEO on 23rd December, 2019 to make a recommendation that he be dismissed from his position of employment as a consultant gynaecologist with the respondent. The applicant states that that decision was fatally flawed, due to the fact that he did not have the opportunity to comment on an expert's report which had been obtained by the CEO and formed part of the material on which he based his decision.

5

The applicant also challenges a subsequent decision made by the CEO of the respondent on 31st January, 2020, which was also to the effect that he would make a recommendation that the applicant should be dismissed, because that decision flew in the face of the opinion that had been given in the report that had been commissioned by the CEO from a medical expert of international standing. It was submitted that as the CEO was not medically qualified, nor qualified in the area of medical ethics, his decision to ignore the opinion given by the expert, was irrational and ought to be struck down.

6

Finally, the applicant alleged that the entire investigatory process had been tainted by bias, due to the fact that he had been an outspoken critic of management at the hospital and of the respondent generally, over a long period of time.

7

In response, the respondent argued that the applicant was out of time to challenge the decision to place him on administrative leave, as that decision had been made on 6th August, 2019 and the applicant had not moved his ex parte application seeking judicial review until 24th February, 2020. It was submitted that the applicant had not provided any reason, let alone a good and sufficient reason, as to why he had not moved his application within the time period provided for under the rules.

8

The respondent further submitted that the decision to place the applicant on administrative leave was not irrational having regard to the material that was then before the CEO.

9

The respondent submitted that the decisions made by the CEO on 23rd December, 2019 and 31st January, 2020 were not vitiated by any absence of fair procedures. The CEO had sent the expert's report to the applicant in advance of making the first decision, but he had not received it due to a malfunction within the computer infrastructure in his solicitor's office.

10

It was further submitted that even if that did constitute any want of fair procedures, such deficiency had been cured by virtue of the fact that the applicant was re-sent the report and was given an opportunity to make submissions on it prior to the CEO making his ultimate decision on 31st January, 2020.

11

It was submitted that the CEO, as the person designated to make the relevant decision, was not bound to follow the opinion given by the expert in his report. It was submitted that it was only necessary that the decision-maker should engage with that opinion and set out clearly the grounds why he did not propose to follow it. It was submitted that that had been done in the letters sent by the CEO on 23rd December, 2019 and 31st January, 2020.

12

Finally, it was submitted that there was no evidence of bias on the part of any of the persons who had carried out investigations into the events of 4th and 5th September, 2018; nor was there evidence of bias on the part of the CEO. It was submitted that the CEO had at all times treated the applicant and his solicitor with the utmost fairness and courtesy.

13

That is a very brief summary of the main issues that fall for determination on this application. The issues and the arguments on behalf of each of the parties will be dealt with in greater detail later in the judgment.

Background
14

The applicant is employed as a consultant gynaecologist in the respondent's hospital in Kilkenny.

15

On 4th and 5th September, 2018 the applicant directed his registrar to carry out a procedure whereby a small disposable balloon catheter, with a pad affixed to the end of it, was inserted into the vaginas of five patients. Three of these patients were being treated in the outpatients' department and two of the patients were being treated under general anaesthetic. All of the patients had been referred to the applicant for the purpose of having a hysteroscopy procedure carried out. The applicant had directed that the catheter with the pressure pad be inserted into the vagina to measure pressure on the vaginal wall at various points. The purpose of these measurements was to provide a feasibility study, to see whether it would be possible to carry out a larger study, which would potentially lead to the possibility that certain procedures could be carried out without the use of a speculum.

16

None of the five patients had been informed that the feasibility study was going to be carried out. None of the patients had consented to the insertion of the wire and the pressure pad into their vaginas. None of the patients were aware at the time, that the procedure had been carried out on them.

17

The applicant had not sought or obtained any clearance from the hospital's ethics committee to carry out the feasibility study. The applicant had...

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3 cases
  • HSE v O'Sullivan
    • Ireland
    • Supreme Court
    • 10 May 2023
    ...taken on foot of the disciplinary process pending the determination of the proceedings or until further order. 22 . In the High Court, [2021] IEHC 282, Barr J. dismissed Professor O'Sullivan's challenge. This was appealed to the Court of Appeal, which overturned the decision to suspend him ......
  • Ray O'Sullivan v Health Service Executive
    • Ireland
    • High Court
    • 20 May 2021
    ...judgment delivered on 27th of April, 2021, the High Court refused all of the reliefs sought by the applicant against the respondent: [2021] IEHC 282. The respondent submitted that as it was entirely successful on all grounds put forward by the applicant, it was entitled to an order that its......
  • Rory Mason v ILTB Ltd T/A Gillen Markets and Dermot Browne
    • Ireland
    • High Court
    • 8 July 2021
    ...which have been followed and applied in a number of cases cited to the court by the defendants (see Barr J. in O'Sullivan v. HSE [2021] IEHC 282 and McKelvey v. Iarnróid Éireann (Supreme Court, 11th November, 2019)). There are, however, some significant differences between this case and Row......

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