Aodhan O Faolain
A consultant gynaecologist who was involved in lengthy legal battle after being suspended on pay by the HSE has largely resolved the latest High Court action over an alleged failure to allow him to retrain at the National Maternity Hospital (NMH).
The proceedings were brought by Prof Ray O’Sullivan, who was placed on administrative leave from his post in Kilkenny in 2019.
He had claimed that as part of a legally binding agreement, reached in September of this year to settle proceedings he had brought over his suspension and the handling of complaints against him, he was to commence retraining at the NMH, Holles Street hospital in Dublin in mid-October.
However, he claimed that in breach of that agreement his retaining programme at Holles Street did not commence.
He claimed that he needs to complete his re-training before his contract with the HSE is terminated at the end of February 2023.
As a result, Prof O’Sullivan, who for many years had worked St Luke’s Hospital in Kilkenny, sought a High Court order directing the HSE to immediately commence his retraining at Holles Street Hospital in accordance with the settlement agreement.
He also wanted an order requiring the HSE to specifically perform of the agreement and damages for breach of contract.
Eoin Clifford SC, with Frederick Gilligan BL instructed by solicitor Carrie McDermott, told Mr Justice Brian O’Moore on Thursday that the matter had been largely resolved.
Counsel said that the parties had agreed that the motion against the HSE regarding Prof O’Sullivan’s retraining could be struck out, and that the plaintiff’s costs of bringing the motion be paid by the HSE.
Prof O’Sullivan, counsel said, would commence retraining at “a different location”, early next month.
Counsel asked that the case be adjourned to a date next month to ensure that all outstanding issues are brought to a conclusion.
Mairead McKenna SC for the HSE said that an agreement had been reached following “an extensive mediation.”
Counsel said that the HSE’s preference was that the entire case be struck out, or that the matter be adjourned generally with liberty to re-enter should the need arise.
Mr Justice O’Moore welcomed the fact that an agreement had been reached. Adjourning the matter, the Judge added that he was giving the parties liberty to re-enter the case should the need arose, but this must be done by a date in mid-January when the case is to be mentioned before the court.
The settlement agreement arose out of a lengthy legal battle between the parties following Prof O’Sullivan’s suspension with pay in August 2019 after concerns were raised in connection with five patients who attended for hysteroscopy procedures in September 2018.
It was alleged that unauthorised and unapproved procedures were conducted for research purposes on the patients without their knowledge 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.
Following a probe into the matter the HSE made a recommendation to a committee established by the Minister for Health that he be dismissed from his post.
In his High Court action, he alleged the investigation into his conduct following his suspension was flawed and claims the HSE did not give adequate reasons for why it recommended his dismissal.
The recommendations were irrational and unreasonable he also claimed.
The Court of Appeal ruled last March that Prof O’Sullivan was entitled to an order cancelling his suspension and that he be reinstated with immediate effect.
The COA said that his suspension should have been lifted when the HSE received a report in late 2019 that identified no patient safety concerns.
The CoA also upheld an earlier High Court finding that it would be premature to quash the HSE’s decision to refer a recommendation to the committee established by the Minister for Health that Prof O’Sullivan should be dismissed.
The Supreme Court has agreed to hear the HSE’s appeal against the CoA’s ruling.