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Whether the HSE was justified in its decision to refuse access to additional medical records relating to the applicant on the basis that section 10(1)(a) of the FOI Act applies.

Review Application under the Freedom of Information Acts 1997 & 2003 (the FOI Act) to the Information Commissioner

Background

The applicant made an FOI request on 29 October 2010 seeking access to her medical records at St Luke's Hospital, Kilkenny dating back to 2006. In its late decision of 10 March 2011, the HSE refused access to the requested records on the basis of section 10(1)(a) of the FOI Act as the records could not be found apart from an entry on the Hospital's Patient Administration System, a copy of which was released. Following an internal review, the HSE upheld its original decision on 11 July 2011. The applicant contacted this Office on 18 July 2011 seeking a review of the HSE decision.

During the course of the review, the HSE informed this Office that during her attendances at the Hospital, the applicant would have had a white maternity chart and a brown medical chart for Gynae Day Ward visits. It explained that the white chart was missing and that the applicant had not requested her brown chart. Following correspondence with the Office, the HSE subsequently released the applicant's brown chart containing general medical notes, which are held separately from her maternity notes.

On 8 November 2011, Ms Alison McCulloch, Investigator, provided the applicant with details of the comprehensive searches undertaken by the HSE in an effort to locate her maternity notes and of the HSE's description of its record management practices in relation to maternity records. Following receipt of further information from the applicant, this Office sought clarification from the HSE on the issues raised by the applicant. While the HSE conducted further searches on foot of the additional queries raised and located a number of electronic records which were subsequently released, the applicant's maternity records have not been located. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the correspondence between the applicant and the HSE, to the various submissions from the HSE and the applicant to this Office, and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the additional medical records of the applicant on the grounds that they cannot be found after all reasonable efforts have been taken to locate them.

Analysis and Findings

The HSE relied on section 10(1)(a) of the FOI Act to refuse access to additional medical records relating to the applicant's FOI request. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)

As I have indicated above, Ms McCulloch wrote to the applicant on 8 November 2011 and provided the applicant with details of the comprehensive searches undertaken by the HSE in an effort to locate the missing records and of the HSE's description of its record management practices in relation to maternity records. While I do not intend to repeat those details here, they are relevant for the purposes of this decision.

Following receipt of Ms McCulloch's letter, the applicant contacted this Office to indicate that she had made a complaint to the HSE some time in June or July of 2010 but did not receive a reply. This Office made further enquiries with the HSE on this matter and in connection with an apparent conflict of evidence as to the applicant's treatment by the Hospital consultant, Mr. Ray O'Sullivan.

On the matter of the complaint, the HSE confirms that the applicant rang its Your Service Your Say complaint facility following which contact was made with Mr Pat Shortall, the Hospital's Deputy Manager. Mr Shortall apparently informed the HSE that an internal review of the complaint would be carried out. While Mr Shortall does not recall the specific details, it is likely that he offered to have the complaint concerning the missing file reviewed by someone other than himself as he had dealt with the initial FOI request. The HSE adds that as a result of this contact, further searches were carried out but the missing file was not found.

On the matter of the applicant's consultations with Mr O'Sullivan, the HSE reported that the applicant had informed it of the possibility that the missing file might be in Mr O'Sullivan's car and maybe his home. Mr O'Sullivan, confirmed in writing that he did not take the applicant's chart from St. Luke's Hospital and had no reason to have the chart in his possession. The applicant subsequently informed this Office that she had been treated by Mr O'Sullivan as a public patient but that she had attended, at his request, at his private clinic. She alleges that Mr O'Sullivan subsequently referred her to Kilkenny Clinic and that Dr Millett Johnson requested her records from Mr O'Sullivan's private secretary. Apparently, the private secretary located some records at Mr O'Sullivan's house but not the records which are the subject of this review. When this matter was put to the HSE, the HSE confirmed that Mr O'Sullivan reviewed the correspondence from this Office and said that he has no further information to add to his statement of 26 October 2011 and he repeated that he did not remove the applicant's file from St. Luke's Hospital.

On the face of it, there appear to be two different accounts of what might have transpired during the course of the applicant's consultations with Mr O'Sullivan. However, the fact that certain records may have been located at Mr O'Sullivan's home does not, in my view, indicate that the missing maternity file was ever held there. Having considered the accounts provided, I am not in a position to determine that the missing file was ever held by Mr O'Sullivan in his home or car. Accordingly, I accept Mr O'Sullivan's statement on this point.

Finally, given that the applicant has a serious complaint about the medical treatment she received at the Hospital (details of which were provided by the applicant), this Office enquired as to whether the circumstances were such that the facts of the case might have been brought to the attention of the Hospital's senior management, risk managers or legal advisors and whether the applicant's file might be held in any of those areas. In response, the HSE explained that all formal complaints are routed through the General Manager's Office and passed to the Complaints Office for logging and response but there is no record of a complaint from the applicant. The HSE confirmed that thorough searches were carried out in St. Luke's Hospital including the Complaints Office, the General Manager's office and the Clinical Risk Manager's office.

I appreciate that it must be a matter of extreme concern for the applicant that her personal medical records held by the HSE cannot be found at this time. Indeed, given that the records were relatively recent at the time the FOI request was made and given the procedures which the HSE has in place for handling maternity files, this Office is also disappointed that the records cannot be located. However, it is clear from the information set out above that the HSE has gone to considerable lengths to search for the missing records in question. The HSE confirmed that searches will continue for the applicant's medical file and should it be located it will notify the applicant immediately. However, this Office's review cannot continue indefinitely and having carefully considered the matter, it is my view that all reasonable steps have been taken to ascertain the whereabouts of the missing medical records. I find, therefore, that the HSE's decision was made in accordance with section 10(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

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

Stephen Rafferty
Senior Investigator
26 September 2012