Decision
Ms X and St. James's Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-156539-Y3N3S4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156539-Y3N3S4
Published on
Whether the Hospital was justified in refusing access to the applicant’s medical records under section 37(3) of the FOI Act on the ground that disclosure of the information may be prejudicial to her physical or mental health, well-being or emotional condition
In a request dated 29 August 2024, the applicant sought access to her medical records since August 2024, and in particular records from Psychiatry, the Emergency Department, and Social Work. After receiving no decision from the Hospital within the four-week timeframe provided in the Act, on 27 September 2024 the applicant sought internal review of her request. Again, the Hospital did not issue its internal review decision within the time prescribed in the Act and on 22 October 2024 the applicant applied to this Office for a review of the Hospital’s deemed refusal of her request.
On 5 November 2024, at the request of this Office, the Hospital wrote to the applicant outlining its position on her request. The Hospital refused the request under section 37(3) of the FOI Act as the applicant’s consultant psychiatrist deemed the release of the records may be prejudicial to her wellbeing. The Hospital offered to provide a mediated review of the record with the consultant and/or another named doctor which would involve meeting with the applicant to go through the medical records with her. On 14 February 2025, the applicant applied to this Office for a review of the Hospital’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 Hospital and the applicant. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Hospital was justified in refusing the applicant’s request for her medical records under section 37(3) of the FOI Act.
While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited.
Section 37(3)(a) of the FOI Act provides that a public body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. Where it refuses a request under subsection (3), it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).
This Office considers that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide how sensitive information should be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). It is noteworthy that the threshold for meeting the exemption in section 37(3) is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified. Nevertheless, this Office considers that where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the physical or mental health, well-being, or emotional condition of the requester as a result of direct access to the record in question.
It is not in dispute that the records at issue are of a medical or psychiatric nature relating to the applicant.
In its submissions to this Office, the Hospital stated that upon receiving the request, the Access to Information Office undertook the search process for the requested records. On identifying the records which fell within the scope of the request, it was noted that the clinical notes and records generated within the period covered by the applicant’s request were records generated as a result of the applicant’s attendance at the out-patient clinic of a named Consultant Psychiatrist.
The Hospital said that it is the process of the Access to Information Office that, where clinical records contain information relating to attendances at the psychological/psychiatry service, the treating Consultant is contacted for input into the decision-making process in relation to the suitability to release the records.
The Hospital stated that the named Consultant Psychiatrist advised that he did not approve the release of the identified records. The Hospital said it offered the applicant the opportunity to meet with either the Consultant Psychiatrist or another named doctor to explain the records to the applicant and to allow for any correction of factual errors. The Hospital said it was not aware of the applicant availing of this offer to meet with the clinical team to date.
In her submissions to this Office, the applicant said that she had received some of her medical records from her time in the Emergency Department via a separate FOI request and this release of records did not compromise her mental health. The applicant also provided a copy of records which she submitted in a separate case currently under review by this Office, which she said supports her view that the Hospital is incorrect in refusing her records under section 37(3). The records submitted by the applicant pre-date the records at issue in this review.
The Investigating Officer provided the applicant with an update outlining the Hospital’s submissions above. The applicant provided a background to her treatment at the Hospital and contends there is no good reason for refusing her request under section 37(3). She said she was unaware that the Hospital had offered her an opportunity to go through the records with the doctors in person. She said she would like the records to be sent to a health professional of her choice with expertise in the subject matter.
The Investigating Officer put the applicant’s points to the Hospital and asked it to expand on its position that the release of the records it identified may prejudice her physical or mental health, well-being or emotional condition. The Hospital responded to this by saying that the records identified in this request are different from the previous releases relating to the applicant’s attendances at the Emergency Department. The Hospital said the applicant has been under the care of the named Consultant Psychiatrist’s team since August 2024. It said that it is the Consultant Psychiatrist’s opinion that it could be emotionally distressing for the applicant to access the records directly, but the offer remains for her to meet with the Consultant to go through the relevant records. The Hospital also said that it would engage with the applicant in relation to her nominating a healthcare professional of her choosing with expertise in the subject matter of the records.
While I accept the applicant may have other records concerning her medical care and history, the question I must consider is whether the Hospital was justified under section 37(3) of the FOI Act in its decision to refuse the applicant access to the records at issue in this case. As noted above, I am limited in the reasons I can give for my decision in this case and of the description I can provide about the content of the records at issue. Having considered the submissions of both the Hospital and the applicant, I am satisfied that the Hospital was justified in refusing the records that are the subject of this review under section 37(3) of the Act.
While the Hospital initially said the Consultant Psychiatrist and/or another named doctor would be happy to meet the applicant to go through the requested medical records, it is important to note that the offer of access to an appropriate health professional, as provided under section 37(4) of the Act, applies automatically in any instance in which an FOI body relies on section 37(3). As noted above, the Hospital said it is happy to engage with the applicant in relation to her nominating a health professional of her choosing. Having found that the Hospital was justified in refusing the applicant’s request under section 37(3), I suggest that the applicant contact the Hospital if she wishes to nominate an appropriate health professional to access her records, or indeed if she wishes to avail of the Hospital’s initial offer to meet with its doctors to go through the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision to refuse the applicant’s request under section 37(3) of the FOI Act.
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.
Richard Crowley
Investigator