Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-141853-M8D2R4
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Cite as: [2024] IEIC 141853
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Whether the HSE was justified in refusing access, under sections 15(1)(a) and 15(1)(i) of the FOI Act, to further medical records relating to the applicant's late son
14 June 2024
In a request dated 22 May 2023, the applicant sought access to the medical records of her late son from September 2018 to January 2019. She noted that she had previously received medical records but was seeking access to further records that she had not received, namely;
1. Consent forms for a specified treatment on 18 October 2018, 9 November 2018, 30 November 2018, 24 December 2018, and 28 December 2018,
2. Records of Minutes of Meetings held on 14 December 2018 and 4 January 2019 with Doctor A;
3. Records of all Multidisciplinary Team (MDT) meeting during the last two weeks of her late son's life;
4. Records of post mortem;
5. Records of the minutes of the meeting that took place between Doctor B and the applicant's daughter-in-law regarding a post-mortem;
6. Records of any and all notification that Doctor C sent the Coroner stating that the applicant's son was not for post-mortem after discussion with the family;
7. Records of the applicant' late son's diagnosis including the full laboratory report from the Galway laboratory in October 2019 which stated her late son's diagnosis.
On 29 June 2023, the applicant sought an internal review of the deemed refusal of her request as she had not yet received the HSE's decision. On 24 July 2023, the HSE issued an internal review decision refusing parts 1 to 6 of the request under section 15(1)(a) on the ground that the records sought did not exist or could not be found and refusing part 7 under section 15(1)(i)(i) on the ground that the records in question were previously released to her. On 27 August 2023, the applicant applied to this Office for review of the HSE's decision. Among other things, she said she did not believe her son had given consent for the treatments outlined at part 12 of her request. She also said she did not believe there were no records of the meetings identified. She also raised many concerns about the care her son received.
During the course of the review, the Investigating Officer wrote to the applicant and provided her with details of the HSE's submissions setting out the details of the searches it undertook and the reasons why it refused her request under sections 15(1)(a) and 15(1)(i)(i). The Investigating Officer invited the applicant to make submissions. The applicant provided submissions to this Office including records of her correspondence with the Coroner of the Hospital. The Investigating Officer sought further submissions from the HSE, details of which were provided to the applicant.
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 applicant's comments in her application for review and to the submissions made by HSE in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing, under sections 15(1)(a) and 15(1)(i) of the FOI Act, the applicant's request for certain information relating to her late son's care.
During the course of the review, the applicant raised a number of concerns in relation to medical consent and referenced Medical Council investigations in her application to this Office. It is important to note, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to the actions taken by FOI bodies. It is also important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded.
The HSE refused parts 1 to 7 of the request under section 15(1)(a) of the FOI Act. That section 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 the decision was justified. This means 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 also 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 the 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where the records that an applicant believes ought to exist have not been located.
As noted above, the HSE provided this Office with details of the searches it said it undertook in order to locate relevant records and its reasons for concluding no further records exist or can be found, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the HSE stated that on receipt of the request, the hard copy medical chart of the applicant's son and the Intensive Care Unit (ICU) nursing records were re-examined by staff in the Hospital FOI Office and FOI Internal Review Office.
Regarding the consent forms sought, the HSE said it is understood that in general, "consent forms" are held in either the patient's hardcopy chart, Evolve and/or the MOSAIC electronic systems. It stated that all systems were checked and no consent form records were found. It stated that the ICU notes were re-visited in addition to contacting the clinical nurse manager who confirmed that no hard copy consent forms or an electronic record of the form was found. The HSE said that the relevant day wards and units of the Hospital were consulted in search of the consent forms but no record was found other than reference in the patient's notes. It said the Day Ward undertook a search of hardcopy forms which are not yet scanned and nothing was found relating to the applicant's request. It said searches included contacting and discussing the case with the relevant clinicians in 2020 when similar requests for access to the same records were sought. It said consent forms are expected to be signed by all patients prior to commencing treatment.
Regarding records of meetings and minutes of meetings requested by the applicant, the HSE said that a search of the Evolve system was carried out. It said the patient records show that regarding the commencement of treatment for the applicant's son, there are references recorded in the medical notes and ICU nursing notes to the MDT meeting and the family meeting held afterwards relating to the medical treatment decision. It said that this entry is consistent with discussions had with the clinician in 2020 which outlined the normal practice in relation to documenting such meetings. It said these records were already (partially) released to the applicant in 2020, with redactions applied to the contents of the records.
The HSE said that in 2020, the applicant sought access to records of minutes/notes of meetings in relation to a number of dates which included a request for records relating to meetings held on 14 December 2018 and 4 January 2019. In its internal review decision issued relating to the request from 2020, not under review with this Office, it was noted that, as with records of telephone calls, it is not common practice to minute each discussion or meeting with families relating to a patient in the ICU. However, reference is often made in the clinical notes of the patient's file. It said no such minutes of meetings were recorded by health staff and no records of minutes of meetings as outlined above are held by the Hospital relating to the applicant's son.
The HSE stated that at the time of the applicant's request in 2020, searches were undertaken to establish if there were any minutes of any meetings with the family held or created and no such records were created. It said all relevant individuals were contacted, including two Consultants, regarding records of minutes of meetings. It said the two Consultants advised that it is not common practice to minute each discussion or meeting with families in relation to a patient in ICU, but that reference is often made in the clinical notes of the patient's files. It said the searches carried out in 2020 included searches of all records and file's relating to the applicant's late son and that this included the patient's hard copy medical records, ICU nursing notes, the Evolve System, the MOSAIC system, the ICU electronic system, and the bereavement officer's notes and diary. The HSE said that both the electronic and hard copy records were searched for records of minutes of meetings and included numerous and extensive searches for any minutes of any meetings concerning the applicant's late son. It said that when the applicant sought access to records of minutes and notes of meetings in 2020, searches were undertaken to establish if there were any minutes of any meetings with the family of the applicant's late son either held or created by the HSE and no such records were found. The HSE stated that minutes are not taken of the Multidisciplinary Team (MDT) Meetings. It stated that this was confirmed by the Consultant and the MDT co-ordinator.
The HSE added that no minutes of meetings were recorded of a discussion in relation to a post-mortem and it was advised by the ICU team that any record or note that may exist would be in the patient's chart or notes as recorded on the ICU clinical information system. It said that formal meetings of such discussions are not recorded. It said the hospital's bereavement officer was also consulted regarding this matter to establish if any notes or records of a discussion with the bereavement officer existed. It said that in relation to the present review, its position about the existence of records relevant to the applicant's request has not changed since the searches undertaken in 2020.
Regarding the applicant's request for coroner reports and post-mortem records, the HSE said that other than the records already released to the applicant, no further records of correspondence with the Coroner's office exist. It said that the medical records released to the applicant noted that the named Doctor contacted the Coroner on the date of death. It said no further records are held relating to contact with the Coroner's office. It said a copy of the "Notification of Reportable Death to the Coroner" form and the fax cover sheet that were sent to the Coroner's office were released to the applicant in the second volume of records which were originally released to the applicant on the 30 April 2020.
As noted above, the Investigating Officer provided the applicant with an outline of the HSE's submissions and invited her to comment. In response, the applicant said there is no reference to the laboratory reports that she requested, and that it was her view that the HSE should have more detailed results than what she received. The applicant also stated that consent form records and email correspondence to the coroner were not released to her. The applicant added that she found it unacceptable that additional records relating to her request were previously withheld on the basis of section 37(1) of the FOI Act. Shew made a number of additional comments regarding the content of the records and the medical care provided to her late son.
The Investigating Officer corresponded with the HSE with a number of additional queries relating to records which had been withheld as part of a previous request made by the applicant to the HSE. The HSE, in its submissions said that the records withheld on the ground of section 37(1) of the FOI Act in the previous FOI request were not records sought by the applicant in this case. Essentially, the HSE stated that redactions to the records requested by the applicant in a previous request on the ground of section 37(1) of the FOI Act, do not fall within the scope of the request under review. It said that while an applicant may assert that further records ought to exist, it does not mean that such records actually exist. The HSE said it has exhausted all avenues in the search for records relevant to the applicant's request.
As set out above, it is the HSE's position that all reasonable steps have, at this stage, been taken to ascertain the whereabouts of records coming within the scope of the applicant's request and that no further records relevant to the applicant's request exist or can be found. It is important to note that it is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be in a position to state definitively what happened to the records or why they cannot be found. However, this Office takes the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FO Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even were records were known to have existed but cannot be found.
The question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of records relevant to the applicant's request. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has. It seems to me that a thorough search has been undertaken using appropriate search terms and asking the relevant individuals to look for records. I accept that this is not the desired outcome for the applicant. However, it is important to recall that the test in section 15(1)(a) is whether all reasonable steps have been taken. It is also important to recall that, as set out above, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist.
Therefore, based on the explanations provided, I am satisfied that the HSE has provided a sufficiently detailed and cogent explanation of the relevant searches carried out and of its storage and retention practices and policies. Furthermore, I consider that that, in relation to the applicant's FOI request generally, the HSE has provided a reasonable and logical explanation for the lack of additional records. Therefore, I consider that the HSE has provided sufficient information to this Office to demonstrate that it took all reasonable steps to locate the records sought.
Accordingly, I find that, the HSE was justified in relying on section 15(1)(a) of the FOI Act to refuse access to any additional records relevant to the applicant's request on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester and where the records are available to the requester concerned. For the section to apply, the FOI body should be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
Having considered the various submissions made by the applicant during the review, it seems to me that at no stage during the review process has she identified any specific records the HSE says it has released to her that were not in fact released or that are not available to her. Instead, it appears that the applicant's primary issue is that she did not receive all relevant records held by the HSE.
Accordingly, in my view it is neither practical nor necessary for me to attempt to identify each and every record released to the applicant at each stage of the engagements between the parties to determine if any of those records were not, in fact, released or if any of those records are not available to the applicant. I accept the HSE's assertions that it has released all the records it says it released to the applicant.
In its submissions to this Office, the HSE stated that a full set of the laboratory reports held pertaining to the deceased were released to the requester on 17 July 2020. It said the same records were again sought by the requester in her recent request. It said that on receipt of the recent request, the requested records were sought directly from a named department within the relevant Hospital and that the records provided by the named department were in fact copies of the same records previously sourced and released to the applicant in July 2020. It said a lot of the same records previously requested and released are being sought by the applicant again. The HSE provided this Office with a copy of the decision letter of 17 July 2020 and a schedule of the records identifying all of the requested laboratory results have already been released to the applicant.
In the circumstances of this case, I am satisfied that the HSE has provided adequate evidence in support of its decision to refuse access to part 7 of the applicant's request on the basis that they had previously been released to the applicant and were available to her. In the absence of any evidence or argument to the contrary, I find that the HSE was justified in refusing, under section 15(1)(i)(i) of the Act, the applicant's request for records of her late son's diagnosis including the full laboratory report from the Galway laboratory in October 2019 which stated her late son's diagnosis on the ground that they have already be released to her.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse the applicant's request under sections 15(1)(a) and 15(1)(i) of the FOI Act, to additional records relating to the applicant's request.
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