Case number: OIC-99416-G1S2Z5 9

Whether MMUH was justified in refusing to amend the applicant’s medical records under section 9 of the FOI Act on the ground that the applicant has not shown that the information is, on the balance of probabilities, incomplete, incorrect or misleading

17 December 2020

Background

In a request dated 5 February 2020, the applicant submitted an application under section 9 of the FOI Act for the removal of references to psychosis from her medical records, to be replaced with a diagnosis of sciatica.

MMUH refused to amend the records but said it had arranged for the section 9 application to be filed with the applicant’s paper and electronic medical records to let the record show her request for amendment, pursuant to section 9(4) of the Act. The applicant sought an internal review of the refusal of her application for amendment, following which MMUH affirmed its original decision. On 10 November 2020, the applicant sought a review by this Office of MMUH’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 correspondence between the applicant and MMUH as set out above, and to the correspondence between this Office and both the applicant and MMUH on the matter. I have also examined the records the applicant wants amended. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether MMUH was justified in refusing to make the amendments sought to applicant’s medical records.

Preliminary Matters

I wish to note at the outset that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review is confined to considering MMUH’s refusal of the application for amendment of the applicant’s medical records.

Having examined the applicant’s correspondence with this Office, it seems to me that her primary concerns relate to the manner of her treatment by her former GPs and the alleged transfer of her personal information to MMUH without her consent. This Office has no role in examining complaints concerning treatment she received while under the care of her GPs or the transfer of data between medical staff.

Analysis and Findings

Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by an FOI body. An applicant seeking amendment of records should show, first, that that the information at issue comprises personal information and, second, that the information is incomplete, incorrect or misleading. Section 9(2)(b) requires that an application for amendment "shall, in so far as is practicable ... include appropriate information in support of the application."

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 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.

This Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. In particular, it is not the role of this Office to investigate complaints about medical treatments or to consult with clinical experts in order to make findings in relation to, for example, whether or not an applicant does or does not have a particular medical condition. Our role does not extend to examining clinical judgement. Neither is it our role to conduct a comprehensive enquiry as to the accuracy or completeness of medical or other records. 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.

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.

Furthermore, 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. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

It is not in dispute that the records at issue contain personal information relating the applicant. In essence, the applicant’s argument is that the records contain an incorrect account of her medical history.

In her application to this Office for a review of MMUH’s decision, the applicant referred to a letter that was sent to the applicant’s then GP, which indicated that the applicant was reviewed by a named professor on 17 December 2014. The author of the letter, a named consultant psychiatrist, said the applicant was reviewed by the professor at the Hospital and that they felt that the applicant was likely to have a chronic psychotic illness. The applicant argued that she did not attend any such appointment, that she did not receive a referral letter in order to enable her to attend any such appointment and no other records relating to this appointment were released to her under a previous Data Protection request. She also noted that her current GP had removed the disputed medical condition from their records detailing her medical history.

In its submission to this Office, MMUH relied on that same letter in support of its view that the appointment did, indeed, take place. It argued that the applicant had failed to demonstrate that the information at issue is incomplete, incorrect, or misleading.

During the course of the review, the applicant was invited to make a submission in support of her argument that the records should be amended. She was also provided with an explanation of the role of this Office and its approach in relation to applications made under section 9 of the Act. In her submissions dated 1 December 2020, the applicant reiterated that she did not attend the appointment described in the records sought to be amended, and included comments of her recollection of medical appointments and allegations of wrongdoing by her former GPs. She stated that the condition was diagnosed in absence of any attendance by her at MMUH for such a condition, and that a different condition she had been diagnosed with was withheld from her by medical staff. She also included a letter from her daughter stating that they were visiting the applicant’s mother in another hospital on the date of the appointment described in the letter from MMUH to one of her previous GPs.

The letter to which the applicant referred, contains a detailed description of the applicant’s personal social history and of her mental state at the time following examination. It details discussions that took place with the applicant concerning, among other things, follow up support and medication, and a suggested course of medication for the applicant. In the circumstances, I find that the applicant has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading. As I have explained above, an applicant’s assertions, or assertions of third parties, alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. Accordingly, I find that MMUH was justified in refusing to amend the records in question.

For the benefit of the applicant, I would again draw her attention to the fact that MMUH has arranged for the application for amendment to be filed with the applicant’s paper and electronic medical records to let the record show her concerns on the matter. This, in itself, is quite significant as it alerts all future readers of the record that aspects of its contents are disputed by the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm MMUH’s decision to refuse the application made under section 9 of the Act for the amendment of her medical records on the ground that the applicant has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

Right of Appeal

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.

 

Stephen Rafferty

Senior Investigator