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

23 October 2018 

Background

On 29 May 2018 the applicant sought access to all of her medical records held by the HSE's Mental Health Services. While the HSE granted access to three records, it refused access to the vast bulk of the records under section 37(3) of the FOI Act but offered to make them available to a health professional of her choice. The applicant sought an internal review of that decision on 16 July 2018, following which the HSE affirmed its original decision. On 14 August 2018, the applicant sought a review by this Office of the HSE's decision.     

I have decided to conclude the review by making a formal, binding decision on the matter. 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. 

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 her held by the HSE's 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.

Furthermore, while I note the reasons given by the applicant for wishing to access her records, the Act provides that in deciding whether to grant or refuse a request, any reasons that a requester gives for a request shall be disregarded, except in so far as those reasons reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. This means that in this case, I cannot have regard to the applicant's reasons for seeking access to the records at issue.

Analysis and Findings

Section 37(3) of the FOI Act provides that a public 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, where it refuses a request under subsection (3), it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).

This Office considers 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-™s 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 recordsmightgive 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 owing to the nature of the records being requested, the request was brought to the attention of the applicant's consultant psychiatrist and a meeting was arranged between the applicant and her consultant psychiatrist to discuss the request. The consultant psychiatrist prepared a note of that meeting for the applicant's file. A copy of the note in question was provided to this Office for the purposes of the review. 

The HSE stated that the decision maker had regard to the contents of that note, in which the consultant psychiatrist expressed his opinion that access to the records sought is likely to be prejudicial to the applicant's mental health/well being and explained his reasons for holding that view. The request was also discussed with the Clinical Director.

Based on the HSE's submission, I am satisfied that it was justified in refusing access to the records sought by the applicant under section 37(3) 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 her behalf. 

I appreciate that this decision will be of considerable disappointment to the applicant but I am particularly conscious of the fact that the purpose of section 37(3) is to protect the physical or mental health, well-being or emotional condition of 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 HSE to refuse the applicant's request for all records relating to her held by the HSE's 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