Whether the HSE was justified in refusing to amend information relating to the applicant contained in the medical records of the applicant’s son in the manner sought by the applicant on the basis of section 9 of the FOI Act

26 January 2021

Background

This review has its background in dealings the applicant and her now adult son had in the past with the HSE’s Child and Adolescent Mental Health Services (CAMHS). It appears that the applicant’s son accessed his records following which he submitted an application for the amendment of certain information contained in the records. Separately, on 8 January 2020, the applicant submitted a request to the HSE seeking all records held by CAMHS relating to her. She also sought the removal of statements from the records about her having been sexually abused as a child, her not being her son’s legal guardian at the time, and having depression. It appears that there was a degree of overlap between the information both parties sought to be amended.

On 12 January 2019, the applicant emailed the HSE in connection with her son’s application for the amendment of records, in which she argued that certain information relating to her should be amended, including inferences that she may have sexually abused her son, and she indicated that she had sought information from her GP in support of her argument that the information in question was incorrect. While the email clearly referred to the application made by her son, the HSE also interpreted it as clarification on the applicant’s request.

In the course of further correspondence between the applicant and the HSE, the applicant supplied an email from her former husband who stated that to the best of his knowledge the applicant had never been sexually abused as a child and to the best of his knowledge the applicant was never diagnosed with or treated for depression. The applicant’s former husband also indicated that there had been communication difficulties with his son’s treating consultant psychiatrist.  Finally, he indicated that there was no court order in relation to their son and his sister. 

For administrative purposes, the HSE dealt with the applicant’s request in two parts; one relating to the request for records and one relating to the application under section 9 of the FOI Act for the amendment of records. This review relates only to the application for the amendment of records.   

On 3 February 2020, the HSE issued its decision in which stated that the amendments sought were in respect of

• Any references that the applicant was sexually abused,
• Any suggestion that she sexually abused her son,
• Statements referring to her having a history of depression, and
• Reference to the fact that her son’s father had sole legal guardianship of him.

It refused the application for amendment on the basis that the information at issue was not deemed to be incomplete, incorrect, or misleading. It said the information recorded in the records was based on interviews which took place between the treating Consultant Psychiatrist and the applicant’s former husband during the period 2013/2014. It said that while her former husband had subsequently refuted some of the information recorded, a determination could not be made either way in respect of all the facts. It added, however, that given the statement made by her former husband, it decided to add a clarifying statement to her son’s patient chart. This clarifying statement indicated that the Executive Clinical Director of Kerry Mental Health Services had examined the son’s file in its entirety and concluded that the medical notes support the fact that the statements concerning child sexual abuse in no way imply that the applicant was the perpetrator of child sexual abuse but rather was the victim of it.  The statement also indicated that the applicant’s former husband, from whom the collateral information in the patient chart derives, stated that;

• the treating consultant psychiatrist involved in his son’s care did not, in his opinion, have a good command of English,
• the applicant never sexually abused or harmed their son in any way,
• to the best of his knowledge, the applicant had never been sexually abused as a child,
• to the best of his knowledge, the applicant was never diagnosed with or treated for depression, and
• there was no court order concerning custody of their son and further that their son and his sister were wanted by both parents. 

On 15 February 2020, the applicant and her son jointly submitted an application for an internal review of that decision and the decision made on the son’s request. They included four appendices, as follows:

(i) Appendix 1 – letters from the applicant and her son, and a further letter from the applicant’s former husband, which once again indicated that there had been communication difficulties with the consultant psychiatrist who had assessed the applicant’s son.  The applicant’s former husband also indicated that he had never said that the applicant had abused their son, that she was being treated for depression, that she was sexually abused as a child, that he had sole custody of their son, or that the applicant had never wanted her son.  

The applicant’s son said in his letter that he had never been sexually abused by his mother nor was he aware of his mother having been sexually abused.  He also indicated that he had had communication issues with the treating consultant psychiatrist and he had been unable to speak freely with him due to the presence of his father.  He also indicated that he does not believe he had depression at the time.

(ii) Appendix 2 - letters from two general practitioners who indicated that they had never prescribed anti-depressants for the applicant or diagnosed or treated her for depression. 

(iii) Appendix 3 – a copy of a Family Law Civil Bill, and

(iv) Appendix 4 – reports from two consultant psychiatrists:

a. The first is a report dated 28 October 2019 from a consultant psychiatrist who had interviewed the applicant’s son.  This report referred to the applicant having ‘one episode when he was anxious and low in mood’ for which he was diagnosed as having depression and medication was prescribed.  However, the report also notes that the applicant contests this diagnosis and feels his should have been diagnosed with stress reaction to his parent’s separation. 

b. The second report, dated 28 November 2019, from a different consultant psychiatrist indicated that the applicant’s son had no current psychological or psychiatric illness.  The psychiatrist also indicated that the reports relating to when the applicant was 15 were at a time when there was parental argument and break-up and ‘it is possible that his presentation was an adjustment disorder within the setting of the marital frictions’.

On 10 March 2020, the HSE affirmed the original decision.  However, in addition to the qualifying statement which had already been added to the patient file, the internal reviewer indicated that the four appendices provided by the applicant would be appended to her son’s file. On 10 September 2020, the applicant sought a review by this Office of the HSE’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 HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the HSE was justified in its decision to refuse the application for amendments sought by the applicant as described above.

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.

Furthermore, this Office would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

It is not the role of the Commissioner 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. His role does not extend to examining clinical judgement. Neither is it his role to conduct a comprehensive enquiry as to the accuracy or completeness of medical or other records. Rather, he 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.

The Commissioner 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. He has acknowledged that 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.

Where a record contains personal information which is incomplete, incorrect or misleading there are three methods for effecting the amendment provided for by section 9:

1. by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
2. 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
3. by deleting the information from it.

Directing the amendment of information, as sought in this case, in the records of an FOI body, is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. This Office takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts, or with the way the contents of a record explain subsequent actions and decisions of public bodies.

The deletion of information from a 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. This Office considers that deletion of incorrect information from a record is generally only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect.

In the course of the review by this Office, the Investigator in this case sought further submissions from the applicant. In response, the applicant once again argued that the HSE records are incomplete, misleading and inaccurate. As a background to the matter, she said her former husband made untrue and defamatory statements about her and her family alleging sexual abuse and depression to the CAMHS doctor. She said the doctor wrote those comments into her son’s medical records without her knowledge or consent.

She further argued that the HSE’s addition of the qualifying statement and appendices to the patient file of her son is not sufficient and that the relevant information should be removed from her son’s file.  The applicant has also taken issue with the burden of proof and has argued that the burden of proof should be on the HSE to make unfalsifiable claims. 

In response to the request of this Office to provide details of the specific parts of the relevant records which are incomplete, misleading or inaccurate the applicant has specifically identified the CAMHS Assessment Report dated 7 February 2013 and has provided the following list of specific amendments sought:

(i) Deletion of the following sentence in its entirety ‘There is a history of alleged child sex abuse’ from page 3, paragraph 1 of the CAMHS Assessment Report
(ii) Deletion of a reference to the applicant’s mother, to sexual abuse and depression from page 3, paragraph 1 of the CAMHS Assessment Report
(iii) Deletion of a reference to the applicant’s state of mind when she became pregnant with her son from page 3, paragraph 1 of the CAMHS Assessment Report and the insertion of a sentence stating that the applicant was happy to be pregnant with her son and that she has a loving relationship with her son
(iv) Deletion of a sentence stating ‘Father has sole legal guardianship’ from page 3, paragraph 1 of the CAMHS Assessment Report and the insertion of a sentence indicating that both parents maintain joint custody although their son is primarily resident with his father.

In support of this position, the applicant has also provided supporting evidence.  However as part of this is very sensitive personal information I do not propose to repeat it in this decision. In addition, the applicant has also provided a certificate from An Garda Síochána certifying that she was not convicted of any crime while resident in Ireland. 

In the course of correspondence the Investigator in this case specifically sought the applicant’s views on the HSE’s arguments, further outlined below, that in addition to the CAMHS Assessment Report there is a further report on file which contain references to a number of the issues which the applicant is seeking to amend.  This report from a speech and language therapist, dated 11 February 2013, contains references to the following:

'Dad is legal guardian'

'Mother has alleged hy of CSA'

'Mother and maternal grandmother alleged hy of CSA'

The HSE have argued that this report provides corroboration for a number of the challenged references in the CAMHS Assessment Report and it lends further weight to its refusal of the application under section 9.  In response the applicant argued that the HSE is relying on hearsay evidence in this case.  She that the reference to her former husband being the legal guardian is incorrect as married couples are legally joint guardians unless a court order determines otherwise and there is no such order in the current case.

With regard to the references to child sexual abuse the applicant argued that this is hearsay as the speech and language therapist had never met with the applicant or her mother nor did she have access to their respective medical records. In addition, the applicant argued that the reference to her son having symptoms suggestive of a depressive episode was unduly influenced by the comments of her former husband. She also reiterated that she had provided direct evidence in relation to her position that the relevant information is incorrect, incomplete or misleading. 

In its submission to this Office, the HSE said it is cognisant of the evidential value of the records and made specific reference to the decision of the Information Commissioner in the case of Mrs X & the HSE (Case number: 160123), wherein this Office highlighted the inherent difficulties in altering contemporaneous medical notes in the context of the evidential value and the future usefulness of the record and the extent to which any decisions or other actions would be potentially affected by the information in the original record.

The HSE argued that the specific information which the applicant is seeking to amend was recorded in a medical record and that retention of health information, especially clinical history, supports informed decisions about healthcare and treatment. It also argued that the retention of health information plays an important role in facilitating the continuity of care, especially when a new healthcare service provider becomes involved, whether temporarily or permanently.

The HSE further argued that where there are ‘gaps’ in clinical history, clinical decisions made on the basis of the information available may be wrong and this raises a patient safety concern, especially where the information may be needed for the immediate treatment of the patient in an emergency situation. Accordingly, the HSE argued that under their professional code of conduct, medical practitioners have a legal and professional duty to ensure the accuracy, completeness and currency of personal data to prevent any detrimental effect on a data subject at the time of their care management and treatment or at a future episode of medical care.

The HSE also argued that in addition to their clinical significance, medical records are also legal documents which can serve as evidence of the care provided to a patient. It argued that a qualified and registered medical practitioner must be presumed to have been competent at that time, to perform his clinical duties unless there is evidence to say otherwise. It further argued that a record appropriately created at the time of a clinical encounter and properly maintained contributes to transparently administering a legal claim, or in responding adequately to a complaint to a regulatory authority or teaching college. In addition, even in a case where information is factually incorrect, the HSE argued that a notation must allow the incorrect information to be traced. In the current case, the HSE argued that the relevant record serves as evidence of the care provided to the applicant’s son at a particular point in time and any amendment or deletion of the record has particular implications for that evidential value of the records.

As referred to above, the HSE specifically drew attention to the fact that in addition to the CAMHS Assessment Report, there is a further report on the applicant’s son’s file dated 11 February 2013 which is the report of a speech and language therapist.  The HSE argued that this second report also contains reference to the applicant’s father being his son’s legal guardian as well as references to alleged history of child sexual abuse in relation to the applicant and her mother.  The HSE have argued that this report concurs with the CAMHS Assessment Report which the applicant is seeking to amend. 

In conclusion, the HSE indicated that it is satisfied that the addition of the qualifying statement to the file of the applicant’s son will ensure that medical practitioners and healthcare professionals delivering care in the future will be aware of the applicant’s request for amendment. In particular, the HSE argued that the qualifying statement can be factored into any clinical decisions which need to be taken while at the same time the non-deletion of the records will not adversely affect the applicant’s son at any time in the future. 

As I have outlined above, the question I must consider is whether the applicant has shown, on the balance of probabilities, that the information in the relevant records is incomplete, incorrect, or misleading. The applicant presented considerable information to the HSE and this Office as to why she believes the identified parts of the CAMHS Assessment Report dated 7 February 2013 are incorrect, including letters from her former husband in which he indicated that he had never said that the applicant had abused their son, that she was being treated for depression, that she was sexually abused as a child, that he had sole custody of their son, or that the applicant had never wanted her son.  

It seems to me that the information that was recorded in the records at issue was, in all probability, provided to the CAMHS service by the applicant’s former husband at the time. Indeed, the applicant herself acknowledged this in her submissions to this Office, wherein she said her former husband made untrue and defamatory statements about her and her family alleging sexual abuse and depression to the CAHMS doctor and that the doctor wrote those comments into her son’s medical records without her knowledge or consent.

Clearly, I am not in a position to categorically determine what either the applicant’s son or former husband or a consultant or other medical professional said at any point in a consultation, nor am I required to do so. Nevertheless, it is important to note that the records do not purport to represent the information that was provided during the consultation as factually accurate. Rather they purport to represent a factually accurate record of what information was provided. As such, the records have an important evidential value. Among other things, they comprise evidence of the factors that may have influenced clinical decisions.

In addition, and while I do not consider it decisive in the current case, I consider it a relevant factor that the patient file of the applicant’s son contains two contemporaneous reports from two separate clinicians which both contain similar references to matters which are now being challenged by the applicant.

I should add that while the applicant takes issue with this Office’s approach of requiring the applicant to show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading, I am satisfied that this is the appropriate approach to take. I must again stress that 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 does not mean that we consider the record to be complete, correct and not misleading.

In the particular circumstances of this case, while I have significant sympathy for the applicant and the position she finds herself in, I find that she has not shown that the information at issue is, on the balance of probabilities, incomplete, incorrect, or misleading. However, I am satisfied that the qualifying statement which has been added to the file of the applicant’s son as well as the four appendices submitted by the applicant, makes it clear to any subsequent reader of the file that the applicant, the applicant’s son and her former husband dispute certain parts of the CAMHS Assessment Report dated 7 February 2013.  I consider that an appropriate balance has been struck by the HSE which protects the evidential value of the records but also ensures that subsequent readers of the file are aware that certain information contained in the records has subsequently been challenged by a number of individuals.

In conclusion, therefore, I find that the HSE was justified in refusing to delete the information at issue from the records.

Decision

Having carried out a review under section 22 of the FOI Act, I hereby affirm the HSE’s decision to refuse the applicant’s application for amendment of personal information relating to her on the ground that she has not shown, on the balance of probabilities, that the information in question is incomplete, incorrect, or misleading.

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