The High Court has rejected a judicial review challenge to rules governing access to the medical records of deceased people, leaving in place the refusal of James O’Loughlin’s request for his late wife’s records.
In a judgment delivered on 8 March 2012, Mr Justice Michael White refused the relief sought by O’Loughlin. He had asked the court to quash a 30 November 2010 decision by the Information Commissioner that upheld the Health Service Executive’s refusal. He also challenged the validity of the regulations and ministerial guidance used in considering requests for records of deceased people, and argued in the alternative that the law improperly delegated legislative power.
O’Loughlin sought records relating to his wife, Anne Marie O’Loughlin, who died in January 2009 aged 36. He wanted them in connection with a proposed application to the Criminal Injuries Compensation Tribunal on behalf of himself and the couple’s five children. The judgment says she had received psychiatric treatment before her death. It records that her death was alleged to be suicide following trauma from witnessing one brother murder another; that account is not presented as a finding by the court.
The HSE gave partial access to records held by Ennis Regional Hospital and Ennis childcare services, but refused access to records from St Joseph’s Hospital in Limerick. The Information Commissioner later found the HSE justified in refusing the records under section 28 of the Freedom of Information Act 1997 and the 2009 regulations. The Commissioner considered privacy and public-interest factors, and noted that the Tribunal could obtain medical reports.
O’Loughlin argued that the regulations went beyond the Minister’s authority by requiring a public-interest test for requests by a spouse or next of kin. He also challenged the guidance notes and said section 28(6) amounted to an unconstitutional delegation of legislative power. The respondents disputed his standing, but the judge held that he had standing because he could benefit if the regulation were struck down.
The court concluded that the Minister’s regulation-making powers had to be considered alongside the wider Act. It held that the public-interest test was consistent with the Act’s protections for personal information and its provision for possible release. The guidance notes were not binding on decision-makers, and there was no requirement to lay them before the Oireachtas. The court also rejected the constitutional challenge, finding section 28(6) consistent with the Act’s principles and purposes.
The judgment refused the relief sought. It did not order disclosure of the records; the Information Commissioner’s decision upholding the HSE refusal therefore remained undisturbed.