Whether the HSE's refusal to amend and/or delete certain personal information in the applicant's medical records is in accordance with the provisions of section 17 of the FOI Act

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

Background

On 21 November 2013, the applicant sought the following amendments/deletions to his medical records, "under [the FOI Act]":

1. The amendment of a note of consultation he had with two named doctors on 16 January 2013 in a mental health services outpatient clinic, specifically the comment that "[a]t time of leaving Pt.was calmed down again and apologises for his earlier behaviour." The applicant said these comments were inaccurate and misleading, having regard to his recording of the consultation, and should be altered to reflect what was actually said;
2. The deletion of a further comment in the note of 16 January 2013, which read "Pt. happy to attend this OPD & continue current meds until then.". The applicant maintained these comments were untrue, again having regard to his recording of the consultation, and that a "complete and true" version of events should be added to his file;
3. The deletion of an entry on the final page of his notes, in which a named doctor wrote "GP will tell [the applicant] that he can discuss change of Seroquel with us at next visit." The applicant said this was untrue, and that his GP would confirm that this conversation did not take place;
4. The deletion of a note on the cover of his medical file saying ""?Allergy to Lamotrigine (skin rash) Not for extra halcyon", which he maintained had "probably" been recorded on the instruction of a particular doctor, and which he said was a breach of his confidentiality because his file may at some stage be placed in areas that are visible to other patients;
5. The alteration of a comment in the "Admission" section of his file, which stated " 2 School - Occasionally bullying", to reflect the applicant's position that he had never been bullied in any school he had attended;
6. The alteration of a comment in a note of a consultation of 1 April 2005, which said that the applicant was "taking 1-2-3 extra halcion per month", to read what the applicant maintained he had said i.e. that he had taken two or three extra halcion during the last month or two; and
7. The alteration of a "file" that had been inserted into his records on 6 June 2013, to reflect the applicant's account of a particular conversation.

On 25 November 2013, the applicant sought the following further amendments to his medical records (I will continue the numbering sequence I have already adopted and, in the remainder of this decision, I will refer to the various amendments sought in accordance with the numbers I have assigned to them):

8. The alteration of a note of a consultation with a named doctor on 19 October 2011, to include various "facts" that the applicant said had been omitted;
9, 12, and 13. The addition, to a note of a consultation on 9 November 2011, of particular comments made by two doctors and the applicant, and the applicant's description of what happened when he returned to the clinic later that day;
10. The deletion of comments in the note of 9 November 2011, saying that the applicant "went back on Quetiapine A few weeks ago 200mg. Went back to GP about getting more Xanax."
11. The alteration of a comment in the note of 9 November 2011, saying that the applicant "[w]ants to talk to [a named doctor] about Xanax", to read that the applicant had wanted to discuss his future treatment with the doctor concerned;
14. The amendment of an incorrect date of a consultation he had had, from 4 January 2011 to 4 January 2012;
15 and 16. The deletion of comments in the note of the consultation of 4 January 2012, which read that the applicant was "seeking benzodiazepines" and "Patient benzodiazepine seeking Dr Walsh requesting no prescription for Benzodiazepines". The applicant disputed that he had asked anyone for any type of benzodiazepine; and
17 and 18. The deletion of the comment "benzodiazepine seeking" on prescriptions dated 7 December 2011 and 4 January 2012.

The HSE treated the above as applications made under section 17 of the FOI Act. Its decision of 18 December 2013 (which also dealt with applications made by the applicant for statements of reasons under section 18, which are not relevant to this review) noted that it had "listened to [the applicant's] recording which was made unknown to staff", and that it did not consider the requested amendments and deletions to be required. It undertook to place his section 17 application on his medical file (as is required by section 17(4)(a)(i) of the FOI Act in any event). On 22 December 2013, the applicant sought an internal review of the HSE's refusal of his section 17 application. The HSE's internal review decision of 17 January 2014 upheld its original decision, except for part 14, in respect of which the HSE said it would change the date concerned to 4 January 2012.

By way of emails dated 21 and 30 January 2014, the applicant sought a review by this Office of the HSE's decision.

In carrying out my review, I have had regard to the above correspondence between the applicant and the HSE; to various correspondence between the applicant, the HSE, and this Office; to a copy of the applicant's medical file, which was provided to this Office for the purposes of this review; and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is confined to whether the applicant is entitled to have the personal information identified above altered or deleted on the basis that it is incomplete, incorrect, or misleading, except for the amendment sought at part 14 to which the HSE has agreed.

Findings

Preliminary Matters
It is relevant to note, as a preliminary matter, that this Office has no remit to investigate complaints, or to adjudicate on how public bodies perform their functions generally. Neither does this Office's remit extend to examining clinical judgment or the appropriateness or otherwise of the HSE's interactions with the applicant.

In considering this case, I wish also to make it clear that I do not consider that medical notes must contain a word for word account of what was said between medical staff and patient, but rather that they are intended to contain an overall summary of the relevant consultation, treatment etc.

Section 17
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 head of the body shall, on application to him or her in that behalf, by the individual to whom the information relates, amend the record:

(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.

I accept that the information that the applicant seeks to have amended or deleted is his personal information. As is the normal course in a case such as this, however, the onus of proof is on the applicant to provide evidence to support the contention that the information concerned is incomplete, incorrect or misleading and thus requires to be amended. In the event that the information is demonstrated to be incomplete, incorrect or misleading, the review will then go on to consider which of the three forms of amendment are appropriate.

Parts 1 and 2
The applicant has supplied a recording he made of the consultation of 16 January 2013 in support of his application for, respectively, the amendment and deletion of comments on page 65 of his medical file. As did the HSE, I have listened to the recording concerned.

Insofar as one can judge from a recording of this type, while the applicant sounded quite annoyed at times during the consultation, he seemed to have calmed down by the end. He twice said he was "sorry". Although he maintains that he was merely being polite and was not apologising for anything he had previously said, it is not for me to determine exactly what the applicant had in mind when he said sorry. I do not consider the information to be incomplete, incorrect, or misleading so that I can direct its amendment in these circumstances.

According to the recording, the applicant was quite vocal in expressing no confidence in the clinic and one of its doctors. He was equally vocal in his objections to the process he was told he would he would have to undertake in order to see a new consultant. However, towards the end of the recording, he replies "thank you" in response to the doctor's summary of the process (which was to the effect that he could continue to see a particular doctor in the clinic in the meantime). The phrase "happy" is regularly used to note that someone did not object to a particular proposal and it seems to me that the word was used in this instance to reflect the applicant's ultimate reply of "thank you". Again, it is not for me to determine what the applicant meant when saying this. Furthermore, I do not consider the record to be incomplete, incorrect, or misleading because it does not describe the applicant's demeanour at every point throughout the consultation. Finally, the applicant can also be heard saying "just give me the prescription as usual".

In the above circumstances, I see no basis on which to find that the information is incomplete, incorrect or misleading. I find that the HSE's refusal of these elements of the section 17 application should be upheld.

Part 3
Here the applicant disputes the accuracy of a sentence in a very brief note that is contained on page 68 of his medical notes. The details on page 68 appear to be a continuation of a note that commenced on page 62 of the applicant's medical notes, regarding a telephone conversation that the doctor in the clinic had with the applicant's GP. I consider the comments on page 68 to outline the doctor's understanding of what the GP would discuss with the applicant in due course. While it may well be the case that the applicant's GP did not have that discussion with him, this does not of itself render the doctor's note to be inaccurate. Thus, I have no basis on which to consider the sentence at issue to be incomplete, incorrect or misleading. I find that the HSE's refusal of this element of the section 17 application should be upheld.

Part 4
Having regard to the deletion requested at point 4, it seems to me that the applicant does not dispute the accuracy of the comment concerned, but rather the fact that it is on the cover of his file. A right of amendment does not arise under section 17 in such circumstances.

The HSE has explained that it is standard practice, across a range of medical services, to record information about allergies on the cover or face of a file to alert changing medical staff to the existence of allergies. However, I am pleased to note that, further to the applicant's unease about such details being on the cover of his file, the HSE has undertaken to ensure that only his name and date of birth appears on the cover, and to place a note in the file indicating the existence of allergies.

Parts 5 and 6
The applicant seeks the requested amendments on the basis that what is recorded is "incorrect" or "untrue", and outlines what he says is factually correct. However, I do not consider it appropriate for me to find that the information at issue is incomplete, incorrect or misleading merely on the basis of unsupported assertions as to what is a contrary version of events. I find that the HSE's refusal of these elements of the section 17 application should be upheld.

Part 7
The amendment sought at part 7 is said by the applicant to relate to a "file" inserted into his medical records on 6 June 2013. Record 99 on the applicant's medical file is a typed note, dated 6 June 2013, which gives a very brief summary of a telephone call that the author of the note (a doctor's secretary) made to the applicant on 30 May 2013. Record 99 also contains a note written by the secretary, dated 30 May 2013, which goes into slightly more detail about the conversation concerned. The applicant, essentially, wants record 99 altered to reflect what he maintains he and the secretary actually said during the conversation, the detail of which he has outlined in a letter he sent to the doctor concerned.

In the first instance, the fact that a record is not as detailed as an applicant would wish it to be does not, of itself, render that record incomplete, incorrect or misleading. Furthermore, even if additional details of the conversation concerned were required to be added, it is evident from my findings on the amendments sought at parts 5 and 6 that I could not direct any such amendment solely on the basis of the applicant's assertions as to what was said. I find that the HSE's refusal of this element of the section 17 application should be upheld.

Part 8
The requested amendment seeks the inclusion of what the applicant describes as particular "facts" that have been omitted from the note of his consultation of 19 October 2011. My comments and findings in relation to part 7 are equally applicable to part 8. I find that the HSE's refusal of this element of the section 17 application should be upheld.

Parts 9, 10, 11, 12, and 13
These requested amendments or deletions all concern the notes of a consultation on 9 November 2011 on pages 53 and 54 of the applicant's medical records.

At parts 9, 11, and 12, the applicant seeks the addition of various comments that he said he and two doctors made, and to reflect why he attended the consultation. My comments and findings in relation to part 7 are equally applicable to parts 9, 11 and 12.

At part 10, the applicant says it is untrue that he said he "went back on Quetiapine A few weeks ago 200mg. Went back to GP about getting more Xanax.", and that if he had said so, the doctor would have included Seroquel (Quetiapine) in the prescription she wrote for him at this consultation.

The comments at issue on page 53 clearly represent the doctor's account of what the applicant said. My review does not require me to categorically determine what either the applicant or the doctor said at any point in the consultation. As I have found above, the mere statement by the applicant to the contrary of what he is recorded as having said is, of itself, an insufficient basis for concluding that the information should be amended under Section 17 of the Act. Furthermore, while it is not part of my remit to investigate what medications the doctor should, or should not, have prescribed the applicant in any given circumstance, it would seem to me that the fact that a prescription does not include a particular drug does not necessarily mean that the applicant did not say he was taking such a drug.

At part 13, the applicant seeks to have added to the record his description of what he says happened when he returned to the clinic later that day. In support of this amendment, he refers to what he describes as a dated, online record of the event concerned. The online record concerned is a post, dated 16 November 2011, by a "Yady Smith" (whom I assume to be the applicant from the details concerned) on an online discussion forum. The post outlines "Mr Smith's" experiences in a clinic he recently attended. My comments and findings in relation to part 7 are equally applicable to part 13 also.

I find that the HSE's refusal of these elements of the section 17 application should be upheld.

Parts 15, 16, 17 and 18
Parts 15 and 16 seek amendments to notes of a consultation that the applicant had on 4 January 2012 (pages 57 and 58 of his medical records refer). The comments at issue, on page 58, say that the applicant sought benzodiazepines at this consultation.

Part 17 seeks the deletion of the comment "benzodiazepine seeking", which is written on the top of the file copy of the prescription given to the applicant on 4 January 2012 (page 125). The applicant contends that the comment was added to the copy prescription after he had complained to the Medical Council about the doctors in the clinic, and that the carbon imprint of this writing is visible on the file copy of the previous prescription stored on his file, which is dated 7 December 2011 (record 126). Part 18 seeks the deletion of the comment on record 126.

The applicant says that he did not seek benzodiazepines on 4 January 2012, and that he had no reason to do so. Again, a mere assertion as to a contrary version of events is insufficient for me to be satisfied that the information is incomplete, incorrect or misleading, or that it warrants any kind of amendment.

It is not part of my remit as Information Commissioner to investigate when the comment "benzodiazepine seeking" was written on record 125, or why this was done, or by whom. I accept that the comment reflects those comments on page 58. As I have already found that I have no basis on which to consider the comments in record 58 to be incomplete, inaccurate, or misleading, the same finding must logically follow in respect of the related comment on record 125.

The note of the applicant's consultation on 7 December 2011 (records 55-57), which he has not sought to be altered, notes that he said he did not understand why "they wouldn't prescribe [him] benzos" and that he "didn't understand why he couldn't chose (sic) to be addicted to BZD". It seems to me that, regardless of when the comment "benzodiazepine seeking" was written on record 126, or by whom or why, it reflects what is contained in the note of the consultation of 7 December 2011. In such circumstances, I have no basis to consider this comment to be incomplete, incorrect or misleading.

I find that the HSE's refusal of these elements of the section 17 application should be upheld.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of the applicant's section 17 application for the various amendments or deletions the subject of this review.

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.

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Elizabeth Dolan
Senior Investigator