Whether the HSE was justified in its decision to refuse the applicant's request for a copy of a dispensed prescription under section 15(1)(a) of the FOI Act on the basis that the record does not exist

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 2 December 2014, the applicant applied to the HSE for a copy of a prescription for 75mg Lyrica capsules that was dispensed to him on 10 November 2011. In its decision of 3 December 2014, the HSE stated that it could find no record of any matter relating to "Lyrica 75mg" and noted that records of prescription sheets were previously released under separate FOI requests. The applicant sought an internal review of the decision and on 13 February 2015, the HSE issued an internal review decision affirming its original decision. On 17 February 2015, the applicant sought a review by this Office of the HSE's decision.

On 8 May 2015, Mr Benjamin O'Gorman of this Office informed the applicant, by email and by telephone, of the searches undertaken by the HSE to locate all relevant records and of its responses to queries arising from the applicant's concerns. In both his email and telephone call Mr O'Gorman outlined his view that the HSE's refusal to grant access to the record requested, on the ground that it does not exist, was justified. The applicant indicated that he wished for this Office to proceed to a full decision. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In carrying out this review, I have had regard to the correspondence between the HSE and the applicant, to communications between this Office and the applicant, and to communications between this Office and the HSE.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to a copy of a prescription for 75mg Lyrica capsules that was dispensed to the applicant on 10 November 2011 on the basis that the record sought does not exist.

Analysis and Findings

The HSE's position is that the record requested does not exist. Accordingly, section 15(1)(a) of the FOI Act is relevant. That section provides that a public body may refuse a request where 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 a case 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 Commissioner's understanding of his 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 the website of this Office at www.oic.ie).

During the course of the review, the applicant provided this Office with a copy of a prescription claim form that he received from the dispensing chemist. The form shows that 24 x Lyrica 150mg capsules and 36 x Lyrica 75mg capsules were dispensed to the applicant on 10 November 2011. In its submission to this Office, the HSE states that the consultant who attended to the applicant on 9 November 2011 in the Baggot Street Outpatient Department wrote a prescription of 100mg capsules, a copy of which was released to the applicant at internal review stage. The record contains a statement that it is "... a recommended list of medications only: not to be dispensed" and that it "... requires to be transcribed onto PCRS prescription notepaper by patient's own GP".

According to the HSE, it appears that when the applicant brought that prescription to his treating GP on 10 November 2011, his GP instead prescribed 42 x Lyrica 150mg capsules. The HSE has provided this Office with a copy of a letter from the applicant's GP confirming this fact. It adds that the dispensing pharmacy informed the HSE that when the applicant presented his prescription for 42 x 150mg capsules, the pharmacy had only 24 of the 150mg capsules in stock. The pharmacy dispensed the 24 x 150mg capsules and asked him to return later that day when it had received more stock. Upon the applicant's return to the pharmacy, it had not received more of the 150mg capsules, so it dispensed 36 x 75mg capsules to complete the prescription.

In effect, the 36 x 75mg capsules were dispensed in lieu of the remaining 18 x 150mg capsules which the pharmacy did not have in stock when the applicant initially presented his prescription. The HSE has provided a copy of correspondence it received from the dispensing pharmacy which confirms these facts. The pharmacy has also confirmed that it does not hold a copy of the prescription presented by the applicant on the date in question as it is not required to keep copies of prescriptions for more than two years, in accordance with Pharmaceutical Society of Ireland (PSI) regulations, and that the prescription in question was shredded at the end of 2013. Accordingly, it is the HSE's position that no prescription for 75mg capsules exists. I note that the HSE has provided the applicant with copies of the supporting documentation in question. I further note that the position as outlined by the HSE is supported by the prescription claim form which the applicant forwarded to this Office.

Having considered the HSE's submission and the supporting documentation submitted which outlines the grounds upon which the HSE considers that record sought by the applicant does not exist, I find that the HSE's decision to refuse the applicant's request under section 15(1)(a) was justified.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014 I hereby affirm the HSE's decision 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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator