This case was brought before the court of appeal by the Appellant who was employed as a Consultant Gynaecologist and Obstetrician at St. Luke’s Hospital, Co. Kilkenny.  The appeal concerned the suspension and proposed dismissal of the appellant from his position a result of alleged misconduct.  In these judicial review proceedings, the Appellant challenged a number of decisions of the CEO of the Respondent. The Appellant had been suspended on paid administrative leave since August 2019, pending the completion of an inquiry into certain matters concerning him.  The challenge to the Appellant’s suspension and proposed dismissal was dismissed by the High Court in a judgment made on the 27th of April 2021.

The Appellant commenced employment with the Respondent in 1992 and had a special interest in the development of alternative methods for certain gynaecological examinations that do not involve the use of a traditional speculum with a view to minimising discomfort.  As part of what the Appellant describes as a “feasibility study” he 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. None of the patients were informed that this was being done nor was their consent sought.  Ethical approval for such research was not obtained from the relevant hospital ethics committee.  Further, the equipment used by the Appellant was not hospital equipment but rather equipment personally purchased by him from his own funds. None of the results of the study were recorded on the patients’ charts.  The concerned nursing staff involved reported the matter to the hospital management which set in train a sequence of events which is still ongoing.

Each of the women involved in the Appellant’s study were eventually informed of the procedure they underwent which took place without their consent and have instituted proceedings in the High Court against the hospital.  The Appellant strongly rejected all allegations of wrongdoing against him and claimed that a report conducted on the HSE's behalf stated that he did not pose any risk to patient health and safety. He claimed the investigations against him were flawed because he has been an 'outspoken advocate for patient's rights and in particular pregnant women' and has made public remarks critical of St Luke's management. He also claimed that proper reasons had not been given by the Respondent as to why the recommendation that he be dismissed was made. He further claimed the recommendations were irrational and unreasonable.

The court of appeal highlighted that the basis for suspending and proposing the removal of the Appellant from his employment seemed to involve a denial of the most basic fair procedures, that a person could find himself suspended and even dismissed on the basis of a comment made by somebody to whom he had never spoken, of whom he was quite unaware and in respect of which comment he was given no right to respond or defend himself.   On this basis, the court of appeal ruled that the Appellant’s suspension should be lifted immediately.

However, The Court of Appeal was not prepared to quash the HSE's recommendation to the Minister that he be dismissed from the position and agreed with the High Court that quashing that decision would be premature and that the Appellant’s rights would be fully respected protected by the investigating committee.

Guidance for Employers

The Court of Appeal were sympathetic towards the Appellant in terms of his suspension. The Court noted that “by any reasonable standard, this could not conceivably be considered to be an investigation that is taking place expeditiously or with all practicable speed."  The judge said that the suspension should have been lifted when the HSE received a report in late 2019, which identified no patient safety concerns regarding the Appellant. It would be unfair, and potentially cause damage to an employee’s reputation to have them place on administrative leave pending an investigation for such a long period of time.  Employers should be mindful and exercise discretion in suspending employees, particularly for extended periods. 
https://www.courts.ie/view/judgments/0ee87ac7-1d32-4f05-a24a-08e62bbb6584/95c2f408-943b-4cd0-a4d9-2d6e6e7a820b/2022_IECA_74_(Unapproved).pdf/pdf