Whether the HSE was justified in refusing to amend, under section 9 of the FOI Act, certain information relating to the applicant contained in a letter from a HSE senior physiotherapist sent to her GP

15 July 2021

Background

This review has its background in dealings the applicant had in the past with the HSE’s physiotherapy service. In the course of these interactions, the applicant was seen on a number of occasions by a physiotherapist who, by letter dated 23 January 2019, wrote to the applicant’s GP (“the January 2019 letter”). The applicant became aware of this letter when she obtained a copy of her medical records.

On 12 October 2020, the applicant wrote to the HSE to make an application under section 9 of the FOI Act (specifically, she referred to previous correspondence sent to her local physiotherapy department on 27 August 2020 wherein she requested that the record at issue be “retracted” from her medical records). She also provided the HSE with a copy of the January 2019 letter, with the sections she considered inaccurate highlighted.

On 18 November 2020, the HSE issued its decision on the application wherein it indicated that it would note certain inaccuracies in the record and would also note on the record the correct wording (as specified by the applicant) of the text in question. However, it refused to make certain additional amendments as sought by the applicant. On 14 December 2020, the applicant sought an internal review of that decision. On 26 February 2021, the HSE issued its internal review decision wherein it affirmed its original decision. On 8 March 2021, the applicant sought a review by this Office of the HSE’s decision.

During the course of the review, the HSE confirmed that it made one additional amendment to the record. In a telephone call on 28 June 2021, the applicant requested that the relevant record be further amended, which the HSE agreed to do by way of an email dated 2 July 2021. Subsequently, by way of a telephone conversation on 13 July 2021, the applicant confirmed that she was satisfied with the additional amendment made to the record, and that the amended text in question could be removed from the scope of this review.

I have now completed my review in this case. In conducting the review, I have had regard to the correspondence between the applicant and the HSE as set out above and to the correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the record at issue.

Scope of the Review

The outstanding amendments to the January 2019 letter sought by the applicant are as follows:

1. Amendment of the term ‘scooter’ as used in the letter
2. Amendment of the term ‘biopsychosocial approach’ as used in the letter
3. Amendment of the text “When she returned the following appointment she refused to engage with me and asked to be seen by [a separate practitioner]”
4. Amendment of the text “l agreed to see her again and offered her appointments but she refuses to attend me”
5. Amendment of the text “She is demanding passive modalities ie manipulation”
6. Amendment of the text “pain specialist...to try and treat her CRP. If she had some nerve blocks and engaged…”
7. Amendment of the text “However, she is unwilling to engage in any active rehab currently so in my opinion this will also currently fail…Until she is ready to engage meaningfully she will not improve”.

Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse to make the amendments sought by the applicant as identified above.

Analysis & Findings

Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. 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, therefore, 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.

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 this Office 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, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

It is not the role of this Office to investigate complaints about medical treatments or to consult with clinical experts in order to make findings on applications for the amendment of medical records. The role of this Office does not extend to examining clinical judgement. Neither is it our role to conduct a comprehensive enquiry as to the accuracy or completeness of medical or other records. Rather, regard must be had to the evidence actually provided by the applicant, as well as to any rebutting evidence put forward by the FOI body, in order to make a decision on that basis.

This Office does not consider that medical notes must contain a word for word account of what was said between medical staff and patient, but rather that they are intended to contain an overall summary of the relevant consultation, treatment etc. We have previously acknowledged that there are inherent difficulties in altering contemporaneous medical notes. The evidential value of the record and the extent (if any) to which any decisions or other actions would be potentially affected by the information in the original record are also relevant concerns.

Where a record contains personal information which is incomplete, incorrect or misleading there are three methods for effecting the amendment provided for by section 9:

I.    by altering it so as to make the information complete or correct or not misleading, as may be appropriate,

II.   by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or

III.  by deleting the information from it.

Directing the amendment of information, as sought in this case, in the records of an FOI body, is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. This Office takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts, or with the way the contents of a record explain subsequent actions and decisions of public bodies.

The deletion of information from a record, on foot of an application under section 9 is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. This Office considers that deletion of incorrect information from a record is generally only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect.

In the course of this review, I have had regard to the arguments submitted by the applicant to the HSE in her application for an internal review. In particular, in her initial application to the HSE for amendment of the January 2019 letter, the applicant submitted a copy of the letter with the alleged inaccuracies highlighted. In addition, she submitted her account of her dealings with the physiotherapist who authored the January 2019 letter. Furthermore, in the course of her submissions to the HSE the applicant argued that “The volume of inaccurate recording of medical information in relation to my various treatments is deeply concerning, and goes beyond the remit of Physiotherapy…I am requesting that this letter be retracted from my file”. She further stated, in her letter seeking an internal review by the HSE of its original decision, that as – in her view – her concerns regarding the accuracy of the information at issue had “…not been adequately addressed, in relation to incorrect, inaccurate and misleading recording of my personal medical information, I wish to appeal this amendment. I am requesting that the above be amended fully, taking into account all medical information supplied and conveyed on my physio file”.

In its submissions to this Office, the HSE made a number of arguments in support of its position. In particular, it made a number of specific arguments regarding the passages of text outlined above at points 1 to 7. I will consider each of the outstanding alleged inaccuracies in turn below.

1. “Scooter”
2. “Biopsychosocial approach”

The January 2019 letter describes that applicant as using a scooter. While the applicant had highlighted the word in her application for amendment of the record, the HSE argued, in its submissions to this Office, that the application for amendment contained “no clear request to specifically change this term”. Nevertheless, I note that the applicant indicated in her application to the HSE that she was using a knee walker at the time. The HSE explained in its submissions that the device is called a knee scoot walker and that it is commonly referred to as a scooter.

In the letter, the senior physiotherapist indicated that she had decided to take the “biopsychosocial approach”. The HSE stated that this is the approach that the senior physiotherapist and author of the letter took, that it is a commonly used term within the scope of physiotherapy, and moreover that, again, there was no evidence submitted by the applicant to support amending this text.

The applicant has presented no evidence to this Office to suggest that the terms in question are incomplete, incorrect, or misleading. As such, I find that the applicant has not established, on the balance of probabilities, that the use of the word “scooter” or the use of the words “biopsychosocial approach” is incomplete, incorrect, or misleading.

3. “When she returned the following appointment she refused to engage with me and asked to be seen by [a separate practitioner]”
4. “l agreed to see her again and offered her appointments but she refuses to attend me”
5. “She is demanding passive modalities ie manipulation”

At issue in relation to the three above passages of text from the January 2019 letter are two contrasting versions or recollections of events, on the part of the senior physiotherapist and the applicant, respectively.

First of all, in relation to the statement “When she returned the following appointment she refused to engage with me and asked to be seen by [a named physiotherapist]”, the HSE said the senior physiotherapist was of the view it was implicit in the applicant’s request that she be seen by a different therapist that she did not wish to be seen by her and that she therefore refused to engage.

In her submissions to the HSE, the applicant said she was asked if she would like to be referred to another practitioner to which she agreed, and that she did not initially ask to be seen by another practitioner but she did ask if it was possible to be referred to the named physiotherapist.

Secondly, in relation to the statement “l agreed to see her again and offered her appointments but she refuses to attend me”, the HSE argued in its submissions to this Office that, in the senior physiotherapist’s view, the applicant was offered further appointments which she did not attend. In particular, the HSE stated that notes taken by the senior physiotherapist of a call between the parties on 23 January 2019 indicate that the applicant was self-discharging and that the physiotherapist was unable to persuade the applicant her to accept another appointment. The HSE stated that the applicant was ultimately offered two further appointments with the physiotherapist, neither of which were attended.

The applicant disputes this version of events, and in her submissions to the HSE stated that she had never requested any further appointments with the physiotherapist, and upon receipt of a letter offering such further appointment, had called an administrative department in the HSE to query the matter, and was told that the matter would be looked into. The applicant stated that she considered that the matter would be dealt with thereafter by the HSE. The applicant also stated in her submissions that she later discovered that she missed a number of calls from the HSE around the time of the scheduled appointments, and that on no occasion did the caller leave a voicemail. She offered a different account of her telephone call with the senior physiotherapist.

Thirdly, in respect of the statement “She is demanding passive modalities ie manipulation”, the HSE said that the senior physiotherapist’s notes from 23 January 2019 were to the effect that the applicant stated that she had been told by a chartered physiotherapist that she required 'manipulation', and moreover that the physiotherapist’s interpretation was that the applicant was demanding this particular therapy. Again, the applicant disputes this version of events, and in her submissions to the HSE stated that at no time did she demand treatment.

In relation to these disputed versions/recollections of events, as outlined above this Office cannot direct 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, and an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. In respect of the three particular passages of text above, in the absence of any further evidence in either direction, I am unable to make a finding on the extent to which any of the three statements is correct. As such, I find that the applicant has not established, on the balance of probabilities, that these passages from the January 2019 letter are incomplete, incorrect or misleading.

6. “pain specialist...to try and treat her CRP. If she had some nerve blocks and engaged”

7. “However, she is unwilling to engage in any active rehab currently so in my opinion this will also currently fail...Until she is ready to engage meaningfully she will not improve”

In relation to the text “pain specialist...to try and treat her CRP. If she had some nerve blocks and engaged”, the HSE said that the senior physiotherapist, in her professional capacity, was suggesting that the applicant’s GP (the recipient of the January 2019 letter) consider the option of the applicant attending a 'pain specialist' in relation to treatment. The HSE argued that the applicant had not provided the standard of proof required to show this statement is on the balance of probabilities incomplete, incorrect or misleading. The HSE further stated that the physiotherapist’s clinical notes also supported the context of this statement, in that the notes indicated that “This lady might be best treated with an MDT approach with a Pain Specialist included. If she could be admitted to a rehab unit over a period of 1-2 weeks with pain under control she may progress. It is difficult to treat this patient due to the repeated pain intensity once she places her foot on the floor”.

In relation to the passage of text in the January 2019 letter reading “However, she is unwilling to engage in any active rehab currently so in my opinion this will also currently fail'......Until she is ready to engage meaningfully she will not improve', the HSE argued that this statement was the professional opinion of the physiotherapist, in that active rehab in conjunction with nerve blocks from a pain specialist would be the best plan of care. It stated that the physiotherapist was giving her opinion that without engagement in active rehab that treatment would fail.

I note that the material submitted to the HSE by the applicant, although it highlights the words two passages of text above in the January 2019 letter as alleged inaccuracies, does not contain any specific arguments as to the manner in which she considers the use of these terms to be incomplete, incorrect, or misleading. In addition, as noted above the role of this Office does not extend to examining clinical judgement, and as such I am not in a position to take issue with the two passages of text above, consisting as they do of the physiotherapist’s clinical opinions and findings. As such, I find that that the applicant has not established, on the balance of probabilities, that the text at issue is incomplete, incorrect, or misleading.

In conclusion, it is clear from the applicant’s submissions to the HSE that she feels she was treated unfairly and inequitably in her dealings with the HSE, and while I have every sympathy for her position, I find that she has not shown that the information at issue is, on the balance of probabilities, incomplete, incorrect, or misleading. Accordingly, I find that the HSE was justified in refusing to carry out the amendments sought.

Decision

Having carried out a review under section 22 of the FOI Act, I hereby affirm the HSE’s decision to refuse to amend certain information relating to the applicant contained in a letter of 23 January 2019 from a HSE senior physiotherapist to the applicant’s GP on the ground that she has not shown, on the balance of probabilities, that the information in question is 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