Case Number: 160046

Whether the Hospital was justified in its decision to refuse access to medical records of the applicant's deceased father

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

The applicant submitted a request to the Hospital on 23 October 2015 seeking answers to a number of questions relating to his late father's care and treatment in the Hospital and seeking records of notes taken. On 18 November 2015, the Hospital refused the applicant's request on the ground that he was not designated as next of kin of the deceased. On 29 November 2015 the applicant sought an internal review of the Hospital's decision. The Hospital issued an internal review decision on 10 December 2015, in which it refused the applicant's request, making reference to the Freedom of Information Act 1997 (Section 28(6)) Regulations, 1999, and reiterating that the records sought can only be released to the designated next of kin of the deceased. On 25 January 2016, the applicant sought a review by this Office of the Hospital's 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 the provisions of the FOI Act 2014.

Preliminary Matters

I note that the CEO of the Hospital made both the original decision and internal review decision on the applicant's FOI request. As there was no one more senior within the Hospital to conduct the internal review process, it was open to the applicant to apply directly to this Office for a review of the Hospital's decision, rather than seek an internal review of the decision (section 21(3) of the FOI Act refers). I also note that the Hospital's original decision did not comply with the requirements of section 13(2)(f) which requires that decision notices must contain details of appeal and review rights. I would urge the Hospital to avail of the detailed guidance available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform (www.foi.gov.ie) when processing future FOI requests.

Scope of Review

This review is solely concerned with whether the Hospital was justified in refusing access to the applicant's deceased father's medical records.

Analysis and Findings

The Hospital informed the applicant that records relating to a deceased person "may only be accessed by the designated next of kin as per Regulation 47 of the 1999 Freedom of Information Act." I assume the Hospital was referring to Statutory Instrument No. 47/1999 - the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999. If this is the case, then the Hospital was wrong in doing so as SI 47/1999 was revoked and replaced by SI 387/2009 - the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009.

SI 387/2009 remain in force notwithstanding of the enactment of the FOI Act 2014. Article 4(1)(b)(iii) of the Regulations provides that a request for access to records which would disclose the personal information of a deceased individual shall be granted to the spouse or the next of kin of the individual in certain circumstances and having regard to any relevant guidelines published by the Minister. The Department of Finance published Guidance Notes in 2009 pursuant to the provisions of SI 387/2009.

While I make no finding on whether the applicant is entitled to access the records of his deceased father in accordance with the provisions of SI 387/2009, I should point out that this Office has previously identified an anomaly in the Regulations in the manner in which next of kin is determined. While this is a complex technical issue, essentially the Regulations require that the next of kin is the person or persons standing nearest in blood relationship to the deceased individual in accordance with section 71(2) of the Succession Act 1965.

Application of the rule contained in section 71(2) may result in different outcomes to the suggested determination of next of kin as contained in the published Guidance Notes. Implicit in the Guidance Notes is the advice that next of kin should be determined in accordance with the rules relating to the distribution of the estate of a deceased individual on intestacy as set out in sections 67 to 71 of the Succession Act 1965. This Office has previously raised the matter with the Central Policy Unit and I understand that revised Regulations are in the process of being developed. Nevertheless SI 387/2009 remains in force for the present and the Hospital should have considered the applicant's FOI request in accordance with the provisions of those Regulations.

Accordingly, as the Hospital did not consider the provisions of the correct Regulations in making a decision on the applicant's FOI request, I hereby annul the decision of the Hospital and direct that it undertake a fresh decision making process having regard to the provisions of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009. If the Hospital has any difficulties in its consideration of the Regulations, it may wish to consult with the Central Policy Unit on the matter.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Hospital in this case. I direct it to undertake a fresh decision making process in respect of the applicant's request, having due regard to the provisions of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009.

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