Whether the HSE was justified under section 37 of the FOI Act in refusing to grant the applicant's request for access to her late father's medical records

19 July 2018   

Background

All references to "the applicant" in this decision may be taken as including references to her solicitor who acted on her behalf. 

On 30 March 2017, the applicant made an FOI request to the HSE for access to her late father's medical records. The HSE's decision of 20 June 2017 refused to grant access to the records on the basis that they contained her late father's personal information (section 37). The applicant sought an internal review of this decision on 13 July 2017, which the HSE affirmed in its internal review decision of 1 August 2017. On 6 September 2017, the applicant sought a review by this Office of the HSE's decision.

I have decided to conclude my review by making a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to submissions made by the HSE and the applicant. I have had regard also to the records at issue and to the provisions of the FOI Act (including Regulations made under section 37). 

Scope of the Review

This review is confined to considering whether the HSE has justified its refusal to grant access to the 306 records covered by the applicant's request. The applicant confirmed in the course of the review that she does not wish to have access to any of the third party personal information in the records.

Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to my satisfaction that its decision was justified. 

Sections 37(1) and 37(8) - Access by certain categories of persons to personal information of a deceased individual 
It is not in dispute that the records contain the personal information of the applicant's late father who is deceased. Section 37(1) of the FOI Act requires the refusal of an FOI request where access to the records would involve the disclosure of personal information (including personal information relating to a deceased individual). 

However, Regulations have been made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act, which provide for access by certain third parties, including the next of kin, to records of a deceased individual. The Regulations (S.I. No. 218 of 2016), as amended by S.I. No. 558 of 2016, provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request. The HSE says that it considered the applicant's request in accordance with these Regulations. 

I must also take into account Guidance that was published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act (i.e.Central Policy Unit Notice 25, available onwww.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act.

Section 3.2 of the Minister's Guidance lists the following as factors to be considered:

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• whether release would damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released. The Guidance says that, if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidance says that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour (the Medical Council Guide). It also says that, subject to other considerations, records containing the joint personal information of both the requester and the deceased might fall to be released
• whether the requester can get the information they want without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.

Next of Kin
The applicant has provided the HSE with an affidavit stating that she was her late father's next of kin. 

The HSE says that the applicant's mother (the deceased's spouse) is still alive and also falls within the category of next of kin in accordance with section 7(2) of the Succession Act, 1965. It is not clear if it is arguing that, in such circumstances, the applicant has no potential right of access under the Regulations. 

For the avoidance of doubt, I adopt the findings made by this Office inCase No. 140320(Mr X and The Health Service Executive) available onwww.oic.ie.

That decision found that the Regulations do not provide that the next of kin of the deceased have a potential right of access only where there is no surviving spouse. 

Submissions on the circumstances and the public interest
The HSE says that the right to privacy of an individual, even after death, is a very strong right. It says that it has a duty to maintain the confidentiality of its patients "at all times in line with various mechanisms i.e. both legal and Codes of Ethical Conduct". It notes that the grant of access to records under FOI is equivalent to that information being made available to the world at large. It says that the records contain inherently private information and that there is no evidence that the applicant's late father had consented to the release of his records. 

The HSE notes the reasons set out by the applicant for making her request. It points out that the applicant says she believes that her late father suffered from dementia for several years prior to his death and that she wants the records to ascertain whether he had capacity to enter into a particular legal transaction. In considering the public interest, the HSE notes that the applicant's reasons for making her request amounted to private rather than public interests (which term it said broadly equates to "the common good"). It says that the public interest factors it considered in favour of granting access to the records were those in the requester exercising a right of access under the FOI Act and in members of the public knowing what information is held by public bodies. I take this to reflect the public interest in ensuring the HSE's openness and accountability. 

The HSE also says that the factors considered against the grant of access included the public interests in:

• protecting and upholding the right to privacy of individuals regarding their records which are held by a public body;
• safeguarding patient confidentiality even after their death and 
• the entitlement of a service user to a degree of privacy concerning their sensitive personal information.

The applicant's submission to this Office explains that she wants the records for the reasons described above and also that she is concerned that she or family members may develop dementia. 

Analysis

The HSE's arguments are similar to those it made in relation to its refusal of a similar request reviewed recently by this Office inCase No. 170521(available onwww.oic.ie) in which the finding was that the records of a deceased person fell to be granted to the next of kin. However, I have considered this case in the context of its own particular circumstances and  examined the content of the particular records involved. 

It is important to note at the outset that by making the relevant Regulations, the Oireachtas has determined that the next of kin shall have a right of access to the records of deceased persons, subject to consideration of the public interest and all the circumstances. While I fully accept that medical records are inherently private and confidential, it seems to me that by making specific provision for access to the records of deceased persons, the Oireachtas envisaged that the next of kin would have a potential right of access to all relevant records, including medical records. Had it been intended that medical records would not potentially fall for release, such a restriction could easily have been provided for.

I also fully accept that as records released pursuant to the FOI Act are released without any restriction as to how they may be used, such release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the Regulations have been met.

Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access. 

I am also aware that the relevant Irish Medical Council guidance provides that patient information remains confidential, even after death. However, that guidance expressly acknowledges that there are circumstances where release may be appropriate. It suggests that if it is unclear whether the patient consented to disclosure of information after their death, consideration should be given to how disclosure of the information might benefit or cause distress to the deceased-™s family or carers, to the effect of disclosure on the reputation of the deceased and to the purpose of the disclosure.

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. inthe Rotunda case[The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner[2011] 1 IR 729, [2011] IESC 26, a link to which is available onwww.oic.ie]. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to medical records of deceased persons. The Regulations and guidance make it clear that a range of matters such whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors. 

While it is not evident in this case that the next of kin of the deceased person had concerns about the standard of care and treatment afforded to him, this does not mean that the public interest in transparency and accountability is lessened. Indeed, it could be argued that only by having all relevant information available could the next of kin of a deceased person draw informed conclusions as to the standard of care afforded. 

As the Long Title to the FOI Act states, its purpose is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies. Furthermore section 11(3) provides that in performing any function under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.

In circumstances where neither the Regulations nor the associated guidance require the next of kin, as requester, to provide evidence to suggest that such consent would have been forthcoming, it seems to me that it is entirely appropriate to draw conclusions from the particular circumstances of the case under consideration.

As regards the deceased's capacity, I do not accept that the fact that the applicant has expressed concerns as to the testamentary capacity of the deceased provides, of itself, a sufficient reason to refuse her request. Indeed, it might be argued that release of the medical records of a deceased person to the next of kin to allow for informed conclusions to be drawn as to the testamentary capacity of the deceased is a factor serving to support the release of such records.

Having examined the records at issue in this case, I see nothing to suggest that the deceased would have withheld consent to the release of the records to his next of kin when living. Neither do I see anything to suggest that release would damage his good name and character. I also note the applicant's belief that the grant of access may be of benefit to her and her siblings by, essentially, enabling them to seek treatment for any hereditary illnesses from which their late father may have suffered.

In the particular circumstances of this case, I am not satisfied that the HSE has justified its refusal of the applicant's request under the Regulations made under section 37(8) of the FOI Act. In my view, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the applicant's request, as the next of kin, for the records relating to her late father. I therefore find that the HSE was not justified in refusing the applicant's request for those records. 

Accordingly, I direct the HSE to grant access to the records subject to the redaction of the personal information of identifiable individuals other than the applicant and her late father. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's refusal to grant the applicant's request. I direct it to grant access to the records subject to the redaction of the personal information of identifiable individuals other than the applicant and her late father as it appears in some of the records. 

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