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Case Number: 170213

Whether the Hospital was justified in its decision to refuse access to the applicant's medical records on the basis that sections 37(3) and 37(4) of the FOI Act applied

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

Background

In a letter dated 12 January 2017, the applicant sought access to her medical records. In its decision of 15 February 2017, the Hospital refused access to the records on the basis that section 37(3) of the FOI Act applied. In accordance with section 37(4) of the Act, the Hospital offered the applicant an opportunity to nominate a health professional to access the records concerned on her behalf. The applicant sought an internal review on 5 March. The Hospital's internal review decision of 10 April 2017 affirmed the original decision. On 5 May 2017, this Office received an application for review from the applicant.

In conducting my review, I have had regard to the submissions of the Hospital and the applicant, via her representative, and to correspondence between the applicant, her representative and the Hospital. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the HSE to refuse access to the records in the applicant's medical file was justified on the basis of sections 37(3) and 37(4) of the FOI Act.

Preliminary Matters

In her submission, the applicant explained why she wanted access to the records. I see no reason to give details of those reasons in this decision.

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. In this case, however, requests falling to be refused under section 37(3) are not subject to a public interest balancing test.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Sections 37(3) and 37(4)
Section 37(3) of the FOI Act provides:

"Where an FOI request relates to -

(a) a record of a medical or psychiatric nature relating to the requester concerned, or
(b) a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."

Section 37(4) provides:

"Where, pursuant to subsection (3), a head refuses to grant an FOI request -

(a) there shall be included in the notice under section 13(1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 13(3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and
(b) if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 13(3)."

Section 13(3) provides for the records to be kept available for the purposes of access for a period of 4 weeks after the making of a decision.

The intention of section 37(4) would appear to be to ensure that information about possibly disturbing records may be given with the assistance of a health professional of the requester's choosing. The FOI Act does not appear to envisage any role for the Commissioner in relation to the making of arrangements between the FOI body, the applicant and the health professional having expertise in relation to the subject-matter of the record as the requester may specify. I note that section 37(9) of the FOI Act defines 'health professional' and that regulations made under that section (SI No 368 of 2001) prescribe classes of health professional.

I must base my decision in relation to whether disclosure of the information in the records might be prejudicial to the applicant's physical or mental health, well-being or emotional condition, on the evidence provided by both the applicant and the Hospital.

The applicant stated that the Hospital's decision to refuse her access to the records, was not in her best interests. She also stated she did not believe that access "via a health professional of [her] choosing" was realistic. I can understand the applicant's frustration at being refused direct access to her own medical records; however, section 37(3) is there to ensure that an applicant's mental health, well-being or emotional condition is not prejudiced by release of such records. In addition, section 37(4) applies automatically in any instance in which a public body relies on section 37(3). The applicant noted that other more recent records had been released to her. This does not provide me with any basis for preferring the opinion of one health professional over that of another. I have no reason to find that a qualified consultant psychiatrist or other consultant responsible for the care of a patient must be presumed to be other than competent to form an opinion as to the mental health, well-being or emotional condition of a person in his or her care. In addition, the content of the records themselves, which are mainly psychiatric records, must be taken into account.

The Commissioner considers that in a case where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a possibility of harm being caused to the general health, welfare and condition of the requester as a result of direct access to the record in question. I have given careful consideration to the evidence presented by the Hospital in support of its view that section 37(3) should apply. I note that other than stating her opinion about the Hospital's decision, the applicant has not provided any evidence which might serve to refute the Hospital's evidence.

In its internal review decision the Hospital stated that release of the records directly to the applicant would not be beneficial to her on-going care. The Hospital informed this Office that the Consultant Psychiatrist was consulted at all stages of the applicant's request. It stated that the Consultant considered all the records in the applicant's medical file and that the option of part-granting access to records was not considered. Based on the Consultant's opinion, the Hospital's decision makers formed the view that the applicant's mental health, well-being or emotional condition would be prejudiced if the records were released directly to her. In its submission, the Hospital stated that a review of the applicant's records "with her current consultant would be the most appropriate avenue for access". In the circumstances, I am satisfied that the Hospital has justified its reliance on section 37(3) of the FOI Act.

I have also considered the applicant's suggestion that parts of the records might be considered for release. In this case, I believe that it is appropriate to treat the medical records, including reports by various clinical staff who treated the applicant over a period of time, as one composite record. It seems to me that to attempt to separate out elements of the records that might be deemed to be less sensitive than others would not be practical and would be misleading.

I find that the Hospital was justified in refusing access to the records on the basis that sections 37(3) and 37(4) of the FOI Act apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital that the applicant's medical records are exempt from release under section 37(3) of the FOI Act.

Right of Appeal

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 by the applicant not later than four weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator