Case number: 020220
Case 020220. Application to have personal information contained in medical records held by Cork University Hospital amended - section 17
In 1994 the applicant was treated at the A&E Department of Cork University Hospital for a wound in his thigh. The hospital records of the treatment contained references to the wound having been "..? .. self inflicted.."or "self inflicted".
In July 2001 the applicant applied to the Southern Health Board (the Board) under section 17 to have references in the above records as to the source of the stab wound amended; the references convey that the wound was self-inflicted whereas the applicant contended that the wound was inflicted by a third party.
The initial decision of the Board, given in October 2001, was that it was prepared to add an amendment to the hospital file the effect of which was to delete the term "self" from the reference "self-inflicted". The Board subsequently clarified that this amendment would be by way of addition to the record and would not involve the deletion of any part of the original record. This decision was upheld by the Board at internal review. The applicant applied to this Information Commissioner for a review of this decision.
The Commissioner found in the case of one of the records in question that it should be amended by the deletion of the words "self inflicted" from that record. In the case of a second record he found that, while no deletion or alteration of the text of the record was necessary, a statement should be attached to that record, the effect of which would be to delete the term "self" from the record
Our Reference: 020220
Dear Mr X,
I refer to your application for a review by my Office, under the Freedom of Information (FOI Act), 1997, of the decision taken by the Southern Health Board (the Board) on your application for amendment of personal information held by the Board in relation to you. The personal information concerned is contained in your medical records held by Cork University Hospital.
I regret the delay which has arisen in dealing with your review application.
Following an application to the Board under the FOI Act, you were given access to your medical file. Your medical file contains records relating to the treatment you received in early June 1994 at the A&E Department of Cork University Hospital for a wound in your left thigh. The reference numbers assigned by the Board to these records are 302 to 308 and for reasons of clarity I am adopting the Board's numbering system in this review. Records 302 and 307 include references to the wound having been "..? .. self inflicted.." and "self inflicted", respectively.
On 20 July 2001 you applied to the Board in relation to records 302 and 307 and asked the Board to "change" the references in those records to the source of the stab wound; the references convey that the wound was self-inflicted whereas you contend that the wound was inflicted by a third party. The Board took this to be an application by you under section 17 of the FOI Act which provides for the amendment of records relating to personal information.
The initial decision of the Board, given on 5 October 2001, was that it was prepared to add an amendment to the hospital file the effect of which was to delete the term "self" from the reference "Self inflicted stab laceration lat aspect of left thigh" in record 302; the decision appears not to deal at all with record 307. The Board subsequently clarified that this amendment would be by way of addition to the record and would not involve the deletion of any part of the original record. This decision was upheld by the Board at internal review and on 31 January 2002 you applied to this Office for a review of the Board's decision.
Mr L. Dunne, of this Office, wrote to the you on 14 June 2002 setting out his preliminary views on the case and inviting you to respond to these views. I note you subsequently met with Mr Dunne and his colleague Ms. Byrne on 24 June 2002 and gave an oral response to the preliminary views. In carrying out my review, I have taken account of all the submissions, statements and documentary evidence provided both by yourself and by the Board. I have also had regard to the provisions of the FOI Act.
The sole issue arising in this review is whether the Board is justified, in terms of the FOI Act, in refusing to alter the records along the lines proposed by you, i.e. by deleting the reference to the wound having been self-inflicted.
Section 17 of the FOI Act provides that
"Where personal information in a record held by a public body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, ... by the individual to whom the information relates, amend the record —
(i) by altering it so as to make the information complete or`correct or not misleading, as may be appropriate,
(ii) by adding to the record a statement specifying the respects`in which the body is satisfied that the information is`incomplete, incorrect or misleading, as may be appropriate, or
(iii) by deleting the information from it."
I am satisfied that records 302 and 307 constitute personal information in relation to you and that, accordingly, section 17 of the FOI Act may be invoked in relation to this personal information. The Board has not at any stage disputed that the opinions expressed in the records do constitute personal information in relation to you. Accordingly, it is not necessary to consider this aspect further.
The relevant piece in record 302 reads: "Exploration of self inflicted stab laceration lat aspect of (L) thigh". In the context in which it is given, it appears as a statement of fact that the stab wound was self-inflicted.
In my decision in Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioner) - a copy of which was forwarded to you by Mr. Dunne - I set out the grounds on which an application under section 17 might succeed. In that decision I gave my views with regard to deleting a record in accordance with Section 17. I stated that, while it is possible under the FOI Act that records or part of a record may be deleted, the test to be met to warrant such action is stringent. I found that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of "the balance of probabilities". I also found in that case that "deletion of information from a record...is not something to be taken lightly, given its implications for the evidentiary value of the record concerned" and that it appears to me that "deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect".
In support of your application you submitted to the Board a letter from your sister Ms. Y. In her letter Ms. Y stated "that the injury sustained in June 1994 by the above, [your name and address appears at the top of the statement], was not a self inflicted wound". I also note that Ms. Y, in an interview with Mr. Gerry O'Dwyer, (Deputy General Manger, Cork University Hospital), stated that the wound was not self inflicted. I find that, even though Ms. Y was not actually an eye-witness to the stabbing, she was in a position to have first-hand knowledge of the incident.
The Board did contact a staff member who was on duty the night you were treated in the A&E Department but, unfortunately, that person (and not unreasonably so) had no recollection of your admission some eight years ago. The Board accepts that in record 307 (see below) the medical personnel merely queried whether the wound was self-inflicted.
I note also, from your interview with staff of my Office, that you accept there were other occasions on which you did injure yourself and you are not seeking to have any records relating to those incidents amended. You also made the point at that interview that you wanted these particular records (302 and 307) amended so that, in future, any treating medical professional would not be misled into believing that you had inflicted a stab wound on yourself.
I note that record 302 is dated 8 June 1994 and relates to the exploration by medical staff of the laceration suffered by you. Record 307, however, is dated 7 June 1994 and relates to your admission to Accident and Emergency. It could be argued with some justification that, what was a query in the mind of medical staff on your admission on 7 June, wrongly became a fact subsequently.
I find on the balance of probabilities that the information recorded in record 302 is incorrect and misleading. I also find that without the deletion of the incorrect information from these records there is the potential for a significant adverse effect on you in that reliance on incorrect information could impact on future medical treatment.
The relevant piece in record 307 reads: "? method ? self inflicted". It is clear that this does not purport to be a statement of fact. Rather, as I understand it, it records a query in the mind of the treating medical personnel as to the cause of the wound suffered by you. From information you have given to my Office in relation to your medical condition and history, it seems to me that it was legitimate and reasonable for the medical personnel to query how the wound was incurred. I expect you will accept that the medical personnel acted reasonably in raising this query.
As set out above in relation to record 302, I take the view that on the balance of probabilities it was incorrect to conclude that the wound was self-inflicted. However, I do not believe that this warrants the deletion of any material from record 307. The Board has argued that there are inherent difficulties in altering contemporaneous medical notes, particularly in relation to the evidential value of such notes. I accept that this argument, while not excluding the prospect of altering a medical record, does have considerable merit. What the relevant piece of record 307 does is to show that, at the time of treating you, the medical personnel did query the manner in which the wound occurred and by whom it was inflicted. To alter the record now would mean no record would remain of what was in the mind of the medical personnel at that time. Given that the piece at issue does not purport to be a statement of fact, I find that the correct approach is to add to the record a statement which sets out the manner in which it is incorrect or misleading; the statement already decided upon by the Board in its initial decision serves this purpose.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby annul the decision of the Board on your request of 20 July 2001. In place of that decision, I hereby decide that
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 that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.