Case 99125

Request for access to records of requester's attendance at a day hospital - whether records were destroyed - section 10(1)(a) - whether records of treatment by private consultant are under health board's control- section 2(5)(a) and section 6(1)

Case Summary

Facts

The requester had been seen privately by a consultant while he was being treated in a public (day) hospital. He applied to the Mid Western Health Board for access to all of his medical records relating to his hospital treatment. The Board released 47 records. It refused access to other records on the basis that (i) records of his attendance at the day hospital had been destroyed with the requester's agreement in 1997 and (ii) records held by the private consultant were not held by or under the control of the Board.

Decision

The Commissioner found that it was reasonable to conclude that the paper file of the patient's day hospital attendance had been destroyed in the circumstances described by the Board. He accepted the Hospital's assertion that any computer records of the requester's attendance had been deleted since the Hospital's computer system was modified.

As regards the "private" records, the Commissioner found that there was no evidence to justify a finding other than that the consultant held the records of the requester's treatment as a private patient. Therefore, release under FOI could not be directed since the records were not under the control of a public body. It was not considered relevant that the consultant also provided services to public patients in the Health Board area since her contract with the Board allowed her to have a private practice.

Date of Decision: 26.02.2001

Our Reference: 99125

26.02.2001

Mr X

Dear Mr X

I refer to your application to my Office for a review of the decision of the Mid-Western Health Board (the Health Board) on your request for access to all records about you held by Our Lady's Hospital, Ennis concerning your treatment as a public patient there. I am sorry for the long delay in dealing with your application. Your original request under the Freedom of Information (FOI) Act, was made on 21 October 1998. Due to staff shortages and pressure of work, it has not been possible to finalise your case until now.

Background

I have now concluded my review in this case. In doing so, I have had regard to your submissions and to those of the Health Board. I have examined the records to which you were granted access. I note that Ms Carol Ivory of this Office met with you on 29 April 1999 and that you wrote to her on 17 August 1999 to clarify certain facts arising from your discussions with her and to comment on the preliminary views set out in her letters dated 27 May 1999 and 16 August 1999. I note also that you indicated that you wished to make a further submission and that this Office notified you that any such submission should be made before 15 January 2001. There is no record of a further submission having been received from you.

Scope of Review

As you are aware, the Health Board released to you a file of correspondence and other records (numbered 1 to 47) relating to you held by Our Lady's Hospital. As I understand it, you contend that there are additional records (including clinical records) relating to your attendances at the Day Hospital, attached to Our Lady's Hospital, during the periods 2 December 1993 to 26 January 1994 and 19 October 1994 to May 1995. These records, you contend, have not been released.

The Health Board, in its decision letter of 18 November 1998, appears to be saying that all the records relevant to your request are being released. I note that your application for internal review (dated 2 December 1998) was not dealt with by the Health Board. From submissions made to my Office by the Health Board, it appears that, in failing to release further records to you, the Health Board is relying on section 10(1)(a) of the FOI Act. Section 10(1)(a) allows a public body to refuse access to a record where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Health Board claims that the records of you as a public patient in Our Lady's Hospital were held by the Clare Mental Health Service but were destroyed on your instructions. It accepts that a file containing your clinical notes was retained by Dr A but takes the view that this was her file on your treatment as a private patient and, as such, would not be covered under the FOI Act.

Accordingly, two separate issues fall to be decided in my review. The first is whether, as the Health Board contends, records relating to your attendances as a public patient at our Lady's Hospital have been destroyed. The second is whether clinical notes relating to you, and held by Dr A, do not come within the control of the Health Board (and thus are not held by the Health Board) as they relate to private treatment provided by Dr A.

Findings

Day Hospital Records

I will deal first with the issue of whether records relating to your attendances at the Day Hospital have been destroyed. The Health Board and the doctors concerned have stated that the records, including clinical notes, about your attendance at the Day Hospital were destroyed at your request by Dr B on or around 30 May 1997. Dr B has informed the Health Board and this Office that her recollection is that a meeting took place between herself, yourself and Dr A on 27 May 1997 at which you went through the Day Hospital file with Dr A and requested that it be destroyed. Dr B says that she destroyed the file the following day together with two copies of it that were made prior to the meeting.

You raised the issue of computer records and I accept that you recall seeing members of staff in the Day Hospital typing information into the computer. This Office asked the Health Board to elaborate on its explanation (put to you in Ms Ivory's letter dated 27 May 1999) that the computer system was never fully implemented. The Health Board does not deny that records were created within the system when you were attending the Day Hospital. However, the Health Board says that, owing to industrial relations and other problems, the particular system in use in 1994-1995 did not continue to be used for clinical records as originally envisaged. The Health Board says that it has searched its computer system and found no records relating to your attendance at the Day Hospital. The Health Board is of the opinion that these records were probably deleted as the system was changed over the years and that any "hard copies" which were printed off would have formed part of the file which was destroyed.

Following searches of its records, the Health Board states that it can locate no further administration or clinical records in the Clare Mental Health Service concerning your attendance and treatment at the Day Hospital. The Health Board says that all such records, including records of admission and discharge dates, were included in the file which was destroyed in May 1997.

Having reviewed the steps taken by the Health Board to locate the records which you sought in relation to your attendances at the Day Hospital, I now consider that all reasonable steps have been taken to ascertain the whereabouts of the records. I consider that this is a situation in which it is reasonable to conclude, in the light of the efforts made to locate them, that the records sought no longer exist, having been destroyed as detailed above. I find, therefore, that the Health Board's decision to refuse your request for these records under section 10(1)(a) of the FOI Act was justified.

Dr. A's Records

I now turn to the issue of the records held by Dr A and the question of whether these records relate to her treatment of you as a private patient. You attended Dr A, Consultant Psychiatrist, as a private patient during 1993. In December 1993 and January 1994, you attended the Day Hospital in Our Lady's Hospital, Ennis on a voluntary basis at Dr A's recommendation. You attended the Day Hospital again during the period from October 1994 to May,1995. Following contact from this Office, the Health Board provided clarification of the situation whereby a person is treated by a consultant in a private capacity while attending a facility run by the Health Board as a public patient. It seems to me that the public/private status of an in- patient in a "residential" hospital would normally be determined by whether the hospital itself or the bed occupied was classified as being public or private. However, in relation to a "day hospital", the situation is not as clear-cut as that. According to the Health Board, it would be open to a private patient to be seen by his or her consultant, and to pay the fees incurred directly to the consultant, while at the same time availing of other facilities in the day hospital (such as meals and participation in any group activities or treatment) without charge. The cost of these "public" services would be borne by the Health Board.

You will recall that on 18 August 1998 a meeting was held at the request of Mr C (a public representative), at which you were present with Dr A and Dr B. Dr B says that she recalls that she held what she understood to be Dr A's private file for some time at your request and that she passed it to Dr A prior to the meeting of 18 August 1998. Dr A has confirmed to the Health Board and to this Office that, "the second file" which is her private file, was returned to her by Dr B on 18 August 1998. You expressed concern about fees paid for your consultations with Dr A while attending the Day Hospital. This is not an issue on which the Information Commissioner can comment. I consider, however, that it is necessary to examine your contention that Dr A's notes are part of the public hospital notes. In relation to the file held by Dr A, the position is that if the Act does not confer a right of access, then the Commissioner is unable to make a binding decision granting access. In my view, the relevant provisions of the FOI Act are contained in sections 6(1) and 2(5)(a) of the Act.

Section 6(1) of the Act provides that

"Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access". Section 2(5)(a) provides that a

"reference to records held by a public body includes reference to records under the control of the body". It seems to me that it is Dr A who holds the records, and that she does so at present in the belief that the records relate to her treatment of you as a private patient. The Health Board shares that belief. Both the Health Board and the doctor are in agreement that the records are properly held in this way and I consider that there is no evidence which would justify me in finding otherwise. Accordingly, my view is that the records maintained in this case by the consultant are not under the control of the Health Board and, therefore, are not covered by the FOI Act. The fact that the consultant concerned also provides services to public patients within the Clare Mental Health Service is not relevant. However, I do appreciate that this arrangement can give rise to some confusion. I should add that the Health Board has confirmed to my Office and provided documents which indicate that Dr A's contract with the Mid-Western Health Board allows her to conduct private practice. As regards the clinical notes held by Dr A, my finding is that these records are not within the control of the Health Board and that, accordingly, they are not held by the Health Board. On this basis, Dr A's records do not come within the scope of the FOI Act and are not subject to release under the Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Mid Western Health Board in this case. A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner