Case number: 170535
21 March 2018
On 1 June 2017 the applicant submitted a request to the HSE for access to her medical records in respect of GP services she availed of involving several named GPs based in Wicklow and subsequently Cork. She listed a number of GPs and stated that she had availed of GP services as a dependent on the medical card of a named individual (Ms X) until she received a medical card in her own right in 2005. She stated she had been treated by Dr A in Wicklow from her birth in 1978 until 1994.
The HSE informed the applicant that her request would be dealt with by two different decision makers, one for the Wicklow area, and one for the Cork area. On 9 October 2017, the HSE refused the request for records concerning treatment she received in Wicklow from Dr A under section 15 (1)(a) of the FOI Act on the ground that no records could be found.
On 25 October 2017, the applicant sought an internal review of that decision. The HSE issued its internal review decision on 13 November 2017 in which it affirmed the original decision to refuse the request. On 15 November 2017, the applicant sought a review by this Office of the HSE's decision.
I am aware that the HSE also issued a decision in respect of records held by the specified Cork GPs. This review is not concerned with that decision. During the course of the review, Ms Hannon of this Office informed the applicant of the details of the HSE's submission outlining the searches undertaken in an effort to locate relevant records. The applicant indicated that she wished the review to proceed.
I have decided to conclude my review by way of binding decision. In carrying out the review, I have had regard to the correspondence between the HSE and the applicant as set out above and to the communications between this Office and both the applicant and the HSE on the matter.
This review is concerned solely with whether the HSE was justified in refusing access to the applicant's medical records concerning her treatment by Dr A under section 15(1)(a) of the FOI Act on the grounds they do not exist or cannot be found.
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in such a case is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In her correspondence with this Office, the applicant stated that she was treated by Dr A until she was 17, following which she lived abroad for a period. She stated that following her return in 2000, she moved to Cork where she availed of GP services. However, she stated that she also attended at the relevant health centres in Wicklow between 2000 and 2005.
In its submission to this Office, the HSE stated that Dr A's practice was taken over by Dr B on 18 October 2005. It stated that the practice was, at the time, run from three centres, the main one in a specified location in Wicklow with two satellite surgeries. It added that Dr B was given the General Medical Services (GMS) list from the Health Board (now HSE) and neither the applicant's name nor the name of Ms X were on the GMS list. It stated that all files pertaining to existing patients were retained with the only exceptions to this being patients who transferred to another doctor's list. In such cases, their medical files were transferred by post to the GP.
The HSE further stated that Dr A did not retain any files himself. It stated that multiple searches of paper files were undertaken which also included searches through individual files in case of misplacement/misfiling of records. It stated that all name spellings and variations were considered, to no avail. It also stated that it would not be the case that a child's medical files would be held in a parent's medical files. It stated that where a child is a dependent on a medical card, the child has the same medical card number but with a letter at the end to indicate a dependent.
While it is unfortunate that the HSE cannot locate the records sought, I am satisfied, having regard to the details of the searches conducted that it has carried out all reasonable searches to locate the records sought by the applicant. I note that the applicant provided this Office with further information concerning Ms X and the possible location of her medical file. However, given the HSE's statement regarding the separation of a child's medical file from that of a parent, I do not consider that the HSE should reasonably be expected to have conducted searches for the medical file of another individual with a view to determining whether the applicant 's file might be contained within it.
I accordingly find that the HSE was justified in deciding, under section 15(1)(a) of the FOI Act, that no relevant records can be found or exist after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision in this matter on the ground that no relevant records can be found or exist.
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.