Employment Law

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 Supreme Court finds hospital consultant properly dismissed despite mitigating report from independent expert.

A consultant who was suspended from his post and put on administrative leave, took on his employer not only in internal hearings but also in the High Court, Court of Appeal and finally the Supreme Court.

This long running dismissal saga began when the consultant obstetrician conducted a number of experiments on the genital areas of several patients without their consent or knowledge and which led to his being investigated and then suspended from duty by the HSE.

Although the patients came to no harm, it was agreed that none had consented or agreed to the procedures being carried out and an internal review concluded that they had not been carried out ethically or in accordance with best practice.

Under his own employment contract, the HSE had the power to place the consultant on administrative leave with pay where it appeared to them that “the consultant’s conduct may pose an immediate and serious risk to the safety health and welfare of the patient.”

A report was obtained from an independent gynecologist (“the O’Hare report”) which found that the consultant’s conduct had fallen below expected standards but did not pose a risk to patient safety.

Despite the O’ Hare report, the HSE dismissed the consultant who then challenged his dismissal in court.

The consultant found comfort in the Court of Appeal finding that the decision to dismiss him did not comply with fair procedures and the O’Hare report should be let stand.  The court ruled he should be re-instated.

However, the HSE appealed this decision to the Supreme Court. Dealing with the duty imposed on the HSE when deciding to suspend a consultant, the court referred to the extensive engagement with the consultant’s solicitors and the numerous reports obtained by the parties which included an independent one.

The court considered the proper standard of review for suspension was outlined in the 2015 Braganza Shipping case. If an employer could show honesty, good faith, and an absence of arbitrariness, then a court will not interfere with a decision to suspend an employee pursuant to the terms of his employment.   Considering all the evidence in this case, the HSE’s decision to suspend the consultant was neither arbitrary nor irrational.

The court held the HSE was obviously concerned about the lack of informed consent and the consultant’s apparent lack of insight into his actions.  Under the terms of his contract, the HSE was not required to reach a conclusion that there was an immediate or serious risk to patient safety, only that there may be such a risk.

The court stressed the importance of informed consent to medical procedures and the evidence of the patients’ adverse reaction to learning that the experiments had indeed occurred.   It appeared to the court that there was substantial evidence available to the HSE regarding the health and safety of patients and that there may well have been an immediate and serious risk to the patients’ health and safety at that time.

The court, therefore, found the decision to dismiss the consultant was, in all the circumstances, lawful.

O’ Sullivan v HSE [2023] IESC 11.