13. The law 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. Section 4 of Health Service Commissioner Act 1993 says-
The Commissioner shall not conduct an investigation in respect of action in relation to which the person aggrieved has or had – (a) a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative, or (b) a remedy by way of proceedings in any court of law, unless the Commissioner is satisfied that in the particular circumstances it is not reasonable to expect that person to resort or have resorted to it.
14. We have discussed this with Mr M 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 in to. In this case we think it is reasonable for Mr M to pursue a legal route to potentially achieve the compensation he wants.
15. Mr M complains about the care and treatment his father received from November 2020 to January 2021. Mr M claims there was a failing in the clinical care provided to his father. Mr M says the Trust’s actions were negligible and this led to his father suffering a physical injury. Mr M also says the Trust discharged his father prematurely in November 2020, and this impacted his physical health and wellbeing. We consider there is a legal route available to Mr M through a potential clinical negligence claim.
16. We asked Mr M if he had sought legal advice previously. He told us he had considered legal action but had not yet started the process. Mr M told us in his complaint correspondence that he would seek to engage the services of a solicitor if he was unable to achieve the outcome he wanted. Mr M told us on 28 January 2022, he felt legal proceedings may be his only course of action and he would consider seeking an initial consultation with a solicitor.
17. We talked with Mr M on 4 February 2022 and spoke about the outcome he wants in bringing his complaint to us. Mr M explained he wants the Trust to pay compensation to remedy its failings. Mr M was initially unsure about the level of compensation he wanted. We sent Mr M our severity of injustice scale which outlines the level of financial recommendations we can make for varying levels of injustice.
18. Mr M told us he felt his complaint fell into level three (£500-£950) or level four (£1,000-£2,950). Mr M told us he hoped to receive a sum between £1,000 - £2,500 and would accept £2,000.
19. We have carefully considered Mr M’s claimed physical and psychological injustice. After discussing this with Mr M, and reviewing our severity of injustice scale, we consider the complaint likely falls into level three. Our scale says a level three case would have had a moderate impact (for example distress, worry or inconvenience) that lasted for a significant period of time, or a significant impact experienced over a shorter period of time.
20. Our scale says a level three impact can include:
· Physiological - Minor pain lasting up to about three months; severe pain up to a month. Losses of opportunity for a better clinical outcome in cases not involving terminal, life threatening or seriously debilitating illness.
· Emotional - Distress, upset or worry lasting 6-12 months. Significant distress (that is, distress which results in a degree of functional impairment) lasting from a few weeks to three months (or shorter periods where the symptoms are greater). Single traumatic or highly distressing experiences where there was no other significant adverse impact. Significant embarrassment or humiliation.
21. Mr M is complaining about a period of approximately three months, when his father was in hospital on two occasions. Following our discussion with Mr M, and taking into account our scale, we consider both the physiological and emotional impacts likely fall into level three.
22. Mr M says he wants a financial remedy of £2,000. This would fall into level four of our scale. Our scale says a level four case would include instances where distress has lasted more than 12 months, or significant distress that has lasted more than three months, and cases where there is minor pain lasting for three months to a year, or severe pain for one to three months.
23. We consider the amount Mr M wants is likely more than we usually recommend for the impact he is claiming. We think we may not be able to achieve the full amount of financial remedy Mr M wants. We think given the nature of the concerns brought to us, there is a possibility of a potential clinical negligence claim, and the compensation Mr M could achieve through that route would be higher than we would recommend. Mr M has mentioned to us that his father requires a lot of support, and he has a lot of caring responsibilities following this incident. A court is reserved for dealing with any ongoing and future costs caused by negligence. Our process does not usually allow us to consider costs of this nature.
24. We asked Mr M about his financial circumstances and if there were any obstacles for him in funding legal action. Mr M told us he was able to afford legal action but there was a chance his wife may lose her job in the next three months which would impact his finances. If this happened, we consider Mr M could seek legal action by means of a no-win no-fee legal arrangement. In these types of arrangements there is usually no financial risk to the claimant. Mr M told us he is aware of no-win no-fee arrangements.
25. Mr M told us he hopes to avoid taking legal action at this time because he wants an objective review of his complaint. We appreciate Mr M wants our service to review his complaint independently. The law says we cannot investigate a complaint where a person has the option to take legal action, unless we consider this is unreasonable. We consider Mr M has a legal route to potentially achieve the outcome he wants.
26. We have also taken into consideration that pursuing a legal remedy though the courts will often involve having a dedicated legal professional who has a vested interest in winning a case. This means Mr M would have more support through a legal route than through the Ombudsman’s complaints process as our service is impartial and is unable to take sides.
27. Mr M told us he hopes to avoid taking legal action at this time because he complained some time ago and does not want to go through it again with someone else. We appreciate this concern, and we acknowledge Mr M complained to our service more than a year ago. Our role is to consider whether a complainant has an alternative legal route, and we are able to decide this at any time during our complaints process.
28. We understand clinical negligence claims should be made within three years from the date the negligence occurred or from the date the claimant first became aware they or the person affected had suffered a significant injury or illness due to negligence. The events Mr M complains about took place from November 2020 to January 2021, meaning Mr M still has time to make a clinical negligence claim. Mr M should begin legal proceedings as soon as possible to ensure his claim is not time-barred. We think we should not take up additional time by looking at Mr M’s case when we might not be able to achieve the outcomes he wants, particularly when a court is better placed to do this.
29. Mr M told us he thought legal fees may take up a disproportionate amount of the compensation he wants. We appreciate Mr M is concerned about this. Mr M says a financial remedy of £2,000 would be acceptable, though he hoped he would receive as much as £2,500. We consider a legal professional would be well placed to value his claim accurately and should be able to provide him with information on fees if he were to take legal action. We also consider that Mr M may be able to achieve a higher level of compensation through legal action, potentially even more than the £2,500 he is seeking, if he were to bring a successful claim.
30. Mr M told us he hopes to avoid taking legal action at this time because he provides daily care for his father, and this takes up a great deal of his spare time. We consider a clinical negligence claim would be beneficial to support Mr M with this as we understand a court is able to compensate for special damages, such as future care costs and needs. We consider a legal professional would be able to discuss this with Mr M and potentially factor into the claim any future costs relating to the impact the claimed negligence has caused on his father. A legal professional should be understanding of Mr M’s responsibilities as a carer to his father and should arrange any meetings around these responsibilities.
31. We note Mr M also wants to ensure another patient or family does not have a similar experience, and we are mindful we can make recommendations for service improvements.
32. We consider that while most legal remedy is financial, service improvements such as those sought by Mr M, can be achieved because of successful legal action as the organisation will be expected to put in place changes to address any negligence.
33. We think the concerns brought to us by Mr M are serious, and we recognise they have been significantly distressing for the whole family. We were sorry to hear about the family’s experience and we hope Mr T’s health continues to improve.
34. We consider Mr M has a legal remedy available to him and that it is reasonable for him to pursue it. We consider that if Mr M does not achieve the outcome he wants through the legal route, he may be able to bring his complaint back to us.