Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-145398-X7Z6V2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145398-X7Z6V2
Published on
Whether the HSE was justified in refusing to delete particular terms from the applicant’s medical records generally
13 November 2024
Note: Various details have been generalised in the published version of this decision, to minimise the possibility of the applicant being identified.
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 (section 9 applications).
On 4 May 2023, Mr X made a section 9 application to the HSE for the removal of [two particular terms] from his Galway University Hospital (GUH) medical records. He said that there was no medical evidence that he had had [these particular medical events]. The applicant also sought the deletion of information from his medical records held in two other HSE hospitals, which the HSE placed on hold pending the outcome of the application regarding the GUH records.
As I understand it, the HSE engaged with the applicant to establish what particular parts of his GUH medical records he wanted deleted. On 24 May 2023, the applicant queried aspects of his medical treatment, including why it was recorded that he had [a particular event]. On 16 June 2023, he asked the HSE to investigate if he had had [a particular event]. He also asked it to “redact the [ particular event(s)] and any other references eg [a particular event]? etc and any medications related to [a medical condition] etc.”. On 18 June 2023, he asked the HSE to “redact … any medications related to [a medical condition], etc. … Please redact … any Hospital records that [he] had a [a medical condition] and any References.” He said also that he was “not concerned with medications relating to [a medical condition]. Unless it is mentioned that [the applicant] started on ‘[a named drug]’ [on a certain date]”. The applicant explained why he stopped taking this drug.
Having identified the details that it assumed the applicant was disputing, the HSE’s decision of 20 October 2023 refused the section 9 application. It said that the applicant had not provided sufficient evidence to show that the details were incomplete, incorrect or misleading.
On 23 October 2023, the applicant sought an internal review of the HSE’s decision. On 21 November 2023, the HSE affirmed its refusal of the section 9 application.
On 2 January 2024, the applicant applied to this Office for a review of the HSE’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the HSE and the applicant, the details identified by the HSE as covered by the section 9 application, and the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the HSE was justified in its decision to refuse the section 9 application. This Office has no remit to examine any other matter, and, in particular, has no role in examining professional or clinical judgment.
As noted earlier, section 9 of the FOI Act provides for the amendment or deletion of personal information in a record held by an FOI body where the information is incomplete, incorrect or misleading. In particular, section 9(2) requires that person making an application under section 9(1) “shall … (a) specify the record concerned and the amendment required, and (b) include appropriate information in support of the application.”
As the applicant knows, the HSE now contends that he has not identified the specific comments that he wants to have redacted, as required by section 9(2)(a) of the FOI Act. It also reiterates that he has not provided evidence to support his application, as required by section 9(2)(b).
I will firstly consider whether the section 9 application, and related correspondence, meets the requirements of section 9(2)(a) of the FOI Act.
As I noted in my letter to the applicant, the HSE’s decision says that he had met the requirements of section 9(2)(a). However, the HSE changed its position on this during the review. It says now that while the applicant had identified the type of information to be deleted from his medical records, he did not identify the specific details at issue.
My letter to the applicant described his section 9 application and his correspondence of 24 May, 16 June and 18 June 2023. I said that, in my view, these give only a general outline of the type of information to be deleted, rather than specifying the particular details are argued to be incorrect.
I said that the details that the HSE has assumed are covered by his application are contained in correspondence, clinical/medical notes, drugs administration records and in a pathology form. I said that these can be broadly categorised as follows:
(i) what appear to be references to suspected [medical events] or queries on whether [a medical event] had happened;
(ii) various comments as to no presence/incidence/evidence of [medical events] and/or [certain medical activity];
(iii) references to the applicant’s own contacts with relevant GUH services and to his own comments about having had no [medical events/activity];
(iv) a reference to “one documented [medical event]” in a particular letter from his consultant; and
(v) records showing the prescription/administration of [named drug].
I told the applicant that, as can be seen from the above, the words “[medical event]”, ” [medical event]”, etc. are used in many different contexts throughout his records. I said that these different contexts give entirely different meanings to the relevant words and/or entries. I said that, for instance, it was not clear if the applicant wanted the entries described at (ii) and (iii) to be deleted. I said also that it was not clear whether his application covered references to [named drug] (and, if relevant, any similar drugs), and/or the extent to which he wanted such details deleted.
The applicant acknowledges that his application was broad but reiterates that his notes contain no evidence that he had a [medical event]. He says that he has obtained his medical records from each hospital he has attended and has reviewed them in detail. He says that the words “[medical event]” and “suspected [medical event]” are now contained in his medical records in other hospitals because they were in his GUH discharge documents. He says also that the reference at (iv) above is untrue and inaccurate because no [medical event] is documented in his notes. He says that he understands his notes would need to document how he was investigated for various medical conditions but reiterates that there are no scans or tests confirming that he ever had a [medical event] in any hospital. He outlines various comments that he says were made to him by a particular medical professional, which he says are untrue. He says that he is “still looking to have [medical event] redacted from [his] medical notes”.
Analysis
Section 9(2)(a) places the onus on a section 9 applicant to identify the particular entries in their records which the applicant considers to be incomplete, incorrect or misleading. While I note the importance of the matter to the applicant, he has not complied with this requirement.
On its face, the section 9 application covers all references to [medical event] or [medical event] that may be contained in the medical records. However, when certain references are read in context, and in conjunction with the applicant’s arguments generally, they may not be of a sort that he considers to require deletion. Examples of such references are those reflecting the lack of [medical event] activity at particular points in time; notes of the applicant’s own comments; and references to his contacts with relevant GUH services.
In addition, it is not clear whether the application extends to references to [named drug] or any other similar medications that the applicant may have been prescribed (which he does not identify). Neither does it explain the extent to which the applicant wishes such references to be deleted. While I note the applicant’s response to my letter of 15 October 2024, it does not clarify the matter.
Having considered the matter carefully, I am satisfied that the section 9 application and related correspondence of of 24 May, 16 June and 18 June 2023 do not comply with section 9(2)(a) of the FOI Act, because they do not identify the specific records and the specific information therein that the applicant wishes to have deleted. I find that the HSE was justified in refusing the application on this basis.
Given my findings on section 9(2)(a), I need not go on to make any findings on whether the applicant has complied with the requirements of section 9(2)(b) of the FOI Act.
I will make some general comments, however, for the applicant’s assistance. Overall, it appears that he is seeking to challenge his medical diagnosis and treatment, and to have any mention of such matters removed from his medical records. However, this is not the purpose of section 9 of the FOI Act. Aside from this, any further section 9 application that he may wish to make should identify the specific record(s) and the specific information that he wants to have deleted or amended, etc. He must also comply with section 9(2)(b), and provide appropriate information in support of his application. In particular, assertions do not, of themselves, provide a sufficient basis for concluding that records should be amended or deleted etc. Furthermore, while a record may not contain all details that an applicant may think it should contain, this does not necessarily mean that the record is incorrect, incomplete or misleading.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s refusal of the section 9 application.
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.
Anne Lyons
Investigator