Case Number: 160250

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. The HSE Dublin North separated the application into two parts.

A separate decision of this Office on the applicant's request for a review relating to the HSE Dublin North was made on 19 July 2016 (case 160123 refers).

The HSE West failed to make a decision on the applicant's request within the statutory period. However, following communications with this Office, the HSE issued an 'effective decision' on the applicant's request on 30 May 2016. In that decision the HSE refused the request and stated that the evidence provided by the applicant did not support a finding that the clinical records, "relevant to [the applicant's] presentation at the time", were incomplete, incorrect or misleading. On 10 June 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 applicant and the HSE, 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

The applicant clearly expressed her dissatisfaction with the content of her in-patient medical records, including her diagnosis during a stay at a facility within the HSE West area. Essentially she argued that she had been misdiagnosed by HSE staff and that the records they hold about her are "inaccurate and untrue". The applicant listed items 28-71 as records to be amended from her in-patient file. She disputed the recorded accounts of her diagnosis, certain observations by doctors, certain contacts with relatives and others, certain conversations and phrases used, as well as issues around consent. 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. As such, this review is concerned solely with whether the HSE was justified in refusing the applicant's request to have personal information on her HSE West in-patient 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.

 

Analysis and Findings

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 Commissioner's approach to section 9
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 that there are inherent difficulties in altering contemporaneous 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.

Consideration of the applicant's request
The question I must consider in this review is whether the evidence, including the views of consultants on her condition in recent times, 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.

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 effective decision of 30 May 2016, the HSE stated that in reviewing the applicant's request, the Executive Chief Clinical Director of the Mental Health Services for the area concerned was satisfied that the applicant's clinical notes reflected a contemporaneous record of her stay at the facility within the HSE West area. The HSE also stated that during the internal review it had considered the evidence provided by the applicant in a Consultant Psychiatrist's letter of September 2015. In addition, in a submission to this Office, the HSE stated that clinical notes were made in good faith, without prejudice, to record clinical findings, treatment plan and working diagnosis. It added that the consultant psychiatrist "does not find them out of the ordinary in any way". The HSE also said that it would be happy to include the applicant's detailed objections in her records and the second opinion/s provided by the applicant in support of her FOI request. However, the HSE stated that it cannot support deleting any information held in the applicant's medical file.

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. This would not be feasible. While the applicant provides explanations as to why she said or did certain things, the fact that the HSE staff's account may not reflect the context and background as the applicant wishes, does not of itself render the records incomplete, incorrect or misleading. 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 and related issues 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. In relation to the comments, statements and actions referred to by the applicant, I am of the view that the mere statement by the applicant to the contrary of what she is recorded as having said or done is, of itself, an insufficient basis for concluding that the information should be amended under Section 9 of the Act.

I accept that the applicant has provided background and contextual information to explain her view of certain events but I do not have sufficient evidence to find 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 carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse to amend the 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. In this case, it also ensures that the more recent comments of the consultants on the applicant's condition are available on the applicant's medical record.

 

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. However, I direct that a copy of the applicant's request and supporting documentation is included in the applicant's in-patient medical record, in accordance with the provisions of section 9(4)(a)(i) 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