8. Section four of the Health Service Commissioners Act 1993 says we cannot investigate a complaint where a person has the option to take legal action, unless we consider this is unreasonable in the circumstances. We have discussed this with Ms R to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
9. We understand Ms R says the Trust failed in its duty of care and this led to Mrs R suffering a continued deterioration of her sight. Mrs R says this was emotionally distressing for her and has had a significant impact on her life.
10. During a conversation in November 2021, we discussed the result of a successful case and what we may be able to achieve. We advised it would be reasonable for Ms R to explore her legal options as this would be more likely to achieve the outcome she is seeking. This is because a court can provide a much more significant financial remedy than we generally can.
11. Ms R indicated she is looking for a very significant amount and initially indicated about £1,000,000. We explained the sorts of amounts we may be able to achieve, and Ms R said she considered the financial remedy we may achieve is unacceptable.
12. We note Ms R has not had any success with obtaining a no-win, no-fee solicitor despite trying a selection. However, we are conscious there are other firms, and there is also the possibility of privately funded action. We also appreciate she has concerns about accessing a legal service with her deteriorating eyesight, but many firms would operate in a similar way to ourselves, with a lot of communication via telephone. As such, she should face no specific barriers in this way.
13. Overall, while we fully appreciate Ms R has not been successful so far in finding legal representation, it is also clear that what we may be able to achieve would not be satisfactory to her, and as such legal action remains a reasonable option.
14. Furthermore, we note Ms R is also seeking a guarantee from the Trust that the laser eye surgery suggested will work and fix her eye issue. However, with all procedures there are risks of complications and things not going to plan. No Trust could guarantee the procedure would work or fix the issue with a 100% certainty as there are inevitably risks and complications. As such, we would not be able to achieve this for her either.
15. Additionally, she is seeking to be examined by two eye specialists who would be able to determine the prognosis of her eyesight deterioration for the rest of her life. Again, we would not be able to dictate or provide specific clinical outcomes meaning this is a further aspect we could not achieve for her.
16. As such, it appears the legal route is reasonable and the only likely route to achieve one of her main aims in financial remedy.