Whether the HSE was justified in refusing, under section 37(3) of the FOI Act, the applicant's request for his mental health records

22 March 2022

Background

In a request dated 15 March 2021, the applicant sought access to his mental health records. On 16 June 2021 the HSE refused the request under section 37(3) of the FOI Act but said it would make them available to a specified consultant psychiatrist who would discuss the records with the applicant. 

On 20 July 2021 the applicant sought an internal review of that decision, following which the HSE affirmed its original decision. On 31 August 2021, the applicant applied to this Office for a review of the HSE'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 correspondence between the applicant and the HSE as outlined above and to the communications between this Office and both parties 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 refusing the applicant's request for his mental health records under section 37(3) of the FOI Act.

Analysis and Findings

Section 37(3) 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. However, pursuant to subsection (4), where it does so, it must offer access to the records concerned "to such health professional having expertise in relation to the subject matter of the record asthe requester may specify"(emphasis added).

This Office considers that the intention of subsection (4) is to allow an appropriate health professional with relevant expertise to decide how sensitive information should be made available to a requester in such a manner that seeks to avoid the harms identified in subsection (3). However, it is important to note that under subsection (4), it is the requester who is entitled to specify an appropriate health professional.

It is not in dispute that the HSE did not allow the applicant to nominate a health professional of his own choosing. Rather, it indicated that the records would be made available to the applicant through a named consultant psychiatrist. In light of this, I find that the HSE has not complied with the provisions of section 37(4) in this case. I find, therefore, that the HSE was not justified in refusing the applicant's request to access his mental health records under section 37(3) of the Act.  

Nevertheless, in light of the intention of section 37(4), I do not consider it appropriate to simply direct the release of the records. Instead, I consider that the appropriate course of action to take is to annul the HSE's decision and to direct it to make a new first instance decision in respect of the applicant's original request. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the HSE's decision. I appreciate that remitting the case back to the HSE causes further delay for the applicant. However, I do not believe that there is an alternative appropriate course of action to take in this instance.

I also consider it appropriate to comment on the HSE's initial processing of the request.  I consider that its processing of the request fell well short of the standard that would be expected of a public body that has been subject to the provisions of the FOI Act for many years now. The provisions of section 37(4) are clear and unambiguous. The HSE must, therefore, ensure that in its further examination of the matter, it adheres strictly to the provisions of section 37(4). 

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the decision of the HSE to refuse, under section 37(3) of the Act, the applicant's request for his mental health records and I direct it to undertake a fresh decision-making process in respect of the request.

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