Mary
had an operation in a public hospital and it transpires that the hospital left
a swab in her abdomen, requiring Mary to undergo a further operation to have
same removed. Mary attends with a solicitor with a view to bringing a
negligence claim against the hospital. The solicitor advised that it would be
necessary to obtain access to her medical records, as well as access to the
hospitals own theatre procedure records.
Mary
has tried in vain to write, phone and call in person to the hospital to obtain
this information and she feels she is getting the run-around.
Explain
the procedures available to Mary regarding accessing her own information, and
the hospitals own theatre procedure records.
The late
Democratic Senator Ted Kennedy once said “healthcare is a right not a
privilege”. I would strongly argue the same point about the access to personal
information held by public bodies. It is clear from reading the details of this
case that the hospital has failed to release the information Mary has
requested. Therefore a legal advisor representing Mary could make the argument
that the hospital in question is in breach of either Freedom of Information or
Data Protection or possibly both. I think it is important to make the point to
Mary that judicial review should only be used as a last resort. In this essay I will highlight the rights Mary
has to access her medical details by discussing the following, alternatives to
judicial review, rights under data protection and freedom of information
legislation, and the defences the hospital could use not to release the
information. Evaluation of the main points of this essay will show that Mary
has a strong case in retrieving the information she seeks from the hospital.
Despite the fact
there is no specific right to privacy in the constitution, it is still however
an unremunerated which must be protected .As a result of the potential threats
involved in Data processing the Council of Europe in 1987 ratified a convention
for the protection of individuals with regard to automatic processing of data.
It is also worth mentioning that this act heavily influenced the Data
Protection Act 1988.[1]
The office of the Data Protection Commissioner was set up as a result of the
1988 Data Protection Act and its powers were greatly strengthened by the Data
Protection Amendment Act 2003. The Data Protection Commissioner has the task of
upholding the data protection rights of the individual and obligations of the
data controller. I think it is important at this stage to explain to Mary that
she is the data subject and the hospital is the data controller.[2]
It states in section five of the 2003 Data Protection Amendment Act that the
individual must be informed by the data controller if they hold any information
regarding the data subject.[3]
It is clear that the hospital has information regarding Mary and so far has
failed to release the information she has requested. Mary might start
considering why should I bother with the Data Protection Commissioner? I think
in an effort to reassure her it is important to inform Mary of her rights as a
data subject. Firstly we have already established that the hospital is in
possible breach of data protection law. Therefore Mary not only has the option
to complain to the Data Protection Commissioner but also to establish the
existence of any data and the right to access. It is also worth pointing out to
Mary some of the responsibilities of the data controllers. These include
obtaining and processing information fairly, keeping it safe and up to date[4].
I hope Mary’s understanding of her rights under data protection has increased.
Freedom of Information law obliges all
government departments H.S.E and a range of other statutory agencies to release
information to data subjects. The Information Commissioner is the public body
that investigates non-compliance with this legislation.[5]
The main functions of the Information Commissioner are preparing and publishing
commentaries on the practical operations of the acts, publication of reports
and developing an attitude of openness among public bodies.[6]
It is also important for Mary to know that this body acts independent of
government. If Mary is too seek the information from the hospital, I have to
establish the time frame in which the operation took place. The current
legislation only governs material created after 21st of October 1998.[7]
However if the operation took place after that date, I will inform Mary as her
legal advisor if she is too seek the information throught the F.O.I act she
must make the request in writing. It is also important to inform Mary that
every public body is obliged to publish a manual in which it oulines the type
of records held. The information contained in the manual may also greately
assist Mary in retrieving the information she seeks[8].
It is also important to highlight that the Information Commisioner has the
right to examine copies of files in the process of conducting an investigation
. I would also have to point out to Mary that making a formal complaint to the
Information Comissioner would not inflict any cost on her. [9]
If
I were to act as a legal advisor to Mary I would not only have to inform her
of the rights she has but also some of
the defences the hospital
could decide not to
realese the relevant information . Mary’s information request is different as
she is requesting the examination of her medical records relating to a
procedure carried out by the hospital . The hospital could argue that they can
not give Mary the information she seeks because it falls under the Data
Protection (Access Modification) (Health) Regulations , 1989. These regulations
state that information can not be supplied to an individual if it is likely to
cause serious harm to their phyisical or mental health.[10]
In terms of Freedom of Expresion the hospital could argue that the request
would cause too much of an administrative disruption to the running of the
hospital[11].
The hospital could argue this point quite strongly due to the recent cuts to
most hospital budgets.
Inconclusion
it is clear that Mary has a right to see information regarding her medical
procedure. However whether or not the hospital grants her that right is another
matter entirely.
References
Data Protection class
notes, Law and Media Pauline Mc Hugh
Data Protection
Commissioner. ( ). Role Functions
Powers [online], available:http://www.oic.gov.ie
Freedom of Information
Class notes Law and Media Pauline Mc Hugh
Ireland, Data protection
(amendment) act 2003, S5
Ireland, Freedom of
Information act 1997, S10
Ireland, Freedom of
Information act 1997, S37
Irish Statue Book. ( ). SI No.82/1989 Data Protection (Access
Modification) (Health) Regulations 1989 [online], available:
http//www.irishstatuebook.ie
Office of Information
Commissioner. ( ), Role Functions Powers
[online], available: http//:www.oic.gov.ie
[1]
(Data
Protection Class notes)
[2]
(Data
Protection Commisioner)
[3]
( S5 Data
Protection (amendment) act 2003)
[4]
(Data
Protection Class notes)
[5]
(Freedom
of Information class notes)
[6]
(Information Commisioner)
[7]
( S 4
Freedom Of Information Amendment Act 2003)
[8]
(Freedom
of Information class notes)
[9]
( S 10
Freedom of Information act 1997)
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