Case 020561. Request for access to the medical records of the requester's late brother - whether release would involve disclosure of personal information about a deceased person - section 28(1) - whether a right of access arose under regulations made by the Minister under section 28(6) of the FOI Act (i.e. S.I. 47 of 1999)

Case Summary

Facts

Ms X sought access to the medical records of her late brother, Mr Y, held by Cork University Hospital. Mr Y was unmarried and the requester and her two sisters, Ms A and Ms B, were his nearest next of kin. The Board refused the records on the grounds that release would involve the disclosure of the late Mr Y's personal information and that section 28(1) of the FOI Act applied. The Board upheld this decision following internal review. At no stage did the Board advert to the specific provisions in the FOI Act governing the release of records relating to deceased persons (section 28(6)).

Decision

In the course of the review, Ms X provided the written consent of Ms A and Ms B to the release to her of Mr Y's medical records. Having been informed of this development, and notwithstanding that Ms B was named as the late Mr Y's personal carer on Hospital records, the Board refused to release the records to Ms X.

Having regard to SI 47 of 1999, made by the Minister for Finance under section 28(6) of the FOI Act, the Commissioner considered whether a right of access arose to the requester under the third category of requester specified in the regulations i.e. was she such a person to whom it was considered "appropriate" to release the records. The Commissioner referred to the Guidance Notes issued by the Minister and their suggestions as to factors that a public body should consider in deciding whether release of such records is appropriate in the circumstances. For example, a balance must be struck between protecting the rights to privacy of the deceased and the right of the requester to gain access to the records. The nature of the records should be considered, as well as the wishes of the deceased, if known, in relation to the release of his or her records.

The Board contended that the only circumstances in which it was appropriate to release the medical records of a deceased person was where there was an issue of serious risk to the health of another individual, or if there was a question as to the quality of the care a deceased person had received. It also suggested that the proper way for the records to be accessed was on foot of a court Discovery Order.

The Commissioner did not agree with the Board's contentions. She found that section 28(2)(e) of the FOI Act already provides for release of personal records in a manner broadly equivalent to the circumstance identified by the Board where release of the records was necessary in relation to a "serious risk to the health of another individual". She commented that it had to be assumed that the provisions of section 28(2)(e) and 28(6)(b) were different in nature. The Commissioner also found that, in the absence of a test requiring a prior arguable case for concluding that there may have been problems with the quality of care given to a deceased person - and sustaining such an argument would itself require access to records - the second ground identified by the Board did not constitute a workable test. In relation to the Board's contention that access should be given through a Discovery Order, she found that, while the existence of a likely alternative to FOI may have some bearing in relation to public interest arguments under section 28(5)(a), such an alternative was not in any way definitive in relation to the provision under consideration in this case (section 28(6)(b)).

The Commissioner identified a number of circumstances which she believed were reasonable to take into account in this particular case. Having regard to these circumstances, she found that the requester should be regarded as a next of kin to whom it was appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" to release the medical records of the late Mr Y. The Commissioner also commented that there may be cases where, due to circumstances prevailing, a requester who is a close next of kin may not be regarded as a person to whom it was appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" to release the medical records of a deceased person.

Date of Decision: 17.07.2003

Our Reference: 020561

17.07.2003

Ms X

Dear Ms X

I refer to your application to this Office, dated 5 November 2002, for a review under the Freedom of Information (FOI) Act of the decision of the Southern Health Board (the Board) on your FOI request for access to the medical records of your late brother, Mr Y. Please accept my apologies for the delay which has arisen in dealing with your application.

Background

In your FOI request to the Board on 9 July 2002 you sought copies of all medical records relating to your late brother held by Cork University Hospital. On 26 September 2002 the Board refused your request and relied for its decision on section 28(1) of the FOI Act which protects the privacy of personal information, including personal information relating to a deceased individual. This decision was subsequently upheld by the Board's internal reviewer on 30 October 2002.

I note that neither the original decision maker, nor the decision maker at internal review stage, dealt with the specific provisions governing the release of records relating to deceased persons [section 28(6) of the FOI Act]. I regard this as a significant omission and a defect in the decision making process in this particular case.

I have carried out this review in accordance with the provisions of the Freedom of Information Acts, 1997 and 2003. All references in this letter to particular sections of the FOI Act refer to the Freedom of Information Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003. In conducting this review, I have had regard to the submissions made by you and by your solicitors. I have had regard also to the submissions of the Board and, in particular, to the Board's submission dated 5 December 2002. Finally, I have regard to the records themselves, a copy of which has been made available to this Office for the purposes of this review.

Scope of Review

My review is confined solely to the issue of whether or not the Board is justified in refusing you access to the medical records of your late brother on the basis that they are exempt from release under the FOI Act.

I note that in applying for a review of the Board's decision, and in subsequent contacts with this Office, you explained that you are seeking your late brother's medical records in the context of a possible legal challenge by you of the validity of your late brother's will. Section 8(4) of the FOI Act provides, subject to the other provisions of the Act, that in deciding whether to grant or refuse a request any reason that the requester gives for the request has to be disregarded. The effect of this provision is that, except to a very limited extent, your motivation in making the request is not a consideration in deciding the request.

Findings

Preliminary Matters

I understand your late brother was unmarried and that you and your two sisters are his nearest next of kin. I take it that the Board has satisfied itself as to your identity and as to your relationship with your late brother. I take it the Board has no reason to believe there are other family members who might claim to have an equivalent or higher status in terms of being next of kin.

I have examined the medical records at issue and I find that they consist of medical and nursing notes as well as medication records and test results. The nursing notes record, amongst other things, contacts made by the hospital with your sisters and yourself as well as visits made by your sisters and yourself to your brother while in hospital.While all such records are by definition very personal, the medical records at issue in this review would appear to be relatively routine.

In the course of this review, and at the request of this Office, your Solicitor provided the written consent of your two sisters, Ms. A and Ms. B, to the release to you of the requested records. I note that Ms. B was recorded as Mr. Y's "Next of Kin or Responsible Relative or Friend" in the admission record for [name of] Hospice, a copy of which is contained in the Board's records. In the admission details recorded by Cork University Hospital, your sister, Ms. B, is recorded as being your late brother's "personal carer". I take it that in both instances these records were made on the basis of information given by your brother.

Mr. Dunne of this Office provided copies of these consents to the Board and suggested it might reconsider its decision in the light of the new situation then existing. However, the Board took the view that the consent of your sisters, to your being given the records, did not warrant any departure from the position it had already adopted.

In your submission of 21 November 2002 to this Office, you mentioned that you had received your late brother's GP records and the inference was that, having received the GP records, it is logical to expect that you will also receive the hospital records. As part of this review, this Office contacted your late brother's General Practitioner, [who] confirmed that she has agreed to provide you with access to your late brother's medical records though she had not actually done so by the date of our contact on 6 May 2003.

Section 28 - Personal Information Section 28(1) of the FOI Act provides that personal information (including that relating to a deceased individual) shall not be disclosed to a third party. This is the provision relied upon by the Board in its decision to refuse your request. However, the protection provided by section 28(1) is not absolute and a number of other provisions within section 28 provide, in certain circumstances, for the release of personal information to a third party. One of these provisions is that contained at section 28(5)(a) which provides for the release of personal information on the basis of a public interest test. More specifically, however, section 28(6)(b) of the FOI Act provides for the release of the records of a deceased person where the requester "is a member of a class specified" in regulations made by the Minister for Finance. The Minister has made regulations under section 28(6)(b) in the form of Statutory Instrument No. 47 of 1999, referred to hereafter as "the Regulations".

Statutory Instrument No. 47 of 1999 The Regulations provide that, notwithstanding section 28(1), a request shall (my emphasis) be granted where the individual to whom the records relate is dead and "the requester concerned belongs to one of the following classes of requester:

(i) a personal representative of the deceased acting in due course of administration of his or her estate ...

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, and

(iii) the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister".

In this case, it appears you do not fall into either of the categories at (i) or (ii) above nor have you argued that you do. Accordingly, the issue is whether you belong within the category at (iii) above. Category (iii) may be problematic in that, whereas section 28(6) empowers the Minister to prescribe classes of persons to whom the records of a deceased person may be released, in this instance it appears the Minister has prescribed classes of persons by reference to a test of being "appropriate having regard to all the circumstances..." and to guidelines which do not form part of the statutory instrument itself. Whether this is a valid prescription of classes, as envisaged in the primary law, may be open to question.

In any event, I find that you are a next of kin of Mr. Y and, potentially, belong to a class of requester to whom his medical records may be released. In order to qualify as belonging to a relevant class of requester, as set out in the terms of the Regulations, it is necessary to establish that you are an "appropriate" person as required by sub-paragraph (iii) above.

In the context of category (iii) above, the Minister for Finance has published "Guidance Notes on Access to records by parents/guardians / Access to records relating to deceased persons prepared under section 28(6) of the Freedom of Information Act, 1997". While there must be some question as to whether these Guidance Notes constitute statutory criteria which are required to be taken into account, they do represent a useful tool in dealing with the difficult issue of what is meant by the term "appropriate in all the circumstances" in sub-paragraph (iii) above.

The Guidance Notes suggest a number of factors which a public body should consider in each case when deciding if release of the records is appropriate in the circumstances. They provide, among other things, that the decision maker must balance the protection for the personal information of the deceased, as set out in section 28(1) of the Act, against the right of the requester to access the records. They also provide that the nature of the records should be considered, i.e. if the records are inherently private and of a very sensitive nature then they are not likely to be released unless there are compelling reasons for doing so. Another consideration identified in the Guidance Notes is whether the wishes of the deceased, in relation to release of his/her personal records, are known. The Guidance Notes suggest that where the deceased has let it be known that he/she would not consent to the release of personal records "there would have to be compelling reasons for overturning the deceased's expressed wishes".

The Board failed in its first decision, and subsequently in its internal review decision, to advert to the relevance of section 28(6) and of the Regulations. However, when these provisions were drawn to the Board's attention in the course of this review, it did make a submission both in general terms and in relation to the application of these provisions in your case.

Health Board Submission In its detailed submission of 5 December 2002 the Board made the following general observations:

• that the doctor-patient relationship is inherently private and based on confidence;
• following the death of a patient, it is reasonable to assume that his/her privacy rights will continue to be respected;
• any public perception that medical records may be released to others, following the death of the patient, may inhibit the provision of relevant medical information by patients generally;
• once records are released under FOI there are no restrictions on the manner in which they may be used.

The Board also dealt specifically with the correct construction of the provision at sub-paragraph (iii) of the Regulations which provides for release of a deceased person's personal information where the requester is "a next of kin of the individual or such other person ... as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister". The Board's contention is that the only circumstances in which a next of kin or other person would be "appropriate", for the purposes of this provision of the Regulations "... would be in relation to either a serious risk to the health of another individual or if there was a question into the quality of care an individual deceased person received". The Board went on to argue that "the regulations and guidelines serve only to establish the locus standi of a requester and do not purport to make the decision for the head."

In a subsequent submission, dated 18 June 2003, the Board responded to queries raised by this Office regarding the likelihood of you and/or your sisters being able to get a court order for discovery of your late brother's medical records in a context where you and/or your sisters were challenging the validity of your brother's will. According to the Board, third party discovery applications for medical records are frequently made in court in situations where a relative is contesting the will of a deceased person. The Board says that the courts generally grant such orders and, where this is the case, "the Board deals with the matter expeditiously" and releases the records sought. The Board contends that, in the circumstances of this case, the route of discovery by way of court order is the "proper way for this matter to be addressed because it limits the possible use of very private and sensitive records as the people seeking discovery need to give undertakings to the court when seeking the order."

Analysis In relation to the general points made by the Board, as outlined above, it is clear from section 28(6)(b) of the FOI Act that the Oireachtas envisaged that the personal records of deceased persons might be made available to specified classes of persons. It is equally clear that where such records are provided to specified classes of persons, this will be done notwithstanding the underlying protection for the personal information of the deceased, as set out in section 28(1) of the Act, and notwithstanding any duty of confidence which may be owed to the deceased person. The Regulations made under section 28(6)(b) seek to moderate the impact of such breaches of the protection of personal information and of confidence. They do so by attempting to specify the classes of persons, to whom such records may be released, by reference to "all the circumstances and to any relevant guidelines drawn up and published by the Minister". In the ordinary course, and in the present context, one example of a specified class of person is a next of kin (including a sibling of the deceased). However, the effect of the Regulations appears to be that a next of kin constitutes a specified class of person only where some other unspecified conditions are met. Whereas this is not a particularly satisfactory provision nevertheless, as Information Commissioner, it is my function to seek to apply it as best I can. This requires the striking of some reasonable balance between, on the one hand, the underlying protection of the personal information of the deceased person as well as any duty of confidence owed to the deceased person and, on the other hand, the right of access provided for in the legislation.

I am not persuaded that the Board is correct in its contention that the application of the "appropriate person" test in the Regulations is confined to the two specific grounds which it identified in its submission of 5 December 2002. The first ground identified by the Board is a circumstance in which release of the deceased's personal records is necessary "in relation to ... a serious risk to the health of another individual ...". Section 28(2)(e) of the FOI Act already provides for release of personal records on grounds broadly equivalent to the ground identified by the Board. Accordingly, following the rules of statutory interpretation, I must assume that the provision at section 28(6)(b) is different in nature to the provision at section 28(2)(e) of the FOI Act. The second ground identified by the Board is a circumstance in which there is "a question into the quality of care an individual deceased person received". Whereas I agree that it is sensible to provide medical records in a context in which there is a question as to the quality of care given to a deceased patient, it is open to any relative of a deceased patient to question the quality of care provided. In the absence of a test requiring a prior arguable case for concluding that there may have been problems with the quality of care - and sustaining such an argument would itself require access to records - it seems to me that the second ground identified by the Board does not constitute a workable test. Accordingly, I cannot accept the Board's contention that category (iii) of the Regulations, as set out above, is meant to apply only in the context of the very narrow grounds posited by the Board.

The most recent submission of the Board is that a third party discovery order, rather than FOI, is the proper route for you to follow in the circumstances of this case. The issue here is whether the existence of a likely alternative avenue of access to your brother's medical records is sufficient, in the context of all of the circumstances, to render release of the records to you under FOI as not "appropriate". I accept that this is, indeed, a valid circumstance to take into account in the overall approach to interpreting category (iii) of the Regulations. However, the existence of a likely alternative to FOI cannot be regarded as in any way definitive. Were the argument being considered solely in relation to public interest considerations, and where the main public interest factor was the public interest in enabling you to contest your brother's will, then the existence of an alternative to FOI (court discovery) might indeed be definitive. It is important to bear in mind that the public interest basis for possible release is provided for at section 28(5)(a) of the FOI Act; the provision actually under consideration here is section 28(6)(b) which is a very different provision.

There are a number of other relevant circumstances which I believe it is reasonable to take into account. These include the following:

1. the fact that all of the deceased's siblings, who are his nearest next of kin, agree to the records being released to you;
2. the fact that your late brother named your sister, Ms. B, as his next of kin and personal carer in his hospital admission records suggests that he had confidence in her judgement in relation to matters concerning him;
3. the fact that there is no evidence of estrangement between your late brother and his siblings but rather that he had maintained good relations with them - for example, all three sisters were with him at his death and had visited him during his hospitalisation;
4. the fact that there is not any evidence to suggest that the late Mr. Y would have objected to the release to you of his personal records;
5. the fact that, whereas the medical records are indeed sensitive records, there is nothing in them of unusual sensitivity and, on the face of it, nothing of a kind of which you are not already aware, at least in general terms;
6. the fact that it is the judgement of your late brother's GP that her records relating to him may be released to you.

Taking all of these together, I find the circumstances of this particular case are such that you should be regarded as a next of kin to whom it is appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister", to release the medical records of your late brother, Mr Y. I would like to stress that this finding is very much based on the individual circumstances of this case. I accept that there are instances in which, because of the circumstances prevailing, a requester who is a close next of kin may not be regarded as a person to whom it is appropriate, "having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister", to release the medical records of a deceased person.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the decision of the Southern Health Board to refuse you access to the medical records of your late brother, Mr. Y. I direct that the records be released to you subject to the Board's verification, in the normal way, of your identity as the sister of the deceased and to verification (should the Board consider this necessary) of the consents provided in the course of this review by your two sisters.

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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner