Decision
Ms X and Cork University Maternity Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-149407-R2V3Z1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149407-R2V3Z1
Published on
Whether the Hospital was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant on the ground that no further relevant records coming within the scope of her requests exist or can be found
12 December 2024
In a request dated 6 April 2023, the applicant sought access to her medical files held by Cork University Maternity Hospital (hereafter referred to as ‘the Hospital’). In a decision dated 13 April 2023, the Hospital granted the request. On 28 April 2023, the applicant sent another email to the Hospital with some queries on her file. On 19 May 2023, the Hospital informed the applicant that it had forwarded her email to its Quality and Patient Safety Office for reply and asked the applicant for further information concerning amendments she wanted made to her files.
On 19 May 2023, the applicant submitted a separate request for her non-clinical files from April 2022 to May 2023 relating to patient safety incidents. As the Hospital failed to issue a decision on the second request, the applicant applied for an internal review of the deemed refusal of the request on 1 September 2023. On 20 September 2023, the applicant informed the Hospital that she did not appear to have received all nursing notes, presumably on foot of her first request.
On 18 October 2023, the applicant sought a review by this Office of the deemed refusal of her request for her non-clinical files and the refusal to provide her nursing notes. Following correspondence with this Office, the Hospital wrote to the applicant on 29 November 2023, wherein it included two additional records relating to a multidisciplinary team (MDT) meeting about the applicant’s care. It also said all nursing notes held had been released to her previously. The letter did not address the second request for non-clinical records. On 22 January 2024, the Hospital wrote to the applicant again in response to her clinical files. On the matter of her request for non-clinical records, it provided copies of two incident forms relating to her care. Following further exchanges of correspondence between this Office, the applicant and the Hospital, further records were released to the applicant.
On 29 May 2024, the applicant applied to this Office for a review of the Hospital’s decision in respect of three areas of concern, namely;
• records of a meeting between two Hospital staff members about a complaint the applicant had made
• further records relating to a MDT meeting discussing the applicant’s MRI results and decisions on further stages of her healthcare, and
• records relating to a patient safety incident.
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 submissions made by the applicant and the Hospital. I have decided to conclude this review by way of a formal, binding decision.
The Hospital’s position is that all relevant records coming within the scope of the applicant’s two requests have, at this stage, been released. This is, in effect, a refusal to grant access to any other relevant records under section 15(1)(a) of the Act on the ground that no further records exist or can be found.
Accordingly, this review is concerned solely with whether the Hospital was justified in its decision to refuse access, under section 15(1)(a) of the Act, to further relevant records on the ground that no further relevant records exist or can be found.
The Hospital made submissions on areas of concern identified by the applicant in support of its position that no further relevant records exist or can be found, details of which are as follows:
Meeting between staff about the applicant
In a release of records from the Hospital, the applicant had received a copy of an email from April 2023 between two staff members in which they referred to a meeting planned to discuss a complaint made by the applicant. The applicant suggested that there should be records of minutes of this meeting that come within the scope of her request for non-clinical records. The Hospital said that the two staff members in the email correspondence work closely together on a daily basis and the meeting mentioned in the email was one of a number of informal meetings they have every day during the course of their work. The Hospital explained that minutes of these meetings are not kept and are often just a quick catch up as their workloads allow. The Hospital stated that records of minutes/notes of these meetings do not exist as it is not within the Hospital’s records keeping practices to retain records of informal meetings.
MDT meeting records
The applicant suggested that there should be more records related to an MDT meeting relating to her MRI scans in 2022 and how the decision for her surgery was reached. When this was put to the Hospital, it responded by saying that in the search for records, copies of the notes from MDT meetings where the applicant was discussed were requested from the Gynaecology Oncology secretary. The Hospital said that the only documentation from MDT meetings is the list of attendees, a list of discussed patients, and a summary of the decision/recommendation of the group. A copy of this document was already part-released to the applicant in November 2023, with third-party personal information of other patients redacted. The Hospital said that no further minutes are taken at these MDT meetings and that the only information from an MDT filed in to a patient’s chart is the one-page summary document with the recommendation of the MDT group. The Hospital said that this had also been previously released to the applicant. It provided copies of these records to this Office for reference.
Patient Safety Incident records
The applicant said she had only received records of a short email thread concerning a patient safety incident and contended that there should be more records related to this. In response, the Hospital said a medication incident report form was completed at the time of the incident. It said that Sections 2 and 3 of this form ask for the line manager to “describe any follow up or actions identified to reduce the risk of recurrence (if any)” and Section 4 asks for the Risk Management Department to describe “any further actions taken”. This form, as the Hospital stated, is where staff document how they dealt with the incident. The Hospital said the form was released to the applicant as part of her non-clinical records and that no further records exist in relation to this patient safety incident.
The Investigating Officer provided the applicant with the details of the Hospital’s submissions and invited her to make further submissions. In response, on the matter of the patient safety incident, the applicant said she was satisfied that she had received all records relating to the medication incident. However, she said that this was not the incident she was referring to when she contended that further records may exist within the scope of her request. She said the patient safety incident she was referring to was how her delayed diagnosis was dealt with by the Hospital. She said she had received notes of a phone call she had with a named staff member, a copy of the email between two staff members proposing a meeting to discuss her complaint (referred to under the first subheading above), and an incident report form documenting the delayed diagnosis dated 25 May 2023. The applicant said there was a possibility that the following records may exist in relation to this incident: staff interviews, the names and appointments of professionals dealing with the applicant as a patient, a plan of action to investigate her delayed diagnosis, records relating to a meeting between the Complaint Manager/Quality & Risk Manager and the Clinical Director and the Clinical Lead for Gynaecology, and records of further meetings about her as a patient. She asked that the Hospital confirm that such records do not exist.
The Investigating Officer raised this matter with the Hospital and asked if further records related to the incident of the applicant’s delayed diagnosis exist. The Hospital responded by saying that it is of the opinion that all records relating to the applicant’s delayed diagnosis before the date of her request for non-clinical records on 19 May 2023 have been released to her. The Hospital said that it is documented in the applicant’s electronic healthcare record that, on 14 March 2023, the applicant met with her consultant in relation to her late diagnosis. The Hospital said that a full copy of this was included in the release of records on 13 April 2023.
The Hospital said that when it received the applicant’s FOI request, the Quality & Patient Safety/Clinical Risk Department staff members were contacted to provide copies of any and all communication identifying the applicant. A search was also carried out on the National Incident Management System which showed two incidents relating to the applicant. It said that both results were released to the applicant in January 2024.
The Hospital added that when the applicant contacted the Quality Department in April 2023, her concerns were brought to the attention of her consultant. The consultant then brought this to the attention of the Clinical Lead in Gynaecology and the Clinical Director. The Hospital said that an incident form related to the applicant’s late diagnosis was created on 23 May 2023. It said the consultant completed the incident report form on 25 May 2023, a copy of which was released to the applicant. It said that this was the first official notification of the late diagnosis as a patient safety incident.
The Hospital said it was then decided that a review would be completed with experts in the relevant areas. It stated that the purpose of this was to provide the applicant with answers to her concerns and to ensure that any learning from the events could be identified to improve the quality and safety of service. The Hospital said that the action plan was to source a review team and allow the review process of the patient safety incident to progress.
A review team was commissioned in the subsequent months, but the Hospital said the applicant objected to one proposed member and so another team member was sourced. The Hospital said this delayed the commencement of the review up to January 2024. It said that the review process commenced after the original FOI request, and so anything created after this would be outside of the original scope. It stated that the review is still ongoing and that any records relating to the review methodology and content are currently with the review team. The Hospital anticipated that the final report would be provided to the applicant outside of the FOI process at the end of November 2024. The Hospital said it essentially considers the review into the applicant’s clinical care to be outside of her FOI request as the review process began after her request was made. In its submissions to this Office, the Hospital said that it is highly likely that a significant number of records may exist outside the scope of the applicant’s request as discussions on carrying out a review into the patient safety incident began in October 2023, five months after the applicant’s FOI request for non-clinical records. The Hospital stated it is not relying on any other exemptions under the FOI Act to withhold any records.
The Hospital said that communication with the applicant during this time was with her consultant and these interactions were documented on the patient clinical records. As a point of contact for communication during the review process for the applicant, the Hospital stated that an administrative support person was appointed.
After the Investigating Officer supplied the applicant with a further update on the Hospital’s submissions, the applicant raised further queries. She stated that the delayed diagnosis should have been categorised as a patient safety incident before the date of her FOI request. The applicant said it was unclear whether there were more records held by the Hospital dated before 19 May 2023. She also said that she wanted to ensure there was an accurate reflection of when her late diagnosis was considered to be a patient safety incident by the Hospital.
Analysis
Section 15(1)(a) of the FOI 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. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their 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.
Having regard to the submissions of the Hospital detailing the extent and nature of the searches undertaken to locate relevant records and of its reasons for finding that no further relevant records exist, I am satisfied that the Hospital has taken all reasonable steps to ascertain the whereabouts of relevant records.
On the specific matter of the meeting between two staff members mentioned in an email from April 2023, I accept the Hospital’s submission that no minutes or other records were kept of this meeting as it is not within the Hospital’s record keeping policy to keep records of informal meetings.
I am also satisfied that the Hospital has taken all reasonable steps to ascertain the whereabouts of records in relation to MDT meetings about the applicant in 2022 and that no other records could be found other than what was provided from the Gynaecology Oncology secretary’s search in November 2023.
I also accept that the review process into the incident of the applicant’s delayed diagnosis commenced after the applicant’s original FOI request and so any further records relating to this are outside of the scope. This Office understands that the applicant will receive a copy of the report at the conclusion of the Hospital’s review without having to make an FOI request for it. If she requires access to any other related records created after the date of her original request, it is open to her to make a fresh request for those records.
I would add that while the applicant raised some concerns about what records should exist within the scope of her request. It is important to note that it is not the role of this Office to determine what records should or should not exist. Our role in this case is to consider whether the Hospital has taken all reasonable steps to ascertain the whereabouts of records it actually holds.
I also am of the view that the applicant’s concerns about the timeline of when her late diagnosis came to be considered as a patient safety incident have now been addressed by the Hospital. In their submissions to this Office, both the applicant and the Hospital stated that a named consultant informed the applicant of her late diagnosis on 14 March 2023. This prompted the applicant to go to the Quality & Patient Safety/Clinical Risk Department in April 2023, but it is my understanding that the late diagnosis was not officially considered to be a patient safety incident in writing until the form was completed on 25 May 2023.
I am satisfied that the Hospital has taken all reasonable steps to search for the relevant records in order to conclude that all non-clinical records relating to the applicant’s delayed diagnosis dated before 19 May 2023 were released to her.
In conclusion, I am satisfied, having regard to its multiple responses outlining the steps it took to ensure all relevant records were searched for and released to the applicant within the scope of her request, that all reasonable steps have, at this stage, been taken. Any records that were created after the date of the applicant’s request fall outside the scope of this review.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision. I find that the Hospital Was justified in refusing access, under section 15(1)(a) of the Act, to any further records coming within the scope of her FOI requests 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 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