BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Case Case 090088. Whether the HSE is justified in its decision to refuse a request for access to the medical records of the Applicant's late mother made under section 7 of the FOI Act on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Case Summary

The Senior Investigator found that the HSE is justified in its decision under section 10(1)(a) of the FOI Act to refuse access to additional records on the basis the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Date of Decision: 19.11.2009

Review Application to Information Commissioner under the Freedom of Information (FOI) Acts 1997 & 2003

Background:

The Applicant wrote to St. Colmcille's Hospital (the Hospital) on 15 September 2008 seeking access to:

1. her late mother's medical records;
2. the Hospital's infection control policy for Clostridium Difficile otherwise known as C Diff;
3. the Hospital's antibiotic policy;
4. the medical plan for her late mother while she was in hospital;
5. the nursing plan for her late mother while she was in hospital.

The Hospital granted access to the items numbered 2, 3 and 5 above in its decision of 5 November 2008 and said that the medical plan, (item number 4) would be released to the Applicant when the consultant returned from leave. The decision refused access to further medical records until the completion of the Coroner's enquiry into the cause of death of the Applicant's late mother. The Applicant wrote to the Consumer Affairs Area Officer in the HSE requesting an internal review of the decision on 13 November 2008. The HSE released the medical records in its decision of 3 December 2008 but it appears the HSE regarded the request as an original FOI request and not an internal review request as it advised the Applicant of her right to an internal review by a more senior staff member. In any event, the Applicant wrote to this Office on 19 March 2009 seeking a review of the HSE decision.

I note that Ms Alison McCulloch, Investigator of this Office, wrote to the Applicant on 23 June 2009 setting out her preliminary views on this case and that a response was received on 15 July 2009. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the HSE as well as those of the Applicant (including those made to the HSE). I have also had regard to additional information and clarification provided by the HSE at the request of this Office and to the provisions of the FOI Acts.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of Review

In the course of this review, the Applicant requested further records which included hospital statistics and documents relating to the workings of the Infection Control Committee. As these records were not included in the original request dated 15 September 2009, they are outside the scope of this review. The Applicant has been told that it is open to her to make a new FOI application for access to these records.

I note that copies of the Applicant's late mother's x-rays were released on 22 May 2009 and that the HSE released further copies of reports on 11 June 2009 as clear copies of a number of the laboratory reports and clinical records had not been provided. According to the Applicant's letter of 29 May 2009, the remaining missing records are the Kardex for the period 7 - 29 July 2008, certain x-rays and radiologists' reports. Therefore, this review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to these additional records on the basis that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

Submissions

.

Findings

Preliminary Matters

The Applicant has commented on the manner in which the records were released to her, she said they were "released "on the drip" they were illegible and uncollated with 2006 and 2007 records being intermingled with 2008 records." She also commented on the failure of the HSE to provide a schedule which would have enabled the matter to be dealt with in a logical, timely and efficient manner. I agree that schedules of records should be provided as a matter of course for the very reasons stated by the Applicant. When this was put to the HSE, it said that a schedule was not prepared at the outset as all the requested records were released and to prepare a schedule at that stage would be very time consuming at a time when the Hospital was very busy. As explained to the Applicant, under the FOI Act there is no onus on a public body to provide a schedule of records. However, it is normally considered to be best practice to prepare a schedule when a large number of records are at issue.

Analysis and Findings

It is the view of the Applicant that each x-ray should have a corresponding radiologist report and, on that basis, one x-ray and a number of radiologist reports are missing. She also queried the dates of the x-rays. This was put to the HSE by this Office, who provided a report which was sent to the Applicant on 11 June 2009. According to the HSE, two x-rays were incorporated into one report on 5 June 2008; an x-ray performed on 29 July 2008 was incorrectly registered on the radiology information system as taken on 28 July 2009 and the US date configuration was used on the x-ray films.

In her submission of 15 July, the Applicant said that she was aware the some samples were sent outside the Hospital for analyses and asked if she had received all the laboratory reports. She also requested all interim laboratory reports for all the final reports which were released and records pertaining to the treatment of her late mother by means of a proton pump. The HSE replied that samples were sent to St Vincent's Hospital but that these reports were released to the Applicant. It also said interim results are from samples initially analysed but awaiting further growth of bacteria or sensitivity, which allows for an interim report to be issued and the commencement of treatment. According to the HSE, after a number of days, a final report is issued on the same sample which overrides the interim report on the computer system and the HSE is therefore unable to produce interim reports. Regarding the proton pump, it said that all information regarding its use is recorded on the kardex card only and as the kardex card is missing this information is unavailable.

Section 10(1)(a)

The HSE relied on section 10(1)(a) of the FOI Act to refuse access to the kardex card for the period 7 - 29 July 2008.

Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". The Commissioner's role in section 10(1)(a) cases, which are usually referred to as "search" cases, is to decide whether the decision maker has had regard to all of the relevant evidence and to assess the adequacy of the searches conducted by the public body in the circumstances of the particular case. The Applicant has been advised that the Commissioner's approach in search cases was upheld in a judgment of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA).

The HSE has provided the following information on record keeping practices and the searches carried out for the missing drug kardex:

• The HSE's guidelines, practice, procedures and arrangements in relation to storage, archiving, retention and destruction of records is included in the ‘National Hospitals Office Code of Practice for Healthcare Records Management' which was published in October 2007.
• The following areas were searched thoroughly on several occasions during the months of September and October 2008 and the Healthcare Records Manager and the Deputy Hospital Manager will continue to search the departments listed below:

a. Medical Records Department
b. Dr. Fennell's Office
c. Lourdes Ward and adjoining rooms
d. Doctors Residence
e. H.I.P.E Office
f. Filing Rooms in the Hospital Attics
g. Mortuary
h. E.C.G. Department
i. Pathologist’s Office
j. Laboratory.

• Hospital Charts for all in-patients in Lourdes Ward and, in particular, in-patient charts under the care of Dr. Fennell, who stayed on Lourdes Ward between 1 July 2008 and 3 August 2008, have been searched.
• The Isolation room was searched. However following a patient's discharge, this room is deep cleaned and any medical records are returned to the ward secretary for filing.
• Every effort has been made to search areas of the Hospital where it is thought that the drug kardex might have been stored or misplaced. Medical records of patients with similar numbers have also been checked.
• Hospital charts of all in-patients who stayed in Lourdes Ward during the same in-patient period and under the same Consultant as the Applicant's late mother have been searched. Hospital charts whose number was similar were searched and Hospital charts whose numbers were in sequence with that of the Applicant's late mother were also searched.
• A list of the names and grades of the personnel who searched for the missing drug kardex and have signed a form to confirm that they have been involved in the search and the area that they have searched is provided:
• All staff involved in the care of the Applicant's late mother have also been informed of the missing drug kardex and questioned if they have any knowledge on its current whereabouts.
• Staff both Medical and Nursing in Lourdes Ward have been questioned with regards to their involvement (if any) with the drug kardex.
• Manual searches were carried out for the missing drug kardex as it is a paper document. There is no electronic system available to identify ‘stock item drugs’ prescribed to the Applicant's late mother.
• The Chief Pharmacist has checked the records of the drugs i.e. regular stock items issued to Lourdes Ward. Unfortunately, the name of the patient is not recorded against this list as the drugs are dispensed to a particular ward rather than to a named patient if they are considered to be a regular stock item in regular use.
• The Chief Pharmacist has identified ‘non stock’ drugs prescribed and confirmed that the drug kardex available for the 30 July 2008 would represent the drugs prescribed to the Applicant's late mother during her time as an in-patient from 7 July 2008.
• There is no record that the medical records or the drug kardex of the Applicant's late mother have been sent offsite for storage.

The Applicant, in her submission in response to the preliminary views letter, suggested areas where further searches and enquiries could be carried out. Accordingly, the HSE subsequently carried out further searches of the following areas at the request of this Office:

• Ward Sister's Office on Lourdes Ward;
• Director of Nursing's Office;
• Dietician's Office;
• Radiology Department;
• Healthcare Records Office;
• Dr. McGee's Office;
• Dr McGee's secretary's Office;
• Post Room;
• Photocopying Area;
• Anaesthetic's Office Theatre.

The HSE also made enquiries with the following staff and they have now signed a form indicating that they have no knowledge of the whereabouts of missing kardex relating to the Applicant's late mother:

• Dr Catherine Sunderland,
• Dr Cathy Rock,
• Dr Alison Hay,
• Dr Dermot Phelan,
• Mr Declan Magee,
• Dr. Brian McGlone,
• Dr Sean Curran,
• Dr Susan Pender,
• Dr Sine Phelan.

The Inquest into the cause of death of the Applicant's late mother took place on 20 October 2009. According to the Applicant, in the course of the Inquest, the solicitor on behalf of the Hospital, submitted a microbiological report on the organism Pseudomonas dated 23 July 2008 which had not been released to her. The Applicant asked for a copy of that report and also sought clarification on the existence of a microbiological report dated 27 July 2009. When the HSE was asked about this report, the Deputy Hospital Manager confirmed that she had attended the Inquest and that the report shown at the Inquest was the report dated 21 July 2008 which had previously been released to the Applicant. She also said that she checked the hospital chart of the Applicant's late mother and no further microbiological reports of Psedomonas were found.

I understand the trauma suffered by the Applicant in the loss of her mother and the frustration she felt in her dealings with the HSE in trying to gain access to her late mother's medical records. However, it is my view that the HSE has carried out extensive searches for the missing kardex, made enquires with a large number of staff who had contact with her late mother and that all reasonable steps have been taken to ascertain the whereabouts of the missing kardex. The HSE has said that the Healthcare Records Manager and the Deputy Hospital Manager will continue to search for the missing kardex. In the event that any of the records are located, I would expect the HSE to make them available to the Applicant.

In view of the extensive searches carried out by the HSE, I find that the HSE's decision to refuse the request for records under section 10(1)(a) of the FOI Act is justified on the basis that such records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

19 November 2009