Whether the HSE was justified in its decision to refuse to amend medical records relating to the applicant under section 17 of the FOI Act

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

Background

On 17 November 2013, the applicant submitted two separate applications to the HSE for the amendment of two records relating to her medical treatment at a particular hospital. The records consist of correspondence from the hospital, detailing the diagnosis and treatment of the applicant while she had been under its care.

On 18 December 2013, a decision issued from the HSE, refusing both applications. In line with the provisions of section 17(4)(a)(i) of the FOI Act, a copy of the applicant's requests were appended to her medical file. The applicant, on 10 January 2014, sought an internal review of that decision. On 29 January 2014, following a further exchange of correspondence between the applicant and the HSE, the internal reviewer wrote to the applicant, informing her that he had decided to uphold the original decision, and setting out his reasons for this conclusion. On 4 February 2014, the applicant sought a review by this Office of the HSE's decision.

In the course of this review the HSE accepted that the information at issue in both records is incomplete, incorrect or misleading, and that the records should therefore be amended. However, the forms of amendment proposed by the HSE did not correspond to those sought by the applicant.

The applicant indicated, in the course of a telephone conversation with Mr Niall Mulligan, Investigating Officer, on 16 September 2014, that she was not satisfied to accept the amendment in the terms proposed by the HSE.

Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions made by the applicant to the HSE and to this Office, to the submissions made by the applicant in her original application to the HSE and her request for internal review, to correspondence furnished on behalf of the applicant's treating doctor, Dr. Y, and to the contents of the relevant records as identified in this decision letter. I have also had regard 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.

Preliminary Matter

In the course of this review, representations were received from a firm of solicitors, acting on behalf of Dr Y, who had treated the applicant. Having given consideration to the matter, on balance, and in the particular circumstances of the case, I was satisfied that it was appropriate that Dr Y should be invited to make a submission. However, the various correspondences furnished on his behalf, while stating that Dr Y is "firmly of the view that the records are not incomplete, incorrect or misleading", did not set out any substantive basis for this position.

The HSE confirmed that an opportunity was afforded to Dr Y to set out his position before its submission was finalised, and that he had done so. Dr Y's solicitors also indicated that this had been the case by way of letter dated 30 September 2014, and further confirmed that he had been provided with a copy of the HSE's final submission.

It was submitted on behalf of Dr Y that the matter at issue is under investigation by the HSE and the Medical Council, and accordingly "... in no circumstances should amendments be made to during a period where they are the subject of investigations...". There is nothing in the FOI Act that prohibits the amendment of a record on the ground that the matter to which the record relates is under investigation. That is not to say, however, that the fact the the matter is under investigation is not relevant to my consideration of the request for amendment. It is, indeed, relevant to consider the basis on which the accuracy, or otherwise, of the record is in dispute.

I note that, in light of Dr Y's submission, Mr Mulligan canvassed with the applicant the possibility that she might agree to a suspension of the review, pursuant to section 34(7) of the FOI Act. The applicant was not amenable to this proposal.

Dr Y's representatives also requested that they should be put on notice of any decision by this Office to issue a decision directing the amendment of records so that he could be offered "appropriate legal advice on the options of challenge that may be open to him". As previously outlined, Dr Y did not offer any evidence in support of his position, nor did he comment upon the substance of the submission provided by the HSE. Under the circumstances, I am satisfied that this review should proceed in the normal course, based on the materials on file, including the submissions of the Applicant and the HSE, but also having regard to the correspondence furnished on behalf of Dr Y, insofar as it is relevant to the substantive issues at hand.

The applicant took issue in her submissions with a record, consisting of an ultrasound scan dated 8 January 2013 and associated notes, which appeared on her medical file and is relevant to the matters at issue in this review. She stated that this record had not been provided to her when she initially requested her medical records under the FOI Act, and that she only received it upon making a specific request for scans and accompanying reports. The applicant stated that she feels that this record may have been created at a later date, and states that it "only appeared after [she] had contacted [this Office] requesting a review of [her] request".

The Hospital, in response to a query by Mr Mulligan, confirmed that the scan was carried out on 8 January 2013 and the accompanying report was created on 26 March 2014, under the supervision of Dr Y. While I note the applicant's concerns, the content of the record in question is not at issue in this review, and has been considered alongside the other evidence.

Scope of the Review

As set out in the preceding paragraphs, in the course of this review, the HSE accepted that the it would be appropriate to amend both records, but proposed alternative forms of amendment to those suggested by the applicant. The applicant did not accept these proposals.

Therefore, the scope of this review is confined solely to the question of whether the HSE was justified in refusing to amend the relevant information in the letters dated 26 January 2013 and 29 January 2013 under section 17 of the FOI Act in the manner sought by the applicant.

Analysis and Findings

Section 17(1) of the FOI Act deals with the amendment of personal information relating to a requester. It provides:-

"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, in writing or in such other form as may be determined, 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."

The former Information Commissioner outlined in the decision in Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioners, available on the Commissioner's website www.oic.ie) how an application under section 17 might succeed. In that decision, the previous Commissioner found that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of the "balance of probabilities".

The former Commissioner found that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts or with the way the contents of a record explain subsequent actions and decisions of public bodies. Consideration should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record. He held that, in many cases, an alteration of the record which leaves visible the original incomplete, incorrect or misleading information but clearly marked as incomplete, incorrect or misleading and with the addition of information to set the record right, may be most appropriate. The former Commissioner stated that the deletion of information from a record, on foot of an application under section 17, is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. His decision also makes clear that the onus is upon the public body to "carry through" the effect of an amendment.

The applicant's case

The applicant seeks the amendment of two records. The first is a letter dated 26 January 2013 that was sent by a member of medical staff at a hospital at which she had been treated to another hospital, setting out details of the applicant's medical condition and treatment at that hospital. The letter states that: "Methotrexate was given on 8/1/13, at the patients request to manage the ectopic pregnancy". The applicant's position is that she did not request that course of treatment, and that the record should be amended to reflect this fact.

The second record is a letter dated 29 January 2013 from a Consultant Obstetrician / Gynaecologist who had treated the applicant at the hospital to a doctor at another hospital. The letter states, at its second paragraph, that "... on the 8th January ... [a] diagnosis of pregnancy of unknown location was made". The applicant contends that she had in fact been diagnosed with an ectopic pregnancy on 8th January, and that the record is therefore incorrect or misleading. The applicant suggests that the record should be amended to read "a diagnosis of ectopic pregnancy was made."

In support of her application, the applicant referred to:-

- an ultrasound scan dated 7 January 2013, which reflects a diagnosis of "right tubal pregnancy";
- handwritten notes of that same date which refer to a "definite right tubal pregnancy";
- a handwritten "post take ward round" record which refers to an "ectopic pregnancy" on the applicant's "problem list";
- handwritten notes dated 8 January 2013 which refer to an "ectopic pregnancy";
- her own submission that she had been given patient information leaflets on 7 January 2013 relating to ectopic pregnancy, and on 8 January 2013 relating to the use of Methotrexate to treat ectopic pregnancy;
- a witness statement signed by the applicant's husband and dated 17 January 2013, wherein he states that he "was present on the 8/01/13 when [his] wife ... received a diagnosis of ectopic pregnancy";
- witness statements from the applicant's parents and sister to the effect that each were under the impression that the applicant had been diagnosed with an ectopic pregnancy;
- a discharge summary dated 12 January 2013, which lists "ectopic pregnancy" as one of the applicant's primary diagnoses.

The HSE's case

In relation to the letter of 26 January 2013, the HSE accepts that the phrase "Methotrexate was given on 8/1/13, at the patients [sic] request to manage the ectopic pregnancy" should be amended. It submits that that phrase should be replaced with "Methotrexate was administered on 8/1/13 under the medical guidance of [Dr Y]."

In its submission to this Office, the HSE acknowledged that the information at issue in the letter of 29 January 2013 is incomplete, insofar as it states that "[a] diagnosis of pregnancy of unknown location was made". However, the HSE asserts that the forms of wording suggested by the applicant would be misleading, as the diagnosis at this time was of a probable ectopic pregnancy, rather than a definitive finding. In support of this argument, the HSE refers to:-

- a report of 7 January 2013, stating "no intra-uterine gestational sac seen. In the right adnexa however there was a 3.5cm homogenous structure with a 15mm cyst and small amounts of adjacent free fluid", which is submitted to be consistent with a finding of a pregnancy of unknown location, likely to be an ectopic pregnancy;
- the handwritten notes of 8 January 2013, which in the HSE's submission in fact refer to "ectopic pregnancy", but prefaced by a circled letter "I", which the HSE submitted that in medical shorthand means "impression", and does not imply a definitive conclusion; and
- an ultrasound scan dated 8 January 2013, accompanied by a report prepared on 26 March 2014, where the treating doctors recorded a diagnosis of "pregnancy of unknown location likely to be ectopic pregnancy".

The HSE thus submits that the appropriate amendment to the letter of 29 January 2013 should be to replace the words "[a] diagnosis of pregnancy of unknown location was made" with "[a] diagnosis of pregnancy of unknown location, likely to be ectopic pregnancy, was made".

Conclusion

Turning firstly to the letter dated 26 January 2013, as previously outlined, the Hospital accepts that it is appropriate that the record should be amended and only the form of the amendment remains at issue. The applicant submitted that she did not request such treatment and produced a witness statement from her husband in support of this position.

I note that the Hospital's suggested form of wording involves the removal of the term "to treat the ectopic pregnancy". Having regard to the evidence before me, I do not see this approach as being justified. Indeed, I am of the view that such an amendment is not within scope of this review in any event, as it was not the subject of the applicant's request for amendment. The applicant's concern related solely to the fact that the record suggests she requested the treatment in question.

Accordingly, having closely examined the available evidence, I am satisfied that the letter dated 26 January 2013 is incorrect or misleading. I am satisfied that the sentence contained in the record stating "Methotrexate was given on 8/1/13, at the patients request to manage the ectopic pregnancy" should be amended to read "Methotrexate was given on 8/1/13, under the medical guidance of [Dr Y], to manage the ectopic pregnancy". I find accordingly.

In relation to the letter dated 29 January 2013, having carefully considered the matter and closely examined the medical records provided by the parties in support of their arguments, I am satisfied that the record is incorrect or misleading. In my view, the contemporaneous records show the diagnosis to have been one of a likely ectopic pregnancy. While there is an instance of a specific reference to a "definite right tubal pregnancy", and there are a number of further references to "ectopic pregnancy", without any qualifiers, other references to such a diagnosis from the material time are couched in more equivocal terms, for example, "appearances suggestive of ectopic pregnancy", "suspected ectopic pregnancy", "? rt ectopic pregnancy" and "appearances suspicious of ectopic pregnancy".

For the foregoing reasons, I am satisfied that the letter of 29 January 2013 is incorrect or misleading, and should be amended by replacing the words "A diagnosis of pregnancy of unknown location was made" with "A diagnosis of a likely ectopic pregnancy was made". I find accordingly.

For the avoidance of doubt, I direct that the method of amendment of both records should be to strike through, but leave visible, the information I have found to be incorrect or misleading and to add the amended text as outlined above to each record.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the HSE's decision and direct that amendments should be made to the relevant records in the manner set out in this decision.

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