Mr Z and the HSE

CourtInformation Commission
JudgeStephen Rafferty Senior Investigator
Judgment Date14 May 2015
Case OutcomeThe Senior Investigator found that the HSE was justified its decision to refuse access to the records sought by the applicant under section 10(1)(a) of the FOI Act. He affirmed the decision of the HSE.
Record Number150013
RespondentHSE Mid-Leinster
Whether the HSE was justified in its decision to refuse access to records relating to an assessment for palliative care on the basis that no records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken
Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

On 19 February 2014 the applicant submitted a request to the HSE for certain records relating to an assessment undertaken of his wife's suitability for palliative care. He explained that his wife was a patient in Beaumont Hospital, awaiting discharge to full-time residential care, and that she had been assessed by the HSE for suitability for transfer to HSE-funded palliative care in Our Lady's Hospice (the Hospice). Specifically, he sought access to the following records:

  • the criteria applied by the HSE generally in determining suitability for palliative care
  • the criteria applied by the HSE in determining his wife's suitability for palliative care
  • the medical report concerning his wife that was sought and received by the HSE as part of its assessment,
  • a copy of the assessment specifically conducted by the HSE to determine his wife's suitability for such care, and
  • a copy of the HSE's determination which sets out the criteria which the HSE concluded his wife did not meet for palliative care.

The HSE wrote to the applicant on 27 February 2014 stating that his request had been forwarded to the Hospice and the Hospice issued certain records to the applicant on foot of the request.

On 24 March 2014 the applicant wrote again to the HSE to clarify that he had requested relevant records held by the HSE and he stated that if the HSE's letter of 27 February 2014 constituted a decision that it held no records relating to his request, he wished to have an internal review of that decision undertaken. By letter dated 2 April 2014, the HSE informed the applicant that the assessment in question had been carried out by the Hospice and that it had transferred his request under section 7(3) of the FOI Act as it considered that the relevant records would be held by the Hospice. It further stated that the only records which it held within the scope of the applicant's review were two emails that had been released to the applicant by the Hospice following the transfer of the request.

However, in his letter of 29 April 2014, the applicant argued that the HSE was wrong to transfer the request as he considered that it did, indeed, hold relevant records. He requested the HSE to fully consider his request. While the HSE did not treat that letter as a new request, it replied to the applicant by letter dated 21 May 2014, wherein it stated that it had checked with relevant staff who had confirmed that they did not hold any relevant records and that the records were held by the Hospice. By letter dated 11 June 2014, the applicant indicated that he was taking the HSE's response as a refusal of his request and he applied for an internal review of that refusal. By letter dated 23 July 2014, the HSE reiterated its view that the request had been correctly transferred...

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