Whether the HSE was justified in refusing, under sections 30(1)(a), 35(1), and 37(1) of the FOI Act, a request for medical records relating to a minor

22 March 2023

Background

On 5 October 2021, the HSE received a request for all information held on file relating to a named minor who had been engaging with the HSE-™s Child and Adolescent Mental Health Services (CAMHS). The request was signed by the minor-™s parentsandby the minor.

In its decision dated 20 December 2021 which was addressed solely to the minor-™s mother, the HSE said it had decided to part-grant the request. From two volumes of records it identified as coming within the scope of the request, it granted partial access to pages 251-256 and 452-454 of volume I. It withheld the remainder of the records under sections 35(1) and 37(1) of the FOI Act. On 4 January 2021, an application for internal review of that decision was submitted to the HSE, again signed by all three parties. In its internal review decision dated 1 March 2022, which was also addressed solely to the minor-™s mother, the HSE affirmed its original decision.

On 12 April 2022, the minor-™s mother applied to this Office for a review of the HSE-™s decision. She noted in her application that in their appeal to the HSE, she and her husband and her daughter signed the request for the release of all information on the file.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the comments of the child-™s mother in her application for review and to the submissions made by the HSE in support of its decision.  I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its submissions to this Office during the course of the review, the HSE argued that certain of the withheld records are also exempt from release under section 30(1)(a) of the Act. It is important to note that a review by this Office is considered to be -œde novo-, so that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I deem it appropriate to consider the HSE-™s claim for exemption of some of the records at issue under section 30(1)(a).

Accordingly, this review is concerned with whether the HSE was justified, under sections 30(1)(a), 35(1)(a), and 37(1) of the FOI Act, in refusing access, in whole or in part, to certain records from the minor-™s CAMHS file

Preliminary Matters

Before setting out my findings, I should explain that while I am required by section 22(10) of the Act to give reasons for my decisions, 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 or matter that, if it were included in a record, would cause the record to be exempt. This means that the extent of the reasons that I can give in relation to certain aspects of this decision is limited.

Moreover, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse to grant an FOI request, any reason that the requester gives for the request, and any belief or opinion of the FOI body as to what are the reasons of the requester for the request, must be disregarded. Thus, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Analysis and Findings

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. Certain provisions of section 37 serve to disapply subsection (1), including;

• Subsection 2(a): Subsection (1) does not apply if, subject to subsection (3), the information concerned relates to the requester concerned; and
• Subsection 2(b): Subsection (1) does not apply if any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester

It is clear from the decision letters and the HSE-™s submissions that the HSE refused access to the records on the basis that the release of the records would involve the disclosure of personal information relating to the minor, as a third party. It appears the HSE regarded the FOI request as having been made solely by the minor-™s mother. As I have outlined above, it addressed both its original decision and its internal review decision solely to the minor-™s mother. However, both the initial FOI request and the request for an internal review were signed by all three applicants. I am satisfied that the three applicants made the request jointly in this case. As such, it seems to me that subsection (2)(a) is of relevance in this case. That subsection is, itself, subject to subsection (3).

Subsection (3) provides as follows:

Where an FOI request relates to-”

1. a record of a medical or psychiatric nature relating to the requester concerned, or
2. a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request.

The effect of subsection (3) is that subsection (2)(a) will serve to disapply subsection (1)unlessthe FOI body considers that the release to the requester of medical, psychiatric, or social work records relating to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, in which case the FOI body may refuse the request.

It is also important to note, however, that if an FOI body decides to refuse a request under subsection (3), it must also comply with subsection (4). That subsection provides as follows:

Where, pursuant to subsection (3), a head refuses to grant an FOI request-”

1. there shall be included in the notice under section 13 (1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 13 (3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and
2. if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 13 (3).

In other words, if an FOI body decides to refuse a request under subsection (3), it must notify the requester that he or she can specify a relevant health professional to whom access to the records must be offered. The view of this Office is that the intention of subsection (4) would appear to be to ensure that information about possibly disturbing records may be given with the assistance of a health professional of the requester-™s choosing.

In its submissions to this Office, the HSE stated the following:

-œIn the requester-™s application to the OIC, it is identified a signed consent issued with the original request and internal review request, signed by the minor and the minor-™s father. This consent was not examined by the decision maker or internal reviewer in order to make a determination on validity or 'valid informed' consent.-

This Office sought clarification from the HSE as to what was meant by that statement. In response, the HSE said the decision makers in mental health services advised that although consent was provided by the minor and her father, this was not further explored because on balance, the service remained of the opinion that the sharing of information contained with the patient/clinician interview notes was such that it could cause a specified harm. It said the Consultant Child Psychiatrist stated that it was the opinion of the relevant clinicians that the sharing of the information was not in the best interests of the minor and that if the minor was to intercept her patient record in the home, she may read her notes without the proper context, which could be very upsetting and damaging to the minor. 

Following further exchanges with his Office, the HSE said the Senior Clinical Psychologist whose therapy notes formed the majority of the notes withheld was of the opinion that asking the minor to go through her notes and then decide if she wants them released would not be in her best interests.

While the HSE refused the request in this case under section 37(1) and not under section 37(3), it would appear that its primary concern is that granting access to the records would not be in the minor-™s best interests. As I have indicated above, subsection (2)(a) provides that section 37(1) cannot apply if the personal information concerned relates to the requester concerned. I am not satisfied that section 37(1) applies to exempt the records from release in this case. However, as I have also indicated, subsection (2)(a) is subject to subsection (3).

The HSE clearly indicated in its submissions that it was of the view that the release of the records at issue to the minor could be very upsetting and damaging to the minor. However, while it was open to the HSE to refuse the request under subsection (3) it did not do so, presumably because it regarded the request as having been made solely by the minor-™s mother. Moreover, had it wished to do so, it would have been required, under subsection (4) offer access to the records to a health professional of the requester-™s choosing.

However, I do not consider it appropriate to simply direct the release of the records, in light of the concerns expressed by the medical professional who were involved in the minor-™s care and treatment. Instead, it seems to me that in the particular circumstances of the case, the most appropriate course of action is for me to annul the decision of the HSE and to direct it to consider the entire request afresh.

Section 30(1)(a)

The HSE cited section 30(1)(a) of the FOI Act as a basis for withholding pages 162-197, 213-239 and 344-438 from volume 1, and pages 103-149 from volume 2.

Section 30(1)(a) provides that FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

In its submissions, the HSE argued that the release of the records in question, which comprise mental health assessment tools and test material, would cause harm by impairing the usefulness of the tools and tests. I note that the records contain personal information relating to the minor.

It is important to note that the release of records under the FOI Act is regarded, in essence, as release to the world at large given that the Act places no constraints on the uses to which released records may be put. As such, it seems to me that the HSE can reasonably argue that the release of the records to the world at large could reasonably be expected to prejudice the effectiveness of the records as mental health assessment tools. It seems to me that having prior access to such records could allow individuals to prepare and frame responses in such a way as to achieve a certain outcome that would essentially undermine their effectiveness. As such, I accept that section 30(1)(a) applies.

However, it also seems to me that if, when considering the request afresh, the HSE decides to rely on section 37(3) to refuse the request and to offer the applicant an opportunity to nominate a relevant health professional to access the records, the relevant health professional may determine that the minor can access the records by way of inspection, given that they contain her personal information. Such a manner of access would also, in my view, maintain the integrity of the records as assessment tools for future wider use. Nevertheless, this is a matter for the HSE to consider.

Section 35(1)

As outlined above, the HSE also sought to rely on section 35(1)(a) in relation to information in the records that it asserted had been provided to it in confidence by the minor. However, in circumstances where I have determined that the minor, to whom the information relates, was herself a requester in the case of this FOI request, I find that section 35(1) cannot apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE to refuse access to the records sought. While I find that it was justified in refusing access to certain records under section 30(1)(a), I find that it was not justified in refusing access to the records under section 35(1) or 37(1) of the FAOI Act. I direct the HSE to conduct a fresh decision making process on the entire request.

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