Case number: 050330
Case 050330. Request by a former patient for her own psychiatric records - whether disclosure to the requester might be prejudicial to her physical or mental health, well-being or emotional condition - section 28(3) - whether exercise of discretion to rely on section 28(3) warranted.
The requester sought access to her medical (including psychiatric) records from two hospitals during the period 1989 - 1996. The HSE refused access to the records and relied on section 28(3) for this decision. Section 28(3) provides that a public body may refuse to grant a request in the case of medical, psychiatric or social work records where, in the opinion of the head of the public body, disclosure of the information "might be prejudicial to his or her physical or mental health, well-being or emotional condition". However, as required by section 28(4), the HSE did offer access to the records to a relevant health professional should the requester choose to nominate such a professional.
The Commissioner found that, while the threshold for invoking section 28(3) is low ("might be prejudicial"), it is a matter for the discretion of the decision maker as to whether the exemption should be invoked. In this case the Commissioner found that, while the low section 28(3) threshold had been met, the exercise of the discretion provided for in section 28(3) was not warranted. The Commissioner reached this decision because of particular facts and circumstances applying in this particular case which she was in a position to take into account and which had not been taken into account - or were not available to be taken into account - by the HSE's decision maker. These facts and circumstances included:
The Commissioner annulled the HSE decision and directed the release of the records to the requester.
Our Reference: 050330
Dear Ms X
I refer to your application under the Freedom of Information (FOI) Act, for a review of the decision of the Health Service Executive (HSE) in response to your request for access to your medical records from [...] Hospital and [...] Hospital for the period 1989-1996. Please accept my apologies for the delay which has arisen in dealing with this case.
On 2 August 2005, you made a FOI request for your medical records for the years 1989-1996 from [...] Hospital and [...] Hospital. On 22 August 2005 the HSE issued an acknowledgement of this request. On 31 August 2005, in the absence of a decision, you sought an internal review on the basis of a deemed refusal. On 16 September 2005, the HSE notified you that your file in [...] Hospital was transferred to [...] Hospital in 1991, that it had located your file in [the latter] Hospital and that access was being denied under section 28(3)(a) of the FOI Act. The HSE also informed you that it was offering access through a health professional under section 28(4)(a). On 25 October 2005 you applied to my Office for a review of the HSE's decision.
In reviewing this case I have had regard to the following:
This review is concerned solely with the question of whether the HSE is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the 53 records it continues to withhold.
My role in conducting a review under section 34 of the FOI Act is to carry out a de novo review. The term "de novo" is defined as follows in Murdoch's Dictionary of Irish Law: "[Anew]. There is a hearing of a case de novo when an appeal is made to the Circuit Court to challenge an order of the District Court on the merits. All questions of law and fact are open to review and either party may call fresh evidence." That my review should be a de novo review is in accordance with the 1999 High Court judgment of Mr Justice Ó Caoimh in the case of The Minister for Education and Science v Information Commissioner. More recently, this position was accepted and elaborated on by Mr Justice Quirke in his recent judgment in the case of The National Maternity Hospital and The Information Commissioner where he (Mr Justice Quirke) noted: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]"
As will be made clear below, the circumstances pertaining now - at the point of giving my decision in this case - differ in some significant respects from those circumstances considered by the HSE when it gave its decision on 16 September 2005.
The HSE has relied on section 28(3) of the FOI Act as the basis for its refusal of your request. Section 28(3) provides that disclosure of medical, psychiatric or social work records may be refused if
"in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition."
Section 28(4) provides that, where the public body refuses access on these grounds, and where the requester so requests, access to the records will be given to a relevant health professional, specified by the requester. It is important to note that a decision to rely on section 28(3) is a decision to refuse the request for records.
At the time of its decision, the records sought dated from between 19 and 9 years earlier and, I understand, you had not had contact with the HSE's psychiatric service for almost a decade. This meant that at the time of its decision the HSE had no up to date knowledge of your state of health or of your circumstances more generally.
I summarise the HSE's arguments in favour of non-release as follows:
Having examined the records, and having regard to the relatively low threshold set by the wording "might be prejudicial", I can accept that disclosure of the records might be prejudicial to your physical or mental health, well-being or emotional condition. However, as this is a very low harm test, which could conceivably apply to a large number of requests, it is necessary to consider whether the exercise of the discretion to invoke this exemption is justified in this particular case.
I must start from the presumption, inherent in the FOI Act, in favour of release of records requested. This presumption is especially strong when the requester is seeking access to his or her own personal information. In general, my Office tends to take the approach that psychiatric records should not be released where section 28(3) has been invoked on the basis of a statement from a relevant health professional, with recent knowledge of the requester, and where no rebutting evidence is provided by the requester. This case is somewhat different as no statement by a health professional has been submitted as evidence by either party. Indeed, the HSE accepts that it is not in a position to take a view regarding your current state of mind. It is clear that the HSE, in this instance, is erring on the side of caution and that it sees its decision as a reflection of its duty of care to a former patient.
However, there are certain facts and circumstances which are available to me now, which were not available to the HSE when it took its decision, and which must now be taken into account for the purposes of my decision. These facts and circumstances include:
I note from your detailed submission of 17 February 2006 your comments on your perception of your experience with the psychiatric service during the years in question. It is clear that you have a deep-seated mistrust of psychiatry as you experienced it. You comment:
"My experiences with the practices of psychiatry and psychology in Ireland have been completely unpleasant, unproductive and traumatic. Ultimately, the treatments (some of them experimental) posed a threat to my psychological well-being. I do not wish to be subject to the counselling of people who engage in that kind of 'care' again. ... It would add insult to injury to be given access to this information via a psychiatrist or any third party."
It is not necessary, nor would it be appropriate, for me to comment on these views. However, I do believe that these comments form part of the wider set of circumstances to which I should have regard in deciding this case. One of the possible consequences, were I to affirm the decision of the HSE, might be to cause you to believe that you are not, in fact, capable of taking control of your own life; and this, undoubtedly, might well be a consequence at least as prejudicial as that which the HSE hoped to avoid by taking the decision it has taken.
Having given this case a great deal of consideration, and having regard to the additional information now available, I find that, while the release of the records might be prejudicial to your physical or mental health, well-being or emotional condition, there is not a sufficient basis to justify the application of the section 28(3) exemption. I make this finding very much on the basis of the specific circumstances of this case, as outlined above, but in particular because
Having carried out a review under Section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the HSE and I direct that the HSE grant full access to the records in question by way of the provision of copies of them.
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 of this letter.