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Case Number: 160334

Whether the Board was justified in refusing access to a medical negligence report relating to the applicant, on the ground that the record does not exist

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 application for review has its background in an application for legal aid that the applicant made to the Board's Medical Negligence Unit. During the course of the Board's consideration of that application, staff of the Unit met with the applicant on 7 September 2015. On 22 June 2016 the applicant submitted a request under the FOI Act for a copy of the "medical negligence report" that she believes to have been made arising from the information she provided at that meeting.

In its decision of 15 July 2016 the Board refused the request under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist. It noted that the applicant was provided with a full copy of her file on 21 March 2016. On 19 July 2016 the applicant sought an internal review of the Board's original decision. On 9 August 2016 the Board's internal reviewer decided to affirm the original decision. On 15 August 2016 the applicant sought a review by this Office of the Board's decision.

In conducting this review, I have had regard to the correspondence between the Board and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Board on the matter.

Scope of Review

This review is concerned solely with whether the Board was justified in refusing access to the medical negligence report sought by the applicant on the basis that the record does not exist.

Analysis and Findings

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this one, the role of this Office is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.

In a submission to this Office dated 28 September 2016 the Board explained that the applicant had made an application for legal aid to the Board's Medical Negligence Unit (MNU). It stated that in determining the merits of her application, the Board considered all available facts surrounding her allegation of medical negligence against her psychiatrist and GP. It stated that it did not refer the applicant to a doctor for a medical report, and that there are no records on the applicant's file to support the contention that she was referred to a doctor for such an assessment. The Board went on to state that under its procedures, the MNU would have had to seek authority for a medical report before obtaining one, and that it was clear from its electronic legal case management system there was no record of a request for such sanction, or of such sanction being granted.

The Board also argued that no medical report was or could have been created in the absence of the applicant meeting with a medical practitioner and pointed out that the applicant had not identified any such medical professional in her FOI request. Furthermore, the Board stated that there are no records on the applicant's file that could be described as a medical report prepared by the Board.

In her submission to this Office the applicant stated that as the MNU still have copies of the statement and evidence she gave, she saw no reason why it was unable to provide "another report" if it had lost the first one. She went on to state that "the same evidence makes the same report". It appears from the information available to this Office that a case summary report was created by the Board following its consultation with the applicant. The Board stated that the applicant has been provided with a copy of this summary when the Board gave her a copy of her file. While the applicant does not agree that she has received her entire file, I have no reasons to doubt the Board's submission.

While the applicant does not accept that the Board did not create the medical negligence report she is seeking, no evidence has been presented to this office to suggest that it did so. Having regard to the Board's explanation of its dealings with the applicant and its consideration of her application for legal aid, I find that the Board was justified in refusing the applicant's request under section 15(1)(a) of the FOI Act on the ground that the record sought does not exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Board to refuse access to the medical negligence report sought under 15(1)(a) of the FOI Act on the ground that no such record exists.

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