Whether the Hospital was justified in refusing to grant an application made under section 9 of the FOI Act for the amendment of certain information relating to the applicant’s late partner contained in a referral letter from a consultant of the Hospital to another hospital
10 November 2021
Note: This decision was appealed to the High Court in December 2021
On 17 January 2020, the applicant sought the amendment of certain information contained in a number of her late partner’s medical records concerning his alleged history of alcohol consumption and dependency. She argued that the assertions in the records of his history of excess alcohol consumption and alcohol dependency are false and without foundation. For the sake of clarity and consistency, I will refer to the applicant’s late partner as the patient throughout this decision.
On 4 February 2020, the Hospital issued its decision in which it refused the application for amendment on the ground that the information was obtained from the patient in confidence during several consultations and that the application did not include appropriate information in support of the application. It stated, however, that a copy of the application would be added to the patient’s medical records as required under section 9(4)(a)(i) of the FOI Act.
On 3 March 2020, the applicant sought an internal review of that decision. She argued that the Hospital’s assertion that the relevant information was obtained during several consultations was incorrect. She identified one record, a clinical note dated 10 September 2014, which contained information obtained during a consultation. She argued that that clinical note was contradicted by all other clinical notes on the medical file which outlined the number of units of alcohol her late partner had consumed in the period before he abstained from alcohol.
On 25 August 2020, the applicant made a submission to the Hospital in support of her request. She stated her view that a referral letter from the Hospital to another hospital dated 18 March 2015 contained misleading and inaccurate information about the patient’s alcohol consumption. The applicant identified the aforementioned clinical note of 10 September 2014 as the possible source of the inaccurate information. She explained that she was made aware of the inaccurate information in the course of an inquest into the patient’s death. She stated that the verdict of the inquest was that cause of death was not related to excess alcohol consumption.
On 11 September 2020, the Hospital wrote to the applicant affirming its original decision, following which the applicant sought a review by this Office of that decision. Upon examination of the relevant decision making records by this Office, it was apparent that the internal reviewer was not a more senior member of staff than the original decision-maker. As a result, the Hospital issued a new internal review decision on 22 October 2020, in which it also affirmed its original decision. On 4 November 2020, the applicant sought a review by this Office of the Hospital’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the correspondence between the Hospital and the applicant as outlined above and to correspondence between this Office and both the Hospital and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
During the course of the review, the applicant made detailed submissions to this Office. In those submissions, she clarified that the only record she was seeking to have amended was the referral letter dated 18 March 2015 from the Hospital to another hospital.
This review is concerned solely with whether the Hospital was justified in its decision to refuse the application for amendment of information in a referral letter from the Hospital to another hospital dated 18 March 2015 concerning the patient’s alcohol consumption.
Analysis & Findings
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 letter at issue is a referral letter dated 18 March 2015 from a consultant of the Hospital to a consultant at another hospital requesting a liver transplant evaluation for the patient. In the consultant’s letter, wherein she provided details of the patient’s medical history, she referred to liver complications that were “contributed to by a history of alcohol consumption of 40 units per week for 15 years when he was a younger man”. This is the information that the applicant considers should be amended.
In her submission to this Office, the applicant set out the background to her application to have the record at issue amended. She explained that in a deposition by a particular doctor at the inquest into the patient’s death, the information at issue that was contained in the consultant’s letter was relied upon in order to retrospectively attribute the patient’s cirrhosis to a history of excess alcohol consumption. She said that on hearing evidence, the Coroner directed that the sentences in the doctor’s deposition relating to a history of excess alcohol consumption be struck from the deposition and she essentially recorded the cause of death as unrelated to excess alcohol consumption.
In essence, the applicant’s argument is that the information about the patient’s history of alcohol consumption was “cherrypicked” from a letter prepared by a different doctor at the Hospital following a consultation that took place with that doctor in the Hospital on 10 September 2014. She argued that the patient’s other healthcare records contain varying information concerning his alcohol consumption. She argued that for the information in the record at issue to be complete, correct, and not misleading, the consultant should have either reflected the fact that there was varying information available to her or she should have checked with the patient before she wrote her referral letter.
The applicant argued that it is clear from the consultant’s clinical note of the only direct consultation she had with the patient on 28 January 2015 before she wrote the referral letter that he gave her different information. She noted that the clinical note from that consultation notes “- 20 u/wk.” She argued that this indicates that the patient told the consultant that before he became abstinent, he consumed less than 20 units of alcohol per week. She argued that this is consistent with what the patient is recorded as having told another doctor during his first visit to the Hepatology Unit on the 13th August 2014 when that doctor wrote in her clinical note “12-20 unit /week past,” “currently infrequently” and that in a letter to the patient’s GP dated 14th August 2014, that doctor stated that the patient’s history of alcohol consumption was 12 to 20 units a week and that since the progression of his symptoms he had been abstinent.
The applicant further argued that the consultant had other contrary information available to her on the patient’s healthcare record, including;
• A clinical note dated 2 February 2015 of a third doctor who was involved in his care and treatment, namely “before occ. 14 u” and “off June”; and
• the letter of referral from the patient’s GP, which told the consultant that the patient had no history of excess alcohol and that his mother also had cirrhosis and that the patient’s mother never drank.
In summary, the applicant argued that the consultant, in her letter of the 18th March 2015, omitted all the information available to her about the patient’s history of alcohol consumption, except the information recorded by the doctor from one Hepatology Clinic attendance by the patient on the 10 September 2014. She argued that the consultant did not qualify the information about the patient’s history of alcohol consumption in any way to reflect the fact that she had information available to her on his healthcare records that contradicted the information about him having a history of alcohol consumption of 40 units a week for 15 years as a younger man.
In its submission to this Office, the Hospital said that on receiving the application for amendment, the treating consultant reviewed the application and did not agree that the record should be amended based on the application. It said the clinical notes were contemporaneously taken/recorded during the patient’s attendances and that the records repeatedly refer to alcohol consumption in the past. It said the patient provided the information and there is no evidence that he did not make those statements.
For the purposes of considering whether the applicant has shown, on the balance of probabilities, that the information at issue is incorrect, incomplete, or misleading, it is important to have regard to the context in which the information has been recorded in the record. The purpose of the consultant’s letter was to seek to refer the patient to another hospital for evaluation and she included in her letter what she regarded as relevant background information concerning the patient’s medical condition. She attributed the cause of the patient’s cirrhosis to “fatty liver disease as a consequence of NIDDM and contributed to by a history of alcohol consumption of 40 units per week for 15 years when he was a younger man.” In essence, the information at issue comprises the consultant’s opinion that the patient’s past alcohol consumption was a contributory factor to his condition and the information concerning alcohol consumption levels was apparently provided by the patient.
This Office is satisfied that the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. However, we do not consider that the Act permits the decision maker or the Commissioner to substitute a different opinion for the one in respect of which the application for amendment is made. Moreover, we take the view that we would not be justified in directing that an FOI body amend its records on the sole basis of contrary statements or opinions - however strongly held - by the person seeking the amendment.
While it is very difficult, if not impossible, to present an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading", we would expect an applicant to satisfy us that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon.
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 on applications for the amendment of medical records. 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 a letter to the Hospital, the applicant argued the possibility that the clinical note of 10 September 2014 upon which the referral letter was based contained incorrect information about the patient’s alcohol consumption as a result of miscommunication between the patient and the treating doctor. Clearly, I am not in a position to categorically determine what either the patient or the doctor said at any point during the consultation, nor am I required to do so.
In any event, this Office does not consider that medical notes must contain a word for word account of what was said between medical staff and patient, but rather that they are intended to contain an overall summary of the relevant consultation, treatment etc. It is important to note that personal information in a record is not incomplete merely because the record does not contain all the information which an applicant might like it to contain. We take the view that the word incomplete in section 9 is used in the sense of imperfect or defective or lacking certain requisite items or details. In deciding whether the information can be so described, regard has to be had to the purpose for which the information is held. There are inherent difficulties in altering contemporaneous medical notes. The evidential value of the record and the extent (if any) to which any decisions or other actions would be potentially affected by the information in the original record are also relevant concerns.
It seems to me that the question I must consider is whether the consultant’s opinion concerning the contribution of the patient’s past alcohol consumption to his medical condition, as expressed in the record at issue, is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon
As the Hospital outlined in its submission to this Office during the course of the review, the information at issue in this case was provided by the patient and the notes were contemporaneously taken/recorded during the patient’s attendances. While there are inconsistencies in respect of the recording of the amount of alcohol consumed, the applicant did not dispute that the information concerning his consumption as set out in the record at issue was provided by the patient. I also note that in her original application of 1 January 2020 to the Hospital in which she sought to have the patient’s records amended, the applicant referred to a number of other records in which reference was made to the patient’s alcohol consumption and that included comments such as “Previous alcohol excess”, “History of alcohol excess”, “Liver cirrhosis to alcohol dependency – off alcohol since June 2014”, and “previous history of alcohol excess”. As such, it seems to me that the consultant’s opinion cannot be said to be flawed by reason of the total inadequacy of the factual information underlying it. Moreover, no argument has been made that the opinion is flawed because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, nor has the applicant identified any particular factor that renders the opinion dangerous to rely upon.
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. Moreover, it seems to me that the apparent inconsistencies in the applicant’s medical records concerning the patient’s alcohol consumption will be obvious to any reader of the medical records. The reader will also be aware of the applicant’s position on the matter having regard to the fact that the Hospital has appended a copy of the application for amendment to the records.
In conclusion, therefore, I find that the Hospital 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 Hospital’s decision to refuse the applicant’s application for amendment of personal information relating to the patient.
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.