A HIGH Court judge has ordered the South West Regional Health Authority to release the medical records of an elderly man who died of sepsis at the San Fernando General Hospital in 2020.
Justice Avason Quinlan-Williams used the court’s discretion to perform “a section 35 override” of the Freedom of Information Act to order the disclosure of the records to Rasul Mohammed’s daughter Sheridan Mahabir.
The judge said she did so in the public interest. Section 35, she also said favoured the disclosure of exempt documents.
In her ruling, Quinlan-Williams held that a public authority could not “erect unnecessary hurdles to hinder the object of the FOIA.”
“In these proceedings, the respondent/intended defendant has wholly failed to satisfy this court of the justification for withholding the requested information,” the judge said in her ruling.
Mahabir requested her father’s medical records so she could get legal advice to possibly pursue a claim of clinical negligence against the authority.
Mahabir’s father was admitted to the hospital in February 2020, for a spinal injury after he fell. Her judicial review claim said she often saw her father unattended in soiled pampers and his health deteriorated, eventually leading to a severe infection of his lower back. He also developed huge, foul-smelling bedsores and began vomiting, experiencing bloody diarrhoea and fevers.
When she requested the records, Mahabir was told she had to provide a grant of probate in her name since her father died intestate, which means he died without a will, and a form of valid photo identification.
However, she told the SWRHA she did not want to spend $8,000 to get a grant for her father’s estate before having sight of his medical records.
The SWRHA wrote back to Mahabir, telling her instead of the grant of probate or letters of administration, she could present a statutory declaration and proof of non-objection from other beneficiaries of her father’s estate.
The SWRHA argued that it never denied Mahabir’s request for the reports and would be “happy to process the request” if she provided certain documents since the FOIA exempts the disclosure of personal information. It insisted its position was reasonable and the process was implemented to ensure that confidential information of a patient was not unreasonably disclosed to a third party.
However, Mahabir’s lawyers argued that the SWRHA’s reliance on the Wills and Probate Act and the Administration of Estates Act was misconceived and illegal.
In her ruling, the judge said the SWRHA attempted to rely on the two pieces of legislation for a provision that the FOIA already contemplated.
“Had the FOIA been silent on the point of a public authority’s release of a deceased individual’s personal information, then it may have been necessary to look at external pieces of legislation for guidance. “However, the FOIA is clear on the procedure to be adopted in the case of a request for the personal information of a deceased individual, made by another individual.”
The judge said section 30(3)of the FOIA allows for the public authority, who receives such a request and decides to grant access, to notify the next of kin of the decision and of their right to apply for judicial review.
She said this protected the confidential nature of the medical records.
“Such a process provided by the FOIA, facilitates the principles of openness and transparency of the public service, while still allowing the next of kin the option to refute the public authority’s decision to release the personal information.
“This, the court believes, accords with the object and purpose of the FOIA.
Mahabir was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Renuka Rambhajan, and Dr Che Dindial.
The SWRHA was represented by Roger Kawalsingh and Carla Scipio.