Decision
Mr H and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130177
Published on
From Office of the Information Commissioner (OIC)
Case number: 130177
Published on
Whether the HSE was justified in its decision to refuse to amend medical records relating to the applicant under section 17 of the FOI Act.
30 June 2014
Central to this application for review is the applicant's belief that a summary report describing his psychiatric history, as contained in a letter dated 24 November 1986 (the "Summary Record"), incorrectly describes that history and fails to mention that symptoms recorded were primarily attributable to his having been administered with depot antipsychotic injections. It appears that in November 1986, the applicant requested that details of his psychiatric history be forwarded to his treating medical professional in the UK. A summary report of the applicant's history was forwarded to the relevant contact in the UK, by way of the aforementioned Summary Record. In his FOI request to the HSE, the applicant sought amendment of his "records" pursuant to the provisions of section 17 of the FOI Act and he provided a number of items of correspondence in support of his application. In his request, he specifically asked the HSE to focus on the Summary Record which, he indicated, was causing him "major problems" in the UK. He commented on interactions as described in the Summary Record which took place in September 1980, November 1980 and April 1984, and November 1986. Specifically, he commented upon:-
• the competence of certain medical professionals to diagnose him as having schizophrenia in 1980,
• the description of the symptoms with which he presented in November 1980, and
• the absence of any mention of his alleged reaction to a depotantipsychotic injection.
In its decision on his request, the HSE identified what it considered to be five specific amendments sought. Each of those amendments are, in essence, captured by the applicant's comments as described above. The HSE decided to refuse the applicant's request for amendment of the Summary Record on the ground that his medical records contained evidence to support the diagnosis of schizophrenia, to indicate that the description of his symptoms with which he presented was not incorrect, and to indicate that his symptoms would not have been caused by the medicines given. Pursuant to the provisions of section 17 of the FOI Act, the HSE added a copy of the applicant's request for amendment to his medical file. The applicant applied for a review of that decision on 3 January 2013, a decision which was subsequently upheld on 24 January 2013. On 9 July 2013, the applicant sought a review by this Office of the HSE's decision.
On 16 April 2014, Mr. Niall Mulligan of this Office wrote to the applicant explaining his preliminary view that the HSE was justified in refusing the applicant's request for amendment. The applicant responded, stating that he did not accept that view, and made further submissions. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions made by the applicant to the HSE and to this Office, to the submissions made by the applicant in his request to the HSE and his request for internal review and to the contents of the relevant records as identified in this decision letter. I have also had regard to the provisions of the FOI Act.
In his submissions, the applicant raised concerns as to whether he had received all of the records which were to be released to him pursuant to a previous request under the FOI Act. This is an issue which did not form part of the applicant's initial request to the HSE, and as such will not form part of this review. In his submissions, the applicant, on a number of occasions, queried whether his admission as a patient to the Regional Hospital, Galway (the "Hospital") had been somehow improper, whether matters had been kept "off the record" in relation to this and whether an "inducement" may have been involved. These matters are also beyond the scope of this review.
The applicant also made various claims in relation to "misdiagnosis", "mistreatment of vulnerable people", "medical malpractice" and "torture" by way of the misuse of psychiatric medication. It is not the role of this office to make any determination on questions of clinical practice; be it in terms of the exercise of professional judgment, the appropriateness of treatment, or otherwise. Therefore, this decision does not contain any consideration of such matters.
In his application for review, the applicant expressed a concern that the HSE had "chosen the issues" in identifying the information he sought to have amended. He clarified that he would like "the entire record" amended. In essence, it seems to me that the applicant is attempting to argue that his entire medical history as contained in his medical file is wrong in so far as it relates to the issues he has identified. While Mr Mulligan of this Office considered the HSE's approach to be reasonable having regard to the contents of the applicant's initial request for amendment, he invited the applicant, by way of email dated 7 May 2014, to clarify precisely the information and records he wished to have amended (from records already released on foot of a previous FOI request). In his response of 15 May 2014, the applicant indicated he did not originally intend that the 1986 Summary Record would be taken in isolation. He went on to say, however, that the most important amendments are included in the report and that these would also reflect on the base record. In a further email dated 27 May 2014, he commented upon the contents of a number of other records previously released to him, but in the context of their relevance to the 1986 Summary Record.
Having carefully examined the applicant's request for amendment, I am satisfied that the HSE did not take an unduly narrow interpretation of that request. I am also satisfied that the amendments considered by the HSE are, indeed, the amendments that the applicant continues to pursue. It seems to me that the applicant's main concern is that the amendment of information in the Summary Record is not sufficient and that the same amendments are necessary wherever the relevant information appears in his medical file. It is clear that if information contained in the Summary Record is found to be incomplete, incorrect or misleading, then there may well be consequential amendments required to other related records on the applicant's file. It would, in my view, be a matter for the HSE to "carry through" the effects of the amendment to any subsequent rights or liabilities. Section 17 of the FOI Act provides that an application for amendment should, in so far as practicable, specify the record concerned and the amendment required. Accordingly, the scope of this review is confined solely to whether the HSE was justified in refusing to amend the Summary Record.
Section 17(1) of the FOI Act deals with the amendment of personal information relating to a requester. It provides:-
"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."
The onus of proof and the standard of proof
The previous Information Commissioner has already outlined in the decision in Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioners , available on the Commissioner's website www.oic.ie) how an application under section 17 might succeed. In that decision, the previous Commissioner found that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of the "balance of probabilities". He also found that the right of amendment extends to the amendment of incomplete, incorrect or misleading opinion. The former Commissioner went on to describe 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.
The applicant's case
In his submissions, the applicant made various complaints against the medical personnel who had been involved in his treatment, going to their competency, purported bias and an allegation that a conspiracy of some kind operated between medical staff and pharmaceutical manufacturers. Similarly, the applicant alleged that the HSE's decision maker and internal reviewer displayed "prejudice" against him and obstructed his application. While he clearly feels strongly about these issues, the applicant has not provided this Office with any evidence to support the allegations he has made. I am therefore satisfied that, in so far as the applicant asserts that certain opinions relating to him as contained in the record are incomplete, incorrect or misleading, he has failed, in all instances, to discharge the burden of proof on him to demonstrate the existence of, "bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion." Accordingly, the remainder of this decision will be concerned with whether the applicant has shown, on the balance of probabilities, that there is some particular factor which renders the opinions dangerous to rely upon, such as the "complete inadequacy of factual information underlying" the Summary Record.
The essence of the applicant's case is that, in terms of his interactions with the Hospital, his symptoms were primarily attributable to his having been administered with depot antipsychotic injections, which is not reflected in the records. In the applicant's own words, he contends that "the 'illness' lay within the treatment". Understandably, given the passage of time since the records in question were prepared, the applicant has produced little by way of directly contradictory independent evidence, aside from his own assertions. Therefore, it has been necessary for me to carefully examine the record and supporting documentation provided by the applicant as the main source of evidence to corroborate the applicant's submissions. Accordingly, in the particular circumstances of this case, and given the applicant's stated concerns as to the manner in which his application was decided upon by the HSE, I am of the view that it is proper for me to set out the remainder of his main arguments in detail.
The applicant had written to the Hospital on 8 November 1986, among other matters seeking that a note of his medical history be compiled and forwarded to his local hospital in the United Kingdom, where he then resided. The main purpose of this note was to enable his continuing treatment in that jurisdiction, having already been treated on numerous occasions at the Hospital. In particular, the applicant expressed a fear that he might be given an antipsychotic depot injection against his will if he were to be treated in the United Kingdom, stating his belief that he suffered from "over sensitisation" to that medication and that its purported side-effects were "one of the most unpleasant feelings [he had] ever had".
On that basis, the applicant requested that the Hospital place a note in relation to his purported reaction to depot medication upon his file. However, this was not done. The Summary Record contained no reference to any reaction to antipsychotic medication, as had been requested by the applicant. The applicant very strongly contends that this omission has had severe and ongoing adverse consequences for him, and that the omission is dangerous to him. The applicant therefore seeks that the Summary Record be amended by the inclusion of such reference.
In support of this application, the applicant states that he has made a full recovery through cognitive behavioural therapy or "talking treatment", which does not involve the use of medication. He produced a recently published study detailing an audit of the use of depot antipsychotic medication, as well as recent email correspondence with a medical practitioner which, in his submission, casts doubt upon the appropriateness of his treatment by way of depot injection. Clearly the appropriateness, or otherwise, of the use of depot injection to treat the applicant is not a matter which I may consider. Rather, I must consider whether the information provided supports his claim that the symptoms with which he presented in 1980 were as a result of a reaction to such an injection or that he was wrongly diagnosed as having schizophrenia as a result of such reaction. In my view, it does not.
The applicant claims that one of his treating doctors verbally confirmed to him "the suicide/unemployability connection" in relation to treatment by way of depot medication, and used the term "oversensitization" in relation to his reaction to these drugs. However, having carefully examined the applicant's medical records, it appears that they do not reflect any such finding or clinical judgment. The applicant points to a letter dated 7 October 1983, where it was stated by a member of the Hospital's staff that the applicant had discontinued his treatment by way of depot injection, having received the medication for three years to that point, and that it might be "no harm for him to take a brief holiday from the drugs". The applicant contends that the reason for his withdrawal was not for a "brief holiday", as stated in the letter, but rather was based on his having informed the doctor that this medication had caused him to suffer "involuntary movement" as a side effect. However, the applicant has failed to produce independent evidence in support of this claim.
The applicant alleges that there has been "record interference" and that the records had been "manipulated" so as to conceal the adverse effects of the medication, as well as the purported fact that he was suffering from withdrawal from depot medication at the time of his admission to the Hospital in Autumn 1983. He makes an allegation against a named doctor in this regard. I have not found any evidence of the contended alteration of records in the materials before me, beyond the simple crossing out and replacement of typographical errors, which takes place as a matter of course wherever hand-written notes are maintained. Furthermore, the applicant has not produced any independent evidence to support this claim.
In particular, the applicant complains that the Summary Record is inaccurate insofar as it states that he presented as aggressive in November 1980. The applicant refers to the admission record dated 17 November 1980 in support of this and argues that the registrar substituted the view of a psychiatrist in the English hospital where he had previously been treated for that of the doctor who assessed him on admission to the Hospital. The applicant places particular emphasis upon the admission record dated 17 November 1980, where it was stated that the applicant presented as "cooperative, mild [sic] agitated, psychomotor behaviour, unpredictable, no evidence of any florid psychotic features". The applicant argues that this record should be interpreted as meaning that he presented as "mentally sound" at the time of his admission, and that the Summary Record should be viewed in that light for the purposes of section 17. However, the detailed case history and interview notes accompanying the admission record contain a number of references to aggressive behaviour by the applicant. In particular, the discharge record dated 26 January 1981 stated that the applicant was admitted for reasons including that he "showed aggressive behaviour" and was said to have "remained aggressive, disinhibited and paranoid" while in the Hospital's care.
The applicant makes a similar submission in relation to the references to "auditory hallucinations" and "delusions" appearing in the Summary Record and states that he had never suffered from such symptoms. Again, the applicant has again failed to produce evidence to support these claims.
As stated by the then Commissioner in Case 98158, "[p]ersonal information in a record is not incomplete merely because the record does not contain all the information which the applicant might like it to contain." The fact that the applicant had requested that the Hospital should include a reference to an adverse reaction to medication does not entail that the Summary Record is incomplete by reason of the omission of such a reference. As set out above, the key question is whether there is some particular factor which renders the opinions dangerous to rely upon, such as a "total inadequacy of factual information" underlying the record.
While noting the applicant's very clear concerns, having very carefully considered the Summary Record, the supporting records and the documentation furnished by the applicant, I find that the applicant has not shown, on the balance of probabilities, that the information contained in the record is incomplete, incorrect or misleading.
Conclusion
In the course of this review, the applicant relied primarily upon his own assertions of fact to contradict the contents of the Summary Record, and produced little by way of satisfactory independent evidence. Assertions by the applicant do not, of themselves, constitute evidence which would warrant an amendment of the reports. It should be emphasised that the finding that the applicant has failed to discharge the burden of proof does not carry any judgement on the part of the Commissioner that the records are, in fact, complete, correct and not misleading.
It is important to note that in all cases where a section 17 application is refused, the FOI Act requires the public body to attach to the file concerned a copy of the application for amendment which will contain the details and contentions put forward by the applicant. This in itself is quite significant as it alerts all future users of that file that aspects of its contents are in dispute and future users will have access to the views of the applicant. I note that it appears that this has already been done in the applicant's case.
Therefore, for the foregoing reasons, I am of the view that the applicant has not discharged the onus upon him to show sufficient reasons for records to be amended pursuant to section 17 of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the HSE's decision.
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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Sean Garvey
Senior Investigator