Decision
Mr C and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130020
Published on
From Office of the Information Commissioner (OIC)
Case number: 130020
Published on
Whether the HSE's decision to refuse access to the applicant's medical records covering a period from 2011 to 2012 under section 23(1)(aa) of the FOI Act was justified
28 October 2014
On 7 September 2012, the applicant made an FOI request for "a copy of all the medical records and any medication cardex ...... to include all written correspondence, covering the period 01/05/2011 to 01/05/2012. I further require copies of all statutory forms regarding [my] involuntary detention ". The HSE's decision of 10 December 2012 identified 112 records; it released Records 105 to 112 in full and refused Records 1 to 104 in full relying on section 23(1)(aa) of the FOI Act for its refusal. The applicant made an internal review application on 17 December 2012 and the HSE's internal review decision of 11 January 2013 affirmed its original decision. On 22 January 2013, the applicant sought a review by this Office of the HSE's decision on the request.
On 3 September 2014 Ms. Mary Byrne, Investigator, wrote to the applicant and to the HSE outlining her preliminary views on the matter and providing both parties with an opportunity to make any further comments which they wished to have taken into account before this Office reached a final decision. Ms. Byrne's view was that section 23(1)(aa) did not apply in the circumstances of this case and that section 28(3) was the more appropriate exemption. No further submissions were received from the applicant or the HSE by the requested response date of 10 September 2014.
I consider that the review should now be brought to a close by the issue of a formal, binding decision. In carrying out my review, I have had regard to the contents of the records; to correspondence between the HSE and the applicant as set out above; to communications between my Office and the applicant; and to details of various contacts between the Office and the HSE. I have also had regard to the relevant provisions of the FOI Act. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
The scope of this review is confined to assessing whether or not the HSE was justified in refusing access to medical records relating to the applicant covering the period 1 May 2011 to 1 May 2012 (Records 1 to 104) on the basis that they are exempt from release under the provisions of the FOI Act.
It is relevant to note, as a preliminary matter, that section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. It should also be noted that any review conducted under section 34 of the FOI Act is de novo , which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office.
While the FOI Act requires the Commissioner and his Office to provide reasons for decisions, section 43(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Thus, I cannot describe the records at issue in this case in any great detail.
The Records At Issue
I do not consider it to be in breach of section 43(3) to say that all of the records at issue relate to two periods of admission to a mental health service centre in Cork in 2011 and 2012 and includes admission details, collaborative care plan and notes and multi disciplinary case notes. Apart from the applicant's drug charts (Records 105 to 112), the HSE refused the request. It is necessary to take a view as to whether the records should be considered on an individual record by record basis or, alternatively, whether they should be considered as a single composite record. In this instance I have taken the view that the latter approach is the correct one. All of the records at issue are medical records and are necessarily interlinked.
Section 23(1)(aa)
Section 23(1)(aa) provides that a public body may refuse access if access to the records concerned "could, in the opinion of the head, reasonably be expected to... endanger the life or safety of any person. " This exemption is one that is not commonly used. The former Information Commissioner previously considered this exemption in Case Number 090066 (available on this Office's website at www.oic.gov.ie) where she said that it is an exemption which should not be applied without "careful consideration having been given to whether the expectation set out in the subsection is a reasonable one in all of the circumstances ". She also said that she considered that "the test to be met in regard to this exemption is such that it should only be invoked in circumstances of the most serious nature. What is required is an assessment of the expected consequences of releasing particular records in terms of endangering life or safety. It is not necessary or indeed possible to establish that such physical harm will occur but that there is reasonable expectation of this. "
The submissions on behalf of the applicant do not address the exemption relied upon by the HSE. They argue that the public interest is not being served and that the reason for refusal is "discriminatory" especially in the light of the Charter of Fundamental Rights of the European Union.
I am satisfied that consideration of this exemption must be concerned only with whether or not the expectation of endangerment to life or safety to persons is reasonable. I am also of the view that, in order for the exemption to be upheld, it should be possible to clearly link the expectation of serious harm arising to the content and context of the records. During the course of the review, Ms. Byrne advised the HSE of her preliminary views that section 23(1)(aa) does not apply to these records. In response, the HSE provided expert opinion from a Consultant Psychiatrist that, due to the applicant's mental condition, release of these records to the applicant could pose a serious potential risk of harm to others, should the applicant become unwell in the future. Having examined these records, I find it difficult to see how the release of these records could give rise to the harm envisaged under section 23(1)(aa) of the FOI Act i.e. endanger the life or safety of any person. While I, of course, accept the expert opinion of the HSE's doctor in relation to the applicant's condition, I do not see how release of these records could reasonably be expected to have the consequence of endangering the life or safety of persons. Having considered the submissions of the HSE and the content of the records, I am not satisfied that the evidence available to me provides a sufficient basis for the application of this exemption. Accordingly, I find that section 23(1)(aa) does not apply here.
Sections 28(3) and 28(4)
Although the HSE relied on section 23(1)(aa) in its decision-making process, I agree with Ms. Byrne's view that section 28(3) is the more appropriate exemption to apply to the information sought. Section 28(3) provides for the refusal of a request for a "record of a medical or psychiatric nature relating to the requester concerned, or a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester " where, in the opinion of the head, release of the information therein "might be prejudicial to [the person's] ... physical or mental health, well-being or emotional condition. " It seems to me that the legislature envisaged that this provision would be invoked in circumstances, such as this, where there is a real and tangible possibility that release of records might have an adverse effect on the patient's health or condition.
When relying on section 28(3), the public body is, however, required by section 28(4) of the FOI Act to offer access to the records concerned to such health professional having expertise in the subject-matter of the records as the requester may specify. The intention of this section would appear to be to ensure that information about possibly upsetting matters may be given with the assistance of a health professional of the requester's choosing although the decision is technically to refuse the applicant access to these records. There is no provision for a public interest balancing test to be applied in relation to this provision.
I have given very careful consideration to the circumstances of this case along with the arguments made and the evidence provided. In the circumstances, while the HSE is concerned about potential risk to others should the applicant become unwell, I am satisfied from the submissions of the HSE that the available evidence supports the 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 " and accordingly, I find that the applicant does not have a right of unmediated access to his medical records by virtue of section 28(3) of the FOI Act. However, under section 28(4), the option is open to the applicant to contact the HSE if he wishes to nominate a relevant health professional to whom his records may be made available. The FOI Act does not appear to envisage any role for the Commissioner in relation to the making of arrangements between the HSE, the applicant and the health professional "having expertise in relation to the subject-matter of the record as the requester may specify " I note that section 28(7) of the FOI Act defines "health professional" and that regulations made under that section (SI No 369 of 2001) prescribe classes of health professional.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the HSE's decision to refuse access to Records 1 to 104 under section 23(1)(aa) and I find that section 28(3) applies to the records in this case.
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. Such an 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.
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Elizabeth Dolan
Senior Investigator