Case number: 170563

                                                                                                                                                                                                 
Whether the HSE was justified in its decision to refuse the applicant's request for all records relating to him held by the Galway/Roscommon Mental Health Services unit of the HSE under section 37(3) of the FOI Act

27 February 2018
  
Background

It appears that the applicant first made a request to the HSE in May 2017 for all records relating to him held by Galway/Roscommon Mental Health Services and that the request was refused by the HSE in July 2017 under section 37(3) of the FOI Act. Apparently the HSE offered the applicant an opportunity to nominate a health professional to access the records on his behalf.

On 26 July 2017, the applicant made a second request, through his solicitors, for the records. In its decision of 31 July 2017, the HSE refused the request under section 15(1)(i)(ii), citing the earlier decision. The applicant's solicitors sought an internal review of that decision on 22 August 2017, following which the HSE refused the request under section 37(3). In doing so, it referred to its decision on the original request which apparently indicated that it would be more appropriate for the applicant to access the records in the company of a health professional. On 8 December 2017, the applicant's solicitor sought a review by this Office of the HSE's decision.    

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of HSE, and to the contents of the records at issue, copies of which were provided to this Office for the purpose of conducting the review. I have decided to conclude the review by making a formal, binding decision on the matter.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicant's request for all records relating to him held by the Galway/Roscommon Mental Health Services under section 37(3) of the FOI Act.

Preliminary Matter

While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited.

Analysis and Findings

Section 37(3) of the FOI Act provides that an FOI body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. However, in doing so it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (section 37(4) refers).

It seems to me that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide whether such sensitive information might be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). While this Office takes the view that there must be evidence presented in support of the opinion that release of the records might be prejudicial to the requester-ôs physical or mental health, well-being or emotional condition, it is noteworthy that the threshold for meeting the exemption is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified.

It is not in dispute that all of the records at issue are of a medical or psychiatric nature relating to the applicant. In its submission to this Office, the HSE stated that in deciding to rely upon section 37(3) on foot of the original request, the decision maker had regard to an email received from the applicant's consultant psychiatrist in respect of the records wherein she indicated that it would, in her opinion, be damaging to the applicant's health if the records were released to him.

he stated that she had offered to go through the files with the applicant herself so that he has the support he would need in dealing with the information therein. A copy of the email in question was provided to this office for the purposes of the review. According to the HSE, the consultant psychiatrist remains of this opinion.

The HSE further stated that the consultant psychiatrist has met with the applicant on a number of occasions to go through his files with him and has facilitated his access in this supportive way. It stated that the applicant had expressed his satisfaction during a meeting of 19 January 2018 and had stated that he had gleaned the information he required to answer queries he had.

In their submission to this Office, the applicant's solicitors stated that they are under instruction to initiate proceedings against the HSE in connection with the applicant's treatment and that they cannot do so without first having obtained an opinion from an appropriate consultant. They argued that an opinion by a psychiatric professional from the HSE recommending non-dislcosure would be a conflict of interest. They argued that they require access to the records in order to give them to an appropriate consultant who can then give an appropriate opinion on the question of negligence or breach of duty.

Apart from the fact that any reasons a requester gives for making a request must generally be disregarded (section 13(4) refers), it seems to me that the applicant's solicitors are not constrained from seeking an independent medical opinion as they suggest. As I have outlined above, the HSE has offered the applicant an opportunity to nominate a health professional to access the records on his behalf.

I accept that the HSE has submitted sufficient evidence to support its reliance on section 37(3) to refuse the applicant's request in this case. I find that the HSE was justified in refusing access to the records under section 37(3) of the FOI Act and I note that it has complied with the provisions of section 37(4) by offering the applicant an opportunity to nominate a health professional to access the records concerned on his behalf.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse the applicant's request for all records relating to him held by Galway/Roscommon Mental Health Services under section 37(3).

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