Decision
Ms I and the Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: 120301
Published on
From Office of the Information Commissioner (OIC)
Case number: 120301
Published on
Whether the HSE was justified, under section 17 of the FOI Act, in refusing to amend personal information contained in a record held by Clare Mental Health Service
7 August 2014
Following receipt of records on foot of a previous FOI request, the applicant submitted a detailed letter to the HSE on 4 September 2012 wherein, among other things, she stated that she wished "to appeal the following report on [herself] because of made up misinformation and blatant information being used against [her]". While much of the letter contains the applicant's views and comments on her past engagements with the HSE, she made specific reference to a referral letter dated 15 December 2009 from the Registrar (Dr. A) of the HSE's Child & Adolescent Mental Health Services (CAMHS), which I will refer to as "the referral letter". In particular, she argued that the referral letter wrongly suggests that she had been assessed by a named psychologist just over a year previously and that the psychologist in question assessed her as having anger issues. The HSE accepted the applicant's letter of 4 September 2012 as a mixture of a request for amendment of personal information under section 17 of the FOI Act and complaints in relation to CAMHS.
The HSE's Clare Mental Health Service processed the section 17 request and issued a decision on 17 October 2012. In doing so, however, it is not clear what specific records were considered for amendment. Rather, the decision was to refuse the application for amendment on the ground that "the information contained in the record(s) to which [the] application referred is not judged to be incomplete/incorrect/misleading for the following reasons: Clinical notes/observations".
On 23 October 2012 the applicant sought an internal review of the HSE's decision on the grounds that the "clinical notes that were gathered and formed on [herself] were developed on a phantom report forwarded by [Dr. A] psychiatrist and also no clinical observations were conducted on [herself] either socially, or in [her] home or at [her] work place by this psychiatrist [Dr. A] forwarding this report to adult services on [herself]". It is clear that the "report to adult services" refers to the referral letter dated 15 December 2009. In its decision on internal review, the HSE informed the applicant that it had reviewed the referral letter and decided to refuse the applicant's request for amendment of the record on the ground that the information comprises clinical professional opinion and that no evidence had been provided to refute same.
On 14 November 2012, the applicant sought a review by this Office of the HSE's decision. In her application for review, the applicant argued, among other things, that the referral by Dr. A was based on a "phantom report". In a letter dated 15 April 2014, Ms. Mary Byrne, Investigator, informed the applicant of her preliminary view that she saw no basis for amendment of the record. The applicant responded by letter dated 6 May 2014 stating that she believes further information with regard to herself and her son was omitted from this referral letter. The applicant also raised further issues with regard to her dealings with Dr. A and the HSE. Therefore, having regard to the applicant's response, I have decided to conclude this review by way of a formal binding decision.
In carrying out my review, I have had regard to correspondence between the HSE and the applicant as set out above, to contact between this Office and the HSE, and to the relevant contacts between this Office and the applicant, particularly Ms. Byrne's letter dated 15 April 2014 and the applicant's subsequent response. In addition, I have had regard to the relevant provisions of the FOI Act.
It is clear from some of the correspondence that the applicant forwarded to this Office during the course of the review that her concerns extend beyond the accuracy of certain information contained in the referral letter dated 15 December 2009. However, this Office has no role in examining complaints concerning the nature of the applicant's engagements with the HSE or its various health professionals. Furthermore this Office cannot consider issues which did not form part of the applicant's initial request for amendment. Section 17(2)(a) of the FOI Act provides that an application for amendment shall, in so far as practicable, specify the records concerned and the amendment required. While it would have been helpful had the HSE engaged with the applicant at the outset to clarify precisely what information the applicant wished to have amended, I am satisfied, having examined the applicant's correspondence with the HSE, that the request for amendment focussed on the contents of the referral letter. Accordingly, the scope of this review is confined to assessing whether or not the HSE has justified its refusal to amend the referral letter in question under section 17 of the FOI Act. I note that certain information contained in the referral letter has been redacted, presumably on foot of the applicant's previous FOI request. For the avoidance of doubt, I can confirm that the version of the record considered for the purposes of this review is the redacted version as provided to this Office by the HSE
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 record shall be amended (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)(b) requires that an application to amend a record shall, in so far as is practicable, include appropriate information in support of the application.
The approach of this Office in cases where amendment of personal information is sought is set out in case number 98158 Mrs. ABZ and the Office of the Revenue Commissioners (see this Office's website at www.oic.gov.ie). In accordance with that decision, an applicant seeking to exercise the right of amendment under section 17 of the FOI Act bears the onus of proving that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.
The record at issue in this case is a written request by Dr. A to a named consultant psychiatrist for an assessment of the applicant. The letter details the applicant's relationship with her son and suggests that the applicant had been assessed by a named psychologist just over a year previously and that the psychologist in question assessed her as having anger issues. As outlined above, the applicant argued that the referral of her case by Dr. A, was based on "a phantom and non existent assessment from another professional" and that the assessment in question was carried out not on her but on her son by the named psychologist of Psychological Assessments & Learning Solutions (PALS) in Killaloe, Co. Clare. In support of her argument, she provided a letter from PALS which states that it has no record of carrying out an assessment on the applicant in 2008.
The applicant provided this Office with a copy of a PALS Psychological Report, dated 30 October 2008. The Report indicates that the applicant was anxious to improve her relationship with her son and requested that a psychological assessment be carried out to identify the underlying problems. According to the Report, as part of the assessment process, the applicant completed the Conners' Behavioural Rating Scale to establish her perception of her son's behaviour and the State-Trait Anger Expression Inventory-2 (STAXI-2) which is described as providing concise measures of the experience, expression and control of anger. It is clear that Dr. A's reference to the applicant having been assessed by the PALS psychologist was a reference to the report of 30 October 2008. I note that Ms. Byrne informed the applicant of her view that Dr. A was referring to this PALS assessment as Dr. A makes reference to the author and the findings of that assessment and that the applicant did not dispute Ms. Byrne's preliminary view in this regard. Having examined the report, it seems to me that the PALS assessment included, in part at least, an assessment of the applicant. The report certainly contains conclusions relating to the applicant based on results of the assessments undertaken as part of the overall process. Accordingly, I find that the applicant has not shown, on the balance of probabilities, that the statement in the record at issue which indicates that the applicant had been assessed by the psychologist in question is incomplete, incorrect or misleading.
In her original request to the HSE, the applicant took issue with the references in the referral letter to her having anger issues with her son. There are a number of references to the applicant having anger issues with her son in the record at issue. This Office accepts that the right of amendment extends to the amendment of incomplete, incorrect or misleading opinion. In Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioners, available on the Commissioner's website www.oic.ie) the then Commissioner outlined how such an application under section 17 might succeed. He described what the applicant would be expected to provide in terms of proof in such cases, stating that:-
"[I]n my view, section 17 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 17 is made. It is not my intention to present an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading". However, I would expect the applicant to satisfy me that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon."
The current Commissioner concurs with his predecessors' views in this respect and he accepts that there is an obligation in section 17(2)(b) which requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application." The amount of information provided to support a claim and whether or not it is capable of being verified, and by what means, will vary depending on the type of record at issue. However, the onus is on the applicant to satisfy the Commissioner that, on the balance of probabilities, the information is incomplete, incorrect or misleading.
The Commissioner does not see his role, arising from section 17, as being to conduct his own comprehensive enquiry as to the accuracy or completeness of medical or other records. Rather, he 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. The applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. 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, the Commissioner 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 the Commissioner that the record is, in fact, complete, correct and not misleading.
In this case, the applicant has submitted no stronger evidence than a contrary opinion and contextual explanations relating to certain matters. In my view, this is insufficient evidence on which I may base a decision to find that the applicant has shown, on the balance of probabilities, the information to be incorrect, incomplete or misleading. I find, therefore, that the HSE's decision to refuse to amend those parts of the record which suggest anger issues on the part of the applicant was justified.
Finally, I note that in her application for review to this Office, the applicant suggests that Dr. A stated physical violence within the family unit as the reason for her son's behaviour. In support of her argument that this is incorrect she refers to the fact that her own doctor does not have any reported incidences of physical violence. Having examined the record at issue in this case, I can see no mention of physical violence within the family unit. Accordingly, as the scope of this review is confined to assessing whether or not the HSE has justified its refusal to amend the information contained in the referral letter, I make no finding on this issue. Nevertheless, for the assistance of the applicant, it seems to me that the mere fact of the applicant's own doctor having no reported incidences of violence in his records does not, of itself, show that references to physical violence as may exist in the applicant's medical records held by the HSE are incorrect, incomplete or misleading.
As I have outlined above the applicant made a number of submissions to this Office but much of the information provided by her was not relevant to the contended inaccuracies of the referral letter. While she clearly disputes its accuracy, the applicant has not presented any evidence to support her contention that the referral letter of Dr. A does not, in substance, accurately reflect the situation as things stood at that time or that the information as recorded is without factual basis or otherwise dangerous to rely upon. Accordingly, I am satisfied that the applicant has not demonstrated, on the balance of probabilities, that the information contained in the referral letter of 15 December 2009 is incomplete, incorrect or misleading.
In the circumstances, I see no basis for amendment of the record concerned in line with the provisions of section 17 of the FOI Act and I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant's request for amendment of personal information under section 17 of the FOI Act.
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.
Stephen Rafferty
Senior Investigator