Whether the HSE was justified in its decision to refuse a request for certain information relating to medical negligence claims following cancer misdiagnosis on the grounds that the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them.

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

Background

On 23 May 2012, the applicant made a request to the HSE under the FOI Act for the following information:

(i) the names of the hospitals against which medical negligence claims have been taken following cancer misdiagnosis in the last 10 years,
(ii) the dates on which those claims were made and the form of cancer involved,
(iii) In respect of 19 previous claims in respect of which €3.2 million was paid out, details of the form of cancer, the hospitals involved and the dates when the claims were made and settled, and
(iv) a breakdown of each settled claim into legal costs and compensation paid to claimants.

In its decision of 26 July 2012, the HSE informed the applicant that under the National Treasury Management Agency (Amendment) Act 2000, the management of personal injury and property damage claims against the State and of the underlying risks was delegated to the State Claims Agency (SCA). It therefore refused the request on the basis that it does not hold/retain the records sought. It indicated, however, the SCA was agreeable to releasing certain limited information relating to the request.

The applicant applied for an internal review of the HSE's decision and on 5 September 2012, the HSE affirmed its original decision. The applicant applied to the Office of the Information Commissioner for a review of the HSE's decision on 14 September 2012,

I note that Mr Derek Charles, Investigator, outlined his preliminary views to the applicant that the HSE was justified in refusing the FOI request on 29 August 2013 and invited the applicant to withdraw her application for review or to make a further submission on the matter. By email dated 6 September 2013, the applicant made a further submission. Having regard to the applicant's response, I have decided to conclude this review by way of a formal binding decision.

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. In carrying out my review, I have had regard to the correspondence between the applicant and the HSE and to the submissions made by the HSE and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse the applicant's request for certain information relating to medical negligence claims following cancer misdiagnosis under section 10(1)(a) of the FOI Act on the grounds that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

I should explain at the outset that the FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record held by the public body, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information as it does not oblige public bodies to create or compile information which does not exist. Accordingly, the question I must consider is whether the HSE was justified in deciding that the records containing the information sought do not exist or cannot be found. Section 10(1)(a) of the FOI Act provides as follows:

"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 I 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 records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Office's understanding of its 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. available on this Office's website,www.oic.ie).

In its submission of 12 November 2012, the HSE stated that the limited information provided by the SCA to the HSE in respect of the applicant's FOI request could not have been answered directly by the HSE from other information provided by the SCA or from running reports at a hospital/enterprise level. It stated that the SCA is the only organisation that has access to the centralised claims database. According to the HSE, claims that are made to the SCA do not necessarily come through the individual hospital. Claims may be submitted initially to a local, regional or corporate office and some claims are submitted directly to the SCA by solicitors representing claimants. The first indication a hospital may have of the existence of a claim may be when the SCA contacts the hospital for information on the case. As the SCA manages the claims, the hospitals are not required to keep claim management records. The SCA does not operate a formal process of informing the HSE of the outcome of all claims and it normally responds to the office from where the clam was received.

In a further submission dated 30 July 2013, the HSE provided further information in respect of the relevant IT system, as confirmed with the SCA. It stated that the SCA (a public body currently outside the remit of the FOI Act) has established and maintains a national database for adverse clinical incidents and "near misses" known as the National Adverse Event Management System (NAEMS). This IT system is hosted (that is operated, owned and controlled) by the SCA on behalf of the HSE. NEAMS links hospitals and other healthcare enterprises to the core database. Each hospital /enterprise has access to only its own data but the SCA has access to all data in order to identify emerging trends. NAEMS provides for the recording of diagnostic related adverse events under a category of "Diagnosis Incident". The system does not record or report by sub category, e.g. "cancer". The system records the occurrence of adverse events, many of which will not result in a subsequent claim against the State. Information on the outcome of claims is not available to the HSE on this system.

In his submission of 6 September 2013, the applicant suggested that the hospitals involved are funded by the HSE and ultimately under its governance. He argues that the HSE must know when a hospital it controls has misdiagnosed cancer and a claim has been taken against it and that there must be a record of this knowledge within the HSE. In essence, the applicant does not accept the HSE's position on the matter. However, the fact remains that it is the SCA and not the HSE that has responsibility for management of personal injury and property damage claims against the State. It may well be the case that certain hospitals do, indeed, hold certain information relating to medical negligence claims which have been taken following misdiagnosis of cancer. However, given the HSE's explanation of the basis on which such claims are submitted and managed, I accept the HSE's argument that it would not be in a position to respond to the applicant's specific request for information as it does not hold the relevant records. It is clear that the IT system operated by the SCA most likely holds most, if not all, of the information sought. However, I accept the HSE's evidence that it does not have the required access to that system to allow it to provide the information sought. The applicant also suggests that the HSE's position is not supported by its refusal to provide information on foot of a previous request on the basis of the uses to which the information might be put as opposed to not having the information. As I understand it, while the HSE does, indeed, have concerns about the potential for the creation of a league table of hospitals, this does not alter the fact that the information sought is held by the SCA. Accordingly, having regard to the explanations provided by the HSE concerning the nature of the information held by it and the SCA and the information provided in respect of the NEAMS IT system, I am satisfied that the HSE was justified in deciding that it does not hold the information sought. I find, therefore, that section 10(1)(a) of the FOI Act is applicable in this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's decision to refuse access the applicant's request for certain information relating to medical negligence claims following cancer misdiagnosis.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator