The Senior Investigator found that no basis for further amendment of the medical records had been demonstrated by the Applicant. She affirmed the decision of the HSE accordingly.

Case Summary

Whether further amendment of the Applicant's medical records from a certain Hospital is required under section 17 of the FOI Act.

Date of Decision: 25.06.2010

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

Background:

In a request dated 10 September 2009, solicitors, acting on behalf of the Applicant, made an application to the Hospital seeking deletion of the following comments relating to a psychiatric referral from an "extract" of the applicant's medical records:

1. "?Psych. issues. Known for inserting foreign bodies into knee, e.g. needles, gravel, paper clips etc."
2. Note made on 14 August 2009 suggesting that the Applicant be referred for a psychiatric consultation.

The application referred to "a short Certificate from her Doctor . . . which quite clearly states that this lady does not have a psychiatric diagnosis". The matter was treated as an application for amendment of personal information under section 17 of the FOI Act and refused in a decision dated 4 November 2009. In her decision, the decision maker explained:

"I have discussed these notes with Mr. Y, Consultant Orthopaedic Surgeon and he has stated that the reference made to [the Applicant] having a psychiatric assessment was, in his professional opinion, in her best interests. [The Applicant] was admitted twice under his care for removal of foreign bodies from her knee and following her second operation he discussed [the Applicant's] case with colleagues to see how best to proceed with [the Applicant's] care. It was agreed that a psychiatric assessment was in her best interests. At no time did Mr. Y state that [the Applicant] has a psychiatric illness and he agrees with [the Applicant's doctor] that she is not diagnosed to have any psychiatric condition.

The notes to which you refer query whether [the Applicant] has psychiatric issues (?Psych. issues) and in Mr. Y's professional opinion he is correct to query this in [the Applicant's] case based on her presenting complaints. It is therefore my decision that the records should not be amended, corrected or deleted as they are not incomplete, incorrect or misleading and I am refusing your request under Section 17 of the FOI Acts."

In a letter dated 24 November 2009, the Applicant, through her solicitors, applied to the HSE for an internal review of the Hospital's decision. The internal review application referred to "medical notes from [another] Hospital confirming that a foreign body was left in her leg at the time of surgery initially in relation to this matter". The application further stated: "[The Applicant] rejects categorically any suggestion by the Surgeon at [the] Hospital that she was responsible for inserting foreign bodies into her own leg." In a decision dated 9 December 2009, the HSE affirmed the decision of the Hospital.

The Applicant's solicitors subsequently applied to this Office for a review of the HSE's decision. In support of the review application, the Applicant's solicitors submitted a report dated 5 March 2010 by Dr. Z, Consultant Psychiatrist, which indicates that, during an examination on 2 March 2010, the Applicant gave Dr. Z an explanation for how the foreign bodies may have been lodged in her knee in 2009. Dr. Z opined that it is "highly unlikely" that the Applicant inserted the foreign objects into her knee herself. Dr. Z stated that the Applicant does not have the type of personality for self-inflicted injuries.

In the course of the review, Ms. Melanie Campbell, Investigator, examined the Applicant's medical records from the Hospital and contacted the HSE to advise it of her view that amendment of the first disputed statement was warranted. She explained: "In my view, the phrase 'known for' indicates that it was established at some point as a matter of fact that the Applicant had inserted foreign objects into her knee, whereas the medical records seem to show that she was actually 'suspected of' doing so and that this was the basis for the psychiatric referral." Accordingly, the HSE agreed to delete the words "Known for" and to insert "Suspected of" in their place. In a letter dated 25 May 2010, Ms. Campbell then advised the Applicant's solicitors of her preliminary view that no further amendment of the medical records was required under section 17 of the FOI Act. The Applicant's solicitors were given a period of three weeks in which to make reply.

In a submission received on 17 June 2010, the Applicant's solicitors argue that, as Mr. Y is a consultant orthopaedic surgeon and not a psychiatrist or a psychologist, he "is not qualified to make a decision in relation to a psychiatric/psychological issue". They suggest that Mr. Y is not competent to determine "whether a patient should be referred for psychiatric evaluation or not". They also state that they have not seen the medical records referred to by Ms. Campbell wherein she indicated that Mr. Y formed his opinion "based on the circumstances of [the Applicant's] injury in August 2009". They query: "What evidence does not [sic] Mr. Y have that our client inserted foreign bodies into her knee." The Applicant's solicitors further state that they "require to be furnished with the medical records indicating this as we have not seen or have had access to these records and therefore cannot conclude how this opinion could be made by an Orthopaedic Surgeon". They conclude their submission with the following request: "We would therefore ask that a final decision not be made in relation to this matter until we have considered the matter further."

I see no reason to delay bringing this matter to conclusion. The Applicant's solicitors did not request an extension of time in which to reply to Ms. Campbell's preliminary view letter; rather, they made a reply but also indicate that they wish for the review to be held in abeyance indefinitely until they have been given access to the Applicant's medical records and have had an opportunity to consider the matter further. However, they seem to confuse the burden of proof in this case, which, as Ms. Campbell explained in her preliminary view, is on the Applicant under section 17 of the FOI Act. It is not for the public body holding the records in dispute to prove that the records are not incomplete, incorrect or misleading where, as here, no prima facie case for further amendment has been made. Moreover, it is not the function of this Office to make records available to solicitors acting for an Applicant in order to facilitate them in meeting the Applicant's burden of proof in a section 17 case. It is evident that the Applicant has had access to her medical records since she instructed her solicitors to seek amendment of the comments of concern to her. That she may have chosen to make only an "extract" available to her solicitors is not a matter that this Office has control over.

In any event, given that Ms. Campbell provided the Applicant's solicitors with a general description of the relevant contents of the medical records, I consider that they have not been placed at any disadvantage in relation to this review. They have been adequately apprised of the basis upon which Ms. Campbell formed her preliminary view. Moreover, it is apparent that the substance of their case is that Mr. Y was not qualified to make a psychiatric referral. Accordingly, with the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act, and I have decided to conclude the matter by way of a formal, binding decision.

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

Scope of the Review

My review in this case is concerned solely with the question of whether further amendment of the applicant's medical records is required under section 17 of the FOI Act.

Submissions

.

Findings

Section 17 of the FOI Act provides that where personal information in a record held by a public body is incomplete, incorrect or misleading, the record shall be amended "by altering it so as to make the information complete or correct or not misleading, as may be appropriate, by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or by deleting the information from it" (section 17(1)(i), (ii) and (iii)). Section 17(2)(b) specifies that any application for amendment of records relating to personal information must, insofar as is practicable, "include appropriate information in support of the application."

As Ms. Campbell explained to the Applicant's solicitors, the Commissioner has adopted the approach taken by her predecessor in Case Number 98158, Mrs. ABZ and the Office of the Revenue Commissioners, which is available on this Office's website at www.oic.gov.ie. In Case Number 98158, the former Commissioner found that the Applicant seeking to exercise the right of amendment under section 17 of the FOI Act bears the onus of proving that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading. Noting that the definition of "personal information" found at section 2(1) of the FOI Act includes "views or opinions of another person about the individual", he agreed that the right of amendment of personal information includes the right of amendment of opinions that are incomplete, incorrect, or misleading. He cautioned, however, that "section 17 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 17 is made." An Applicant is expected to show that "the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon."

As Ms. Campbell also observed, it is apparent from the Applicant's medical records that Mr. Y, a qualified consultant orthopaedic surgeon, formed the opinion that the applicant may have inserted foreign bodies into her knee. His opinion was based on the circumstances of her injury in August 2009 and also the circumstances of her previous admission to Waterford Regional Hospital in May 2009. Based on his opinion of the matter, Mr. Y decided to refer the applicant for a psychiatric consultation.

The Applicant's solicitors argue that, since Mr. Y is not a psychiatrist or a psychologist, he "is not qualified to make a decision in relation to a psychiatric/psychological issue", including a decision to refer a patient for psychiatric evaluation. I find no merit to this argument. It is not disputed that Mr. Y examined the Applicant's knee in May 2009 and again in August 2009 in his capacity as a qualified consultant orthopaedic surgeon. I consider that a qualified consultant orthopaedic surgeon must be presumed to be competent to form an opinion as to the probable cause of the injuries he is treating. Therefore, I find no basis for concluding that Mr. Y's opinion is somehow flawed for the purposes of section 17 of the FOI Act.

I also emphasise that Mr. Y did not purport to make any psychiatric diagnosis of the Applicant; rather, he merely referred her for a psychiatric consultation. As in any doctor-patient relationship, Mr. Y would have had a duty of care towards the Applicant. I consider it reasonable to expect that, when a patient presents for surgery in circumstances suggestive to the consultant surgeon of self-inflicted harm, the consultant surgeon will consider it his duty to refer the patient for a psychiatric consultation. I therefore find no basis for any further amendment of the Applicant's medical records under section 17 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE 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 an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

25 June 2010