Whether the HSE was justified in refusing access to the applicant-�s medical records under section 37(3) of the FOI Act, and specific correspondence under section 15(1)(a) of the FOI Act

26 January 2023

Background

The applicant receives medical care from a number of different areas of the HSE. In a request dated 26 June 2022, he sought access to four categories of records:

(a) All files from his community mental health team,

(b) Records held by a named psychiatric unit at a named hospital,

(c) All information from the Office of the Head of Service for Mental Health in CHO7 (OHSMH), in particular files from a named service provider relating to the applicant,

(d) Any information from a second service provider that corresponded with the OHSMH.

On 19 August 2022, the HSE issued a decision wherein it appeared to refuse only part (c) of the request on the basis that section 15(1)(a) applied, i.e. that records did not exist or could be found after all reasonable steps had been taken to locate them. The HSE-�s decision did not refer to parts (a), (b) and (d) of the request. On 1 September 2022, the applicant made an internal review request. On 12 September 2022, the HSE wrote to the applicant, informing him that it was extending the time to consider his internal review request under section 14(1) of the FOI Act, as the records requested -�were voluminous-�. I shall address this further below. The letter informed the applicant of his appeal rights to this Office.

As he had not received a decision on his internal review request, the applicant applied to this Office for a review on 16 September (Case OIC-128350-B7H6Y2 refers). Following correspondence from this Office, the HSE issued a late internal review decision on 17 October 2022, wherein it refused parts (a) and (b) of the request under section 37(3), and parts (c) and (d) under section 15(1)(a) of the FOI Act.  It said the applicant could access his medical records if he nominated a relevant healthcare professional in accordance with section 37(4) of the FOI Act. Accordingly, case 128350 was closed.

On 17 October 2022, 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 my review, I have had regard to the correspondence between the applicant and the HSE, and correspondence between the applicant, the HSE and this Office. I have also had regards to the records identified by the HSE relating to parts (a) and (b) of the applicant-�s request. 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 applicant-�s request under sections 15(1)(a) and 37(3) of the FOI Act.

Preliminary Matters

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 his records, the FOI 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.

Lastly, I must comment on the HSE-�s reliance on section 14 to extend the time it took to reply to the applicant-�s internal review request. Section 14 provides that an FOI body may extend the period for considering an FOI request by up to four weeks in certain circumstances. The circumstances in which an FOI body may extend the four-week period for processing a request are quite narrow and specific.

Under section 14(1), the FOI body may extend the period for considering the request where it considers that:

-�(a) the request relates to such number of records, or

(b) the number of other FOI requests relating to the same records or information that have been made to the FOI body concerned before the specified request was made to it and have not yet been determined is such,

that compliance with the four-week decision making period provided for under section 13(1) of the Act is not reasonably possible.-�

Section 13(1) of the FOI Act relates to an original decision made by an FOI body on a request for access to records. Section 21 concerns the review of a decision made by the FOI body (an -�internal review-�).

Section 14 clearly does not entitle an FOI body to extend the time-frame for processing an internal review request. I would add that it is very disappointing to note that the HSE sought to extend the time-frame for dealing with the applicant-�s internal review request, given that the language of section 14 is quite clear and specific in prescribing the circumstances in which an extension can be applied. I would expect the HSE to have processes in place to ensure that its decision makers act fully in accordance with the provisions of the Act when processing requests in future.

Analysis and Findings

Section 15(1)(a) - parts (c) and (d)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

During the course of the review, the Investigating Officer informed the applicant of the details provided by the HSE of the searches it undertook in an effort to locate relevant records and of its explanation as to why no records could be found. While I do not propose to repeat those details in full here, I can confirm that I have had regard to them for the purposes of this decision.

In summary, the HSE said that the OHSMH is an administrative office that does not hold or retain patient records or clinical files. It also said that the type of records held in this office generally relate to finance, HR and general administration. The HSE further stated that any clinical data or records received by the Head of Service for Mental Health-�s Office would be directed to the relevant mental health service or clinician.  Nonetheless, the HSE stated that it undertook searches of a file of correspondence received from the applicant-�s mother and of all emails in the OHSMH, including archive emails from 2021, and that no relevant records were located. 

By way of clarification, the HSE stated that the service providers referred to in parts (c) and (d) of the applicant-�s request may be requested to provide a residential placement for long-term patients who have been assessed as being unable to live independently, but who no longer require relevant inpatient treatment. It stated that, depending on the patient's circumstances, the treating consultant or mental health team may commission a report from the relevant service provider as part of the discharge planning process. It said that this is done in order to assess the suitability of that service to meet the assessed needs of a patient for residential placement. The HSE stated that if such a report was prepared by a private provider it would be held on the patient's clinical file. It said that the role of the Head of Service for Mental Health in this process would be to approve funding should a suitable placement be identified and recommended by the relevant clinician. Essentially, the HSE-�s position is that no approval for funding was sought for either service provider in this case, and that, therefore, it would not expect any records from either organisation to exist in the Head of Service for Mental Health-�s Office (or elsewhere).

Having regard to the explanation given by the HSE and the details of the searches undertaken, I am satisfied that the HSE has taken all reasonable steps to locate the records sought in this case. Accordingly, I find that the HSE was justified in refusing access, under section 15(1)(a) of the Act, to further records on the ground that no additional records relating to parts (c) and (d) of the applicant-�s request exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 37(3)- parts (a) and (b)

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. 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 how sensitive information should be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). It is noteworthy that the threshold for meeting the exemption in section 37(3) is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified. Nevertheless, this Office considers that where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the physical or mental health, well-being, or emotional condition of the requester as a result of direct access to the record in question.

It is not in dispute that 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 its decision was made in consultation with the applicant-�s consultant. It said that the consultant was of the view that it was not in the applicant-�s best interests to receive his medical notes.

I have given careful consideration to the arguments made by the HSE in this regard, and to the records concerned. I also note that the applicant indicated during this review that he was happy to nominate his GP as an appropriate medical professional who could access the records concerned on his behalf.

While I do not consider that I can elaborate further on the HSE-�s reasons for applying this section of the Act, in the circumstances of this case I am satisfied that the available evidence supports the HSE-�s decision that granting the applicant direct access to his medical records might be prejudicial to his physical or mental health, well-being or emotional condition. Therefore, I find that the HSE was justified in its decision to refuse direct access to the records concerned on the basis of section 37(3) of the FOI Act. I note that the HSE has complied with the provisions of section 37(4) by offering the applicant an opportunity to nominate an appropriate health profession to access the records concerned on his behalf.

In relation to the nomination, the HSE confirmed that the applicant-�s mother had contacted the applicant-�s GP in this regard. In correspondence to this Office, the applicant indicated that the GP was willing to hold the records until such a time that he was in a position to review them. However, the HSE has since confirmed with the GP that she had not been in touch with the applicant directly and that no such arrangement had been made.

In the Commissioner-�s view, the intention of section 37(4) would appear to be to ensure that access to sensitive records may be given with the assistance of a health professional of the requester-�s choosing. The FOI Act does not appear to envisage any role for the Commissioner in relation to the making of arrangements between the FOI body, the applicant and the health professional -�having expertise in relation to the subject-matter of the record as the requester may specify-�. However, I suggest that if the applicant wishes to access his records as envisaged in section 37(4), he directly contact his GP or another relevant health care professional and make the necessary arrangements.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision. I find that the HSE was justified in refusing the applicant-�s request on the grounds that sections 15(1)(a) and 37(3) apply.

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.

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Sandra Murdiff

Investigator