7. The law (the Health Service Commissioners Act 1993, section 4) states we cannot investigate a complaint where the complainant could get the outcome they want by taking legal action, unless we think it is not reasonable for them to pursue this route. This ensures we do not interfere with matters the Courts are responsible for.
8. We discussed Miss H’s complaint with her to understand what outcomes she is seeking to put things right. After reviewing our ‘Severity of Injustice’ scale, she said she feels she sits on level six of the scale (£10,000 or over).
9. The amount Miss H is seeking is more than we might usually recommend in similar cases, and we do not want to prevent her from potentially being awarded her desired amount, which might be achieved by taking legal action.
10. Miss H has a clear legal route she could use to try to achieve this outcome, as she could bring a clinical negligence claim against the Trust. The Courts can also potentially award higher amounts of financial compensation than we can.
11. In an email to Miss H on 23 June 2022, we asked if she had approached a solicitor about her case or considered legal action. She said she has not spoken with a lawyer about this before. She said she would like to, but has not had the time because of the problems with her health. She also said she does not know who to contact.
12. We understand the reasons why Miss H may have not already sought legal action due to her health problems. However, pursuing a legal remedy though the Courts would involve having a dedicated legal professional on her side and may not take more time than our process. This would also mean she would be supported while going through the legal route.
13. In regards to not knowing who to contact, we informed Miss H that we will send her details of organisations that may be able to assist her with legal advice. We have attached these details in a separate letter.
14. Miss H did not raise any personal, or financial, barriers to her pursuing legal action. She said she would like to speak to a lawyer.
15. The Courts are potentially best placed to achieve the level of compensation Miss H is seeking. As we can see no clear barriers to taking legal action, it is reasonable for her to explore this before we can consider her complaint.
16. We recognise this decision may be frustrating for Miss H, but, in light of the serious impact she outlined, it is especially important she has the best opportunity to achieve the level of financial compensation she is seeking. We cannot provide legal advice, and so cannot say whether her claim will be successful.
17. Miss H explained she is also seeking service improvements to ensure nobody else experiences the same thing she has. The Courts cannot directly recommend this outcome, but service improvements may be a by-product of successful legal action. If she has any outstanding issues which the Courts are unable to achieve, then she can bring the complaint back to us. She can also return to us if she explores legal action but is unable to pursue it.
18. We ask Miss H also takes into consideration our time limit, as the law says the complaint must be made to us within a year of a complainant becoming aware of the problem. We can consider putting this limit to one side if we think there are strong reasons to do so. That means that if she did return to us, we would take into account the decision we are making to close the case now, but we would want to see that she had pursued the legal route as promptly as possible.
19. In summary, we have decided we will not take further action on Miss H’s complaint. It is important she has the best possible chance of achieving her desired outcomes.