3. Mrs U complains about the treatment her mother, Mrs A, received from the Trust.
4. Mrs U complains that in December 2020, the Trust would not provide her mother with mittens to prevent her from removing the oxygen mask.
5. As a result of the Trust not providing mittens to Mrs A, Mrs U said her mother died as she was not given the chance to get the oxygen she needed.
6. As an outcome to her complaint, Mrs U is seeking a financial remedy.
Trust’s decision not to use mittens on Mrs A
9. The law 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 Mrs U 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.
10. Mrs U says that when her mother was first admitted to the Trust in December 2020, the Trust were informed that her mother needed to be given mittens to stop her from removing her oxygen mask. The Trust did not give Mrs A mittens as they said it was a ‘deprivation of her liberty’. Mrs U complains that had the Trust given her mother mittens, she would not have died.
11. Mrs U would like compensation as an outcome to her complaint. As Mrs U complains about the poor care and treatment her mother received in December 2020, she is still within the three year statutory time limit to start a clinical negligence claim. We think Mrs U has a legal remedy available to her in negligence.
12. We sent Mrs U our Severity of Injustice Scale and asked her how much compensation she would like as an outcome to her complaint. Mrs U explained that she would like approximately £200,000 in compensation. Mrs U explained that her mother was not given the opportunity to live when the Trust refused to give her mittens. She explained that both her and her father have been left devastated by her mother’s death.
13. Based on the impact Mrs U is claiming, if we were to consider her complaint and found a failing, we could not award compensation for the amountthat Mrs U seeks. We would be prejudicing Mrs U’s ability to get the level of compensation she seeks by taking her through our process, especially when she has limited time to bring a claim.
14. We wanted to understand whether there were any barriers preventing Mrs U from pursuing a clinical negligence claim and whether she would be willing to do so. Mrs U explained that she could not afford to pursue a clinical negligence claim, but she understood there were ‘no win, no fee’ solicitors available.
15. We explained to Mrs U that there were also conditional fee agreements (an agreement where the solicitor and client agree to share the costs and risks of legal proceedings) that could be in place, and there was a charity that could assist Mrs U with finding a ‘no win, no fee’ solicitor.
16. Mrs U noted that she would like the Ombudsman to look at her complaint first due to her father’s deteriorating health. We appreciate and sympathise with Mrs U and her father for his deteriorating health and understand that this is a difficult time for them.
17. The Health Service Commissioners Act 1993 prevents us from investigating a complaint if there is, or was, a legal remedy available to the complainant and it is reasonable for them to pursue it. It is important to note that pursuing a claim via a solicitor would be no different to pursuing a claim with the Ombudsman as we, too, would need to request Mrs A’s medical records and request clinical advice on the matter.
18. Also, as the complaint is about the treatment Mrs A received, and Mrs U is bringing the complaint, Mr A’s health should not prevent her pursuing the complaint. Solicitors can also be flexible when arranging meetings if Mrs U has any caring responsibilities for her father during the claims process. With regards to the financial expenses incurred, as Mrs U noted, there are also no win, no fee solicitors available that may be able to take her complaint on.
19. Giving consideration to the circumstances, we think it would be reasonable for Mrs U to pursue a legal route to achieve the full amount of compensation she wants. Mrs U only requests compensation and the courts are reserved to decide upon large compensation awards. Also, the sum of compensation Mrs U is seeking outweighs the cost of legal fees in pursuing a clinical negligence claim.
20. Following careful assessment and application of our law and process, we hope we have assured Mrs U that the reasons put forward by her do not make it unreasonable for her to pursue legal action. The process of bringing a clinical negligence claim is similar to bringing a complaint to the Ombudsman.
21. The courts are reserved for adjudicating on these types of matters and are best placed to achieve Mrs U’s outcome. We hope by pursuing a claim brings closure for Mrs U after her mother’s death. Should Mrs U be unsuccessful in bringing a claim in clinical negligence, she is able to bring her complaint back to the Ombudsman.
1. We have carefully considered Mrs U’s complaint about Royal Free London NHS Foundation Trust (the Trust). We consider Mrs U could take legal action on the matter she has brought to us.
2. We understand Mrs U has experienced a very upsetting and difficult time with her mother’s death and her father’s subsequent diagnosis. We would like to offer our sincere apologies to Mrs U and thank her for bringing her complaint to our attention.