A gynaecologist who oversaw research procedures on five women without the consent of the women or his employer has lost a High Court challenge aimed at preventing his dismissal.
Ray O'Sullivan who was consultant at St Luke's Hospital in Kilkenny had carried out the unauthorised research in September 2018 on women who were having routine hysteroscopies.
A second procedure which involved placing a catheter and small pressure pad inside their vaginas was carried out. It was part of research designed to ascertain if some procedures could be carried out without the use of a speculum.
None of the patients had been informed about the research or consented to the procedure, nor had they been aware of it afterwards.
Prof O'Sullivan had not obtained clearance from the hospital's ethics committee and had sourced the instuments for the procedures outside of the hospital's usual procurement channels with his own funds. Measurements taken during the procedures were stored on his mobile phone and later deleted.
Nursing staff raised concerns about the risk of infection and an investigation was carried out. The five women were invited to meetings with hospial staff and were described as being "shocked and upset" by the disclosures. They were advised that they should be tested for HIV.
Prof O'Sullivan challenged the decision to dismiss him and claimed the entire investigatory process was tainted by bias as he had been an outspoken critic of management at St Luke’s Hospital and the HSE over a long period of time.
The court heard that an expert report said while he had made an error of judgement, the procedure was a well-intentioned "additional observational procedure" by a long established and highly trained consultant. The report said he did not pose any immediate or serious risk.
Prof O'Sullivan had argued that it was irrational for the CEO of the HSE to go against this report and recommend his dismissal. He also argued that CEO Paul Reid was not medically qualified.
However, Mr Justice Anthony Barr said the decision by the CEO was not unjust, irrational or disporportionate. He said decision makers are free to depart from advice given as long as they provide clear and cogent reasons.
He also said it was "noteworthy" that even at this stage years after the events, while he admits he was in error in failing to obtain consent from patients or clearance for the study from his employers, he does not admit there was any misconduct.
A review by another expert said he had not shown remorse for his actions, had significant reservations about Prof O’Sullivan’s continuing involvement in clinical practice given the psychological harm suffered by the patients, the breakdown of trust and his serious lack of insight.
He also lifted an order placing a stay on further progression of the investigation into the matter which was imposed by the High Court 14 months ago.
