Case 050129. Request by parent for access to child's hospital records - whether release would best serve the interests of the child - section 28(6)

Case Summary

Facts

The requester sought access to records relating to his son's admission to a hospital as a result of an allergic reaction. The Health Service Executive (HSE) opposed the release of the child's hospital records to the requester, primarily on the basis of a safety order that allegedly had been granted against the requester. In the course of the Commissioner's review, the child's mother and joint guardian was given an opportunity to make submissions under sections 34(6) and (8) of the FOI Act but did not avail of the opportunity.

Decision

The Commissioner followed the judgment of the Supreme Court in the case of McK v. The Information Commissioner. In its judgment, the Supreme Court held, in essence, that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child.

In this case, the Commissioner noted that the requester, along with the child's mother, had both guardianship and custodial rights and obligations in respect of the child. The Commissioner also had regard to evidence indicating that the alleged safety order had been granted for the protection of the child's mother rather than that of the child. In the circumstances, the Commissioner found that the HSE had presented insufficient evidence to upset the presumption that the release of the child's hospital records to the requester would serve his best interests.

The Commissioner also had regard to the Supreme Court's finding in McK v. The Information Commissioner that the views of the minor concerned, who was nearing her majority, were very relevant. However, the Commissioner noted that, in this case, the child was not yet 10 years old. She therefore did not consider it appropriate to have sought his views on whether his hospital records should be released to the requester.

The Commissioner annulled the decision of the HSE and made a new decision to grant the request for access to the child's hospital records.

Date of Decision: 10.07.2006

Our Reference: 050129

10.07.2006

Mr. X

Dear Mr. X

I refer to the review of the decision of the Health Service Executive (HSE) for the Mid-Western Area to refuse your request under the Freedom of Information Acts, 1997 and 2003 (FOI Act) for access to records relating to the hospitalisation of your son, Master X. As you know, this review was suspended pending the judgment of the Supreme Court in the case of McK v. The Information Commissioner. As the Supreme Court has now given its judgment, the review of the HSE's decision in this case has been resumed.

Background

In carrying out my review, I have had regard to your application for review and to the submissions made by the Health Service executive. I have also examined the records at issue.

I note that Ms. Y, Master X's mother and joint guardian, was also notified of the review and given an opportunity to make submissions under sections 34(6) and (8) of the FOI Act. To date, no formal submissions have been received from her. However, the HSE has continued to oppose the release of Master X's records to you.

Scope of Review

The records at issue consist of Master X's hospital records relating to his admission to [. . .] Hospital in August 2003 as a result of an allergic reaction. The HSE refused your request for access to the records under section 28 of the FOI Act. My review in this case is concerned solely with the question of whether the decision of the HSE is justified.

Findings

Section 28(1) provides that, subject to the other provisions of that section, access to a record shall be refused where it would involve the disclosure of personal information. However, section 28(6) of the FOI Act states that, notwithstanding subsection (1), the Minister for Finance may provide by regulation for the grant of access where "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". The Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (SI No. 47 of 1999), in turn, make provision for access by parents or guardians to personal information in relation to minors in certain circumstances. The Regulations provide that a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances, to release the records to the parent/guardian would be in the minor's best interests.

In its recent judgment in the case of McK v. The Information Commissioner, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. In reaching its judgment, the Supreme Court had regard to the Constitution and observed that the "relationship between parent and child has special status in Ireland". The Court noted that the family unit has rights, but so does each member of the unit. The Court stated:

 "A parent's rights and duties include the care of a child who is ill. As a consequence a parent is entitled to information about the medical care a child is receiving so that he or she may make appropriate decisions for the child, as his or her guardian. The presumption is that a parent is entitled to access such information. That position is not absolute. The circumstances may be such that the presumption may be rebutted. But the primary position is that the presumption exists."

The Court further explained:

"The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."

Thus, a parent is entitled to access to medical information about his or her child based on the presumption that such access would best serve the interests of the child. However, the presumption may be overcome if sufficient evidence is presented to show that the release of such medical information would not be in the child's best interests. In considering whether sufficient evidence has been presented to overcome the presumption, the welfare of the child is paramount.

It is my understanding that, along with his mother, you have both guardianship and custodial rights and obligations in respect of Master X. I understand that Master X lives with his mother and that you have certain access rights in relation to him. Notwithstanding the Supreme Court's judgment, the HSE continues to oppose the release of Master X's records to you, primarily on the basis of a safety order which, it says, was granted against you for five years from 3 March 2003. However, in a telephone conversation with one of my staff, Ms. Y indicated that the safety order was granted for her protection rather than that of her children. Ms. Y also stated that she had agreed to joint custody of the children with you. In the circumstances, I find that the HSE has not presented evidence sufficient to upset the presumption that the release of Master X's hospital records to you would serve his best interests. Accordingly, having regard to the Supreme Court's judgment in the case of McK v. The Information Commissioner, I conclude that your request for access must be granted in this case.

In its judgment in McK v. The Information Commissioner, the Supreme Court referred to the relevance of the views of the minor concerned in that case and stated that, given the age of the minor (who was then 17 years old), her views were very relevant. In this present case, where your son will soon be 10 years old, I do not consider it appropriate to have sought his views on whether his hospital records should be released to you.

Decision

Having carried out a review under section 34(2) of the FOI Act as amended, I hereby annul the decision of the HSE and make a new decision to grant your request for access to your son's hospital records.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner