Case number: 180231
19 December 2018
Following engagement with the HSE in relation to the wording of a request for information, the applicant submitted a reworded request to the HSE on 7 March 2018 for details of the number of incidents of misdiagnosis by hospital in 2017. Later that same day, she further clarified her request. She asked the HSE to include all incidents of missed diagnosis, where the patient presented but the illness was not correctly diagnosed. She stated that she wanted the details broken down by hospital but that grouping was fine in cases where there were less than five incidents. She also asked for the overall figure to be broken down according to the illness.
On 10 April 2018, the HSE refused the request under sections 29 and 30 of the FOI Act. The applicant sought an internal review of that decision on 9 May 2018. On 14 June 2018, the HSE affirmed its refusal of the information under sections 29 and 30 and also cited section 37 in support of refusal.
On 14 June 2018, the applicant sought a review by this Office of the HSE's decision. In conducting this review, I have had regard to the correspondence between the applicant and the HSE, to the correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the nature and content of the relevant records. I have decided to conclude the review by making a formal, binding decision on the matter.
The HSE provided this Office with copies of two records containing relevant information that was obtained from the National Incident Management System (NIMS). The first record contains misdiagnosis information in a tabular format relating to the acute hospitals for 2017, namely details of the hospital group (i.e. the region), the name of the hospital, the type of misdiagnosis under four named categories. The second record contains similar information but broken down by hospital group only.
In the case of four of the hospitals listed in the first record, the number of incidents of misdiagnosis recorded is five or greater. As the applicant stated in her request that details broken down by hospital group was fine in cases where there were less than five incidents, this review is concerned solely with whether the HSE was justified in refusing access to the information contained in the second record and to the information in the first record relating to the four hospitals where the number of recorded incidents was five or greater.
The HSE refused the request under sections 29, 30 and 37. During the course of the review, the HSE argued that section 15(1)(a) was also of relevance. This section allows for the refusal of a request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The general thrust of HSE's arguments in support of its refusal of the request relate to its concerns as to the accuracy of the relevant data.
The HSE provided the following explanation of the nature of the information at issue and why it considers that the information may not be accurate. NIMS is a national system that is hosted by the State Claims Agency (SCA) for the purpose of records being available to it in the event of a claim being taken against the State. The HSE and other public bodies are expected to report incidents via the system. The HSE is aware that there are variances between hospital reporting rates and that some hospitals use their own reporting system and may not report on NIMS. The HSE does not control the data.
The information at issue related to reported or alleged misdiagnoses as reported on NIMS by hospital staff. The code "misdiagnosis" also refers to missed diagnosis and delayed diagnosis. The HSE's capacity to verify the information in NIMS is severely restricted. Where an incident which was reported to NIMS subsequently is determined not to have been a misdiagnosis, it is not possible to rescind this on NIMS.
Some incidents may be deemed at local level to be Serious Reportable Events (SREs) which are escalated to an appropriate level and investigated, reported on and recommendations made to senior management. In addition, some incidents of potential misdiagnosis may not be picked up at the time, and may not be recorded on NIMS for the time they potentially happened. Not all cases of reported misdiagnoses as they appear on NIMS are deemed to be SREs. The term misdiagnosis as represented by the classifications of reporting on NIMS is broad and may refer to cases of false positives and false negatives.
In essence, the HSE argued that it holds no records of the accurate number of misdiagnoses by hospital for 2017 and as such, no relevant record exists. I disagree. The accuracy, or otherwise, of information contained in a record, is not relevant to the question of whether or not the record exists. The fact remains that the information in question is held by the HSE and as such, I find that section 15(1)(a) cannot apply.
Section 29(1) provides that a request may be refused if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office both that requirements have been met.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
In essence, the HSE's argument in support of its reliance on section 29 is that the information at issue is used by bodies such as the HSE, the SCA, and the National Director of Acute Operations for the purpose of investigation, review, performance review etc. and that the release of the information would interfere with the ongoing activity of formulating, considering, weighing up, advising, deciding, and making recommendations on issues.
I am not satisfied that the information at issue, i.e. the number of cases of misdiagnosis recorded on NIMS for a particular year, can reasonably be regarded as relating to the deliberative process of the HSE or the SCA. While I accept that such information may play a part in matters such as enabling the identification of incidents that might be appropriate for review or investigation or feeding into an evaluation of the performance of the hospitals concerned, the HSE has not, in my view, identified any particular deliberative process to which the information relates. In any event, it is noteworthy that section 29(1) does not apply to records if and in so far as it contains factual information (subsection 2(b) refers) or an analysis of the performance, efficiency or effectiveness of the functions of an FOI body (subsection 2(d)). I find, therefore, that section 29(1) does not apply.
I should add that even if I had found the record to contain matter relating to the deliberative processes of an FOI body, the question of whether release would be contrary to the public interest would remain to be considered. As I have outlined above the HSE's primary argument is that the information may not be accurate. It argued that releasing the information would provide an erroneous analysis of the performance, efficiency or effectiveness of the individual hospitals or the hospital groups due to the misleading nature of the numbers in the record.
This Office has previously found that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In Case 98078 - Mr Martin Wall and the Department of Health and Children, the then Commissioner considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
It is also noteworthy that under section 11(3) of the Act, an FOI body performing functions under the Act must have regard to, among other things, the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies. It seems to me, therefore, that the HSE has not satisfactorily shown that the release of the record would be contrary to the public interest.
Section 30(1)(a) provides for the refusal of a request if the FOI body considers that access to the records sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The HSE stated that some of the incidents recorded were the subject of review and investigation, some of which are ongoing. It argued that release of the information would prejudice the effectiveness of the ongoing reviews and/or investigations by appearing to conclude that the numbers were in fact proven to be misdiagnoses and would therefore warrant action before the actual investigative process had concluded and key decisions taken.
In essence, this is also an argument that the information in the record might be misinterpreted or misrepresented. As I have already explained and for the reasons outlined above, I do not accept that this is an appropriate ground for refusing a request. In any event, I fail to see how the misinterpretation or misrepresentation of the information could, of itself, prejudice the ongoing reviews or investigations or the procedures for conducting those reviews or investigations. I find that section 30(1)(a) does not apply.
Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a request if the body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). For section 30(1)(b) to apply, there must be a reasonable expectation that release of the records at issue could have a significant adverse effect on the performance of FOI body's management functions including industrial relations and staff management.
According to the HSE, release of the information would involve disclosure of the detail of individual incidents of alleged misdiagnosis and not confirmed incidents. It argued that release of the information could interfere with the integrity of the current management process by highlighting reported numbers rather than confirmed numbers. It argued that release could reasonably be expected to cause reluctance on the part of health professionals to engage fully and openly in reporting, which would impact on wider learning and change, and could adversely affect its ability to carry out its functions effectively with regard to the management of incidents and improvements in the quality of service delivery.
I do not accept that the release of the information at issue in this case could reasonably be expected to lead to health professionals engaging in any manner other than fully and openly in reporting incidences of misdiagnosis. I would expect that the professional competence and integrity of healthcare professionals is such that the release of this information, however inaccurate or unverifiable it may be, would not give rise to the harm envisaged. In the circumstances, I cannot accept that the release of this information could give rise to a significant adverse effect on the performance of the HSE's management functions. I find that section 30(1)(b) does not apply.
Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test and records relating to past, present or future negotiations may be protected under section 30(1)(c). However, previous decisions of this Office have found that FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.
The HSE stated that some of the reported incidents involved incidents that were under negotiation with the SCA on behalf of the Government and it argued that by releasing the information, the HSE will appear, in effect, to confirm that the misdiagnoses occurred and it could be viewed as pre-empting the future outcome of the negotiations. This, again, is an argument that the information at issue might be misinterpreted or misrepresented. For the same reasons as I have outlined above, I do not accept this argument. In any event, regardless of the fact that some of the recorded incidents were under negotiation, I do not accept that the release of the number of reported incidents would disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed for the purpose of those negotiations. I find that section 30(1)(c) does not apply.
Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the requester. I am satisfied that the release of details of the name of the hospitals that recorded five or more incidents of misdiagnosis in 2017 and the number of such incidents would not involve the disclosure of personal information relating to identifiable individuals. I find that section 37(1) does not apply.
In conclusion, therefore, I find that the HSE was not justified in refusing access to the information contained in the first record relating to those hospitals where the number of recorded incidents was five or greater and in refusing access to the second record containing the information broken down by hospital group only.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the HSE. I direct the release of the information contained in the first record relating to those hospitals where the number of recorded incidents was five or greater and of the entirety of the second record containing the information broken down by hospital group only.
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.