Case Number: 160123

Whether the HSE was justified in its decision to refuse the applicant's request, under section 9 of the FOI Act, to amend certain personal information in medical files

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 October 2015, the applicant applied to the HSE Dublin North for access to certain medical records and for the amendment or deletion of medical records arising from her attendance as an outpatient in the Dublin area and her attendance as an in-patient at a facility within the HSE West area. I understand that a separate decision on that part of the request relating to records held by HSE West issued in May 2016 and is not part of this review.

The HSE - Dublin North East issued a decision on the applicant's medical file as it related to her attendance at the facility within that area. In its decision, the HSE refused the request for an amendment or deletion of certain records under section 9 of the Act on the basis that it did not consider the personal information in them to be incorrect, incomplete or misleading.

Following a request for an internal review, the internal reviewer affirmed the original decision. The decision maker also stated in the decision that a copy of the applicant's request and supporting documentation would be included in the applicant's medical record, in accordance with the provisions of section 9(4)(a)(i) of the FOI Act. On 13 March 2016, the applicant sought a review by this Office of the decision.

I 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 submissions of the HSE and the applicant and to correspondence between the applicant and the HSE. I have also had regard to the content of the records and to the provisions of the FOI Act.

Scope of Review

I must say here that I appreciate that having her records amended means a great deal to the applicant, given her dissatisfaction with their content and with her diagnosis some years ago. However, the remit of the Information Commissioner is quite limited and does not extend to conducting an investigation into the HSE's treatment of the applicant. This review is concerned solely with whether the HSE was justified in refusing the applicant's request to have personal information on her medical file amended or deleted on the basis that it is incomplete, incorrect, or misleading, under section 9 of the FOI Act. I note that the applicant's request states that she wants information to be deleted.

Preliminary Matters

There has been some confusion as to the records actually held by the HSE. In the schedule accompanying the original decision, the HSE refused to consider amendment of records identified by the applicant as '3(i) and 3(j)'. In the schedule, the HSE stated that those records are "not a ... record" held by the HSE Dublin North area. On examination of those records, I note that the statements in records '3(i) and 3(j)' appear in the same letter as statements in records '3(g)' and '3(h)'. The HSE acknowledges that records 3(g) and 3(h) are held by it. Section 9 of the FOI Act provides for the amendment of personal information in a record held [my emphasis] by an FOI body where that information is incomplete, incorrect or misleading. It is clear that the HSE holds a record containing four statements ('3(g)'-'3(j)') identified by the applicant for amendment or deletion and I am satisfied that such information is included in the applicant's request and in this review.

The applicant's request identified two letters (1 and 2) to a named doctor; 13 letters (a) - (m) to various doctors and medical/mental health teams containing observations about the applicant; four letters ((a) -(d)) to and from insurance companies and specific paragraphs and entries (1- 71) on outpatient and inpatient files. A few of the records contain small amounts of personal information about family members of the applicant as well as personal information about her. As section 9 provides for a right of amendment of the personal information of the individual to whom the information relates only, I have not considered the amendment of the personal information of other living individuals but will comment below on the provisions for amendment of the personal information of deceased persons. While I have examined the information at issue in the context of the submissions made, the content and context of the records and the Commissioner's approach to section 9, I do not consider it necessary or appropriate to detail each piece of information in this decision.

Analysis and Findings

The letters are exchanges between medical staff who advised on the applicant's diagnoses and prognoses and also referred to personal, medical and family history. They comprise referrals, including one referral to a health service in the UK. The commentaries, diagnoses and history in those letters were written by health professionals in their capacity as qualified consultant psychiatrists or other consultants. The medical notes containing information which the applicant referred to as "records to be amended" are all handwritten notes. All records the subject of this review were created in 2012 and 2013.

The applicant clearly disagrees very strongly with certain information entered by the medical staff in her file. She refers to a number of comments and diagnoses recorded about her and her late mother with which she takes issue. She questions the veracity of the comments, and/or the judgement or diagnoses of medical staff. She believes that there has been a misdiagnosis in her case and that the records should be corrected by the deletion of certain parts of the records.

Section 9 - Amendment of records relating to personal information
Section 9 of the FOI Act provides as follows:

(1) Where personal information in a record held by an FOI body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by the individual to whom the information relates, amend the record

(a) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
(b) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or

(c) by deleting the information from it.

(2) An application under subsection (1) shall, in so far as is practicable --

(a) specify the record concerned and the amendment required, and
(b) include appropriate information in support of the application.
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 Commissioner also considers 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.

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 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. The nature and extent of information to be provided to support a claim and whether or not it is capable of being verified, and by what means, will vary on the type of record at issue. 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.

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 he would not be justified in directing that an FOI body amend its records to substitute a different opinion 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.

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 in previous reviews (e.g. Case No. 98158 - Mrs ABZ and the Revenue on www.oic.ie) 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.

Directing the amendment of, and, in particular, the deletion of information as required in this case, from the records of an FOI body, is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. The Commissioner takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts or with the way the contents of a record explain subsequent actions and decisions of public bodies. In determining the matter, consideration should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record. Also, the views of the author of the record may need to be taken into account. Given the circumstances of this case and the number of doctors and others who created the notes and correspondence involved, this Office does not consider it to be feasible or appropriate to contact the authors of the records.

The question I must consider in this review is whether the evidence which the applicant has submitted to support her arguments is sufficient to satisfy me that the information in the records the subject of this review are, on balance, incomplete, incorrect or misleading.

The applicant questions the diagnoses and prognoses of consultant psychiatrists and other consultants, and information relating to her personal and family history, recorded in her medical records. The applicant states that the information about her diagnosis is not true and objects to other comments recorded in her file about her and other family members. In correspondence to this Office the applicant argues that "UK doctors have clearly stated I do not have [the condition diagnosed during her time as a patient in Ireland]". The applicant also states that "a doctor in the UK disputes the diagnosis that was made by doctors in the HSE".

In support of her statements and application for review, the applicant provided this Office with letters from the HSE, the UK National Health Service (NHS) and a consultant psychiatrist. The letters are dated from September 2015 to June 2016. In one 2015 letter, the consultant psychiatrist states that the applicant "is in remission from whatever form of ... illness she experienced in 2012". The consultant also states that the illness is "very unlikely" to have been that which was diagnosed at that time. Another letter, dated October 2015, states that "Following the assessment there appears to be nothing suggestive...". A further recent letter from May 2016 which refers to a 'care plan', notes in relation to the applicant's condition, there was nothing "currently". Another recent letter, dated June 2016, from a consultant in adult psychiatry, states that the applicant "does not suffer from [a condition]" but then goes on to say: "Obviously we are unable to comment on the content of past...records...and whether some of [the applicant's] previous episodes suggested a different diagnosis".

In its internal review decision, the HSE said that the documentation provided by the applicant in support of her request "does not relate to the time of creation of your medical records here...". In a letter to this Office, the HSE stated that it had liaised with the applicant's consultant on the matter. It stated that the consultant noted that what was recorded in the applicant's medical file "was a contemporaneous note of clinical findings at that time". The HSE also noted that the letter of 4 September 2015 was dated two years after the creation of the original records. It further stated that, whilst it may be that the applicant presented with no specific features on the particular day that she was assessed by the UK consultant, "this does not demonstrate that what was documented by the [HSE] staff ... was documented incorrectly at the time". The HSE concluded that its records "contain appropriate, relevant past medical history".

Section 9(6) - deceased person
The applicant states that she wishes to have information about her mother, who is deceased, deleted.

Section 9(6) provides that the Minister for Finance may provide by regulations for the making of an application for amendment of personal information in a case where the individual to whom the information relates is deceased. The relevant regulations are the Freedom of Information Act 1997 (Section 17(6)) Regulations 2009 (SI No. 385 of 2009) (the Regulations). At the time of the applicant's request, the 2009 Regulations continued in force under the FOI Act 2014. The Regulations provide that, subject to the other provisions of the FOI Act, an application under section 9 may be made by "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 the request".

I have no information as to whether the spouse of the applicant's late mother is living. Having considered the relevant provisions of the FOI Act, the 2009 Regulations and the associated Guidance Notes, I am prepared to accept that, for the purposes of this review, the applicant (her daughter) qualifies as the deceased's "next of kin". However, factors such as the confidentiality of the applicant's mother's personal information, whether the deceased would have consented to the release of the records to the applicant when living and any other relevant circumstances, have to be considered in deciding whether the public interest, including the public interest in the confidentiality of personal information, would be better served by granting the application. I note that the FOI Act recognises a very strong public interest in protecting privacy rights. I am satisfied in the circumstances of this case that seeking further information on the circumstances of the deceased is not the correct course since my findings below would also apply to any information which is the joint personal information of the applicant and her mother. I must stress that, having regard to the approach set out above on the onus of proof, I would not be justified in directing the HSE to delete the references to the applicant's late mother solely on the basis of the applicant's opinion, no matter how strongly felt.,

Finding

I am not required to categorically determine what either the applicant or a consultant or other medical professional said at any point in a consultation. As regards the opinions and observations of the medical professionals involved in the applicant's care, I note that their views relate to her state of health when they assessed her. I have noted the comments of other medical professionals but have no basis under section 9 for preferring or substituting what they say now for what was the view recorded in the records. I have no reason to find that a qualified consultant psychiatrist or other consultant responsible for the care of a patient must be presumed to be other than competent to form an opinion as to a diagnosis and/or prognosis of a person in his or her care. I find that it has not been shown that, on the balance of probabilities, the information in the records is 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 to the extent that it should be deleted.

Having considered the submissions of both parties, and taking into consideration the provisions of section 9(6) as detailed above, I am satisfied that the applicant has not demonstrated, on the balance of probabilities, that the information in her medical records is incomplete, incorrect, or misleading. I find therefore, the HSE was justified in refusing to amend those records.

It is important to note that, in cases such as this where a section 9 application is refused, the FOI Act requires the FOI body to attach to the record concerned the application for amendment, a copy of the application or a note indicating that it has been made. This in itself is quite significant as it alerts all future users of the record that aspects of its contents are disputed by the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse to grant the applicant's application 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.

Elizabeth Dolan
Senior Investigator