Whether the HSE was justified in refusing an application made under section 9 of the Act for the amendment of the applicant’s medical records on the ground that the applicant has not shown that the information is, on the balance of probabilities, incomplete, incorrect or misleading

8 December 2020

Background

The applicant in this case obtained a copy of his medical records as held by his GP on foot of an FOI request. I understand that he did not apply for an internal review of the decision on that request. Subsequently, on 29 September 2020, he submitted an application for the amendment of his medical records. He listed seven categories or events, some of which he said were not recorded in his records.

On 8 October, the HSE wrote to the applicant and informed him that in order to process his application to amend records, he should provide copies of the documents he wanted amended and supporting information to support the requested amendments. On 12 October 2020, the applicant attended the decision maker’s Office and provided him with a letter and a copy of some of his medical records.

On the same day, the HSE issued its decision in which it refused the application for amendment under section 15(1)(b) of the Act on the ground that the application did not comply with section 12(1)(b), namely that it did not contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

On 13 October 2020, the applicant sought an internal review of that decision. He said he was given different eye drops to those he requested from his GP in 1986. He also stated that there should be a referral letter from his GP to a named Professor in Adelaide Hospital in 1989. He also enclosed a number of records which included his handwritten notes.

On 29 October 2020, the HSE affirmed its original decision to refuse the application for the amendment of records on the grounds that the applicant did not specify the record concerned and amendment required or include appropriate information in support of the application i.e. that the application did not comply with the requirements of section 9(2). On 5 November 2020, the applicant sought a review by this Office of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the communications between the applicant and the HSE, and those between this Office and both parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing the application made under section 9 of the Act for the amendment of the applicant’s medical records.

Preliminary Matter

Having considered the applicant’s correspondence with this Office, it seems to me that his primary concerns relate to the manner of his treatment by his GP. This Office has no role in examining complaints concerning treatment he received while under the care of his GP.

Analysis and Findings

Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by an FOI body. An applicant seeking amendment of records should show, first, that that the information at issue comprises personal information and, second, that the information is incomplete, incorrect or misleading. Section 9(2)(b) requires that an application for amendment "shall, in so far as is practicable ... include appropriate information in support of the application."

The Act is silent on the question of where the onus of proof lies in section 9 cases. This Office considers that in the absence of any express statement in the Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.

This Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and make a decision on that basis.

In requiring an applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed, but this does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.

Furthermore, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

It is not in dispute that the record at issue contains personal information relating the applicant. In essence, the applicant’s argument is that the record contains an incorrect or incomplete account of his medical history.

During the course of the review, the applicant was invited to make a submission in support of his argument that the records should be amended. He was also provided with an explanation of the role of this Office and its approach in relation to applications made under section 9 of the Act. In his submissions dated 21 November 2020, the applicant sent this Office a large number of medical records in which he had added comments on some of the records. This included comments of his recollection of medical appointments and allegations of wrongdoing by his GP. He also noted that some diagnoses he received were incorrect and indicated a different condition which he was suffering from.

Having carefully considered the applicant’s submission, I find that he has not provided additional information in support of the application for amendment. As indicated above, an applicant’s assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

In the circumstances, I find that the applicant has not shown, on the balance of probabilities, that the information contained in the records at issue is incomplete, incorrect or misleading. Accordingly, I find that the HSE was justified in refusing to amend the records in question.

For the benefit of the applicant, I would add that where an application for amendment of a record is refused, the public body must attach to the record concerned the application for amendment or a copy of it or, if that is not practicable, a notation indicating that the application has been made (unless the body considers that the contents of the application are defamatory, or the alterations or additions to the record concerned to which the application relates would be unnecessarily voluminous).

This requirement is, in itself, quite significant as it alerts all future readers of the record that aspects of its contents are disputed by the applicant. The HSE confirmed to this Office that the application for amendment of records has been added to the GP file.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse the application made under section 9 of the Act for the amendment of his medical records on the ground that the applicant has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

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