Whether the Hospice was justified, under section 15(1)a) of the Act, in refusing access to a copy of a letter of Referral/Discharge for her late husband from the Bon Secours Hospital (the Hospital) to the Hospice on the ground that it does not exist
22 May 2020
Background
In a request received by the Hospice on 2 March 2020, the applicant sought access to a copy of the letter of Referral/Discharge written and signed by a member of the medical staff of Bon Secours Hospital Cork to the receiving Medical Team in Marymount Hospice, or any individual member thereof, and received in the Hospice by letter, fax or email in advance of, on the date of, or subsequent to, the transfer on June 8th 2015, of her late husband from the Hospital to the Hospice. The applicant clarified that she was not requesting the short form transfer summary signed by a medical intern.
In a decision dated 5 March 2020, the head of the Hospice refused the request under section 15(1)(a) of the Act on the ground that the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. On 10 March 2020, the applicant sought a review by this Office of that decision.
During the course of the review, Ms Greenalgh of this Office provided the applicant with details of the searches undertaken by the Hospice and of its explanation as to why it considers that the letter sought does not exist. In response, the applicant indicated that she does not accept the Hospice’s position.
I have decided to conclude this review by issuing a binding decision on the matter. In carrying out my review, I have had regard correspondence between the applicant and the Hospice in relation to the request and to correspondence between this Office and both the applicant and the Hospice on the matter.
Scope of Review
The scope of this review is concerned solely with whether the Hospice was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for a letter of discharge relating to her late husband’s transfer to the Hospice on the ground that the record concerned does not exist or cannot be found.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
It should be noted that this Office may conclude that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. The Act does not require a public body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately if records that could not previously be found were subsequently located.
As I have mentioned above, Ms Greenalgh of this Office provided the applicant with the details of the submissions made by the Hospice outlining the searches it undertook in an effort to locate the record sought. As such, I do not propose to repeat those details here although I can confirm that I have had regard to them for the purpose of this decision.
In essence, the position of the Hospice is that the record sought does not exist; it said it uses a standardised national ‘Specialist Palliative Care Referral Form which replaces the more traditional medical letter of referral. It said this form is on file and was previously disclosed to the applicant. The form is incomplete to the extent that it is not dated or signed but does contain relevant medical and demographic information and identifies the supervising consultant.
The Hospice added that all hospital in-patients who are referred for specialist palliative care medical review are ordinarily reviewed at the hospital by a Consultant Physician in Palliative Medicine. It said that as such, a detailed referral letter is somewhat superfluous to the extent that the consultant has full access to the entire health care record at the time he/she undertakes the review and has opportunity to seek further clarification from medical and nursing colleagues and from the wider hospital-based multidisciplinary team as appropriate.
The relevant consultant said that in this instance, he attended at the Hospital on May 28 2015 and having personally reviewed the health care record and engaged with members of the team who were caring for the applicant’s husband, he undertook an initial assessment of the patient as requested. He said that based on the information available to him, he confirmed in writing that he was “happy to offer a hospice bed for further review if required’. He said the applicant’s husband transferred to the Hospice under his care on June 8 2015. He added that in circumstances where the consultant in palliative medicine has opportunity to visit the referring hospital, review the entire healthcare record, speak with members of the multidisciplinary team and conduct an assessment of patient, the consultant has ample opportunity to gather as much information as he/she requires to form an opinion and to offer advices without a referral letter.
The Hospice said all correspondence was placed on the patient’s medical chart, which was checked for the record sought. It said the medical records of three other patients admitted on the same day were checked for possible misfiling.
It appears that the applicant is strongly of the view that there was an obligation on a particular consultant to furnish the new team with the referral/discharge letter she seeks. She noted that in a clinical note dated 15 June 2015, a reference is made by Consultant A to ”chase up” the discharge letter from Consultant B and the applicant remains firmly of the view that the referral/discharge letter is being held somewhere.
While I appreciate that the entire matter is extremely upsetting for the applicant, it is important to note the limits to our role in cases where records cannot be found. The question of whether or not a record of the type sought should have been created is not a matter for consideration by this Office. Instead, our role is limited to a consideration of whether the public body has taken all reasonable steps to ascertain the whereabouts of the record. If the evidence suggests that the record sought never existed, then that is the end of this Office’s involvement in the matter.
Having regard to the Hospice’s submissions in this case, it seems likely that the record sought never existed. In the circumstances, having regard to the Hospice’s explanation of its procedures and practices in respect of referrals of the type at issue in this case and of the searches it conducted, I am satisfied that it has taken all reasonable steps to locate the relevant record. I find, therefore, that Hospice was justified in its decision to refuse the applicant's request under section 15(1)(a) 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 Hospice to refuse access to applicant’s request for access to the referral letter she requested under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
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 affect 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