Whether the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant-�s request for a copy of a further specimen form relating to her daughter, other than one already released

13 July 2023

Background

The applicant in this case has made a number of FOI requests to the HSE for records relating to the medical care of her daughter at University Hospital Limerick (UHL) who sadly passed away following surgery. Following receipt of a large number of records, including a copy of a specimen form filled out by the surgeon for 8 May 2018 (Form A) which did not specify the time the specimen was taken, the applicant submitted a further request on 31 May 2022 for a copy of a specimen form that was sent from the Main Theatre to the UHL laboratory with the specimen taken from her daughter the date in question, any other histology reports of all specimens and tissue samples taken from her daughter on the date in question.

In a decision dated 23 June 2022 which dealt with two of the applicant-�s requests, including the request at issue, the HSE said it understood from the applicant-�s communications that she believes UHL should be able to provide a time that the histology sample was sent and to make this available to her. It said its position is that -�this record i.e. the time, does not exist-�. It said that having considered the details of the search undertaken to provide the applicant with a copy of the form, it was not possible to extract a time that the histology sample was sent. It said it was unable to establish a time based on the records held. It said its search for records under FOI focuses on records that are actually held but that it does not provide a right of access to records which ought to exist, nor does it place an obligation on a public body to create a record where none exists.

The applicant responded on 24 June 2022, wherein she said she specifically asked for the specimen form that the Theatre Nurse completed and sent with the specimen to the lab in UHL (Form B). She said Form A was sent to the Mater hospital and was not the form she requested. She said some of the specimen was retained in UHL but that UHL had neglected to send her any specimen reports or tissue sample reports from that specimen. It appears that the HSE did not treat the applicant-�s correspondence as an application for an internal review of its decision.

On 6 July 2022, the applicant sought a review of the decision by this Office, following which she was advised to apply for an internal review in the first instance. The applicant did so on 22 July 2022, following which the HSE said Form A had been released previously and does not include a time.

On 8 November 2022, the applicant applied to this Office for a review of the decision of the HSE to refuse access to Form B. She provided an extract from her daughter-�s medical records including a record filled out by the Theatre nurse signing the specimen into the Specimen register, which the applicant interpreted as meaning that a separate Form B completed by the Theatre Nurse should exist.

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 as outlined above and to the communications between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE-�s position is that no other relevant specimen form other than Form A exists. This is, in essence, a refusal under section 15(1)(a) of the Act on the ground that no Form B exists or can be found.

Accordingly, the scope of this review is concerned solely with whether the HSE was justified in refusing, under section 15(1)(a), of the Act, the applicant-�s request for a copy of Form B on the basis that it does not exist.

Preliminary matters

It is important to note that the FOI Act provides for a right of access to records actually held by FOI bodies and is not concerned with access to records that a requester believes ought to exist, nor does the Act require an FOI body to create records to provide the information sought. The fact that Form A shows no record of the time the sample was taken is not a matter for examination by this Office, nor is the review concerned with seeking to establish if that time was recorded elsewhere. As I have outlined above, the review is concerned solely with whether the HSE was justified in refusing access to Form B.

Analysis and Findings

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. In such cases, we have regard to the relevant information available and assess the adequacy of the searches conducted by the FOI body. The relevant information in such cases generally consists of the steps actually taken to search for the records sought and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. Where an FOI body claims that a record never existed, the circumstances of the case, rather than the searches carried out, are sometimes more relevant.

In its submissions to this Office, the HSE said a copy of Form A was provided to the applicant. It also noted previous correspondence it had with the applicant wherein she referred to the fact that the Theatre Nurse documented on the nursing notes that she was responsible for the specimen and the applicant asserted that this means there should be another specimen form that the Theatre Nurse filled in (Form B), separate and apart from Form A. In her correspondence with this Office, the applicant said it is unusual for a surgeon to fill out a specimen form such as this and that this role is more normally filled by a theatre nurse. When asked to comment on this, the HSE confirmed that all clinical personnel are familiar with completing laboratory request forms and such request forms can be completed by clinical personnel. It said the Theatre Nurse in question recalled one specimen on the table in theatre. She said that the normal practice would be that regardless of the number of specimens for pathology, one form is filled out which would detail the specimens. She said she cannot recall being asked to fill out a second specimen form.

When asked about its record retention policy for such records, the HSE said such laboratory records are stored on the Laboratory Information System (LIS) and associated request forms are either held in the laboratory or scanned into the LIS record. It said laboratory staff conducted a thorough search of the LIS using patient demographics.

In relation to the applicant-�s assertion that UHL had neglected to send her any specimen reports or tissue sample reports relating to the specimen that was retained in UHL, the HSE said that if a sample is sent for analysis, the original specimen form is sent with it and no additional forms are created.

The question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of Form B. Having regard to the HSE-�s submissions, it seems to me that it has. The key steps it took included discussing the matter with the relevant Theatre Nurse, who does not recall having filled out a second specimen form and who explained that only one such form is generally completed, and conducting a search for relevant forms on its LIS system, where such forms are held and only the previously released form was found.

Where we consider that an FOI body has conducted all reasonable searches for records sought, we will generally affirm the decision on that basis, even where records an applicant believes to exist have not been located. While the applicant is clearly of the view that another specimen form should exist, no further evidence has been presented to this Office to suggest that the HSE has not taken all reasonable steps to search for the record and that further specific searches may be warranted in this case.

While I appreciate that this will be disappointing for the applicant, I find that the HSE was justified in refusing, under section 15(1)(a) of the FOI Act, the applicant-�s request for a further specimen form on the basis that the record sought does not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision to refuse, under section 15(1)(a) of the FOI Act, the applicant-�s request for a second specimen form on the ground that the record sought does not exist.

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