The Senior Investigator found that the hospital is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to the records sought on the basis the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Case Summary

Whether the hospital is justified under section 10(1)(a) of the FOI Act in its decision to refuse access to the medical records of the Applicant's late husband on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Date of Decision: 16.12.2009

Review Application under the Freedom of Information (FOI) Acts 1997 & 2003 to the Information Commissioner

Background:

The Applicant made an FOI request to the hospital on 16 February 2009, seeking access to the medical records of her late husband for the period August 2008 to 15 January 2009. In its decision of 11 June 2009, the hospital said it could not locate the ICU medical records for 7-10 January 2009 and 12-15 January 2009 and relied on section 10(1)(a) of the FOI Act to refuse access to these records. On 24 June 2009 the Applicant wrote to the hospital seeking an internal review of this decision.  The original decision was upheld in the internal review decision of 29 July 2009. The Applicant wrote to the Commissioner on 12 August 2009 seeking a review of the hospital's decision. I understand that during the course of this review, the hospital found and released further records, laboratory and pharmacy reports which form part of the medical records of the deceased. 

I consider that the review should now be brought to a close by the issue of a formal, binding decision. 

In conducting this review, I have had regard to the submissions of the hospital as well as those of the Applicant (including those made to the hospital). I have also had regard to additional information and clarification provided by the hospital at the request of this Office and to the provisions of the FOI Acts.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of the Review

This review is concerned solely with the question of whether the hospital is justified, under  the provisions of the FOI Act, in its decision to refuse access to the ICU notes of the Applicant's late husband for 7-10 January 2009 and 12-15 January 2009.

Submissions

.

Findings

Section 10(1)(a)

The hospital relied on section 10(1)(a) of the FOI Act to refuse access to the missing records which provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if -

 (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

 The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body and the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)

In response to this Office's queries, The hospital provided the following information on record keeping practices in relation to ICU records:

• ICU notes are folded and put in a brown envelope with the patient's name and Medical Record Number (MRN) on the outside of the envelope
• if a patient is transferred from one ward to another, including ICU, the medical records, including ICU notes, are transferred with the patient
• when a patient is discharged from the hospital, the medical records are sent to the Consultant's secretary and the ICU notes are sent to the Medical Records Department
• if a patient dies in ICU and a Post Mortem is carried out, the medical records are sent to Pathology and the ICU notes are sent to the Medical Records Department
• if a patient dies in ICU and a Post Mortem is not carried out, the medical records are sent to the Consultant's secretary and the ICU notes are sent to the Medical Records Department
• the ICU notes, in envelopes, are kept in boxes in the Medical Records Filing Room and are retrieved if necessary. The ICU notes are kept separately from the main chart due to the size and volume of the A2 forms
• ICU notes are microfilmed for permanent archival purposes by the Data Processing Agency (DPA)
• DPA produce a list of ICU records received and returned to the hospital. 

According to the hospital, it carried out the following searches:

• the Medical Record Folder of the Applicant's late husband,
• ICU Unit and offices
• Consultant's office
• Liver Unit
• Mortuary Department
• Pathology Department
• Registrar's office and secretarial office
• Anaesthesia Department and secretarial office
• Prof. A. McCormick, Consultant Hepatologist, Private Office
• Mr O. Traynor, Consultant Surgeon, Private Office
• St. Brigid's Ward
• Medical Records Filing Room
• all ICU records sent for microfilming since January 2009 were recalled and the contents of each envelope reviewed - approx. 14 boxes
• all medical records of patients in ICU the week before and the week after the deceased's admission were reviewed.

According to the hospital, detailed discussions took place about the missing ICU notes with the following:

• Mr O. Traynor, Consultant Surgeon
• Dr Kieran Crowley, Consultant Intensive Medicine
• Ms. M. Cullen, Clinical Nurse Manager, St Brigid's Ward
• Ms. G. Carey, Clinical Nurse Manager, ICU
• Ms. C. Reynolds, ICU Manager
• Ms. L. McNicholas, Anaesthesia Secretary
• Ms. M. Moran, Deputy Medical Records Officer
• Ms. S. Alford, Release of Information Officer
• Ms. Qi Zhao, Medical Records Department
• Ms. E. Badmus, Supervisor, Medical Records Filing Room
• Ms. T. McDonough, Medical Records/ Patient Services Officer 
• Mr. L. Newcombe, Mortuary Department 
• Ms. M. O'Brien, Pathology Department 
• St. Vincent's Private Hospital 
• The Coroner's Office 
• Data Processing Agency.

According to the hospital, the following nursing staff were on duty from 7-15 January 2009 and have been consulted regarding the missing records:

The hospital said that in late 2008, ICU implemented an electronic patient record computer system -  Clinical Information System (Metavision), but that due to a temporary problem with the computer system, ICU reverted to paper ICU notes for a period of time. The admission of the Applicant's late husband to ICU was during this time when the paper records were being used  and the computer system went live again on 23 March 2009. The hospital stated that the IT problem encountered by the hospital did not in any way contribute to the loss of the ICU notes.

This Office asked the hospital if the medical records of the deceased could have been sent to the Coroner's Office. The hospital said that the original medical records are not normally requested by the Coroner's Office, but that on occasion it will request a copy of the medical records. In any event it said a  request was not received from the Coroner for a copy of the medical records of the deceased as copies of all requests from the Coroner are retained in the hospital. However, the hospital said it contacted the Coroner's Office as part of the searches for the missing ICU notes.

In responding to questions from this Office about the existence of the ICU notes of 11 January 2009 whilst the other ICU notes were not found, the hospital said that it can only surmise that the missing notes had been put in an envelope and that, for some reason, the record dated 11 January 2009 may have been left aside or not noticed and later when it was noticed, it was put in the back pocket of the Medical Record Folder as opposed to matching it up with the other ICU notes. It maintains that in practice, all ICU notes should be kept together and put in a brown envelope and not into the back pocket of the Medical Record Folder. 

The hospital has stated that when a patient dies in ICU and a Post Mortem is carried out, the medical records are sent to Pathology and the ICU notes are sent to the Medical Records Department. Clinical Nurse Manager ICU, Ms Carey confirmed that when a patient dies in ICU, the ICU notes are put in an envelope and sent to Medical Records Department. The medical records of the deceased are documented as having gone to Pathology on 16 January 2009 and according to Ms Carey the ICU notes would have been put in an envelope and sent to the Medical Records Department, however there is no system to record where the ICU notes are sent.  

I consider that it is extraordinary and regrettable that the very recent medical records of a man who died in ICU could go missing. However, having reviewed the steps taken by the hospital and its extensive contacts with relevant clinicians and others to locate the records sought, I am satisfied that it is reasonable to conclude, in the light of the efforts made to locate them, that, unfortunately, these records cannot now be found. I find, therefore, that the hospital's decision to refuse the Applicant's request under section 10(1)(a) of the FOI Act is justified.

It is possible that the records may be located at some point in the future and, in this event, I would expect the hospital to make any records found available to the Applicant.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby affirm the decision of the hospital in this case.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

16 December 2009