Case number: OIC-124732-C8H8G3
27 October 2022
In a request dated 26 January 2022, the applicant sought an amendment to her medical records relating to a visit to the Emergency Department (ED) of the University Hospital Limerick (UHL) in January 2020. Specifically, she sought the deletion of the terms ‘Psychiatrist’ and ‘PTSD’ from the record. She said she was not diagnosed with PTSD at the time or at any time before then, that the attendant doctor would not have been able to diagnose her, and that she was neither seen by, nor referred to, a psychiatrist.
In a decision dated 23 February 2022 the HSE refused the applicant’s request. It said that following consultation with the ED Consultant on call on the date in question, it decided that it was not appropriate to make amendments in this case. It said “the Emergency Department record represents a written record of the information conveyed to the doctor from the patient along with the findings on examination, results of investigation, diagnosis etc.”.
The applicant sought an internal review of that decision. She said she had been diagnosed with PTSD in June 2021 and not at any time before then. In its internal review decision dated 11 March 2022, the HSE affirmed its refusal to amend the record. On 9 June 2022, 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 the submissions made by the HSE in support of its decision. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in its decision to refuse to amend certain information in the record of the applicant’s visit to the ED of UHL in January 2020.
Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. 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.
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 the Commissioner that the record is, in fact, complete, correct and not misleading.
The record at issue is an ED Clinical Record on which the doctor who attended the applicant recorded notes of the consultation, including the terms “psychiatrist” and “PTSD”. In essence, the applicant’s argument is that the information in question is inaccurate and misleading as she did not see a psychiatrist during her visit in January 2020 and was not diagnosed with PTSD until June 2021.
In its initial submissions of 9 August 2022, the HSE said, amongst other things, that while its original decision took into consideration the applicant’s statements regarding not having received an official diagnosis of PTSD until a later date, it considered that the notes taken accurately reflected the doctor’s professional opinion based on the patient’s presentation on that day and findings on the examinations and tests carried out.
Following our examination of the record at issue, we sought additional information from the HSE in relation to the recording of the terms “psychiatrist” and “PTSD”, as we noted that both terms are located in a part of the record that appears to suggest that the terms were provided by applicant when providing her medical history, and not recorded by the doctor to represent his “professional opinion based on the patient’s presentation on that day and findings on the examinations and tests carried out”.
In response, the HSE said that the lead consultant in Emergency Medicine, who had previously discussed the matter with the relevant doctor, stated the following:
“the clinical notes usually represent a contemporaneous account of the patient’s complaint, medical background etc. as told to the relevant doctor at the time. [The doctor in question], who now longer works with us, did not have any specific recollections of this clinical encounter when I spoke to him in the past. As such, one has to presume such information was provided by the patient.”
We sought further clarification from the HSE as to its position on the matter given apparent inconsistencies in its submissions in respect of whether the terms were recorded as part of the applicant’s account of her medical history or as representing the doctor’s clinical opinion.
In response, the HSE said that it believed the patient conveyed that she was to see a psychiatrist for anxiety symptoms and PTSD and that the doctor documented this. It said its belief was supported by the fact that the patient did, in fact, go on to see a psychiatrist and was formally diagnosed with PTSD. It argued that the doctor could not have predicted this nor documented it without any information from the patient being provided at the time of attendance in the ED.
In response to our enquiries on whether she might have mentioned the terms during her visit, the applicant said she only discussed a traumatic event during her visit but there was no mention or references made about PTSD.
I accept that the applicant’s recollection of events is at odds with the HSE’s submissions. However, 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. Rather, we must have regard to the evidence actually provided by the applicant, to any rebutting evidence put forward by the FOI body and make a decision on that basis. The applicant’s assertions alone without supportive evidence will not suffice.
As I have outlined above, the information at issue is contained in a part of the record of the applicant’s attendance that contains details of the applicant’s medical history as was presumably provided by the applicant. Accordingly, I believe it is reasonable for the HSE to conclude that the information was provided by the applicant in the course of her consultation. I also believe that any reader of the record would reasonably come to that same conclusion, given the location of the information in the record.
I would add that the applicant’s argument that she had presented evidence to show that she had not formally been diagnosed with PTSD until some six months after her ED consultation is not relevant to the question of whether or not the record accurately describes what information she provided during the consultation. She may well believe that the record is incorrect on the ground that the records purports to show that she was diagnosed with PTSD at that time. However, I am satisfied that the record does not do so.
In the particular circumstances of this case, I am not satisfied that the applicant has shown, on the balance of probabilities, that that information she is seeking to have amended is incomplete, incorrect, or misleading. I appreciate that this finding will be very disappointing for the applicant. However, as I have indicated above, 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 does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.
In conclusion, therefore, I find that the HSE was justified in refusing to amend the record as requested on the ground that the applicant has not shown, on the balance of probabilities, that the information at issue is incomplete, incorrect, or misleading.
Having carried out a review under section 22 of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s request for amendment of her ED clinical records.
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.