Whether the HSE was justified in refusing access to the medical records of the applicant's deceased father on the basis of section 37 of the FOI Act. 

26/06/2018

Background

On 16 January 2017, the applicant wrote to the HSE with a number of queries in relation to her father's care while he was a patient in a hospital.  She requested a written response to questions about his care and also requested a copy of his medical records together with a copy of a letter signed by her father and any records relating to his capacity.  The HSE responded that, because her late father's express wishes were that she should not be given any information in relation to his medical condition, the HSE must continue to respect his wishes and therefore could not provide the written response requested.  The request for access to the medical records was treated as a request under the FOI Act and was refused on the basis of section 37 of the FOI Act (personal information).  The applicant sought an internal review of that decision on 5 April 2017 and the HSE affirmed the original decision on 9 June 2017.  The applicant applied to this Office for a review of the decision of the HSE. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the HSE and the applicant. I have had regard also to the records the subject of this review and to the provisions of the FOI Act.

Scope of the Review

The applicant requested three specific kinds  of records from the HSE: her late father's medical records; the letter signed by her father restricting access to his information together with information around his capacity at the time and a copy of any advance care directive signed by her father. For the sake of clarity, all of those records, where they exist, are contained on the hospital chart and I will refer to them as the "medical records" of the applicant's late father. 

This review is therefore concerned solely with whether the HSE was justified in its decision to refuse the applicant's request for access to the medical records of her father on the basis of section 37 of the FOI Act. 

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.  This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest which this decision addresses below.

While I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  This constraint means that, in the present case, the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited.

Analysis and Findings

Section 37 - Personal Information

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section,  an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester (including personal information relating to a deceased individual).

In its original decision, the HSE did not refer to the provisions of section 37(8) of the FOI Act. However, its submission to this Office indicated that the decision maker considered that subsection and its associated guidance.  A potential right of access to records of a deceased person arises under section 37(8) because Regulations have been made by the Minister for Public Expenditure and Reform which provide for access by certain third parties, including the next of kin, to records of a deceased individual.

The Freedom of Information Act, 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) (the 2016 Regulations), as amended, provide for the grant of access to the records of a deceased individual if the requester is the spouse or 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 the request. 

It is not disputed that the applicant is the child (or issue) of the deceased and is considered to be next of kin for the purposes of the Regulations. Neither is it disputed that all of the information in the medical records comes within the definition of personal information in section 2 of the Act. Therefore, the issue to be addressed is whether, 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. 

Pursuant to section 48(1) of the Act, the Minister for Public Expenditure and Reform published guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request.  The guidance suggests certain factors to be taken into consideration in deciding if release is appropriate to the spouse or next of kin including:

The confidentiality of personal information as set out in section 37(1).

Would the deceased have consented to the release of the records to the requester when living? The guidance states that if so, this would strengthen the case for deciding to release after death. If, however, the deceased had refused to release the records during his/her lifetime or had left written instructions in a will or other document that the records were not to be released, there would have to be compelling reasons for overturning the deceased's expressed wishes. 

Has the person outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records?

Would release damage the good name and character of the deceased?

The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased.

The nature of the records to be released. According to the guidance, if the record is inherently private and of a very sensitive nature, then it is unlikely to be released unless there are compelling reasons for so doing; it also states that in relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour.

Can the requester obtain the information they seek without accessing the records of the deceased?

Any other circumstances relevant to the request that the requester may set out.

The HSE submissions

As the basis for refusing access to the records, the HSE relied primarily on a letter signed by the applicant's father during an admission to the hospital.  The HSE considers this letter to be evidence that the applicant's father would not have consented to release of the records to the applicant when he was alive.  Further, it argues that medical records are inherently private and they should not be released now.  The HSE provided this Office with the written views of a consultant involved in the care of the applicant's father on his capacity at the time he signed the letter. The consultant said that the patient had discussed his wishes in regard to disclosing to certain family members any information about his medical condition. 

The Applicant's submissions

I have taken into account the detailed submissions of the applicant for the purposes of assessing "all the circumstances" of this case, although it is not appropriate to set out those details here.  Among the issues raised was the standard of care that her father received. She also questioned her father's capacity at the time of signing the letter restricting access to his medical information.  She believes that her father did not understand the effect of the letter, particularly that it would persist after his death.  She  queried the circumstances in which the letter was signed; for example, she is aware that the letter was typed and contended that it must have been presented to her father for signing.  She referred to certain exchanges between her father and family members which concern her and give rise to her questioning whether there could have been undue influence or duress involved. 

The applicant provided material in support of her view that the wider context of what was taking place while her father was very ill warrants investigation.

The applicant argued that, in assessing capacity, the HSE needs to balance the undisputed importance of upholding the right to privacy of an individual while also giving due care and attention to the reality of elder abuse and undue influence.  She stated that she and some of her siblings were denied access to her father in the later years of his life despite multiple attempts to contact him. 
 

Analysis

It is important to note at the outset that by making the relevant Regulations, the Oireachtas has determined that 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.

I accept that medical records are inherently private and confidential.  However, this factor in and of itself is not a sufficient reason to refuse access to the records of a deceased person.  A recent decision of this Office (Case Number 170521 available on www.oic.ie ) addressed this issue and ultimately directed the release of the medical records of a deceased person to the next of kin. 

In considering whether the deceased would have consented to the applicant having access to his records when living, I cannot but give significant weight in this case to the fact that the applicant's father signed a letter restricting access to his information and, according to the HSE,  verbally repeated that instruction to his consultant. I have examined a copy of the letter and the correspondence referred to above on the issue of capacity.  Further, according to the applicant, an opportunity was available to the deceased to amend the contents of the letter, or clarify his intention, when a family member raised the matter with him. From these circumstances, I can only conclude that the wishes of the applicant's father were that his information was not to be released to the applicant.  I do not disregard in any way the applicant's concerns.  However, the fact remains that the signed  letter on its face expresses the deceased's wishes when he was living as regards information on his medical condition being given to certain family members, including the applicant. The FOI Act does not empower me to investigate the circumstances of how and why the deceased came to his decision. However, I note that the HSE's submissions include the treating clinician's opinion on capacity. 

The applicant raised questions in relation to her father's treatment and care. While this may be a private concern, it can also be seen as a public interest factor in relation to how the HSE carried out its functions in relation to the services provided to the applicant's father.  There is a public interest in ensuring transparency in the manner in which the HSE carries out its functions and provides adequate care to patients, particularly vulnerable patients. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions.

On the other hand, privacy rights must be respected and upheld - in this instance, the privacy rights and expressed wishes of the applicant's deceased father as detailed above.

In considering the public interest test, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26(the Rotunda case).  That case involved a requester who sought information relating to his natural mother at the date of his birth from the hospital.  Specifically, the information sought was the age and address of his mother at the time of his birth.  In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest.

This Office generally has regard to the above obiter comments of Macken J. in the Rotunda case. It is noted that a public interest 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 as 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.

That being said, the 2016 Regulations also specifically state that regard must be had to the public interest in the confidentiality of personal information.  Unlike the circumstances in Case 170521 to which I referred above, there is evidence in this case of the deceased having indicated in writing that he did not consent to the release of the records to the applicant.

Having considered the matter carefully, I am satisfied that, having regard to all the circumstances in this case, the public interest, including the public interest in the confidentiality of personal information would not on balance be better served by granting than by refusing the applicant's request.  I therefore find that the HSE was justified in refusing the applicant's request on the basis of section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE.   
 

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