Decision
Mr. Y and St. James's Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-143529-L6G3X7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143529-L6G3X7
Published on
Whether the Hospital was justified in refusing an application made under section 9 of the FOI Act for the amendment of certain medical records of the applicant’s late daughter
25 July 2024
This review concerns an application to amend certain medical records concerning the care and treatment of the applicant’s daughter in St James’ Hospital who sadly passed away five months after she was discharged. I wish to express my condolences to the applicant at the outset for his loss.
On 3 July 2023, the applicant sought the amendment, pursuant to section 9 of the FOI Act, of a range of information recorded in his late daughter’s medical records. As he did not receive a decision within the statutory time-frame, he sought an internal review of the deemed refusal of his application for amendment on 2 August 2023.
The Hospital issued a late decision on 5 September 2023 wherein it refused the application for amendment on the basis that the applicant had not shown that the information in question is, on the balance of probabilities, incomplete, incorrect or misleading.
In an email dated 8 September 2023, the applicant sought an internal review of that decision. Among other things, he said the medical records describe a phone call which he said did not take place. On 11 October 2023, the Hospital affirmed its original decision to refuse the application for amendment. On 2 November 2023, the applicant applied to this Office for a review of the Hospital’s decision.
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 communications between the applicant and the Hospital as set out above and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
I should say at the outset that in the course of his correspondence with both the Hospital and with this Office, the applicant expressed concerns about the manner of the assessment carried out of his daughter’s mental health and about the nature of the clinical assessment made. These are not matters which this Office can address. It is not our role to examine clinical judgment or to examine complaints about the performance by FOI bodies of their functions. Our role is confined to a consideration of whether the decision taken on the application for the amendment of the records at issue was in accordance with the provisions of the FOI Act.
Having carefully examined the application for amendment that the applicant first submitted to the Hospital, I am satisfied that the specific records that the applicant believes to contain incorrect, incomplete, or misleading information comprise four addendums made to his daughter’s medical notes and a discharge letter, as follows:
1. Addendum of 21 September 2021 at 15:59 on pages 56 and 57 of the medical notes
2. Addendum of 22 September 2021 at 16:01 on page 53
3. Addendum of 28 September 2021 at 15:52 on pages 36 and 37
4. Addendum of 28 September 2021 at 16:08 on pages 35 and 36, and
5. Discharge Letter on pages 80 to 83.
Accordingly, this review is concerned solely with whether the Hospital was justified in refusing to amend the five records identified above. The vast majority of the amendments sought comprise accounts of discussions with the applicant which the applicant considers to be incomplete or incorrect. In light of the sensitivity of the information at issue and in an effort to protect the applicant’s privacy rights, I will not include specific details of the various items of information at issue in this decision and will, instead, refer to them in more general terms.
1. Addendum of 21 September 2021 at 15:59
This addendum is a note prepared by a staff member of the Hospital of a telephone conversation he had with the applicant. The applicant says;
• a description of a matter the applicant’s daughter had discussed with him is incorrect,
• much of the conversation is not mentioned,
• some background information he provided is altered,
• the staff member did not discuss certain matters the note suggests he discussed, and
• comments and understandings attributed to the applicant are incorrect.
2. Addendum of 22 September 2021 at 16:01
This addendum is a note prepared by the same staff member and appears to be an additional note of the telephone conversation described in Addendum 1 above as it is described as “Addendum to above note re phone call to father”. The applicant says he did not discuss the matters the note suggests he discussed and that an understanding attributed to him is incorrect.
3. Addendum of 28 September 2021 at 15:52
This addendum is a note prepared by another staff member of a telephone conversation he had with the applicant. The applicant says the conversation took place on 24 September 2023 and not 28 September as the note suggests. He says the record of the telephone conversation is incorrect as the conversation did not take place and that it refers, instead, to a telephone conversation that took place on 24 September 2023. That aside, he says four of the five matters outlined in the note as having been discussed were never mentioned. He also says he did not make certain comments attributed to him in the note.
4. Addendum of 28 September 2021 at 16:08
The addendum is a note prepared by the same staff member as referenced in addendum 3 above of a further conversation he had with the applicant. The applicant says the comments attributed to him are incorrect.
5. Discharge Letter on pages 80 to 83
Among other things, this record indicates that the social needs of the applicant’s daughter were discussed with the applicant. He says this is incorrect.
Section 9 provides a mechanism for the amendment of records held by FOI bodies which contain personal information relating to the applicant. It provides for the amendment of such records where the personal information in the record is incomplete, incorrect or misleading. Section 9(6) provides for the Minister to make regulations for the making of an application under section 9 for the amendment of personal information relating to deceased persons by specific categories of persons. The relevant regulations are the Freedom of Information Act 2014 (Section 9(6), 10(6), and 37(8) Regulations 2017 (the 2017 regulations).
The 2017 Regulations provide that an application under section 9 may be made to amend a record that includes personal information which is incomplete, incorrect or misleading and shall, subject to the other provisions of the FOI Act, be granted where the individual to whom the information relates is dead and the applicant is:
“the spouse or next of kin of the individual and, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the application.”
The Hospital does not dispute that the applicant has standing to seek the amendment of his daughter’s medical records.
Hospital’s Submissions
The Hospital said it understands that the applicant does not agree with how information he provided to the clinical team has been represented in his daughter’s clinical notes. It said clinical notes/medical records are created for the purposes of treating the patient and continuity of patient care. It said clinical records are not recorded verbatim but when interactions with third parties are recorded, they are generally a distilled/summarised version of the conversation as documented from the perspective of the clinician recording them. It said they are not intended to be a verbatim account of every conversation with a patient’s family and/or third parties. It said records ae documented contemporaneously or close to the time that the interaction took place. It said they are documented by hand and that there is no recording of the phone conversations between the clinical team and the applicant. It said clinical teams are trained to take contemporaneous notes for the purposes of patient care and that their summaries of interactions are reflected in the medical records.
The Hospital said it appreciates that the applicant has a different perspective on his interactions with clinical teams but that he has not provided evidence to contradict the documented notes and has, instead, provide his recollections of the phone conversations.
Applicant’s Submissions
The applicant said he only received two calls during the duration of his daughter’s stay in St James’ Hospital in September 2021. He provided letters from key workers and accommodation services which his late daughter was utilising up until her death. He appears to be of the view that the information in this correspondence supports his position that the conversations recorded between him and clinicians is inaccurate. He also said that his daughter had a clinical diagnosis of psychosis from eighteen months earlier which, he contends, is evidence he would not have made some of the comment’s attributed to him in the addendums in relation to her discharge.
My Analysis
The Act is silent on the question of where the onus of proof lies in cases where an application is made for the amendment of records under section 9 of the Act. This Office considers that in the absence of any express statement in the Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. The Act is also silent on the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of “balance of probabilities”. It follows, therefore, that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.
In requiring an applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence to enable the Commissioner to conclude 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 this Office that the record is, in fact, complete, correct and not misleading. Furthermore, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.
The applicant’s primary argument is that the notes of the discussions he had with the clinical team do not accurately reflect the contents of those discussions. I have considered the supporting documentation the applicant submitted. I am not satisfied that it amounts to evidence that might allow me to conclude that, on the balance of probabilities, the applicant did not make the comments attributed to him in the records or that the matters the notes suggest were discussed were not, in fact, discussed. No evidence has been presented to me to suggest that the relevant staff members might have incorrectly recorded the details of their conversations or why they might have done so.
While I fully accept that the applicant has a different recollection of the nature of the conversations, it would not be appropriate for me to accept one party's version of events to the detriment of the other unless there was compelling evidence which required me to do so. The question I must consider is whether the evidence the applicant has submitted to support his arguments is sufficient to satisfy me that the information at issue is, on balance, incomplete, incorrect or misleading. In my view, it is not. As I have explained above, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment.
On the matter of the applicant’s allegation that much of the conversation referenced in addendum 1 has been omitted, I accept the Hospital’s submission that the record is not intended to be a verbatim account of the conversation but, instead, is a summarised version of the conversation as documented from the perspective of the clinician recording. Personal 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. This Office takes the view that the word incomplete in section 9 is used in the sense of imperfect or defective or lacking certain requisite items or details. In deciding whether the information can be so described, regard has to be had to the purpose for which the information is held. It can be said to be incomplete if it lacks certain requisite details i.e. details required by the circumstances in which the record is created or required for the uses to which the record is put or which might put a different complexion on the information. No such requisite details are lacking in this case, in my view.
On the matter of the applicant’s assertion that the conversation referenced in addendum 3 took place on 24 September 2023 and not 28 September 2023, he has presented no supporting evidence to suggest that the note is, on balance, incorrect. The note of the telephone conversation is dated 28 September and says that the relevant staff member spoke with the applicant “after multiple attempts”. The medical notes also contain details of those other “multiple attempts”, dated 27 September 2023.I find that the applicant has not shown that the information is, on the balance of probabilities, incomplete, incorrect or misleading.
I have also considered the applicant’s contention that certain statements in addendums 1 and 2 - that he understood points outlined to him by a member of the clinical team - are incorrect. I accept that the applicant is best placed to state categorically whether he did or did not understand the points made. Nevertheless, it is apparent from the records that the statements in question represent the clinical team member’s opinion that the points he made were understood by the applicant.
This Office considers that section 9 does not permit the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 9 is made. Where an applicant claims an opinion to be incomplete, incorrect, or misleading, we would expect an applicant to show 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 fact that the applicant disagrees with the statements is not, of itself, sufficient for me to find that a right of amendment exists. As such, I am not persuaded that the applicant has shown, on balance, that the statements are incomplete, incorrect, or misleading.
In conclusion, therefore, I find that the Hospital was justified in refusing to amend the medical records in question, on the grounds that the applicant has not shown, on the balance of probabilities, that the information in the record is incomplete, incorrect, or misleading.
Finally, for the benefit of the applicant, I would note that under section 9(4)(a) of the FOI Act, where an FOI body refuses an application for the amendment of a record, it must attach to the record concerned the application or a copy of it or, if that is not practicable, a notation indicating that the application has been made. This in itself is quite significant as it alerts all future users of the record that aspects of its contents are disputed by the applicant. In its submission to this Office, the Hospital said it had not yet added a copy of the application for amendment to the records in accordance with section 9(4) but that it is willing to make an addition to the record reflecting that the applicant has a different perspective on the interactions documented. While I presume that offer remains open to the applicant to take up, the Hospital must, at a minimum, attach a copy of the application for amendment to the relevant file. The applicant may also care to note that in its submissions to this Office, the Hospital wished to reassure the applicant that his daughter’s record is now closed.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of St James’ Hospital to refuse the applicant’s request to amend his late daughter’s medical records.
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