8. The law - section 4, 1993 Act - says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We have discussed this with Mr U to understand his circumstances and the outcomes he wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.
9. We consider Mr U has potential for a legal cause of action.
10. Mr U is seeking financial redress and acknowledgement of the Trust’s failings.
11. The courts are limited in the sorts of redress they can offer. Most redress is financial. However, courts can make recommendations as well as financial remedy. Therefore, we cannot assume that a complainant will not achieve remedies such as service improvements, or acknowledgement of failings, through legal action as a by-product.
12. Mr U initially brought his complaint to us in August 2020. He told us he was seeking £10,000 plus as a financial remedy. We considered it would be reasonable to pursue his complaint through the court process. Particularly as he was prepared to take legal action, and given the amount of financial remedy he was seeking. We also explained that even if there was no legal remedy available to him, it was unlikely we could investigate his case as we would not be able to achieve the financial amount he was seeking. We sent Mr U our decision letter on 30 April 2021 and closed his complaint.
13. Mr U brought his complaint back to us in July 2021. He explained he had seen solicitors from his union. He told us they were not prepared to take the case on because it would be hard for them to prove if there were any failings during the operation, and they would not look at his complaints following the operation. He told us his union said pursuing this claim would not be a good use of union funds and recommended he contact other solicitors, including ‘no win, no fee solicitors’, who may be able to help him.
14. Mr U says he has not approached any other solicitors, including ‘no win, no fee’ solicitors, because he did not like the idea of them getting a proportion of any financial award to pay for solicitors’ costs. However, he confirmed he has not made any enquiries on how solicitors’ costs are paid, and what proportion this may be, out of any financial award.
15. We spoke again about what he was seeking as a financial remedy and whether this changed from the first complaint he raised. He said it had not. He believes the failings and the impact caused is more than a level four and should be level six on our severity of injustice scale - £10,000 plus. He says he wants a financial award to pay for modifications around his house including a stair lift. He says the types of modifications he wants - for instance a stair lift - are very expensive.
16. We explained to Mr U that by law we cannot consider a case if there is an alternate legal remedy which is reasonable for a complainant to take. We said the amount he is seeking is more than we could achieve. He is aware of our severity of injustice scale on our website, and we signposted him again to this.
17. We explained to Mr U that, based on the information so far, if we could link any failings to the impact, this would be level four or less on our severity of injustice scale - £1,000 - £2,950. Mr U disagreed and considered the failings and the impact caused would be more - about level six.
18. In line with our severity of injustice scale, and previous cases, we consider the amount requested is in excess of the usual amounts we would recommend. Due to the amount Mr U is seeking it is therefore unlikely that pursuing legal action would cost more or take up a disproportionate amount of any remedy. It should be noted our decision that a legal remedy is available to him is not made with any view on whether or not his claim would be successful.
19. During our telephone conversation with Mr U, he said he is prepared to go down the legal route. He explained there are no barriers for him in pursuing a legal remedy. He says he is aware of ‘no win, no fee solicitors’ and the three-year rule for making a claim, if he wanted to take this to court. He says he was conscious of the three-year rule and did not want to miss this.
20. We acknowledged he had seen a solicitor and the advice given. However, we consider he could explore other solicitors/legal services for their advice and whether they would pursue his claim. There are free legal advice services such as Action Against Medical Accidents (AvMA), or he could approach a ‘no win no fee’ solicitor. Mr U agreed he had not explored other solicitors but was willing to do this. This is confirmation Mr U knows he has a legal remedy outside of our organisation and is willing to take it.
21. Mr U’s complaint relates solely to clinical issues and the treatment provided. When combined with his requested outcome of a large financial award, we consider it is reasonable to expect him to take further legal advice and/or action. If successful, this route would be able to achieve a financial outcome as well as the possibility of an admission of wrongdoing, as this can be a secondary outcome obtained via the Courts.
22. Mr U is able to return to us, for us to consider any issues not already considered by the Courts, following legal action. If he did come back to us, he would need to reconsider the amount he wants as an outcome, as the financial remedy he wants is in excess of the usual amounts we recommend. Mr U must bear in mind our legal time limit when doing so. We can only consider complaints to us that are made within 12 months of the date the complainant became aware of the issue. We can consider complaints outside of this time frame; however, we have to be satisfied there are special circumstances which we consider reasonable.