Decision
Mr L and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130029
Published on
From Office of the Information Commissioner (OIC)
Case number: 130029
Published on
Whether the HSE was justified, under section 17 of the FOI Act, in refusing to amend personal information contained in the applicant's medical records held by the HSE
5 September 2014
Following receipt of records on foot of a previous FOI request, the applicant submitted a detailed letter to the HSE on 13 September 2012 wherein, among other things, he stated that he wished to make an FOI request for the amendment of his medical records under section 17 of the FOI Act. The amendments requested relate to the applicant's registration on the Tuberculosis (TB) Register in 1994, treatment received by the applicant in 1994/95 by the Community Care Clinic operated by the HSE (formerly the Mid-Western Health Board) at Kenyon Street, Nenagh and comments made by three different doctors which the applicant believes are incorrect or misleading.
The HSE's decision of 7 November 2012 refused this application saying that "the evidence provided is insufficient to support the alteration of [the applicant's] records. " On 14 November 2012 the applicant sought an internal review of the HSE's decision and the HSE's internal review decision of 4 December 2012 affirmed its original decision. On 31 January 2013, the applicant sought a review by this Office of the HSE's decision.
In letters dated 2 May 2014 and 20 May 2014, Mr. Richie Philpott, Investigator, clarified the scope of the review to this Office with the applicant as follows:-
1. The addition of a note to the applicant's medical records to:
I. acknowledge that he was registered on the TB Register in 1994 by the Mid-Western Heath Board, notwithstanding the HSE's repeated denials that he had TB;
II. acknowledge that this fact had not been recorded on his medical records previously released to the applicant under FOI,
III. acknowledge that this fact had not been revealed to the applicant until December 2011.
2. The addition of a note to the applicant's medical records to:
I. acknowledge that he was treated by the Community Care Clinic operated by the Mid-Western Health Board at Kenyon Street, Nenagh with two separate anti-Tuberculosis antibiotics between July 1994 and November 1994;
II. acknowledge that he was treated by the Community Care Clinic operated by the Mid-Western Health Board at Kenyon Street, Nenagh with a separate anti-Tuberculosis antibiotic between November 1994 and February 1995.
3. The addition of a note to the applicant's medical records to:
I. acknowledge that a GP referral letter dated 5 April 1994 shows that he was admitted to the Community Care Clinic as a suspected Tuberculosis case, or as a suspected carrier of an infectious disease;
II. acknowledge that no notification pursuant to Regulation 15 of the Infectious Diseases Regulations 1981 was sent in respect of his admission to the Community Care Clinic at that time.
4. The addition of a note to the applicant's medical records to:
I. acknowledge that several columns of the 1994 TB Register entry relating to the applicant have been omitted;
II. acknowledge that the Health Board in question failed to keep proper records as required by the Infectious Disease Regulations;
III. acknowledge that, accordingly, the applicant's medical records are incomplete, incorrect or misleading.
5. The addition of a note to the applicant's medical records to:
I. acknowledge that the comment in a letter of 6 September 1996 by a consultant physician in the Regional General Hospital in Limerick [Dr. A] that the applicant would need psychiatric assessment was unjustified;
II. record that Dr. A and the HSE have now withdrawn that comment;
III. acknowledge that the HSE never offered the applicant a psychiatric assessment or psychiatric assistance;
IV. accept that the applicant did not need a psychiatric assessment or psychiatric assistance.
6. The addition of a note to the applicant's medical records to:
I. acknowledge that the HSE and a consultant physician in Mid Western Regional Hospital (formerly St. Joseph's Hospital) in Nenagh [Dr. B] unreservedly withdraw and apologise for comments that the applicant had a long history of neurosis and alleged TB;
II. acknowledge that the HSE and Dr. B unreservedly withdraw and apologise for comments that the applicant was deliberately trying to obtain an ECG showing abnormalities.
7. The addition of a note to the applicant's medical records to:
I. acknowledge that the HSE accepts that the statement by [Dr. C], the acting director of Community Care and Medical Officer of Health dated 20 June 1995 that the applicant was "seen by [a named doctor] on 13th of March 1995. His old TB was confirmed by [a named doctor]..." is misleading.
8. Deletion of the following items from the applicant's medical records:
I. Deletion of Dr. A's comment that the applicant would need psychiatric assessment (Ref. 5a above);
II. Deletion of Dr. B's comments that the applicant had a long history of neurosis and alleged TB (Ref. 6a above);
III. Deletion of Dr. B's comments that the applicant was deliberately trying to obtain an ECG showing abnormalities (Ref. 6b above);
IV. Deletion of the reference to the applicant's "old TB" in Dr. C's statement dated 20/6/1995 (Ref. 7a above).
V.
In his letter dated 20 May 2014, Mr. Philpott also set out his preliminary views with regard to the issues in question. The applicant responded by letters dated 28 May, 19 June and 11 July 2014 and he provided information in support of his contention that the records were incomplete, incorrect or misleading. The applicant also raised further issues with regard to his earlier FOI request to the HSE for access to records. 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 contacts between this Office and the applicant, particularly Mr. Philpott's letters dated 2 May and 20 May 2014 and the applicant's responses. 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 his concerns extend beyond the accuracy of his personal information and the provisions of section 17 of the FOI Act. However, this Office has no role in examining complaints concerning the nature of the applicant's engagements with the HSE and furthermore, this Office cannot consider issues which did not form part of the his initial request for amendment. Accordingly, the scope of this review is confined to assessing whether or not the HSE has justified its refusal under section 17 of the FOI Act to amend the records set out above in Points 1 to 8.
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) requires that an application to amend a record shall, in so far as is practicable, specify the record concerned and the amendment required and 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. This Office also accepts that the right of amendment extends to the amendment of incomplete, incorrect or misleading opinion. In Case No. 98158 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 in section 17(4)(i) 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.
Points 1 to 4
The applicant sought the addition of notes to his medical records to acknowledge certain information with regard to TB treatment he received in 1994/95. In order for the amendments sought by the applicant to be justified, I would need to be satisfied that the balance of probabilities test has been met. In this case no specific record(s) has been identified by the applicant that he believes requires amendment, rather he wants a note added to his medical records in which the HSE should acknowledge certain facts. As stated above, section 17(2) of the FOI Act provides that the applicant should specify the record(s) concerned and the amendment required. Notwithstanding the fact that the applicant has not identified a particular record(s) he may wish to have amended and allowing for the fact that medical notes could, in some circumstances, be regarded as one substantive record, I have examined the records. The additions requested by the applicant appear to be matters which are self-evident from the records rather than matters which can be said to be "incomplete, incorrect or misleading ". For example, the excerpt from the 1994 TB Register lists the applicant on that Register and the HSE says that the record is complete. The HSE's point seems reasonable to me that only relevant information was entered on the Register and accordingly, not all columns had to be completed for each entry. The applicant's records also show that he attended the Community Care Clinic in Nenagh and that he was treated with anti-tuberculosis antibiotics between July 1994 and February 1995.
The applicant also sought the addition of a note to his medical records to acknowledge that no notification pursuant to Regulation 15 of the Infectious Diseases Regulations 1981 was sent in respect of his admission to the Community Care Clinic at that time. Even if a notification was required, I am unclear how the failure to issue such a notification renders the applicant's medical records,per se , incomplete. Section 17 does not provide a mechanism for the creation of additional records or for the taking of action by public bodies. Furthermore, the FOI Act and this review cannot be used to address alleged omissions or pursue complaints of alleged breaches of other legislation.
I am not satisfied that a record can be said to be incorrect, incomplete or misleading simply because it does not contain all the information an applicant would like it to contain, or because the information therein is not set out in a way that is acceptable to the applicant. It seems to me that section 17 is intended to allow for the amendment of information where the substantive content of that information is incorrect, incomplete or misleading. While the applicant may well be of the opinion the his records are incomplete because they do not contain all the information he would like, I do not accept that this makes the records incorrect, incomplete or misleading. Therefore, as the applicant has not identified information in a record(s) that is incomplete, incorrect or misleading I find that amendment of his medical records as described in Points 1-4 is not required under section 17 of the FOI Act on the grounds that the applicant has not demonstrated, on the balance of probabilities, that such amendment is required.
Points 5-8
The records at issue here are a letter dated 6 September 1996 from Dr. A, a consultant physician in the Regional General Hospital in Limerick which states that the applicant would need psychiatric assessment (Point 5), a letter dated 15 February 1996 by Dr. B, a consultant physician in Mid Western Regional Hospital in Nenagh which states that the applicant had a long history of neurosis and alleged TB and that the applicant deliberately tried to obtain an ECG showing abnormalities (Point 6) and a written statement by Dr. C, the acting director of Community Care and Medical Officer of Health dated 20 June 1995 which states that the applicant was "seen by [a named doctor] on 13th of March 1995. His old TB was confirmed by [a named doctor]... ".
I treat much of this type of information as the type of "opinion" discussed in case number 98158 referred to earlier in this decision. In relation to the apology sought by the applicant, it seems to me that this could not be seen as an amendment to personal information as provided for in section 17 of the FOI Act.
The applicant provided this Office with a letter dated 13 June 2014 from his GP in which his GP stated that, while it is to be expected that patients with serious illnesses can also suffer from anxiety, depression etc., she does not believe that in the applicant's case it is such a level it could be characterised as a mental disorder. She went on to say that she does not agree that a psychiatric assessment would have been necessary in September 1996 or now. The applicant's GP also stated that she does not believe it would be correct or fair to say that the applicant has a long history of neurosis and alleged TB as there is nothing neurotic or obsessional in his belief that he had TB in circumstances where he had it in his youth which helped him to recognise it when it returned.
With regard to the records set out in Points 5-6, the HSE stated that both Dr. A and Dr. B are now retired and that it cannot ascertain the reasoning behind the statements made by those doctors. However, the HSE did say that medical records are a contemporaneous record of events in the provision of medical treatment and they record a mixture of factual findings on examinations, test results and opinions. To the extent that they record opinions, the HSE said that there may well be differences of opinions contained in the records. However, the HSE went on to say that the records were created by clinically trained medical staff who would have formed their opinions based on information presented to them at the time and/or from consultation with the applicant. Accordingly, the HSE contends that there is insufficient evidence to support the alteration of the applicant's records. However, in line with the provisions of section 17 of the FOI Act the HSE stated that a copy of the application for amendment has been attached to the records specified in the application.
With regard to the record at Point 7 i.e. the statement made by Dr. C dated 20 June 1995 that the applicant was "seen by [a named doctor] on 13th of March 1995. His old TB was confirmed by [a named doctor]... "I take it that the applicant's position is that he was diagnosed with TB in 1995 and accordingly, this particular record is misleading relation to the date. The applicant provided a letter dated 5 June 2014 from the doctor who was Acting Area Chief Medical Officer for the HSE (formerly the Mid Western Health Board) in Nenagh in 1995. In his letter this doctor says that, while he was not involved in the applicant's long term care, he referred him to Peamount Hospital in February 1995. He went on to say that the doctor who treated the applicant in Peamount Hospital wrote back to him on 29 March 1995 and, in that letter, confirmed a diagnosis of pulmonary TB from July 1994.
The HSE stated that the applicant's laboratory and x-ray investigations from 1994 shows no evidence of active TB (x-ray report dated 15 June 1994, report from Blackrock Clinic dated 25 April 1994, letter from Peamount Hospital dated 15 May 1995 and laboratory reports dated 11 May and 4 July 1994). With regard to the letter dated 29 March 1995 from the doctor in Peamount Hospital, the HSE said that it is not clear whether this doctor made his own diagnosis at that time and whether the views expressed in that letter were based on incomplete or inaccurate information. The HSE also said that the fact that the applicant was given a course of anti-Tuberculosis medications in 1994/95 is not evidence of active TB. The HSE went on to say that this treatment was given in full consultation with the applicant and his GP.
In order for the amendments sought by the applicant to be justified, I would need to be satisfied that the balance of probabilities test has been met in this case. While the applicant has contended that the records are inaccurate, he has submitted no stronger evidence than a contrary opinion relating to the opinions expressed by the doctors at the time and as recorded in his medical records. I am not satisfied that I can purport to find that one opinion should be preferred to another. Neither am I satisfied that the original opinions are flawed by reason of the total inadequacy of the factual information underlying them or because of bias, ill will, incompetence or lack of balance or necessary experience. I consider that the applicant has not discharged the onus of proving that, on the balance of probabilities, the information is incorrect, incomplete or misleading. I find, therefore, that the HSE's decision to refuse to amend those parts of the records covered by Points 5-7 was justified.
Point 8
As Point 8 deals with the deletion of records specified in Points 5-7 I do not need to deal with this as I have found that amendment of those records is not warranted.
In the circumstances, I see no basis for amendment of the records set out in Points 1-8 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.
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Elizabeth Dolan
Senior Investigator