Whether the HSE was justified under section 28 of the FOI Act in its decision to refuse access to medical records of the applicant's deceased brother

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 3 September 2014, the applicant requested access to her deceased brother's medical records. Having sought clarification and further information from the applicant, the HSE issued its decision on 13 November 2014, refusing access to these records under section 28(1) of the FOI Act. On 17 November 2014, the applicant sought an internal review of this decision. The internal reviewer issued his decision on 16 January 2015, refusing access to the records in question having applied the public interest test set out at article 4(1)(b)(iii) of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009. The applicant's request for a review by this Office of the HSE's decision was received on 18 February 2015.

I note that, in correspondence to Mr Niall Mulligan of this Office, the HSE and the applicant have furnished detailed submissions relating to the matters at issue. I therefore 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 HSE's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the HSE, and to the records at issue, copies of which have been provided to this Office for the purpose of this review. 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the medical records of the applicant's deceased brother under section 28 of the FOI Act.

Analysis and Findings

Section 28(1) of the FOI Act provides for the protection of personal information of deceased persons. However, a potential right of access to records of a deceased person arises under section 28(6) of the FOI Act, which provides that, notwithstanding section 28(1), the Minister may provide by regulations for the grant of a request where:

"(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations."

The relevant regulations are the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009. Article 4(1)(b)(iii) of those regulations provides that access shall be granted to personal information relating to a deceased person where the requester is:

"the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request."

Guidance Notes have been published by the Minister for consideration by decision makers in applying the 2009 Regulations. The Guidance Notes specify certain factors to be taken into consideration in deciding if release is appropriate to such persons, including the following:

"Each case will have to be judged on its own merits. The decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. While section 8(4) requires that the decision maker shall disregard any reasons the requester gives for the request, in making a judgment in relation to the records of deceased persons, it is reasonable for a decision maker to inform him or herself as fully as possible of all the circumstances relevant to the request. In reaching this decision, the decision maker should take the following into consideration:

• The confidentiality of personal information as set out in section 28(1) of the Act.
• Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death...
• The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased...
• The nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing... In relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. Records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released...
• Any other circumstances relevant to the request as set out by the requester. These should be taken into account by the decision maker in reaching a decision on the request.

 

The applicant is the sister of the deceased. The HSE does not dispute that the applicant is the deceased's next of kin. Therefore, the issue to be addressed is whether the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request, having regard to all the circumstances and to any relevant guidelines published by the Minister.

The deceased was made a Ward of Court in 2011, with the applicant being appointed as committee of his person and estate. Essentially, the applicant has concerns relating to the capacity of the deceased for some years prior to his death in 2014. The applicant argued that access is required to the medical records of the deceased to determine whether or not any challenge should be made to transactions that he may or may not have been involved in prior to his death, specifically in the period 2000 to the date he was made a Ward of Court. The applicant specifically referenced a will that the applicant made in 2008. She argued that an inspection and review of the medical records, the medical conditions of the deceased and the treatment provided by the HSE are all relevant to making a determination as to the mental capacity of the deceased in the years prior to his being made a Ward of Court.

In its submissions to this Office, the HSE stated that the applicant's solicitor had made reference to the public interest in establishing the facts of the medical condition of the deceased in the years prior to his death and all other relevant matters including dealings with his property and in the context of the investigations that may be necessary to be carried out in relation to the handling of his affairs in the years preceeding him being made a Ward of Court. The HSE considered such matters to be private interests, rather than true public interests. The HSE referred to the judgment of Macken J in The Governors and Guardians Rotunda Hospital v Information Commissioners [2011] IESC 26, where she stated that

"... any 'public interest' would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law."

The HSE argued that, in any event, as committee appointed by the President of the High Court, the applicant would appear to already have knowledge of any dealings with the deceased's property and that the process undertaken in relation to establishing whether the deceased was mentally incapacitated and incapable of managing his affairs for the purpose of considering the application for Wardship would negate any weighting associated with the public interest put forward by the applicant.

It should be noted that Macken J's comments in Rotunda referred to the public interest test contained at sections 26(3) of the FOI Act, rather than the very specific test set out at article 4(1)(b)(iii) of the Regulations. It is plain from the contents of the Regulations, which refer to a consideration of "all the circumstances" of the case, as well as the matters specified in the guidelines, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors. It is also plain from the Regulations that the Oireachtas has determined that certain categories of requester shall be granted access to the records of deceased persons provided certain requirements are met, the requirement in the case of article 4(1)(b)(iii) being that the requester is the spouse or next of kin and that

"...having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request." [my emphasis]

The prohibition on taking account of the motivation of a requester is not absolute in that it is subject to the provisions of the FOI Act, one of which is the provision at section 28(6) regarding access to records of a deceased person. The Regulations made under section 28(6) require that regard must be had to "all the circumstances" when a decision maker is considering whether the public interest would on balance be better served by granting the request of a spouse or next of kin. It may well be reasonable, in having regard to the circumstances when considering where the balance of the public interest lies, to consider the reasons why the request was made in the first place. I would add that the fact that the HSE may consider the applicant to be already aware of the facts which she is apparently seeking to establish would, at best, serve to lessen the weight to be afforded in the consideration of such factors. It would not, however, provide a basis for refusing access to the records.
As I have outlined above, the Regulations provide that regard should also be had to the relevant guidelines published by the Minister. I have outlined above the relevant matters identified in the guidance notes that should be considered in this case. On the matter of the confidentiality of personal information, the HSE argued in its submission that the duty of confidence includes a responsibility to make sure that written patient information is kept securely even after the patient dies and it referred to a common law duty to preserve professional confidence. It argued that the duty of confidence continues to apply after the death of the person concerned. It further argued that it is recognised that records released under the FOI Act are released without any restriction as to how they may be used and, in effect, release under FOI is regarded as release to the world at large. The HSE argued that "it is unconscionable for the HSE to release such sensitive information to the world at large". This argument was also presented in respect of the consideration of the nature of the records at issue.

On the matter of confidentiality, the guidance notes suggest that in relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. It is noteworthy that this Guide itself acknowledges that there are circumstances where release may be appropriate. Indeed it acknowledges that information may be disclosed with the individual's consent, and that this consent may extend to disclosure after death. The Guide also suggests that regard might be had to certain factors if it is unclear whether the patient consented to disclosure of information after their death, including how disclosure of the information might benefit or cause distress to the deceased's family or carers, the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.

Given that, under FOI, records are released without any restriction as to how they may be used, I fully accept that release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the Regulations have been met. Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access.

On the matter of whether the deceased would have consented to the release of the records to the requester when living, the HSE argued that had the deceased still been living, it would be the president of the High Court who would give authority to release the records. This may well be the case but it does not address the question to be considered now. In my view, this matter is closely linked in this case with a consideration of the nature of the relationship of the requester to the deceased. In my view, it is very relevant that the applicant was appointed as Committee by the Court to deal with the requester's personal affairs while he was living. In the absence of any specific evidence to suggest that the deceased would not have consented to the release of his records, it seems to me that the fact that the applicant looked after his affairs while living is a strong factor favouring the release of the records in this case.

Apart altogether from the issues identified in the guidance notes, due regard must also be had to the public interest in openness, transparency and accountability. While the HSE drew attention to the fact that the applicant raised no concerns about the deceased's care and treatment, this does not mean that there is no further public interest in promoting openness and transparency in the level of care and treatment he received.

In summary, it appears that the HSE's main concern relates to the potential release of sensitive medical records to the world at large. If this was the determining factor, then it is difficult to envisage any situations where release of such records would be appropriate. Clearly, this would run contrary to the intent of the Regulations, which is to provide access to the records of deceased persons to particular categories of requester. If the Oireachtas had intended that medical records should not be released, it would have been straightforward to legislate for such a matter.

In this case, having had regard to all the circumstances and to the relevant guidelines, I am satisfied that the public interest would on balance be better served by granting than by refusing to grant the applicant's request. I therefore find that the HSE was not justified in refusing the applicant's request under section 28(6) of the FOI Act and under article 4(1)(b)(iii) of the Regulations.

I note that a small number of the records contain information relating to parties other than the applicant or her deceased brother. The information in question comprises names, addresses and telephone numbers of various contact persons, also described in some records as next of kin contacts. Records 215, 256 and 329 are examples of records containing such information. I am satisfied that the information in question is personal information relating to those individuals and that there is no overriding public interest in release of the information that would outweigh the privacy rights of the individuals concerned. I find, therefore, that such information is exempt from release under section 28(1) of the FOI Act.

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. I direct the release of the medical records subject only to the redaction of certain third party personal information as described above.

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