Whether the manner in which the HSE amended a record is in accordance with section 17 of the FOI Act.

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

Background

In an application dated 26 April 2012 the applicant sought the amendment of a record under section 17 of the FOI Act. The record concerned is a hospital [...] record and has been described by the HSE as the [ Z ] Summary for the applicant's son. The applicant sought to have the name of [Y] corrected and to have an entry indicating that she has some learning difficulties deleted. In its decision of 21 June 2012 the HSE amended the name of [Y] and stated that the note or entry relating to the applicant had been "updated and amended" in line with a recent psychological assessment undertaken by the applicant. An addendum dated 18/06/12 was included in the record. By letter dated 16 July 2012 the applicant sought an internal review of the HSE's decision. While the applicant was satisfied that [Y]'s name had been corrected and the note or entry relating to herself had been deleted, she did not accept the addendum dated 18 June 2012 and wished to have it removed. On 9 August 2012 the HSE made its internal review decision and stated that it was upholding the decision not to have the addendum removed. By letter dated 16 January 2013 the applicant applied to this Office for a review of the HSE's decision.
I note that by letter dated 3 December 2013 Ms Roisin Connolly, Investigator, of this Office wrote to the applicant explaining her preliminary view in relation to the matter. This Office did not receive a response to this letter from the applicant and I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and this Office (including correspondence from a patient advocate on the applicant's behalf), to correspondence between the applicant (and the patient advocate) and the HSE and to correspondence (including emails) between the HSE and this Office. I have also had regard to the amended record and to the provisions of the FOI Act.

Scope of the Review

My review in this case is concerned with whether the manner in which the HSE amended the relevant record is in accordance with the FOI Act.

Analysis and Findings

Section 17(1) 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 (i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate; (ii) 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 (iii) by deleting the information from it. Section 17(2) states that an application to amend a record shall, in so far as is practicable, include appropriate information in support of the application.

The approach in cases of this nature is 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.

The record which the applicant sought to amend is entitled [...] Summary and is dated 30 September 2011. It has been referred to by the HSE as a [ Z ] Summary. It relates to the applicant's son. The applicant sought to have a note or entry relating to herself - "mum has some learning disabilities" - deleted. In its initial decision the HSE included an addendum in the record dated 18/06/12 under the heading "Mothers Past Medical History". The addendum states that the original [...] summary documented that the applicant had a learning disability and that this was not correct at the time of writing. The addendum then refers to the applicant having undertaken a psychological assessment in April 2012 and refers to what it states are demonstrated by the results of this assessment. In her application for internal review, the applicant stated that she was satisfied that the note relating to herself had been deleted but she did not accept the addendum, she believed it to be incorrect and wished to have it removed. The HSE stated in its internal review decision that it considered the addendum to be important information which should be recorded in the notes. It stated to this Office that the decision was based on the fact that it was considered by the clinician involved that the note concerned was relevant to the future care of the applicant's child and that the decision was that the note should remain in the best interest of the child. It also stated that, as the child is under the care of the Consultant [...] and the Courts, the information is deemed to be both relevant and vital in the ongoing and future care of the child and for this purpose the [...][ Z] Summary is the most appropriate place to record this information. The HSE also stated that the [ Z ] Summary is a very important part of the patient record and that it is the first place that clinicians look when a person is re-admitted to the hospital. It stated that Hospital Consultants have stated that it is necessary to have important information contained in the [ Z ] Summary.

In her application for internal review the applicant stated that the addendum refers to the results of a psychological assessment which took place after these medical records were created and the results of which she was challenging. The patient advocate writing on behalf of the applicant stated to this Office that it was the creation of this new note that was being appealed and stated that the new note was created based on a psychological assessment which had not taken place at the time this chart was created. The applicant also provided this Office with submissions and testimonials which she wished to have taken into account.

I have examined the record concerned [...]with the addendum which was included by the HSE. The record is dated 30 September 2011 and the addendum is dated 18/06/12. Thus, it is apparent that the addendum was included or added to the record after the date of creation of the original record. The addendum refers to a psychological assessment undertaken in April 2012. Thus, it is also apparent that the assessment occurred after the date of creation of the original record. Both the date of the alteration (the date of the addendum) and the date of the assessment are clearly shown on the face of the amended record in the addendum itself. I am satisfied that the fact that the amendment refers to matters which had not taken place at the time of the original record, does not, of itself, mean that the amendment is not in accordance with section 17 of the FOI Act.

I have also considered the submissions and testimonials (letters, certificates etc.) provided by the applicant to this Office. They relate to the applicant and her education. However, the addendum refers to a psychological assessment undertaken in April 2012 and its results. No information has been provided to this Office to show that the results of that assessment were not as described in the HSE's amendment or that they have since been changed or overturned.

The applicant sought to amend the record by having a note or entry relating to herself deleted. The HSE amended the record by altering it and including an addendum. It did so as it considers the information to be important and it considers the record in question to be the most appropriate place to record the information. The applicant stated that she was satisfied that the note relating to herself had been deleted but she did not accept the addendum. I am satisfied that it has not been shown that the information, as amended, is incomplete, incorrect or misleading. Accordingly, I find that the HSE's decision to amend the record by way of the addendum is in accordance with 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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator