Decision
Ms. LKG and the Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 120146
Published on
From Office of the Information Commissioner (OIC)
Case number: 120146
Published on
Whether the HSE was justified in deciding to refuse the applicant's request under Section 17 for amendment to medical records of her deceased partner
Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner ("the Commissioner")
05 September 2014
In her request of 28 February 2012, the applicant identified six items (A-F) in the medical records of her late partner (the patient) which she wished to be amended or deleted under section 17 of the FOI Act. The records relate to the patient's stay in hospital [..]. The patient was admitted to the [..] (the hospital) by ambulance from home. On discharge, he was transferred by ambulance to [..] (nursing home). The patient died shortly after arrival at the nursing home. It appears from documentation submitted in this review that the HSE has accepted that errors were made in the treatment of the patient.
In its original decision of 29 March 2012, the HSE granted the request insofar as it related to item C and refused to make amendments or deletions to the other five items. Following the applicant's internal review application of 16 April 2012, the HSE's internal review decision of 9 May 2012 affirmed its original decision. The applicant applied to my Office for a review of the HSE's decision on 15 June 2012. I note that the HSE, in accordance with S. 17(4), has stated that a copy of the request has been attached to the records so that any future user of the records will be made aware that there is an issue with the records as originally prepared.
Ms. Brenda Lynch, Investigator, advised the applicant of her views on the issues relevant to the review by letter of 10 January 2014. Following further correspondence between my Office and the HSE and this Office and the applicant, I have decided to bring this review to a conclusion by way of a formal decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, to the provisions of the FOI Acts, and to the nature and content of the records.
The review is concerned with whether the decision of the HSE to refuse the applicant's request under Section 17 was justified under the FOI Act.
The applicant is seeking five amendments to the medical notes of the patient:-
It is fair to say that Items A, E and to a lesser extent, F can be described as notes about clinical care i.e. delivery of oxygen to the patient whereas Items B and D involve descriptions of events and communications around the discharge of the patient to the nursing home.
Clinical expertise
I should point out that it is not my role as Commissioner to investigate complaints about treatments or to consult with clinical experts in order to make findings in relation to, for example, what medicines should be administered to patients. The review of the decision of the HSE is carried out through consideration of the submissions of the parties and the records at issue by reference to the requirements of Section 17 of the FOI Act.
HSE National Incident Management Team Investigation and Report
During the course of the review, the applicant informed my Office that an investigation into the incident was being conducted by the HSE National Incident Management Team (NIMT). This investigation concluded while the review was going on and the applicant submitted a copy of part of the report. I wish to make it clear that while the applicant is entitled to rely on certain information obtained in the course of the investigation, many of the issues raised by her in relation to the report and investigation process are not matters over which I have jurisdiction. The HSE also made reference to the NIMT report in its submission of 11 March 2014. I consider that the HSE's comments that no changes had been made to the medical records on conclusion of the investigation are relevant only to the extent that the report includes accounts of events which form part of the applicant's submissions in support of her application under Section 17 .
Statutory Provisions
Section 17(1) of the FOI Act provides that:
"Where personal information in a record held by a public body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by the individual to whom the information relates, amend the record-
(i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
(ii) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or
(iii) by deleting the information from it."
Section 17(2) provides that:
"An application under subsection 1 shall, in so far as is practicable -
(a) specify the record concerned and the amendment required, and
(b) include appropriate information in support of the application."
Section 17(4)(a)(i) requires a public body to:
"attach to the record concerned the application or a copy of it....".
Section 17(5) requires that where a record is amended pursuant to section 17,
" the public body concerned shall take all reasonable steps to notify of the amendment -
(a) any person to whom access to the record was granted under this Act, and
(b) any other public body to whom a copy of the record was given, during the period of one year ending on the date on the date on which the amendment was effected."
Section 17(6)
Section 17(6) of the FOI Act is relevant in this case as it provides for regulations to be made for the making of an application in the case where the individual to whom the information relates is deceased. The relevant regulations are the Freedom of Information Act 1997 (Section 17(6)) Regulations (SI No. 385 of 2009) (the Regulations). My Office accepts - as did the HSE- that the applicant is an appropriate person to make an application in accordance with the Regulations.
I am satisfied that Section 17 of the FOI Act may be invoked in relation to this personal information. The next step is to decide whether or not the personal information in question is "incomplete, incorrect or misleading" and thus can be amended or deleted.
The onus of proof
The applicant's submissions have provided me with a clear indication as to the manner in which, in her view, the records are flawed. Given the requirements of section 17 as referred to above, however, I would not be justified in directing that a public body amend its records on the sole basis of statements or opinions - however strongly held - by the person seeking the amendment.
The approach of my Office to the application of Section 17 was set out in case number 98158 - Mrs. ABZ and the Office of the Revenue Commissioners. In that decision, the former Commissioner took the view, in the absence of any express statement in the FOI Act, that the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading, and that the standard of proof required in such cases is that of "the balance of probabilities".
The matter of alteration of records through amendment or deletion of inaccurate information was also dealt with by the former Commissioner in Case No. 98158, In that case, the late Mr Kevin Murphy stated:
"Amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts or with the way the contents of a record explain subsequent actions and decisions of public bodies. Consideration should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record.
. . . . . In my view the deletion of information from a record, on foot of an application under section 17, is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. Without wishing to lay down an inflexible rule on this point, it seems to me that deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect."
I concur with my predecessors' views in this respect. I do not see my role, arising from section 17, as being to conduct a comprehensive enquiry as to the accuracy or completeness of medical or other records. Rather, I must have regard to the evidence actually provided by the applicant, to any rebutting evidence put forward by the public body and make a decision on that basis. Directing the amendment of, or deletion of information from, the records of a public body is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of a public body is not something to be decided upon lightly. It is reasonable, particularly in view of the requirement that the applicant's account be attached to the file concerned, that the applicant be asked to provide evidence to support his or her contention that the record is flawed.
In requiring the applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, my Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed; but this does not carry any judgement on the part of my Office that the record is, in fact, complete, correct and not misleading.
This is a case in which the applicant has supplied evidence, including depositions made and a report under the Coroner's Act, 1962, telephone logs and letters by doctors who treated the patient, in her attempt to discharge the burden of proof that, on the balance of probabilities, the information in the records is incomplete, incorrect or misleading. I will now examine each of the five amendments/deletions sought in the context of the statutory provisions and my approach to Section 17.
Item A: amendment of two references to [dosage]
[.....] As explained above, I do not consider that my role in reviewing decisions under Section 17 of the FOI Act extends to making judgements on clinical opinions and I do not believe that it would be appropriate to involve the consultant in these circumstances.
In this case, it seems to me that different forms of notation have been used in the medical records to express the dosage of oxygen being administered to the patient. The HSE submission confirms that this is so. It says that both forms of notation used are valid. I also note that there are references to changes in the dosage without any indication as to what the original or revised dosages actually were. Similarly, the notation used for the dosage being administered is not always expressed in the same form on the records under review as is the case on the in-patient prescription chart. It seems reasonable to assume that the fact that there is a prescription for a certain level of oxygen does not necessarily prove that such a level was being administered all or any of the time. The HSE informed my Office that the way in which the dosage of oxygen is expressed typically relates to the delivery method of the oxygen, but in this case the medical records do not record the oxygen delivery method provided to the patient in the hospital nor do they indicate clearly if this changed. Similar issues have been identified in the NIMT Report.
The lack of detail as to the dosage being administered and the changes to that dosage make it difficult to make a definitive finding that the references to [dosage] are incorrect. Even if I was to take the view that there should be an amendment of this information, I can see no obvious alternative dosage which should be included. In other words, it is not at all clear how the record could be altered or added to as required by Section 17(1)(i) and (ii) so as to make it "complete or correct or not misleading". The NIMT Report does not appear to deal specifically with the issue of whether these references to [dosage] are inaccurate.
In the circumstances, while I consider it possible that the references to [dosage] could well be misleading, there is not sufficient evidence before me to conclude, on the balance of probabilities, that they are, in fact, incomplete, incorrect or misleading. Accordingly, I have no option but to find that the HSE was justified in its decision to refuse the request for this amendment.
Item B: Amendment of nursing note to reflect "the truth of events "on the day and their correct sequence
[.... ] She contends that the note is so incomplete in relation to what actually happened that it does not accurately reflect the events and the timing around the transfer of the patient. The applicant has provided my Office with evidence of contact made with the nursing home and the ambulance service regarding the transfer of the patient, including phone and fax records. Statements made by a number of relevant personnel have also been provided. None of these details are included in the nursing note. [... ]
Clearly, there is an element of overlap between the terms "incomplete, incorrect or misleading" in the sense that information which is incomplete may also have the propensity to mislead. The applicant's preference is for a sequence of events, together with a timeline, to be added to the record. Having considered this option carefully, I take the view that the addition of such further detailed "entries" to medical records in this case goes beyond what is envisaged by section 17 of the FOI Act. The Commissioner's approach is that a record is not incomplete merely because it does not contain all of the information which one might consider desirable in the circumstances. There are, in my opinion, inherent difficulties in altering contemporaneous medical notes. The evidential value of the record and the extent (if any) to which any decisions or other actions of the HSE would be potentially affected by the information in the original record are also relevant concerns.
On the basis of the material before me, I am satisfied on the balance of probabilities that the information in the note is incomplete and misleading. I consider that this is a case where the addition of a statement pointing to the context of the decision to transfer the patient is the most appropriate amendment to the information concerned. I am satisfied that the information should be amended in accordance with Section 17(1)(ii) and I find accordingly. The amendment should be made by adding to the record the following statement:
"The information in this record is incomplete and misleading. It should be read in the context of contacts made on the morning of [date] between the hospital and the patient's GP, the Ambulance Service and [the nursing home] which, on the balance of probabilities, indicate that arrangements for the transfer were made before the family members visited the patient."
Item D: Deletion of reference to the applicant in Dr. [...] note
[....] The applicant's position is that this is statement is factually inaccurate, as the decision to discharge the patient had been made before she arrived at the hospital and therefore, before she met with Dr.[...]. She has provided evidence to this Office in support of her position, some of which is referred to at Item B above. [...] While the NIMT report refers to different recollections [..], it clearly sets out the timing of the contacts with the nursing home and ambulance service as above. The HSE acknowledges the divergence between the applicant's view and that of Dr [..]. I consider that the apparently conflicting accounts as to what was said by the various parties cannot be resolved under Section 17 of the FOI Act.
I am satisfied that the material before me provides a sufficient basis to conclude that the applicant has satisfied the onus of proof in this case, and demonstrated that, on the balance of probabilities, the statement is incorrect and misleading. All that remains is to consider what form any amendment or deletion should take. To alter the information by deleting the sentence at issue would mean that no record would remain of what the author of the record wrote on the day in relation to his conversation with the applicant. I am satisfied that this would not be appropriate and that the correct approach is similar to that in my finding on Item B above. Thus, the information in the record should be amended in accordance with section 17(1)(ii) and I find accordingly. The amendment should be made by adding to the record the following statement:
"The information in this record is incomplete and misleading to the extent that it implies that the decision to transfer the patient was made after Dr [...] meeting with the patient's partner and daughter. It should be read in the context of contacts made on the morning of [date] between the hospital and the patient's GP, the Ambulance Service and [nursing home] which, on the balance of probabilities, indicate that arrangements for the transfer were made before the family members visited the patient."
Item E: Amendment or deletion of "[dosage] "
This item is similar to that dealt with at Item A above. There is no indication as to the basis for this information on the chart or what time or by whom the measurement was taken or what the source or delivery method of oxygen was at that time. The applicant has provided information showing that [...] The HSE position is that the applicant has not provided proof to support the amendment sought.
In the circumstances, while I consider it possible that the references to [dosage] could well be misleading, there is not sufficient evidence before me to conclude, on the balance of probabilities, that they are, in fact, incomplete, incorrect or misleading. Accordingly, I have no option but to find that the HSE was justified in its decision to refuse the request for this amendment.
Item F: Amendment of "[dosage ]portable O2".
The applicant has sought this part of the patient's admission notes to be amended to "[dosage] from 2 concentrators". [...] It seems clear to me that the reference to "portable" does not reflect the facts of the situation pertaining at the time the record was created i.e. on the patient's admission to hospital in [date] I am satisfied that the record should be amended to reflect the fact that the patient was in fact using concentrators, rather than portable oxygen, at home prior to his admission to hospital. I find that a note should be added to the record in accordance with the provisions of Section 17(1)(ii) to show that further information, made available later, shows that this was inaccurate and the accurate information is that 2 concentrators were being used.
Having carried out a review under Section 34(2) of the FOI Act, I hereby find that the HSE was justified in refusing the amendments sought in relation to information in Items A and E of the records identified by the applicant and I affirm those parts of the decision. I further find that the HSE was not justified in its decision in relation to Items B, D and F; I hereby vary the decision and find that the information in those records should be amended in relation to Items B, D and F.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Peter Tyndall
Information Commissioner