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Ms X and the Health Service Executive (FOI Act 2014)

Case Number: 160023

Whether the HSE was justified, pursuant to section 9 of the FOI Act, in its decision to refuse to amend a medical record relating to the applicant in the manner she requested

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review is concerned with a decision taken by the HSE in relation to an application for the amendment of a medical report relating to the applicant. Previously, the applicant had sought a review by this Office of a decision taken by the HSE in relation to her application to amend two records relating to her medical treatment at a particular hospital in January 2013 (Case No. 140039 refers). This Office subsequently issued a decision on 13 February 2015 directing the HSE to make two specific amendments to the records. During the course of that review the applicant sought access to a copy of an ultrasound scan that was performed by her treating doctor (Dr. Y) on 8 January 2013 and a copy of the accompanying computerised report.

In response, the HSE provided the applicant with a report relating to the scan that was performed on the date in question. The applicant sought clarification as to why the report had not been included in the notes previously released to her. In a letter dated 30 April 2014, the relevant Hospital Manager explained that the report did not previously form part of the applicant's medical records. She explained that following receipt of the applicant's request, she noted there was no print out of the particular scan and she arranged for the scan to be retrieved from the scanner machine. She also confirmed that the note that forms part of the report was added under the supervision of Dr. Y on 26 March 2014. It is this report that is the subject of the application for amendment in this review

On 11 June 2015, the applicant sought to have the record amended by way of deletion, as she contended that it contained incorrect, incomplete or misleading information. On 10 July 2015, the HSE stated that it had decided to grant her request to amend the record by adding two clarifying statements to it. On 21 July 2015, the applicant sought an internal review of the HSE's decision. The HSE failed to provide a decision on internal review within the time-frame specified in the FOI Act. On 11 September 2015, the applicant sought a review by this Office of the deemed refusal of her application.

Following correspondence with this Office, the HSE wrote to the applicant on 14 October 2015 outlining its position in relation to her request. It stated that it was upholding its original decision on the basis of the evidentiary value of the record concerned. On 12 January 2016, the applicant informed this Office that she required a review of the HSE's effective decision.
In conducting this review I have had regard to the correspondence between the applicant and the HSE in relation to the request and to correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the decision which this Office issued on 13 February 2015 in Case No. 140039.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse to amend the record in the manner sought by the applicant.

Preliminary Matter

I would like to draw the HSE's attention to section 9(5) of the FOI Act, which requires FOI bodies to take all reasonable steps to give notice of the making of amendments to a record under section 9 within a year from the date of the amendments being made to the following:

(a) any person to whom access to the record was granted under the the FOI Act, and
(b) any other FOI body to whom a copy of the record was given.

 

Analysis and Findings

Section 9 of the FOI Act provides that where personal information in a record held by an FOI body is incomplete, incorrect or misleading, an individual can make an application to the FOI body to have the record amended:

"(a) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
(b) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or
(c) by deleting the information from it."

Deletion of the Record
The applicant's preferred method of amendment of the record at issue is for the entire record to be deleted. While she has identified specific information in the record which she believes to be incomplete, incorrect or misleading, she also argues that the entire record is misleading. Among other things, she argues that the record should not have been created in the first place and that HSE record management guidelines were not adhered to in the creation of the record. She also argues that it was unethical for Dr. Y to add a record to her medical records in circumstances where he is the subject of a complaint concerning misdiagnosis.

The HSE has confirmed that the record at issue was not created in line with its own policy on the retrospective creation of medical records. In response to queries from this Office, it stated that the FOI officer who arranged for the notes to be created "was unaware of the implications" arising from their creation. In essence, the HSE's position is that the record at issue was created in order to provide as much information as possible to the applicant.

The HSE stated that its refusal to delete the record in its entirety was made on the basis of legal advice. It said that, in particular, it was advised that section 9 of the FOI Act does not appear to envisage the deletion of records in their entirety, rather that the section envisages the amendment of records. If the HSE is arguing that an entire record can never be deleted on foot of an application under section 9, then I disagree. It seems to me entirely possible that a record might comprise entirely of incomplete, incorrect or misleading personal information relating to an individual and that in such a case, the most appropriate course of action may be to delete the entire record. Nevertheless, it is important to note that this Office considers that the deletion of information from a record, let alone the entire record, on foot of an application under section 9 is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. In any event, it is clear that the applicant is not arguing that all of the information in the record is incomplete, incorrect or misleading. I note, for example, that she was prepared to accept the deletion of the report while leaving the ultrasound image at the end of the document.
In essence, the applicant's argument is that the mere existence of the record is misleading when read together with her medical notes as it should never have been created. While I can understand the applicant's strong concerns and her frustration with the creation of the record given its contents, I am of the view that deletion of the entire record would not be appropriate in the particular circumstances of this case. It seems to me that the record does, indeed, have a certain evidentiary value. At a minimum, it is evidence of the manner in which the HSE responded to the applicant's queries as to why there was no copy of the scan performed on 8 January 2013 in her medical notes. In any event, and subject to my comments below, I do not consider that the applicant has satisfactorily shown that the mere existence of the record in her medical notes is misleading. I would add that this Office has no role in considering the appropriateness, or otherwise, of the circumstances surrounding the creation of the record. Accordingly, I find that the HSE was justified in refusing to delete the record in its entirety.

Information in The Record at Issue
The record at issue comprises a single page containing an ultrasound image and accompanying notes under various headings. The applicant argues that the following information contained in the record is incomplete, incorrect or misleading:

  • Exam Date: 08.01.2013
  • Diagnosis: Pregnancy of unknown location likely to be Ectopic Pregnancy
  • History: Last period: 01.12.2012. Gestational age: 5 weeks + 3 days
  • Early Pregnancy Assessment: Transvaginal US with GE Voluson E8. Ultrasound view: good. Gestational Sac: absent. Yolk sac: absent. Amniotic Sac: absent. Embryo absent. Fetal heart action absent.
  • Summary of ultrasound findings: suspected ectopic pregnancy.
  • Diagnosis: Pregnancy of unknown location likely to be Ectopic Pregnancy. Options discussed, patient counselled, Methotrexate agreed to.
  • Operator: Dr [Y], Dr [Z], Dr [W]

 

The role of this Office in reviewing decisions taken on foot of applications for amendment under section 9 is not to conduct our own comprehensive enquiry as to the accuracy of completeness of records held by an FOI body. Rather, it is to have regard to the evidence actually provided by the applicant and to any rebutting evidence put forward by the FOI body and to make a decision on that basis. In requiring the 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 this Office to conclude that the information in a record is incomplete, incorrect or misleading will cause the record to remain undisturbed; but this does not carry any judgement on the part of this Office that the record is, in fact, complete, correct and not misleading. I will address each piece of information the applicant considers to be incomplete, incorrect or misleading separately below.

Exam Date and Diagnosis
In her application to the HSE the applicant argued that the only date on the report is 8 January 2013 and that this is misleading as the record was created on 26 March 2014. She also argued that the recorded diagnosis, "Pregnancy of unknown location likely to be Ectopic Pregnancy", is incorrect. In its decision of 10 July 2015, the HSE agreed to make the following amendments to the record:

  • By adding to the record the following statement "An FOI request dated 11 June 2015 was received from the patient, Ms [X] and on consideration of same, it was accepted and decided on 10 July 2015 that that the information contained in this record was incomplete, incorrect or misleading insofar as the only date appearing on the report was 8 January 2013, the date of the ultrasound examination, whereas it ought to specify that the ultrasound report itself was retrospectively created on 26 March 2014."
  • By adding to the record the following statement: "An FOI request dated 11 June 2015 was received from the patient, Ms [X] and on consideration of same, it was accepted and decided on 10 July 2015 that the phrase "pregnancy of an unknown location" contained in the record was incomplete, incorrect or misleading in circumstances where this did not reflect the contents of Ms [X's] contemporaneous medical records and that the phrase "pregnancy of an unknown location" in this record should be considered to be stricken through."

In my view, the HSE's proposal to add a statement to indicate that the record was created on 26 March 2014 removes any ambiguity about the date of its creation and as such, I see no grounds for finding that the exam date should be further amended.

On the matter of the diagnosis, this Office considered a related matter in Case No. 140039. In that case, the applicant sought the amendment of the statement "A diagnosis of pregnancy of unknown location was made" that was contained in a letter from a Consultant Obstetrician/Gynaecologist who had treated her. Having considered the evidence presented, this Office directed that the statement should be struck through and replaced with the statement "A diagnosis of a likely ectopic pregnancy was made". It seems to me that the statement that the HSE has now agreed to add to the record at issue in this case is consistent with the earlier decision of this Office. By making the amendment proposed, a reader of the record will note that the diagnosis stated is "likely to be Ectopic Pregnancy". The applicant has not presented sufficient evidence to suggest that the determination in case No. 140039 was incorrect. Accordingly, I see no grounds for finding that the diagnosis should be amended further.

History
The applicant objected to the comments "Last period: 01.12.2012" and "Gestational age: 5 weeks + 3 days" as she stated that her contemporaneous medical record dated 7 January 2013 completed by Dr Y states "unsure of LMP [last menstrual period]". Accordingly, she contended that the LMP date is inaccurate and the gestational age is also inaccurate as it is calculated based on an inaccurate LMP date. In response, the HSE noted that the applicant's chart, completed on 6 January 2013, recorded her LMP as "end of November 2012". In the circumstances it has suggested adding a note to indicate that there was uncertainty in relation to both the LMP date and gestational age. The note suggested indicates that the applicant maintains that the gestational age is inaccurate as it is based on an inaccurate LMP date. In my view this is not sufficient. If the HSE accepts the information to be incorrect, it must amend the record so as to make it correct. I am satisfied, on balance, that the statement that the LMP was 01.12.2012 is incorrect, in so far as it states the date definitively whereas the medical record is not so definitive. Accordingly, I direct the HSE to add the following statement to the record:

"An FOI request dated 11 June 2015 was received from the patient, Ms [X] and on consideration of same, it has been accepted by the HSE that that there was uncertainty in relation to the date of Ms [X]'s LMP and the gestational age set out in this report."

Early Pregnancy Assessment
The applicant argued that the comments under this heading were entered with the benefit of hindsight and did not match the notes recorded by a junior doctor who was present at the time of the examination. The HSE contended that the Early Pregnancy Assessment reflects contemporaneous records including the Antenatal Record Entry made by the doctor on 8 January 2013 and a log book entry of the same date. The HSE argued that the notes clearly state that no Fetal Pole or sac were found on the scan. Having examined the relevant records, I am not satisfied that the applicant has provided sufficient evidence to satisfy this Office that the information in question is incomplete, incorrect or misleading. Accordingly, I see no grounds for finding that the comments should be amended.

Summary of Ultrasound findings
The record contains the statement "suspected ectopic pregnancy" under the heading "Summary of ultrasound findings". The applicant argued that the word "suspected" was never used in relation to the diagnosis of ectopic pregnancy in her time at the hospital and has provided a copy of a statement from her husband as evidence to support this. As with the amendment sought above in respect of the diagnosis, this issue was addressed in Case No. 140039. In that case, this Office did not accept that the evidence submitted was sufficient to find that a definitive diagnosis of ectopic pregnancy was made and that this should be reflected in the record. The applicant has not presented sufficient evidence in this case to suggest that the use of the word suspected was incorrect. Accordingly, I see no grounds for finding that the statement should be amended.

Diagnosis
The applicant argued that the statement "Options discussed, patient counselled, methotrexate agreed to" does not make sense in terms of an inconclusive diagnosis of ectopic pregnancy. She contended that this treatment would not apply other than in the case of a diagnosis of ectopic pregnancy, which she says she was given. The HSE argued that this diagnosis is consistent with the contents of the letter dated 29 January 2013 from the Consultant to Dr John Coulter. I note that this letter is dated two weeks after the scan and would not necessarily reflect the situation or diagnosis on 8 January 2013. However, the Antenatal record sheet dated 8 January 2013 provided by the HSE states "counselled re mtx - agreeable to same". In any event, whether or not the diagnosis or treatment was appropriate in the circumstances of the applicant's medical needs is not within the remit of this review. Accordingly, I see no grounds for finding that the statement should be amended.

Operator
The applicant contended that the fact that three names are recorded as operator is misleading as Dr Y was, in fact, the operator and the other two doctors were merely present at the scan. She also claimed that this implies that all three doctors agreed with the diagnosis and the specific items she has identified as inaccurate or misleading. The HSE has informed this Office that it is common practice in the Early Pregnancy Assessment Unit to enter all of the attending doctors' names as operator of the scan. I have no reason to doubt this and the applicant has not disputed that the doctors listed were present at the time of the scan. Accordingly, I see no grounds for finding that the information should be amended.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the HSE's original decision. I affirm its decision to add statements to the record in relation to the Date and Diagnosis sections. I direct it to add the following statement in relation to the comments under the heading "History".

"An FOI request dated 11 June 2015 was received from the patient, Ms [X] and on consideration of same, it has been accepted by the HSE that that there was uncertainty in relation to the date of Ms [X]'s LMP and the gestational age set out in this report."

I affirm its decision to refuse to amend the remainder of the record at issue.

 

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