THE SUPREME Court has reserved judgment on a challenge by the Rotunda Hospital to the Information Commissioner’s decision requiring it to give an elderly man the age of his birth mother.
The five-judge court heard closing arguments yesterday in the hospital’s appeal against a High Court decision upholding the commissioner’s ruling, after which the Chief Justice, Mr Justice John Murray, said the court was reserving judgment.
The man for whom the information was sought was aged 86 and has since died. He was “boarded out” at various addresses in the Dublin area after his birth in 1922 to an unmarried woman. His father was not named on his birth and baptismal certificates.
The man’s daughter had been in touch with the hospital since 1989 seeking information about her father’s birth mother, her own grandmother, and had said it was not possible to trace her without it.
In 2004, she was told the hospital could not, because of prohibitions on disclosure of “personal information” in the Freedom of Information Act (FOI), disclose the woman’s age. It also indicated it had information about the birth mother’s own wishes to the effect the man had been turned away in the 1930s from a house in the area where she had an address.
The information held by the hospital also included a name and address for the elderly man’s mother and the date of his birth and baptism.
The commissioner ruled the man was entitled to the information on grounds the age of a person was personal information in the public domain, there was evidence he was the woman’s son, and there was a strong public interest in persons having the fullest information on their origins.
In opposing that ruling, the hospital referred to ordinary ethical requirements for confidentiality imposed on hospitals. It said all information given that was personal to a patient should enjoy absolute confidentiality whether it was required for therapeutic purposes or otherwise, and this was of special importance in the case of crisis pregnancies.
In the High Court, Mr Justice Patrick McCarthy said there was never any provision in law here for absolute confidentiality over information passing between a doctor and patient, and stressed he was dealing with a claim for confidentiality within the terms of the Freedom of Information Acts.
He found the hospital could not retain a reasonable doubt the woman was the man’s mother and could not withhold the information on that ground.
The judge upheld the commissioners view that the mother’s age was not confidential personal information, disclosure of which was prohibited under the FOI, as it was already available through the General Registration Office. He also ruled the woman’s age was information that also related to her son.
He ruled that information which the hospital might have as to the wishes of the person about whom information was sought was not relevant to the issue of principle in the case – whether the age information was publicly available. Information, for example, on marital status, can be both personal and the subject of a public record, he said.
If a person gave information not of its nature confidential while subjectively believing confidentiality would attach to it, access to that information could not, all else being equal, be denied under the FOI Act, he said. The test for confidentiality must be objective, no matter what the parties involved thought. Access to information must be granted where a person is deceased, he added.
In considering the commissioner’s discretion in relation to directing disclosure of either personal or confidential information, the judge also said the commissioner should address certain principles. As a matter of public policy and the vindication of the hospital’s rights, the greatest possible assurance of confidentiality was required to patients at their time of greatest vulnerability, especially in the context of abortion and the protection of the rights of the unborn, he said.
In his closing arguments yesterday, Gerard Hogan for the hospital argued that if the High Court decision was upheld, it would mean any journalist or persons without family ties to hospital patients could request information about named patients.
Nuala Butler for the commissioner rejected such “floodgate” claims and argued the situation would be very different where ties of kinship did not exist.
The hospital previously told the court many people seeking similar information were brought up in humble circumstances, reared in institutions or informally adopted and had little or no information about their parents.
