+353 (0) 1 211 8434 - info@aocsolicitors.ie -

- News

- News

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.

The hospital management subsequently wrote to the then CEO of the HSE, Mr Paul Reid, sharing a concern that Professor O’Sullivan’s conduct “may pose a serious risk to the safety, health and welfare of the patients and staff.”

Mr Reid initiated a disciplinary process and Professor O’Sullivan was placed on paid administrative leave by letter dated 6th August 2019.

Clause 3 of the HSE’s disciplinary procedure provides that:

“where it appears to the CEO, secretary/manager of a hospital or other health agency or his authorised representative, that by reason of the conduct of a consultant there may be an immediate and serious risk to the safety, health or welfare of patients, the consultant may apply for or may be required and shall, if so required, take administrative leave with pay for such time as may reasonably be necessary for the completion of any investigation into the conduct of the consultant in accordance with the provisions hereof.”

Mr Reid then sought the expert opinion of a Consultant Obstetrician, Dr Michael O’Hare, who concluded that while Professor O’Sullivan made an error of judgment, his conduct did not pose an immediate and/or serious risk to patient safety.

Mr Reid took a different view and concluded that there was misconduct on the part of Professor O’Sullivan. He wrote to him on 20th January 2020 informing him that he had decided to propose the termination of his employment with the HSE. On 24th February 2020, Professor O’Sullivan obtained leave for Judicial Review. However, he was unsuccessful in the High Court.

He appealed to the Court of Appeal. The Court of Appeal found that Professor O’Sullivan’s suspension was unlawful on the basis that there was no evidence that he posed an immediate or serious risk to patients, and found that Mr Reid was obliged to review Professor O’Sullivan’s suspension in light of the expert report.

Leave was granted by the Supreme Court to appeal based on the following issues on a point of law:

  1. “How should a court approach a challenge to the exercise of a contractual power of suspension from employment which provides that such suspension can be effected if an employer considers that the individual poses “an immediate and serious risk to the safety, health and welfare of patients or staff”; and
  2. What procedures are necessitated for a suspension?”

Decision: The Supreme Court, by a 4:1 majority, disagreed with the decision of the Court of Appeal and allowed the HSE’s appeal.Three judgments were handed down by the Supreme Court (Dunne J who delivered the leading majority  judgment, O’Donnell C.J, and a dissenting judgment by Woulfe J.)

The Supreme Court accepted that the suspension was a “holding suspension” and was not punitive in nature and as such did not impose the same requirement for fair procedures as a full disciplinary hearing. The Court endorsed the following passage from The Governor and Company Bank of Ireland v Reilly [2015] IEHC 241:

“while the full panoply of fair procedures may not have been engaged at [this stage of holding suspension], […] basic fairness [required] at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.”

The Court also referred to the case of Braganza v BP Shipping Limited & anor [2015] 1 WLR 1661in which it was held that the discretion of a decision maker will be limited:

“by concepts of honesty, good faith and genuineness and the need for absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused.”

Dunne J stated:

Where it is clear that a decision to [suspend] is being contemplated, that person should be so informed and should be afforded the opportunity to make representations as to why that should not occur. That is no more than fairness requires. That does not mean the “full panoply” of fair procedures… but it is a basic level of fairness that is required…

… in cases of extreme urgency, it may not be possible to take the sort of steps that occurred in this case. However, provided an opportunity is given to someone who has been placed on administrative leave, or suspended, to make representations at the earliest opportunity thereafter… this will suffice.”

The Chief Justice, in his judgment, noted that patient safety was a primary concern for Mr Reid in coming to his decision. He referred to the statements provided by the patients concerned, including that one of the patients felt “violated, assaulted, in such a personal way”, and another did not want to have another procedure due to the incident. O’Donnell C.J was satisfied that, in having regard to the test in Braganza, that Mr Reid was entitled to decide to suspend the Respondent, and that he came to a “careful and considered” decision based on the “wealth of information available” to him regarding patient safetyIn a dissenting judgment, Woulfe J. was of the opinion that the threshold for an “immediate and serious” risk to patient safety is a “strict test with a high bar”. He described Mr Reid’s to suspend the Respondent as “bizarre and irrational”, as there did not appear to be any person in the HSE of the view that the Respondent posed an immediate and serious risk to patients in the time between the incident in September 2018 and Mr Reid’s decision to suspend Professor O’Sullivan in August 2019. Woulfe J also noted that the suspension of a hospital consultant is a significant loss to the exchequer and the patients in the public health system in circumstances where there is already a shortage of consultants in this jurisdiction.

However, the concurring judgments of Dunne J. and O’Donnell C.J held that it was within Mr Reid’s discretion to find that there was an immediate and serious risk to patient safety, despite the fact that an expert concluded otherwise. The Court ruled that Mr Reid held this view honestly, bona fide, and was not arbitrary, capricious or irrational. Dunne J. noted the while disciplinary proceedings should be dealt with expeditiously, given the serious nature of the matter, the process should be dealt with carefully which will take some time. Dunne J. had no criticism of the timeline of events in this matter given the necessity to investigate carefully. The appeal by the HSE was accordingly allowed.

Takeaway for employers: This decision provides a detailed analysis of the legal position in relation to workplace suspensions and emphasises that each case will be considered on the specific factual matrix. It is essential that issues relating to suspension are dealt with on a case-by-case basis. There is no “one size fits all” approach and legal advice should be obtained when considering suspension to reduce the risk of costly litigation.


Dunne J.


O’Donnell C.J


Woulfe J.


Authors – Jane Holian, Jenny Wakely and Anne O’Connell

30th June 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


If you found this article useful you might like our employment law newsletter. We write monthly articles, like this, covering interesting cases, decisions, news and developments in Ireland.

Related Articles