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Whether the Hospital has fulfilled the requirements of section 10 in relation to the applicant's application for a statement of reasons for certain matters relating to her daughter's care and treatment in the Hospital

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant's daughter was admitted to the Hospital on 15 January 2015 following a fall. At the time, she was also receiving chemotherapy treatment. It was established that surgery was necessary arising from the fall and while the surgery was initially scheduled for 16 January 2015, it did not take place until the evening of 17 January 2015. On 20 January 2015, the applicant submitted an application to the Hospital, on behalf of her daughter, for a statement of reasons under section 10 of the FOI Act for various matters relating to her daughter's care and treatment, as follows:

1. In the opinion of her Consultant, the applicant's daughter required urgent attention to minimise the resulting delay to her treatment for cancer. Did someone in the Hospital have the authority, under such circumstances, to delay her treatment without reference to her and her consultant?
2. Who was this and on what authority was he/she acting?
3. Who took the decision on Saturday afternoon to instruct the nursing staff to feed her daughter which would thereby remove the possibility of surgery that day?
4. Was this instruction given without the knowledge of the surgeon who was waiting to perform the surgery?
5. Why was her daughter told "we have been told to feed you" without any explanation as to the reason for this approach and without any explanation as to when she was going to have her surgery?
6. Why was a nurse unable to get a response from the Orthopaedic or Haematology teams when asked to do so on Friday evening?
7. Why has the bell at her daughter's bedside not been repaired nor inspected despite the fact that more than three days passed since it was brought to the attention of the Hospital?
8. Where, and when, is comprehensive information available in relation to a patient's right to access personal information or to make a complaint to the hospital?
9. Where is comprehensive information available to patients in relation to the process for accessing such information or making such a complaint?

On 21 January 2015, the Hospital accepted the applicant's letter as a letter of complaint and informed her of the next steps in the process. On 6 May 2015, the applicant sought an internal review of the deemed refusal of the Hospital to provide a statement as she had not received a reply to her initial application. It appears that the Hospital had mistakenly treated her application as a complaint, rather than a request for a statement of reasons under FOI, despite the fact that her letter was clearly headed "Request under the Freedom of Information Acts" and was addressed to the Freedom of Information section of the Hospital. Apparently, the confusion arose as the Hospital had also received a letter of complaint from the applicant relating to the same issues on the same date and dealt solely with the complaint.

The applicant sought a review by this Office on 14 May 2015 as she stated that the Hospital refused her request on 13 May 2015 on the ground that records do not exist. While the contents of the letter in question are unclear as a copy of the relevant letter was not submitted to this Office, the Hospital subsequently issued an internal review decision by letter dated 30 June 2015. That letter addressed the nine points set out in the applicant's original application and in doing so, referred to letters that had previously issued dealing with the issues concerned. As the hospital had issued an effective decision at that stage, this Office closed its file on the matter.

The applicant contacted this Office again on 25 August 2015 as she was not satisfied with the internal review decision provided by the Hospital. The application for review was accepted by this Office on 8 September 2015. During the course of the review, the applicant indicated that she wanted to know why a decision had been taken to cancel her daughter's surgery on 16 January 2015. On 27 November 2015, Ms Sandra Murdiff of this Office contacted the applicant and outlined her view that the applicant was not entitled to a statement of reasons for the issues identified in her original application. The applicant did not accept Ms Murdiff's view. Accordingly, I have decided to bring this review to a close by way of a formal, binding decision.

In conducting my review, I have had regard to the correspondence between the Hospital and the applicant, and to the correspondence between this Office and both the applicant and the Hospital on the matter.

Scope of Review

This review is solely concerned with whether the Hospital has complied with the provisions of section 10 of the FOI Act in relation to the original application of 20 January 2015 relating to the care and treatment of the applicant's daughter.

Preliminary Matters

It is relevant to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does this Office's remit extend to examining the appropriateness or otherwise of the particular act(s) or decision(s) for which statements of reasons are sought. If the applicant is dissatisfied with the Hospital's response to her complaint concerning her daughter's care, she may wish to contact the Office of the Ombudsman on that matter.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:

"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

"Benefit" is defined at section 10(13) of the Act as including

"(a) any advantage to the person,

(b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating the person, and

(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person."

This Office has previously set out its approach to, and interpretation of, the equivalent provision of the FOI Acts 1997 & 2003 (Section 18). While not identical, section 10 is quite similar to that equivalent provision. Insofar as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014 including, in particular, the following principles;

There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the body. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.
The requirement on the public body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What section 10 requires is that the head provide a statement of reasons which adequately explains why the body acted as it did.
Taking section 10 as a whole, the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.

As section 10 requires the body to give reasons for the act or decision, it follows, therefore, that an application for a statement of reasons must identify the act or decision for which the statement is sought. The application for a statement of reasons in this case took the form of nine separate questions or parts. Having carefully considered each of the constituent parts, I am satisfied that parts 1, 2, 3,4, 8, and 9 as outlined do not identify acts or decisions for which reasons are sought. Rather, they comprise requests for specific information. For example, at part 1, the applicant simply wishes to know if someone in the Hospital had the authority to delay her daughter's treatment without reference to her and her consultant. This is clearly not an act for which a statement of reasons may be required.

On the other hand, parts 5, 6 and 7 appear to identify particular acts, or instances of failure to act, for which reasons are sought. The question I must consider is whether the Hospital is obliged to give reasons for those acts under section 10. In my view, it is not. Having carefully considered the acts identified, it seems to me that any reasons given for those acts would have no bearing on whether the applicant's daughter received or did not receive a benefit or suffered a loss or a penalty or other disadvantage. In other words, the same outcome would result regardless of the reasons for the acts in question.

For example, at part 6, the applicant queried why a nurse was unable to get a response from the Orthopaedic or Haematology teams when asked to do so. There may be many reasons why the nurse was unable to get a response. It might be argued that the failure of the Orthopaedic or Haematology teams to provide a response may have resulted in the applicant's daughter failing to obtain a benefit due to her or suffering a loss or disadvantage and in such circumstances, a case may lie against the Hospital for maladministration which has had an adverse effect on her. In such a case, section 10 gives the applicant's daughter a right to be given reasons why she suffered the adverse effect. If a statement of reasons that meets the requirements of section 10 is given, then the applicant's daughter will be able to see that the adverse effect resulted from the failure of the Orthopaedic or Haematology teams to provide a response. In my view, however, section 10 would not require the Hospital to give reasons why the Orthopaedic or Haematology teams failed to provide a response as the same outcome would result regardless of those reasons. Analysis of why or whether maladministration may have occurred lies in the province of the Ombudsman, not the Information Commissioner.

Having carefully considered the matter, I am satisfied that the applicant's daughter does not have a material interest in a matter affected by the acts identified at points 5, 6 and 7 of the original application as the consequence or effect of the acts cannot be said to confer on, or withhold from, the applicant's daughter a benefit.

Accordingly, I find that the Hospital was not required, under the provisions of section 10 of the FOI Act, to provide a statement of reasons in response to the original application of 20 January 2015 relating to the care and treatment of the applicant's daughter.

While it is not necessary for me to do so, I would suggest that the substantive act in this case, in respect of which I believe the Hospital would be required to provide a statement of reasons, was the delay in carrying out surgery. Indeed, as I have outlined above, during the course of the review the applicant indicated that she wanted to know why a decision had been taken to cancel her daughter's surgery on 16 January 2015.

While I make no comment on the adequacy or otherwise of the explanation given for the purposes of section 10, it appears that the Hospital has already provided some information to the applicant on this matter. The Hospital's position is that surgery was cancelled by the surgeon on Friday afternoon at 3pm when he was informed that it was not possible to get the applicant's daughter to theatre within a reasonable time-frame that evening. The surgeon was not on call for the weekend but told the applicant's daughter that he would perform her surgery once the acute trauma surgery and emergencies on Saturday had been dealt with in the afternoon. While she was brought to the theatre at 6.30pm on Saturday, she had to be sent back to the ward because there was a patient with a life-threatening problem in the intensive care unit who needed emergency surgery. The surgeon came back to perform her surgery at 8.30pm that evening.

I would stress again that I am not in a position to comment on the adequacy of the Hospital's explanation as it does not come within the scope of my review. As I have stated above, based on the nature of the application submitted, I find that the Hospital was not required to provide a statement of reasons in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Hospital in this case. I find that the Hospital was not required, under the provisions of section 10 of the FOI Act, to provide a statement of reasons in response to the original application of 20 January 2015 relating to the care and treatment of the applicant's daughter.

Right of Appeal

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator