Ray O'Sullivan v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 25 March 2022
• Neutral Citation: [2022] IECA 74
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2021/155

Between/

Ray O'Sullivan

Applicant/Appellant

and

Health Service Executive

Respondent/Respondent

[2022] IECA 74

Noonan J.

Faherty J.

Murray J.

Record Number: 2021/155

High Court Record Number: 2020/154JR

THE COURT OF APPEAL

Judicial review – Misconduct – Prejudice – Appellant challenging a number of decisions of the CEO of the respondent – Whether the court should quash the decisions

Facts: The appellant, Professor O’Sullivan, in judicial review proceedings, challenged a number of decisions of Mr Reid, the CEO of the respondent, the Health Service Executive (HSE). The effect of Mr Reid’s decisions was that Professor O’Sullivan had been suspended on paid administrative leave since the 6th August, 2019, pending the completion of an inquiry into certain matters concerning Professor O’Sullivan. The challenge to Professor O’Sullivan’s suspension and proposed dismissal from his position as Consultant Gynaecologist and Obstetrician at St. Luke’s Hospital Kilkenny as a result of alleged misconduct was dismissed by the High Court (Barr J) in a judgment on the 27th April, 2021 and the consequential order made on the 20th May, 2021. Professor O’Sullivan appealed to the Court of Appeal. The first ground of appeal advanced on behalf of Professor O’Sullivan was that in deciding whether the proceedings were premature, the trial judge failed to have regard to the decision of the High Court (Kearns J) in Rajpal v Robinson [2004] IEHC 149 and whether that judgment had been impacted by the subsequent decision in Rowland v An Post [2017] 1 IR 255. It was said that the trial judge erred in concluding that there was no want of fair procedures arising from the fact that Professor O’Sullivan had no opportunity to make submissions on the O’Hare Report before Mr Reid’s decision of the 23rd December, 2019 was made. It was said that the judge was further wrong to hold that adequate reasons had been given by Mr Reid for departing from the views of Dr O’Hare. It was said that the trial judge failed to have adequate regard to the fact that Mr Reid was obliged to inform Professor O’Sullivan as to what was the relevant standard of misconduct that was applicable under the Consultant’s Contracts, if it was different from the Medical Council standard. It was said that the judge failed to have regard to the fact that Mr Reid’s decision to propose the appellant’s dismissal was disproportionate, irrational and unreasonable. At Ground 13 of his notice of appeal, Professor O’Sullivan contended that the trial judge erred in failing to find that Mr Reid was obliged to consider afresh the suspension issue once he received Dr O’Hare’s report and that there was an onus on Mr Reid to do so.

Held by Noonan J that in Rowland, the Supreme Court held that a court should only intervene in an ongoing disciplinary process where it was clear that the process had gone irremediably wrong and that it was more or less inevitable that any adverse conclusion reached would be bound to be unsustainable in law. Since the Health Act 1970 s. 24 committee would have an unrestricted remit to consider all relevant issues, including that of misconduct, and would in effect be starting with a clean sheet, Noonan J did not consider that, notwithstanding the flaws in the two decisions of the CEO concerning misconduct, those decisions had resulted in irremediable prejudice to Professor O’Sullivan. Noonan J held that those decisions did not bind the committee in any way and it was entirely at large to come to its own conclusion on those issues. Noonan J was therefore satisfied that the proper course was for the disciplinary process before the committee to proceed and continue to conclusion. In that respect, Noonan J agreed, at least in part, with the views of the trial judge that the application to quash those decisions was premature and Professor O’Sullivan’s rights would be fully respected and protected by the committee; he would thus suffer no irreversible prejudice by virtue of Mr Reid’s decisions on the misconduct issue.

Noonan J allowed the appeal on the administrative leave issue but dismissed the appeal against the trial judge’s refusal to quash the two decisions in question. Noonan held that Professor O’Sullivan had prevailed on the merits of the appeal. Noonan J’s provisional view therefore was that he should be entitled to his costs both in the Court of Appeal and the High Court.

Appeal allowed in part.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 25th day of March, 2022

1 . This appeal concerns the suspension and proposed dismissal of the appellant from his position as Consultant Gynaecologist and Obstetrician at St. Luke's Hospital Kilkenny as a result of alleged misconduct. In these judicial review proceedings, the appellant (“Professor O'Sullivan”) challenges a number of decisions of the CEO of the respondent (“the HSE”), Mr. Paul Reid. The effect of Mr. Reid's decisions is that Professor O'Sullivan has been suspended on paid administrative leave since the 6 ^th August, 2019, pending the completion of an inquiry into certain matters concerning Professor O'Sullivan. The challenge to Professor O'Sullivan's suspension and proposed dismissal was dismissed by the High Court (Barr J.) in a judgment on the 27 ^th April, 2021 and the consequential order made on the 20 ^th May, 2021.

Relevant Background

2 . Professor O'Sullivan has been employed as a Consultant Obstetrician and Gynaecologist at St. Luke's Hospital since 1992. His terms of employment are set out in a contract which was the common form of Consultants' contract with the HSE at the time it was made. It was described throughout these proceedings as the 1997 contract. It has since been replaced by subsequent iterations of the common contract for consultants employed subsequent to Professor O'Sullivan. The court was informed at the hearing of the appeal that only about eight 1997 contracts remain effective. Professor O'Sullivan has, from time to time over the years, been a publicly vocal critic of the HSE's approach to patient care.

3 . In gynaecological practice, a speculum is a rigid instrument used by clinicians to facilitate clinical examination of the vagina, cervix and female pelvic organs. The use of a speculum can be uncomfortable for the patient and Professor O'Sullivan has for some time had a special interest in the development of alternative methods for such examinations that do not involve the use of a traditional speculum with a view to minimising discomfort.

4 . On the 4 ^th and 5 ^th September, 2018, five women attended St. Luke's Hospital to undergo hysteroscopy procedures, two of which were done under general anaesthetic. The hysteroscope is a thin tube with a light and camera at the end which is passed through the vagina and enables the clinician to visualise the interior of the uterus.

5 . As part of what he describes as a “feasibility study” Professor O'Sullivan decided, in furtherance of his research, to seek to measure the internal pressure on the vaginal wall of a number of his patients by the insertion of a small balloon catheter into the vaginas of each woman. He executed this during the course of the hysteroscopy procedure carried out on those patients. None of the patients were informed that this was being done nor was their consent sought. Ethical approval for such research would be required in advance from the relevant hospital ethics committee but such approval was neither sought nor obtained by Professor O'Sullivan. He did not inform any of the relevant hospital authorities of his intention to undertake this feasibility study. Further, the equipment used by Professor O'Sullivan was not hospital equipment but rather equipment personally purchased by him from his own funds, albeit it from a recognised supplier. None of the results of the study were recorded on the patients' charts. In fact, the matter only came to light as a result of nursing staff present at the time having a concern about the undertaking of the procedure, in the particular context of the perceived risk of cross-infection. The nursing staff involved reported the matter to the hospital management which set in train a sequence of events which is still ongoing.

Subsequent Events

6 . It would appear that senior hospital management brought the matter to the attention of the hospital clinical lead, Professor Gary Courtney, and also Professor Mary Day, the Chief Executive of the Ireland East Hospital Group. Professor Courtney is a Consultant Gastroenterologist. Professor O'Sullivan's evidence, which is not disputed, is that prior to the events under discussion, there was considerable animosity between Professor Courtney and Professor O'Sullivan. Sometime shortly prior to the index event, Professor O'Sullivan claims that at a hospital meeting, he was defamed by Professor Courtney who threatened to report him to the Medical Council over an unrelated, and highly disputed, incident. It would appear that Professor O'Sullivan subsequently issued proceedings for defamation against Professor Courtney but these were never served. In relation to Professor Day, it is of relevance to note that she is not a clinician.

7 . Arising out of the report of the events received by her, Professor Day instructed that a review be carried out by outside experts. In that regard, two experts were instructed, Professor Peter Doran, group lead for research and Director of the UCD Clinical Research Centre, and Ms. Sinead Brennan, Director of Quality, Clinical Governance and Patient Safety. The Doran/Brennan review was carried out speedily and the results presented on the 1 ^st October, 2018. The review concluded that the feasibility study had not been carried out ethically and in accordance with good clinical practice for the reasons, inter alia, I have already outlined.

8 . Following receipt of this review, the hospital authorities considered that...