Mr C and Health Service Executive

JurisdictionIreland
JudgeSenior Investigator
Judgment Date25 June 2021
Case OutcomeThe Senior Investigator affirmed the decision of the HSE to refuse access to the medical records of the applicant's deceased aunt under section 37(1) of the FOI Act.
CourtInformation Commission
RespondentHealth Service Executive
Record NumberOIC-105425-F0N8M8
Whether the HSE was justified in refusing access to the medical records of the applicant’s deceased aunt under sections 35(1)(a) and 37(1) of the FOI Act

25 June 2021

Background

In a request dated 28 October 2020, the applicant sought access to all medical records in possession of a named hospital in relation to his aunt who died in September 2020. On 11 November the HSE wrote to the applicant and explained that there is no automatic right of access to the records of deceased persons. It explained that it would be considering various provisions of the act, including regulations that provide for the release of the records of deceased persons to certain categories of requester in certain circumstances. It provided details of documentation required to determine if the applicant was an appropriate person to whom the records might be released. It appears that the applicant had a telephone conversation with the HSE following receipt of that letter wherein he explained that we wanted to access the records for his personal perusal.

In a decision dated 14 December 2020, the HSE refused the request under sections 35(1)(a) and 37(1) of the FOI Act on the grounds that the records contained information given in confidence and contained personal information, including personal information relating to a deceased individual. It again provided details of documentation it required to determine if the applicant was an appropriate person to whom the records might be released.

On 17 December 2020, the applicant sought an internal review of the HSE’s decision, wherein he described himself as his late aunt’s next of kin. In its internal review decision of 20 January 2021, the HSE affirmed its refusal of the request. The internal reviewer referred to the relevant regulations that provide for the release of the records of deceased persons and determined that the public interest would not be better served by the release of the records. On 23 March 2021, the applicant sought a review by 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 conducting the review, I have had regard to correspondence between the applicant and the HSE as described above, and to the communications and correspondence between this Office and both the applicant and the HSE on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicant’s request for access to the medical records of his deceased aunt under sections 35(1)(a) and 37(1) of the FOI Act.

Analysis and Findings

Having regard to the nature of the information at issue, it appears to me that section 37 is of most relevance in this case. Accordingly, I will consider the applicability of section 37 in the first instance.

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information, including personal information relating to a deceased individual.

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, 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 the body as confidential. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including information relating to the medical history of the individual.

The records at issue comprise the medical records of the deceased. As such, I am satisfied that their release would involve the disclosure of personal information relating to the deceased and that section 37(1) applies.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2)(b) provides that section 37(1) does not apply if the individual to whom the information relates consents to its disclosure to the requester. The applicant provided a copy of an Advance Health Care Directive (AHCD) signed by his deceased aunt in 2014 in which she appointed the applicant and his mother as “co-agents” for all matters relating to her health care. He argued that the AHCD constituted consent from his deceased aunt to release her healthcare and medical records to him and to his mother, referring in particular to a paragraph in which his deceased aunt authorised him and his mother to “Request, review, and receive, to the extent I could do so individually, any information, verbal or written, regarding my physical or mental health, including, but not limited to, my individually identifiable health information or other medical records.”

Where a consent is provided to an FOI body, section 37(2) also provides that the FOI body must ensure that the consent of the individual is established to its satisfaction before the request is granted. The HSE was not satisfied that consent had been provided and argued that the AHCD provided only for the consent to medical treatment or withdrawal of treatment in situations where a patient became incapacitated. It seems to me that the purpose of an AHCD is to allow a nominated individual to make decisions on behalf of another individual about the type and nature of medical treatment to be provided to that individual. While this may require access to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT