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Case 050330. Request by a former patient for her own psychiatric records - whether disclosure to the requester might be prejudicial to her physical or mental health, well-being or emotional condition - section 28(3) - whether exercise of discretion to rely on section 28(3) warranted.

Case Summary

Facts

The requester sought access to her medical (including psychiatric) records from two hospitals during the period 1989 - 1996. The HSE refused access to the records and relied on section 28(3) for this decision. Section 28(3) provides that a public body may refuse to grant a request in the case of medical, psychiatric or social work records where, in the opinion of the head of the public body, disclosure of the information "might be prejudicial to his or her physical or mental health, well-being or emotional condition". However, as required by section 28(4), the HSE did offer access to the records to a relevant health professional should the requester choose to nominate such a professional.

Findings

The Commissioner found that, while the threshold for invoking section 28(3) is low ("might be prejudicial"), it is a matter for the discretion of the decision maker as to whether the exemption should be invoked. In this case the Commissioner found that, while the low section 28(3) threshold had been met, the exercise of the discretion provided for in section 28(3) was not warranted. The Commissioner reached this decision because of particular facts and circumstances applying in this particular case which she was in a position to take into account and which had not been taken into account - or were not available to be taken into account - by the HSE's decision maker. These facts and circumstances included:

• the fact that the HSE decision maker did not have available any professional opinion as to the likely consequences of release of the records;
• the fact that the requester had not had contact with the Mental Health Services for more than ten years;
• the fact that the requester had already been given direct access to very similar information, from the same period, contained in the records of a third hospital.

The Commissioner annulled the HSE decision and directed the release of the records to the requester.

Date of Decision: 07.09.2007

Our Reference: 050330

07.09.2007

Ms X

Dear Ms X

I refer to your application under the Freedom of Information (FOI) Act, for a review of the decision of the Health Service Executive (HSE) in response to your request for access to your medical records from [...] Hospital and [...] Hospital for the period 1989-1996. Please accept my apologies for the delay which has arisen in dealing with this case.

Background

On 2 August 2005, you made a FOI request for your medical records for the years 1989-1996 from [...] Hospital and [...] Hospital. On 22 August 2005 the HSE issued an acknowledgement of this request. On 31 August 2005, in the absence of a decision, you sought an internal review on the basis of a deemed refusal. On 16 September 2005, the HSE notified you that your file in [...] Hospital was transferred to [...] Hospital in 1991, that it had located your file in [the latter] Hospital and that access was being denied under section 28(3)(a) of the FOI Act. The HSE also informed you that it was offering access through a health professional under section 28(4)(a). On 25 October 2005 you applied to my Office for a review of the HSE's decision.

In reviewing this case I have had regard to the following:

• the information contained in the records at issue;
• the HSE's submissions to this Office as well as its communications with this Office in the course of this review;
• your communications with this Office, including your application and submissions dated 25 October 2005 and 17 February 2006 and your phone calls;
• the provisions of the FOI Act 1997, as amended by the Freedom of Information (Amendment) Act 2003.

Scope of Review

This review is concerned solely with the question of whether the HSE is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the 53 records it continues to withhold.

Preliminary Matters

My role in conducting a review under section 34 of the FOI Act is to carry out a de novo review. The term "de novo" is defined as follows in Murdoch's Dictionary of Irish Law: "[Anew]. There is a hearing of a case de novo when an appeal is made to the Circuit Court to challenge an order of the District Court on the merits. All questions of law and fact are open to review and either party may call fresh evidence."  That my review should be a de novo review is in accordance with the 1999 High Court judgment of Mr Justice Ó Caoimh in the case of The Minister for Education and Science v Information Commissioner. More recently, this position was accepted and elaborated on by Mr Justice Quirke in his recent judgment in the case of The National Maternity Hospital and The Information Commissioner where he (Mr Justice Quirke) noted: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]"

As will be made clear below, the circumstances pertaining now - at the point of giving my decision in this case - differ in some significant respects from those circumstances considered by the HSE when it gave its decision on 16 September 2005.

Findings

The HSE has relied on section 28(3) of the FOI Act as the basis for its refusal of your request. Section 28(3) provides that disclosure of medical, psychiatric or social work records may be refused if

"in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition."

Section 28(4) provides that, where the public body refuses access on these grounds, and where the requester so requests, access to the records will be given to a relevant health professional, specified by the requester. It is important to note that a decision to rely on section 28(3) is a decision to refuse the request for records.

At the time of its decision, the records sought dated from between 19 and 9 years earlier and, I understand, you had not had contact with the HSE's psychiatric service for almost a decade. This meant that at the time of its decision the HSE had no up to date knowledge of your state of health or of your circumstances more generally.

I summarise the HSE's arguments in favour of non-release as follows:

1. In this particular case the records contain "inter alia accounts of self harm, allegations of abuse and matters in relation to the requester's then state of health". The HSE argues that any reasonable person would rightly form the view that exposure to records of this nature involving oneself might have the prejudicial consequences envisaged at section 28(3).
2. As the HSE was not in a position to make a determination regarding the current state of mind of the requester, it could only make a determination based on the medical history of the requester as set out in the relevant records. The HSE also argues that one can reasonably form the view that, in light of the requester's medical history, there may exist a greater than average possibility that there might be prejudicial consequences for the requester should the records be released to her.
3. Finally the HSE points out that Section 28(3) does not impose a high standard of proof by its wording "might be prejudicial".

Having examined the records, and having regard to the relatively low threshold set by the wording "might be prejudicial", I can accept that disclosure of the records might be prejudicial to your physical or mental health, well-being or emotional condition. However, as this is a very low harm test, which could conceivably apply to a large number of requests, it is necessary to consider whether the exercise of the discretion to invoke this exemption is justified in this particular case.

I must start from the presumption, inherent in the FOI Act, in favour of release of records requested. This presumption is especially strong when the requester is seeking access to his or her own personal information. In general, my Office tends to take the approach that psychiatric records should not be released where section 28(3) has been invoked on the basis of a statement from a relevant health professional, with recent knowledge of the requester, and where no rebutting evidence is provided by the requester. This case is somewhat different as no statement by a health professional has been submitted as evidence by either party. Indeed, the HSE accepts that it is not in a position to take a view regarding your current state of mind. It is clear that the HSE, in this instance, is erring on the side of caution and that it sees its decision as a reflection of its duty of care to a former patient.

However, there are certain facts and circumstances which are available to me now, which were not available to the HSE when it took its decision, and which must now be taken into account for the purposes of my decision. These facts and circumstances include:

• the fact that more than two years have elapsed since you first made this request in July 2005;
• the fact that in September 2005 your records from [ another] Psychiatric Hospital were given directly to you by a psychologist, without his having read them, who accepted that you would take responsibility for your own health (you have provided my Office with a copy of the release note from this psychologist which states that he gave the records to you without his having viewing them);
• the fact that the records from [the other Hospital] and the records which are the subject of this review refer to the same time period and contain a similar type of information;
• the fact that it is clear that the events documented in the records are events of which you are already aware;
• the fact that you have had no contact with the mental health services for more than ten years.

I note from your detailed submission of 17 February 2006 your comments on your perception of your experience with the psychiatric service during the years in question. It is clear that you have a deep-seated mistrust of psychiatry as you experienced it. You comment:

"My experiences with the practices of psychiatry and psychology in Ireland have been completely unpleasant, unproductive and traumatic. Ultimately, the treatments (some of them experimental) posed a threat to my psychological well-being. I do not wish to be subject to the counselling of people who engage in that kind of 'care' again. ... It would add insult to injury to be given access to this information via a psychiatrist or any third party."

It is not necessary, nor would it be appropriate, for me to comment on these views. However, I do believe that these comments form part of the wider set of circumstances to which I should have regard in deciding this case. One of the possible consequences, were I to affirm the decision of the HSE, might be to cause you to believe that you are not, in fact, capable of taking control of your own life; and this, undoubtedly, might well be a consequence at least as prejudicial as that which the HSE hoped to avoid by taking the decision it has taken.

Having given this case a great deal of consideration, and having regard to the additional information now available, I find that, while the release of the records might be prejudicial to your physical or mental health, well-being or emotional condition, there is not a sufficient basis to justify the application of the section 28(3) exemption. I make this finding very much on the basis of the specific circumstances of this case, as outlined above, but in particular because

• statements by health professionals as to your current state of health have not been submitted;
• you have not had contact with the Mental Health Services for more than ten years;
• you have already had direct access to very similar information contained in other records;
• the likely outcome in refusing access is excessive having regard to the intended objective.

Decision

Having carried out a review under Section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the HSE and I direct that the HSE grant full access to the records in question by way of the provision of copies of them.

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 an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner