Case Number: 160035

Whether the Hospital was justified in its decision to refuse the applicant's request, under section 9 of the FOI Act, to amend clinical notes and nursing notes created on foot of the applicant's attendance at the Hospital in 2012

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 7 May 2015, the applicant applied, through her solicitors, for the amendment of medical records created by the Hospital on foot of her attendance at the Hospital in 2012. For the purposes of this decision, all references to "applicant" may be read as references to the applicant or her agents, as appropriate. The applicant, in her request to the Hospital, provided details of nine amendments sought.

As the Hospital failed to issue a decision on her request within the required time-frame, the applicant submitted a request for an internal review of its deemed refusal of the request on 23 June 2015. The Hospital issued an internal review decision on 22 July 2015, in which it refused the applicant's request on the ground that the person who created the clinical note records was now deceased. It also stated in its decision that a copy of the applicant's request would be included in the applicant's medical record in accordance with the provisions of section 9(4)(a) of the FOI Act. On 22 January 2016, the applicant sought a review by this Office of the Hospital's decision.

I note that during the course of the review, Mr Art Foley of this Office wrote to the applicant on 1 April 2016 setting out his views on the matter and seeking further information in respect of a number of the amendments sought. He also invited a further submission having regard to his views, notwithstanding the fact that the applicant had already made two previous submissions. In a telephone call with Mr Foley on 20 April 2016, the applicant indicated that no further submission would be made. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review I have had regard to the correspondence between the applicant and the Hospital, to correspondence between this Office and both the Hospital and the applicant, and to the contents of the records containing the information that the applicant is seeking to have amended.

Scope of Review

This review is solely concerned with whether the Hospital was justified in refusing the applicant's request for the amendment of clinical notes and nursing notes created on foot of her attendance at the Hospital under section 9 of the FOI Act.

Preliminary Matters

The Hospital refused to amend the records at issue on the ground that the doctor involved in creating one of the records is now deceased. It is important to note that this fact, of itself, does not constitute a sufficient ground for refusing such requests. The Commissioner's approach to addressing a request under section 9 of the FOI Act is set out in detail below.

Analysis and Findings

The applicant sought the following amendments to her medical records:

1. Amend/ delete the comment [ ... ]
2. Amend/ delete the opinion [ ... ]
3. Amend/ delete the comment "then asked [ nurse ] to attend consultation"
4. Amend/ delete the opinion [ ... ]
5. Amend/ delete the comment [ ... ]
6. Amend/ delete the comment "was previously on [ named medicine ]"
7. Insert a comment to reflect that the applicant was being monitored for [ a named condition ] despite same having been communicated.
8. Amend/ delete the opinion [ ... ]
9. Amend/ delete the opinion [ ... ].

Section 9 of the FOI Act provides for the amendment of personal information in a record held by an FOI body where that information is incomplete, incorrect or misleading. The Act is silent on the question of where the onus of proof lies in such cases. The Information Commissioner takes the view that, in the absence of any express statement in the FOI Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. The Act is also silent as to the standard of proof which should apply in such cases. The Commissioner takes the view that the standard of proof required is that of "the balance of probabilities". It follows that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

Furthermore, section 9(2)(b) requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application". The Commissioner does not see his role, arising from section 9, as being to conduct his own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, he must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and make a decision on that basis. It is the responsibility of the applicant to provide relevant information in support of his/her application. The nature and extent of information to be provided to support a claim and whether or not is is capable of being verified, and by what means, will vary on the type of record at issue. Nevertheless, as I have stated above, the onus rests with the applicant to satisfy the Commissioner that, on the balance of probabilities, the information is incomplete, incorrect or misleading. It is also important to note that where an applicant fails to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading, the records remain undisturbed but this does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.

On the matter of the amendment of medical records, it is not the role of the Commissioner to investigate complaints about medical treatments, nor does his role extend to examining clinical judgement. Furthermore, the Commissioner does 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. He has acknowledged that there are inherent difficulties in altering contemporaneous medical notes. The evidential value of the record and the extent (if any) to which any decisions or other actions would be potentially affected by the information in the original record are also relevant concerns.

The Commissioner accepts that the right of amendment of personal information includes the right of amendment of opinions that are incorrect, incomplete, or misleading. However, he takes the view that section 9 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 9 is made. The Commissioner takes the view that he would not be justified in directing that an FOI body amend its records on the sole basis of contrary statements or opinions - however strongly held - by the person seeking the amendment. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. While the Commissioner has not presented an exhaustive list of the circumstances in which an opinion might be found to be incomplete, incorrect or misleading, he would, however, expect an applicant to satisfy him that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon.

Having regard to the approach of this Office to applications under section 9 of the FOI Act and, in particular, to applications to amend medical records, I will proceed to consider each of the amendments sought by the applicant.

Amendments 1 and 5
The applicant is seeking to have the comments contained in amendments 1 and 5 amended or deleted. The comments purport to represent comments made by the applicant to the treating doctor. The applicant states that she did not make the comments in question, although she acknowledges that the first part of the phrase was used. There is a clear contradiction between what was recorded in the record by the doctor and the applicant's statement to this Office. I find it difficult to accept that the comments in question would have been recorded in the medical notes in the absence of any comments having been made. It may well be that the discrepancy between the two versions arose as a result of a misunderstanding. Regardless, it seems to me that it would not be appropriate to accept one party's version of events to the detriment of the other unless there is compelling evidence which requires me to do so. The question I must consider is whether the evidence which the applicant has submitted to support her arguments is sufficient to satisfy me that the comments in the records are, on balance, incomplete, incorrect or misleading. In my view, it is not. Accordingly I find that the Hospital was justified in refusing to carry out amendments 1 and 5.

Amendments 2 and 8
Amendments 2 and 8 concern the treating doctor's medical opinion concerning the applicant's condition. While the applicant strongly disagrees with these opinions, she has not presented sufficient evidence to satisfy me that the opinions are, on balance, incomplete, incorrect or misleading. Accordingly I find that the Hospital was justified in refusing to carry out amendments 2 and 8.

Amendment 3
Amendment 3 concerns a statement that a nurse was requested to attend the consultation. It seems to me that this comment, of itself, is not personal information relating to the applicant and that a right of amendment does not, therefore, exist. Nevertheless, in the event that it might be argued that the statement relates to the applicant in so far as it suggests that the applicant was attended by a nurse, I will address the applicant's arguments for the sake of completeness. I note that the applicant's argument is that the nurse was not present during the consultation. However, in her argument in support of amendment 9, she states that the nurse attended the cubicle after her exchange with the doctor. Accordingly, I find that the applicant has not presented sufficient evidence to satisfy me that the statement is, on balance, incomplete, incorrect or misleading. Accordingly I find that the Hospital was justified in refusing to carry out amendment 3.

Amendments 4 and 9
Amendments 4 and 9 concern opinions of the attending doctor (4) and nurse (9) about the applicant's behaviour during her visit. The applicant's assertions alone do not form sufficient evidence to warrant an amendment of those opinions in the absence of supporting evidence. Furthermore, as I have indicated above, a right of amendment may exist where the applicant can satisfy me that the opinions in question are somehow flawed, by reason of the total inadequacy of the factual information underlying them, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinions, or because of some other particular factor which renders the opinions dangerous to rely upon.

The applicant argues that the doctor's opinion is unreliable and dangerous to rely upon having regard to [ ... ]. I do not accept that argument. I see no reason for accepting that the doctor's opinion about the applicant's behaviour was somehow flawed as [ ... ]. The applicant also argues that the nurse's opinion is incorrect as she was not present when a particular exchange took place. However, it is not disputed that the nurse interacted with the applicant during her visit. I find that the applicant has not presented sufficient evidence to satisfy me that the opinions are, on balance, incomplete, incorrect or misleading. Accordingly I find that the Hospital was justified in refusing to carry out amendments 4 and 9.

Amendment 6
The applicant argues that the statement that she was previously taking a medicine referred to as [ a named medicine ] is incorrect as she was actually taking [ another named medicine ]. During the course of the review, Mr Foley of this Office asked the applicant to present evidence in support of her argument but she has not done so. Given the nature of the statement, I consider that this request for supporting evidence was reasonable. However, no such evidence was presented. Accordingly, I find that the applicant has not presented sufficient evidence to satisfy me that the statement is, on balance, incomplete, incorrect or misleading. Accordingly I find that the Hospital was justified in refusing to carry out amendment 6.

Amendment 7
The applicant is seeking to have an amendment made to the clinical notes at issue by way of the insertion of a comment that she was being monitored for a condition [ ... ] at the time of her attendance at the Hospital, on the basis that this fact was communicated to the attending physician at the time. As I have stated above, this Office takes the view that medical notes are intended to contain an overall summary of the relevant consultation, treatment etc. and do not necessarily have to contain a word for word account of what was said between medical staff and patient. In any event, I do not consider it appropriate to accept one party's version of events to the detriment of the other unless there is compelling evidence which requires me to do so. The question I must consider is whether the evidence which the applicant has submitted to support her arguments is sufficient to satisfy me that her medical records are, on balance, incomplete, incorrect or misleading as a result of the absence of the statement she wishes to have added to her records. In my view, it is not. Accordingly I find that the Hospital was justified in refusing to carry out amendment 7.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse to amend the applicant's records under section 9 of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator