Act provides greater access to records, but raises concern over doctor-patient confidentiality

 

Today the Minister for Health, Mr Cowen, will cut the ribbon on the sections of the Freedom of Information Act, 1997, which refer to the State's eight health boards. In practice this means members of the public will be able to find out the reasons behind any decision taken by a health board: why a medical card was refused, why a methadone clinic was sited in a certain area, why a decision was made to close a hospital, and, of course, details of medical records.

When implemented next Wednesday, it will cause major implications for the health services and people's access to clinical records. The Act has been in operation in relation to Government Departments and public bodies in the health-care sector, such as the Blood Transfusion Service Board, Comhairle na nOspideal and the Irish Medicines Board, since last April.

Its aim is to enable members of the public to obtain access to information and records containing their personal information if those records are in the possession of public bodies. In the case of the health boards, information released will be from October 21st, unless it is personal records.

The information specifically includes information relating to the medical, psychiatric or psychological history of a person and the views or opinion of another person about them. In practice, people will be able to find out the reasoning behind all kinds of decisions taken. The thousands of people employed by the health boards will also have access to their personnel records.

The Act applies only to public patients. Private patients are entitled to their records under the Data Protection Act only if they are computerised. Voluntary hospitals, such as Beaumont and St James's, private clinics or private hospitals, are not included in the legislation.

To gain access to these records it is necessary to write to the chief executive of whichever body is concerned. Generally, staff assigned to FOI will take the request, and within a month decide on whether the person requesting the information is entitled to it. The ultimate decision on releasing information, including medical records, rests with the CEO, although in practice it is expected that this will be done in consultation with medical staff.

The medical representative bodies, including the Irish Medical Organisation and the Irish Hospital Consultants' Association, have expressed concern about breaches in the doctor-patient relationship and the possibility of a doctor being subsequently sued if information is released to a third party.

One possibility which has been raised is that the sexual partners of people who have had HIV tests may be able to find out the results as the Act allows for the disclosure of personal information where it is necessary to avoid a serious and imminent danger to the life or health of an individual.

A clause in the Act stipulates that a request may be refused if the CEO feels it is prejudicial to the mental or emotional condition of the person requesting it. In that situation a doctor might be nominated by the patient to look at the records.

A consistent critic of the legislation has been Dr Denis Cusack, director of legal medicine in the UCD Medical Faculty. He described it as unworkable. A separate piece of "clear, simple" legislation should have been enacted, he said, making it more friendly.

In an editorial in the Medico- Legal Journal of Ireland, Dr Cusack said the position of family doctors was particularly poorly thought out. The decision on access to records of medical card patients in the possession of the GP rests with the health board CEO, with whom the patient has very little interaction, he said.

Dr Cusack said the Act acknowledges the paramount importance of patient confidentiality. Any request for personal information must be refused unless the information relates to the person requesting it or the individual concerned consents, or disclosure is necessary to avoid a serious and imminent danger to life or health of an individual.

"The question of an HIV or hepatitis B patient or health-care worker who could pose a serious health risk to others may give rise to a very difficult decision as to how to interpret the last of these exceptions. Nevertheless, patients and health-care workers must be assured that the confidentiality and privacy of personal records have not been adversely affected by FOI legislation."

He pointed out that disclosure of information obtained in confidence from another person, such as a family member, which in the opinion of the CEO would be likely to prejudice the giving of further similar information, may also be refused. "Pity the CEO adjudicating on records against a background of marital or family disharmony."

Dr Cusack said much of the new legislation can be used in a very positive manner in the general public interest. However, it will require resources and personnel training to overcome the many anomalies and implementation difficulties.

"It would be a travesty for patients, their health care and for doctors and all health carers if this legislation caused a deterioration in the keeping of clinical records or in the carer-patient relationship. The Ministers concerned have much work to do by way of regulations to modify the worst aspects of it as it relates to health records," said Dr Cusack.