Ms P and Health Service Executive [2024] IEIC 138672 (19 June 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

NOTE: Due to the significant amount of sensitive personal information contained in this decision and having regard to our obligations under section 25(3), we have redacted parts of this decision prior to publication in order to protect the identity and privacy rights of the individuals involved. The parties have been provided with a complete copy.

Whether the HSE was justified in refusing to amend, under section 9 of the FOI Act, information contained in a report that was prepared following a Systems Analysis Review relating to the applicant's daughter

19 June 2024

Background

The applicant's daughter tragically died following surgery in a HSE hospital. A Systems Analysis Review (SAR) was carried out to establish the facts relating to her clinical care including any deficits. [Redacted]

On 17 February 2023, the applicant sought a number of amendments to information contained within the SAR report, under section 9 of the FOI Act. In a decision dated 14 March 2023, the HSE refused her request on the ground that it did not consider the record to be 'held' by it for the purposes of the FOI Act and as such, that it did not have 'access' to the record within the meaning of section 9 and it was thus not in a position to make any amendments to the record. Notwithstanding that position, the HSE said it had considered each of the amendments sought and said that even if it was found to hold the record for the purposes of the Act, its decision would be to refuse the request on the basis that the information at issue was not "incomplete, incorrect or misleading" within the meaning of section 9. It said that to amend the SAR report would be to undermine its position as a record of what happened in the review process and would create an inaccurate impression about what occurred during that process. On 14 March 2023, the applicant sought an internal review of the HSE's decision. The HSE affirmed its decision on 5 April 2023. On 24 May 2023, the applicant applied to this Office for a review of the HSE'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 submissions made by the applicant and by the HSE, to the exchanges set out above, and to the communications between this Office and both parties in the course of the review. I have also examined the record at issue and the additional records submitted by the applicant in support of her application. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE numbered the amendments sought by the applicant as 1 to 26, and I have adopted this numbering for the purposes of this review. In the course of the review, an Investigator discussed the matter with the applicant's representative and noted that numbers 23, 24 and 25 were more akin to comments than pointing to specific information that the applicant considered incorrect/inaccurate/misleading. As such they were removed from the scope of the review. I also note that what was numbered as amendment number 2 appears to be a supporting argument in favour of amendment number 1; and what was numbered as amendment number 7, is a supporting argument in favour of amendment number 6. As such, I have not found it necessary to give any further consideration to amendments 2 and 7.

Accordingly, this review is concerned with:

(i) whether the HSE was justified in refusing the application to amend certain parts of the SAR report on the ground that it does not hold the report for the purposes of the FOI Act, and

(ii) if it is deemed to hold the report, whether it was justified in refusing amendments 1, 3 to 6, 8 to 22 and 26, details of which are set out in the table below.

[Redacted]

Analysis and Findings

Is the SAR report held by the HSE for the purposes of the FOI Act?

Section 9 provides for the potential amendment of personal information in a record 'held by an FOI body'. The HSE's primary argument in this case is that it does not hold the SAR report for the purposes of section 9 of the FOI Act. In its submissions to this Office, it said that the right to amend records cannot empower a hospital to alter a SAR report, created independently of it, where doing so would disregard the independence of the authors of that report process. It said that while the hospital has the record in its possession, it does not have the power to amend it. It said that the record is a final report prepared by a review team that was independent of the hospital, following a specific process, under which evidence was gathered and considered leading to certain conclusions.

The HSE said that the SAR report was prepared in accordance with the terms set out in the Incident Management Framework 2018 (IMF). It said that: "The IMF's process exists to ensure that a review team is independent, and to avoid any risk of interference by the Hospital in the report's findings. Those terms in the IMF do not permit the Hospital to amend the report in a way which cuts across those processes and procedures by inserting itself into the process, undermining the role of the review team, abrogating the linkages between information actually considered and findings actually made by the review team, and potentially thereby undermining the fairness of those procedures and the processes themselves". It said that its position was that it cannot amend the record in the manner sought and that it therefore does not have 'access' to the record, within the meaning of section 9 in the circumstances of this case.

While the FOI Act does not define "held", this Office accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. The Supreme Court considered the meaning of "held" for the purposes of the FOI Act 1997 inMinister for Health v Information Commissioner [2019] IESC 40 (commonly known as the Drogheda Review case). In that case, the Court found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record. Section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997. I see no reason why the Supreme Court's findings on "held" should be limited to section 11(1) and find that they are equally applicable to section 9(1) which provides for the potential amendment of personal information in a record "held" by an FOI body.

The HSE has not disputed that it is in lawful possession of the SAR report in connection with, or for the purposes of, its business or functions. Rather, it seems to me that its position is that does not have 'access' to the report, which is the third limb of the test set out in the Drogheda Review case. In that case, the Department of Health had in its possession a sealed box containing records that had been provided to it with the stipulation that it could not be opened without a court order. The Supreme Court accepted that in the circumstances of the case, the Department did not have a right of access to the records at issue and that they were therefore not held by the Department.

In this case, the circumstances are very different. The HSE clearly has access to the record in the ordinary sense of the word in that it can open the report and read it and, presumably, act on the recommendations made. Its arguments in relation to access to the record are centred around the appropriateness, or not, of amending a report of an independent review team and the risk of the hospital being perceived to interfere with the report's findings. It seems to me that these arguments and the status of the report, and its purpose, should be more properly considered in the substantive question of whether the record contains personal information that is incomplete, incorrect or misleading, and, if so, the appropriate form of amendment that should be made. I find that the three elements of the test set out in the Drogheda Review case have been met, and that HSE does, indeed, hold the record for the purposes of the FOI Act, including for the purposes of section 9.

Section 9: Amendment of records relating to personal information

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 (Sections 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 the 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 HSE does not dispute that the applicant has standing to seek the amendment of her daughter's personal information.

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 incomplete, incorrect or misleading. The information concerned must be personal information within the meaning of the FOI Act. The amendment of a record under section 9 may be made in the following ways: (a) by altering it (b) by adding a statement, or (c) by deleting the information.

The Act is silent on the question of where the onus of proof lies in section 9 cases. 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 as to 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 "the 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.

This Office does not consider its role, arising from section 9, as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and make a decision on that basis. 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.

It is not the role of this Office to investigate complaints about the manner in which records such as professional reports were created, or to consult with relevant experts in order to make findings on applications for the amendment of such records. The role of this Office does not extend to examining the professional judgment of a body or its staff in the creation of records. Neither is it our role to conduct a comprehensive enquiry as to the accuracy or completeness of records. Rather, as noted above, we must have regard to the evidence actually provided by the applicant, as well as to any rebutting evidence put forward by the FOI body, in order to make a decision on that basis.

Directing the amendment of information in a record held by an FOI body, as sought by the applicant in her initial request, is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. This Office takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts, or with the way the contents of a record explain subsequent actions and decisions of public bodies.

It is also important to note that, with certain limited exceptions, in cases where a section 9 application is refused, the FOI Act requires the FOI body to attach to the record concerned the application for amendment, a copy of the application or a note indicating that it 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.

Is the information at issue 'personal information'?

For a potential right of amendment under section 9 to exist, the information concerned must be personal information within the meaning of the FOI Act. Personal information is defined in section 2 of the Act as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.

In its submissions, the HSE said that the SAR report was not a record of medical treatment but that it did include personal information relating to the applicant's daughter, namely information relating to her medical history. However, it said that a number of the requested amendments sought by the applicant did not relate to such personal information, specifically amendments 4, 5, 8, 11 to 16 and 20 to 22.

I fully accept that the SAR report, whose purpose was to establish the facts relating to the clinical care of the applicant's daughter, can reasonably be described as a report about her daughter. Moreover, I accept, as a general proposition, that all of the information in the report relates to her daughter's care. However, this does not, of itself, mean that all of the information contained in the report is personal information and is amenable to amendment under section 9. The information must be about the individual to be regarded as personal information for the purposes of the FOI Act.

Accordingly, I have considered each of the amendments sought with a view to ascertaining whether the information at issue comprises, in and of itself, personal information relating to the applicant's daughter. Having done so, I find that, for the reasons set out below, the information that is the subject of amendments 5, 11, 12, 16, and 21 is not personal information relating to the applicant's daughter.

Amendment 5 is a request for the amendment of the identity of the individual who signed a multidisciplinary team meeting report. While I accept that the applicant may believe this to be an important consideration in relation to her daughter's clinical care, I am satisfied that it is not personal information for the purposes of section 9. Rather, it is information concerning the identity of the signatory of a report.

At amendment 11, the applicant said that the coroner was advised of her daughter's death by a named consultant and not by the ICU Registrar as stated in the SAR report. I am satisfied that the description of the identity of the person who contacted the coroner is not personal information relating to the applicant's daughter.

Amendment 12 is a request to amend information in the report which states that a team external to the hospital was selected to carry out the review. The applicant's argument is that one member of the team was not external and was the lead for quality and safety in the hospital. In my view, the question of whether or not the team could reasonably be described as external is not personal information relating to the applicant's daughter.

At amendment 16, the applicant argued that a statement to the effect that the clinical leadership was unaware of [redacted] was incorrect. Whether the leadership was aware of [redacted] or not is not, in my view, personal information relating to the applicant's daughter.

Amendment 21 concerns the applicant's argument that the Terms of Reference contained within the SAR report is an earlier version than the one she was subsequently given. While she highlighted specific differences in the opening paragraph and a difference in the expected time-frame for the completion of the review, it appears her argument is that the report is incomplete, incorrect or misleading by the inclusion of the earlier version, as opposed to an argument that specific personal information contained within the terms of reference included in the report is incomplete, incorrect or misleading. While it does appear that the report contains an earlier version of the terms of reference than the version that was subsequently provided to the applicant, it is not apparent to me that this, of itself, comprises personal information that is amenable to amendment under section 9.

In summary, therefore, I find that the HSE was justified in refusing to make amendments 5, 11, 12, 16, and 21 on the ground that the information at issue is not personal information relating to the applicant's daughter. On the other hand, I am satisfied that the information captured by amendments 4, 8, 13, 14, 15, 20, and 22 is personal information and falls to be considered for amendment.

Is the personal information incomplete, incorrect or misleading?

The HSE first made some general submissions on the application to amend the record under section 9. It said that the record is a report prepared by a review team, setting out the facts and evidence gathered and considered by a review team reviewing an incident in relation to patient care, in order to make findings and recommendations. It said that it is the evidence of the process which was actually followed by the review team, the information that was considered by that team and conclusions were made based on that information, as set out in the report. It said that the IMF requires clear linkages between the analysis, the findings and any recommendations that are made, and that any amendment to the report would undermine those linkages. It said that the IMF includes a process for dealing with inaccuracies prior to finalisation.

The HSE said that the record is not incomplete, in that it is a record of what was in fact (HSE's emphasis) considered and what conclusions were reached. It said that it was not incorrect or misleading, in that it records what conclusions were reached and the basis on which those conclusions were reached by the review team. It said that the SAR is not the record of a treatment of a patient, it is instead a process of learning to identify systems weaknesses and improve the delivery of healthcare. It said that the report "records what took place during the review, and amending it in the manner sought would create an incorrect or misleading picture of what took place during the review, and undermine its position".

The HSE said that the SAR is a closed process and it must protect its integrity as well as the independence of the review team. It said that it cannot be appropriate to rely on section 9 to seek to re-open a closed process in this way outside of the parameters established for it.

It seems to me that the HSE is essentially making the case that because of the nature of the record at issue, it cannot be subject to potential amendment under section 9, regardless of whether or not the applicant meets the standard of proof necessary to show that it contains personal information that is incomplete, incorrect or misleading. While I appreciate the importance of the SAR process and protecting its integrity, the FOI Act nonetheless provides for the amendment of records held by an FOI body in certain circumstances and there is no blanket exception from this provision of the FOI Act for specified types of records e.g. medical records. The FOI body must examine each individual application for amendment on its merits and with regard to the supporting evidence provided. Nevertheless, it seems to me that the HSE's arguments are of more relevance where the question of what form an amendment might take is being considered. I will address this issue later in this decision. I will now proceed to examine each of the amendments requested in turn.

Amendments 1 and 3

The applicant sought the amendment of [redacted] .

I am not satisfied that the applicant has shown, on the balance of probabilities, that the references to [redacted] are incomplete, incorrect or misleading and I find that the HSE was justified in refusing these requests for amendment.

Amendment 4

On page 14 of the SAR report, it states: "An NCHD [redacted] requested CT [redacted] ". It states that the CT was performed on [redacted] . The applicant said it was an A&E (Accident and Emergency) consultant who requested this CT, and not an NCHD (Non Consultant Hospital Doctor). In support of this assertion, she provided, at appendix 2, a copy of a medical imaging report dated [redacted] . The report states: "Requesting Physician: (NAME), Cons (ED)". (ED: Emergency Department).

The Investigator specifically asked the HSE to comment on this, noting that it appeared to her from the CT report that it was ordered by the A&E consultant. In response, the HSE said it was not possible or appropriate to comment on why the Review Team concluded as it did on matters of evidence outside of what is contained in the SAR report itself. It said that it was the role of the Review Team to consider the evidence in this learning process and to make findings resulting in the SAR report, and not the role of the Hospital as the FOI body. It said that the Hospital was being invited to put itself into the shoes and role of the Review Team which is completely at odds with the Incident Management Framework and the SAR process, and the procedures in place within those processes to ensure fair procedures. It said that if the Hospital were to do this, it would risk undermining the IMF/SAR process, the SAR report and breaching the fair procedure rights of the persons who participated in it. It said that this would amount to re-opening the SAR process which has been closed since the Report was accepted by the commissioner. It made no specific comment on the evidence put forward by the applicant in support of her contention that the CT was requested by the A&E consultant.

As discussed above, it appears that the HSE is making arguments against any kind of amendment to the SAR report under section 9, as an overall point of principle, rather than with reference to the specific amendment sought or the supporting evidence provided in its favour. The information the applicant is seeking to have amended is a statement of purported fact. Either the CT was requested by the NCHD or it was not. The evidence presented by the applicant suggests that it was requested by the A&E consultant and the HSE has not offered any evidence or even comment to rebut the evidence submitted by the applicant i.e. the contemporaneous medical imaging report. The report indicates that the CT was requested by a named ED/A&E consultant. On this basis, I am satisfied, on the balance of probabilities, that the sentence on page 14 of the SAR report that states that the CT abdomen/pelvis was requested by an NCHD is incorrect. I find that the HSE was not justified in refusing this request for amendment.

Amendment 6

On page 19 of the SAR report, it states: [redacted] . The applicant stated that this is incorrect. In support of this, she stated that [redacted] .

I note the HSE's position that the SAR is not the record of a treatment of a patient, rather it is instead a process of learning to identify systems weaknesses and improve the delivery of healthcare, and I accept this position. In this context, it seems to me that pages 14 to 21 of the SAR report, which set out the chronology of events, [redacted] , is a summary of the events and does not purport to provide a complete and fully comprehensive account of what occurred. While the applicant may not be satisfied with the level of detail in parts of the report (and this issue arises in other requests for amendment that will be addressed further down), that doesn't in and of itself render the information incorrect, incomplete or misleading, particularly when the purpose for which the record was created is taken into consideration.

[Redacted]

Overall, I am not satisfied that sufficient evidence has been provided to meet the necessary burden of proof to establish that [redacted] are incomplete, incorrect or misleading and I find that the HSE was justified in refusing this request for amendment.

Amendment 8

Page 19 of the SAR report forms part of the chronology of events referenced above. The entry under the time 18:00 on [redacted] states "[redacted] contacted the Consultant [redacted] ". The applicant said [redacted] was not contacted at 18:00 and that he had said in his statement that he was contacted at 19:40. In support of this, she submitted [redacted] statement that was prepared at the request of the Coroner (appendix 7). The statement says "On [redacted] at 19:40pm, I was contacted with regard to [redacted] ".

It is important here to take into account the way in which the chronology is structured. There are a number of items, including this contacting of the [redacted] , listed under 18.00 and then the next event is listed from 19:02. It seems to me that this reflects that the contact with the [redacted] occurred between 18:00 and 19:02, rather than it necessarily being at 18:00 precisely. Notwithstanding that, I acknowledge that this timing is still potentially in conflict with the consultant [redacted]'s own statement. However, in assessing whether the evidential burden has been met to conclude that the time on the SAR report is incorrect or misleading, I must give weight to the fact that the statement was given to the Coroner [redacted] months after the events that occurred, and while it may be based on contemporaneous notes made by the consultant [redacted] , those notes are not before me. It also seems to me that it is possible that what is meant by 'contacted' in the two documents may not be the same thing. Moreover, and a key issue, in my view, is that there are two apparently conflicting statements at issue and no independent corroborating evidence has been submitted to support either statement. Accordingly, I consider that it would not be appropriate for me to conclude that the information being challenged is, on the balance of probabilities, incomplete, incorrect or misleading. I find that the HSE was justified in refusing this request for amendment.

Amendments 9, 10 and 20

I have looked at these three amendments together, as they are inter-related.

[Redacted]

Personal information in a record is not incomplete merely because the record does not contain all the information an applicant might want 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 or why the record was created. I refer to my earlier comments in relation to amendment 6, with regard to the purpose of the report and the level of detail contained within it: the SAR report is prepared to capture a process of learning to identify weaknesses in systems and make recommendations to improve future care, rather than to record in exhaustive detail the care of the patient in question.

[Redacted]

Having carefully examined the supporting evidence provided by the applicant, while I accept that it provides more detailed information than what is included in the SAR report, it does not, in my view, meet the burden of proof in terms of establishing that the chronology provided on page 20 of the report is incorrect, incomplete or misleading. Rather, it is simply described at a higher level and in less detail, in the context of a report whose purpose is to capture learning and identify weaknesses in the system, rather than to act as a complete healthcare record. For these reasons, I find that the HSE was justified in refusing these three requests for amendment.

Amendment 13

[redacted]

No supporting evidence was provided by the applicant. It seems to me that, as with amendment 12 above, this can be characterised as a matter of differing interpretations. [redacted] While the applicant may disagree with how it has been described, this is not sufficient for me to conclude, on the balance of probabilities, that this information is incorrect, incomplete or misleading. Once again, I am faced with two apparently conflicting statements at issue and no independent corroborating evidence has been submitted to support either statement. I find that the HSE was justified in refusing this request for amendment.

Amendment 14

In the SAR report, the review team raised concerns about [redacted] .

The applicant stated that these statements are incorrect. In support she referred to the attendance sheet for this meeting (appendix 10) and pointed to a named doctor signed in on this attendance sheet who she said was a surgeon. [redacted] .

Again, it seems to me that this comes down to a matter of interpretation, in this case being the definition of what constitutes a surgeon for the purposes of the SAR review. I find that the HSE was justified in refusing this request for amendment.

Amendment 15

On page 26 of the SAR report, it states "Surgeon 1 had [redacted] ." The applicant state that the surgeon did not [redacted] .

In support of this, she submitted a letter [redacted] .

The HSE, in response to this, said that information or evidence gathered after the review process has closed, cannot impact the information gathered and conclusions reached by the review team at an earlier date. This does not address the question as to whether or not information contained in a record held by the HSE is incorrect, incomplete or misleading.

The information in the SAR report is a statement of purported fact. Given the level of detail contained in the hospital's letter, and the steps that it said it took to look for relevant records, and all within the context of [redacted] , it seems to me that the applicant has provided quite compelling evidence that the statement on page 26 of the report is, at a minimum, misleading. I accept that a reasonable reading of the relevant statement in the report would lead a person to conclude that [redacted] . On this basis, I am satisfied, on the balance of probabilities, that the sentence on page 26 of the SAR report that states [redacted] is misleading. It seems to me that the statement should more accurately have stated that [redacted] . I find that the HSE was not justified in refusing this request for amendment.

Amendment 17

On pages 2 and 13 of the SAR report, is states that [redacted]. The applicant's position is that this is incorrect. In support of this, she referred to page 20 of the report which states that: [redacted]. She also referred to [redacted].

It seems to me that the statements about [redacted] on pages 2 and 13 of the report are in the context of high level summaries of the events that occurred, while the reference to [redacted] on page 20 is contained within a slightly more detailed chronology of events. [Redacted] .

It seems to me that this may be a matter of clinical opinion; the authors of the SAR report do not explain exactly what they mean by [redacted] and it is not the role of this Office to consult with clinical experts in order to make findings on applications for amendment of medical records. Overall, I am not satisfied that sufficient evidence has been provided to meet the necessary burden of proof to establish that, on the balance of probabilities, the relevant statements on pages 2 and 13 are incomplete, incorrect or misleading. I find that the HSE was justified in refusing this request for amendment.

Amendment 18

On page 20 of the SAR report it states [redacted] . The applicant said that this is incorrect. In support of this, she referred to a nursing note (appendix 16) which states [redacted] and to two anaesthetic notes (appendices 17 and 18) which she said confirmed the nursing notes.

[Redacted]

Based on the available evidence, it is not possible, in my view, to reach a conclusion that, on the balance of probabilities, the statement on page 20 of the SAR report is incorrect, incomplete or misleading. In these circumstances, I find that the HSE was justified in refusing this request for amendment.

Amendment 19

[Redacted] . She described this as a gross omission. I take it from this that the applicant's position is that the information contained in the SAR report is incomplete. In support of this, she referred to [redacted] .

As I have outlined previously, for the purposes of section 9 of the FOI Act, personal information in a record is not incomplete merely because the record does not contain all the information which the applicant wants it to contain. The Commissioner 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 and why the record was created. 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.

As mentioned previously, it seems to me that the SAR report was prepared to capture a process of learning to identify weaknesses in systems and make recommendations to improve future care. While it necessarily contains a relatively detailed account of the patient in question's medical history and her treatment by the Hospital, in the context of identifying systems failures that contributed to her death, it seems to me that it is the role of her wider medical records, and not this report to provide the comprehensive account of all medical and surgical issues that arose in the course of her treatment, including, in this instance [redacted] .

For these reasons, I am not satisfied that it has been established, on the balance of probabilities, that the record is incomplete by not containing a specific reference to [redacted]. I find that the HSE was justified in refusing this request for amendment.

Amendment 22

Appendix 3 of the SAR report contains a letter written from the surgeon to the applicant's daughter's GP in [redacted] . The applicant stated that this letter "should not form part of an "independent" HSE SAR investigation".

While the applicant might disagree with the decision to include this letter as an appendix, no evidence has been put forward to demonstrate that it is incomplete, incorrect or misleading. Whether or not it was appropriate for this letter to be included in the SAR report is not a matter for this Office to determine. In these circumstances, I am not satisfied that it has been established, on the balance of probabilities, that the record is incomplete, incorrect or misleading by including this letter as an appendix. I find that the HSE was justified in refusing this request for amendment.

Amendment 26

The applicant stated that pages 2 and 23 of the SAR report contradict each other.

[redacted] . The applicant referred to the autopsy report (appendix 24) and the coroner's report (appendix 25) in support of this. Both the autopsy and coroner's report gives the cause of death as [redacted] .

On page 23 of the report it refers to the definition of Key Causal Factors in the HSE framework 2018 as 'issues that arise in the process of delivering and managing health services, which the Investigation Team consider had an effect on the eventual harm'. It seems to me that this is distinct from the cause of death, as determined at post-mortem and by the coroner. The reference to the key causal factor on page 2 of the SAR report appears within the Executive Summary. The reference on page 23 is in the context of the Analysis and Findings of the review team. By necessity, information contained in an Executive Summary is less detailed than what follows in the main body of a report and it seems to me that the information at pages 2 and 23 do not contradict each other, but rather one gives more detail than the other.

I am not satisfied that it has been established, on the balance of probabilities, that the information contained on pages 2 and/or 23 is incomplete, incorrect or misleading. I find that the HSE was justified in refusing to this request for amendment.

Method of Amendment

Having accepted that the applicant has met the evidential bar in respect of two of her requests for amendment (amendments 4 and 15), the next question to determine is the appropriate method of amendment in respect of the information at issue. Given the nature of the SAR, the purpose for which it was commissioned, and the manner in which it was carried out, it seems to me that altering the SAR report or deleting information from it would not be appropriate.

Rather, it seems to me, a statement should be added to the SAR report, in accordance with section 9(1)(b).

I direct that the following statement should be added to the SAR report:

[Redacted]
[Redacted]

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I find that the HSE was justified in refusing the requests for amendment numbered 1, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22 and 26. However, I annul its decision in respect of amendments 4 and 15 and direct that a statement should be added to the SAR report, as set out above.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms P and Health Service Executive [2024] IEIC 138672 (19 June 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/138672.html Cite as: [2024] IEIC 138672

Irish Information Commissioner's Decisions

Ms P and Health Service Executive

Background

Scope of Review

Analysis and Findings

Is the SAR report held by the HSE for the purposes of the FOI Act?

Section 9: Amendment of records relating to personal information

Is the information at issue 'personal information'?

Is the personal information incomplete, incorrect or misleading?

Method of Amendment

Decision

Right of Appeal