Whether the HSE was justified in its decision to refuse access to psychiatric records concerning the applicant under section 37(3) and/or section 32(1)(b) of the FOI Act.

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

Background

On 23 December 2014, the applicant made an FOI request to the HSE for all records from a named Acute Psychiatric Unit for certain dates. I understand that the applicant's intention was that the request was to be confined to records relating to her and the request is treated as such in this decision. On 26 January 2015, the HSE refused access to the records under section 37(3) of the FOI Act as it considered that release of the records directly to the applicant might be prejudicial to her physical or mental health. The applicant sought an internal review of the HSE's decision. On 10 March 2015, the HSE upheld the refusal of access to the records under section 37(3), in addition to which it cited section 32(1)(b) as a further reason to refuse access to the records. This exemption provides for the refusal of records where their release could endanger the life or safety of any person. On 16 March 2015, the applicant applied to this Office for a review of the HSE's decision. On 13 April 2015, the HSE provided submissions in support of its decision. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the HSE, to correspondence between the HSE and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The HSE identified two files of records as being relevant to the applicant's request. The first file contains 267 pages of records and the second file contains 133 pages of records. The majority of records in both files are from dates other than those specified by the applicant and fall outside the scope of this review. The records in file one which fall within the scope of the applicant's request are contained at pages numbers: 82, 83, 97-101, 172-173, 209-212, 213, 218-221, 223-230, 231-234, 240, 256-259, 260, 261, 262, 263, 264, 265, 266-267. The records in file two which fall within the scope of the applicant's request are contained at pages numbers: 7-16, 19-22, 23, 24-25, 28-37, 38-49. The scope of this review is confined to whether the HSE has justified its refusal of the above mentioned records on the basis that sections 37(3) and/or 32(1)(b) of the FOI Act apply to these records.

Preliminary Matters
Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the HSE to satisfy me that its decision is justified.

I am required to give reasons for my decision; this is subject to the requirement of section 25 (3) that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the circumstances of their creation is somewhat limited. It is important to note that under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Analysis and Findings

Section 37(3)
Section 37(3) provides for the refusal of a request for a "record of a medical or psychiatric nature relating to the requester concerned, or a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester" where, in the opinion of the head, release of the information therein "might be prejudicial to [the person's] ... mental health, well-being or emotional condition." A public body that relies on section 37(3) is, however, required by section 37(4) of the FOI Act to offer access to the records concerned to such health professional having expertise in the subject-matter of the records as the requester may specify.

The HSE's original and internal review decisions, although citing section 37(3), did not also refer to the requirements imposed by section 37(4). This Office informed the applicant of her rights under section 37(4) to have her records made available to a health professional of her choice, with relevant expertise, who would decide on the extent to which the applicant would be informed of the contents of the records. This Office also contacted that HSE in relation to its omission to inform the applicant of section 37(4). The HSE acknowledged this omission and in order to assist the applicant, the HSE provided this Office with the name of a health professional, with relevant expertise, who was willing to review the applicant's records. The applicant was informed of this offer; however, she stated that she wanted this Office to consider whether the records should be released directly to her.

As stated above, the HSE provided submissions in support of its decision to refuse the records on the basis of section 37(3). In particular, the HSE provided this Office with a letter dated 10 March 2015, from a Consultant Psychiatrist about the applicant's diagnosis and treatment up to December 2014. While I do not propose to repeat the details contained in that letter, I confirm that I have had regard to them for the purposes of this decision. In summary, the Psychiatrist's opinion is that release of the records directly to the applicant might be prejudicial to her mental health, well-being or emotional condition.

The records in this case include in-patient observation notes, in-patient care review plans, outpatient notes, nursing assessment forms, treatment plans, involuntary admission orders, clinical practice forms and multi disciplinary unit review meeting notes. The records contain descriptions by HSE staff of the applicant's condition and her behaviour as an in-patient in a Psychiatric Unit. Given the HSE decision that section 37(3) applies to all of the applicant's psychiatric records, and that the records at issue are psychiatric records which are necessarily interlinked, I will consider the records as a single composite record rather than on a page by page basis.

In deciding whether section 37(3) has been correctly invoked, the test is whether release of the records in question "might" be considered to be prejudicial to the applicant's "physical or mental health, well-being or emotional condition." In X and a Health Board, case number 99189, (available at www.oic.ie), the former Commissioner explained his approach to section 28(3), (section 37(3) under 2014 Act) as follows:

"In a case where section 28(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the general health, welfare and good of the requester as a result of direct access to the record in question."

I have given careful consideration to the evidence presented by the HSE. I am satisfied that the HSE has provided evidence to support its view that there is a real possibility of harm being caused to the applicant's mental health, well-being or emotional condition by release of the records directly to the applicant. I am satisfied, therefore, that all of the records which fall within the scope of the applicant's request are exempt under section 37(3) and I find accordingly.

The applicant has been informed of her right under section 37(4) to nominate an appropriate health professional to whom the HSE can offer access to the records. This offer of access remains open to her for a period of four weeks from the date of this decision. In these circumstances, I see no need to address section 32(1)(b) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE that the records requested are exempt under section 37(3) of the Act and I find that section 37(4) is engaged in relation to the offer of access to a mental health professional.

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, or where the party concerned contends that the release of a record concerned would contravene a requirement imposed by European Union law, on a finding of fact set out or inherent in the decision. 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.

Elizabeth Dolan
Senior Investigator