Case Number: 160171

Whether the Hospital was justified under section 15(1)(a) of the FOI Act in refusing a request for access to certain of the applicant's medical records

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 10 February 2015, solicitors for the applicant made an FOI request to the Hospital for access to their client's medical records. The Hospital granted access to the records in its decision of 31 March 2015. The solicitors a corresponded further with the Hospital and additional records were released on 4 June 2015. As the solicitors were not satisfied that all records had been released, they communicated further with the Hospital culminating in a request for an internal review on 9 March 2016. They identified the missing records as contemporaneous triage notes in relation to a procedure carried out on the applicant in May 2014. As no response was received from the Hospital, the applicant wrote to this Office on 16 April 2016 seeking a review of the decision of the Hospital on the basis of a deemed refusal. On 18 April 2016, the Hospital confirmed its position that it was upholding its original decision on the basis of section 15(1)(a) of the FOI Act. It also provided clarification of its approach to note taking by the clinical team when treating a patient and referred the applicant to the triage notes on the Accident & Emergency record previously released.

I consider that the review should now be brought to a close by the issue of a formal, binding decision. In carrying out my review, I have had regard to the submissions of applicant and the Hospital and to the correspondence between them. I have also had regard to the provisions of the FOI Act and to the records already released.

 

Scope of the Review

The sole issue in this review is whether the Hospital was justified in its decision to refuse access to the contemporaneous clinical notes relating to the treatment of the applicant's client by the Hospital on the basis of section 15(1)(a) of the FOI Act. Essentially, the applicant's claim is that certain records are held by the Hospital in addition to those to which access has been granted.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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 her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

According to the solicitors, they are investigating a potential medical negligence action against the Hospital arising out of treatment provided to their client. They submit that a retrospective note by the consultant anaesthetist who treated their client on a particular date in May 2014 was created six days after the treatment was provided. They query whether the level of detail contained in this note (e.g. timings down to the minute, specific details of weight, oxygen saturation levels etc.) could be recalled six days after the events without referring to a contemporaneous record of those events. They also claim that the note states that the Consultant Anaesthetist "was contacted by senior reg (named) at 21.26 hrs to assist in A&E..." while nowhere in the records provided is there any reference to the named consultant.

While the FOI Act generally prohibits decision makers from taking account of the reasons for a request, the detailed sequence of events is relevant here in relation to whether certain records were created and, if so, whether they are held by the Hospital at this time.

The Hospital responded to this Office that, owing to the gravity of the situation, two senior consultants and a senior registrar accompanied the critically unwell child to another hospital. It said that, upon returning to Tallaght Hospital, the registrar and one of the consultants had a debrief during which the registrar wrote notes. According to the Hospital, the registrar no longer works there but was contacted by the FOI officer. The Hospital stated that he confirmed that he had written notes following the debrief, brought those notes to the Accident and Emergency ward and placed them in the chart. He said that when asked to review the notes he could not locate them and that it is not his standard practice to keep a patient's notes. With regard to the retrospective notes, the Hospital contended that these notes were written by the doctor when she was next on duty in the Hospital in early June 2014.

According to the Hospital, it carried out searches by computer, by name, by key words and manually in the Accident and Emergency Department, the Anaesthetics Department and the Medical Records Department. The Hospital claimed that it searched in any area where the record may be and liaised with the relevant clinical staff and the departmental administrative staff to further look for the records. The Hospital submitted that notes of this type are normally placed in a pigeon hole specifically used for this purpose. The FOI Liaison Officer said that, to the best of her knowledge, an incident such as this has not occurred in the past and that the Hospital has a dedicated reporting and recording system which monitors and assesses such incidents and that there is no record of one occurring.

The Hospital stated that it will remind all clinical staff of the practice required when writing notes which are to be brought to the Accident and Emergency Department for filing.

Having reviewed the steps taken by the Hospital to locate the records sought, I am satisfied that it has responded adequately to this Office's queries and taken all reasonable steps to locate the missing medical notes. I see no basis to dispute the Hospital's position that the records referred to above cannot be found. I consider that the Hospital's decision to refuse to release further records to the applicant was justified, on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I find that section 15(1)(a) applies to exempt the records.

I should, of course, add that a decision that section 15(1)(a) of the Act applies is a decision that the public body is justified, at this time, in coming to the conclusion that the records concerned do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. It is possible that the records may be located at some point in the future and, in this event, I would expect the Hospital to consider them with a view to making them available to the applicant.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital in this case.

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