The Trust’s failure to investigate
15. Mr A has told us the Trust did not conduct imaging to search for metastases during his father’s treatment for laryngeal cancer. Mr A has said his father was suffering from pain and other symptoms. He thinks the Trust should have considered metastatic disease was the cause of these symptoms.
16. The Act gives us the power to investigate complaints. This sets out time limits for making a complaint to us. It says a person needs to make their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year, unless we consider there is a good reason.
17. Mr I was informed of the presence of metastatic cancer during his admission in February 2020, following investigations. Mr A has told us he became aware there was an issue to complain about on 20 February 2020, which corresponds to Mr I’s admission.
18. Considering this, the Act says we should have received the complaint by 20 February 2021.
19. Mr A made his first complaint to the Trust about the missed secondary cancer diagnosis on 23 October 2020. The Trust provided a complaint response on 17 December 2020. Mr A sent us his complaint on 29 October 2021. Considering the date of awareness (February 2020), Mr A’s complaint is over eight months out of time.
20. We have discussed the delay with Mr A, to understand the reasons why he did not bring the complaint to us sooner.
21. Mr A said the Trust told him he had 12 months to make a complaint. The Complaint Regulations say complaints must be made to the NHS within 12 months of the date the complainant became aware there was an issue.
22. By way of explanation, our time limits for complaints, and those of the Complaint Regulations run concurrently. We may decide to put part of our time limit to one side if an organisation has taken an unreasonable amount of time to respond to a complaint.
23. However, we have seen no indication that is the case in this instance. The Trust took only two months to respond to the complaint.
24. Mr A has suggested we should take the start of the complaint process from the date of a meeting between Mr A’s family and Trust staff on 10 March 2020. He has supplied a written transcript from the meeting. The transcript records the Trust explaining why it did not complete further investigations. It does not record a request to make a formal complaint.
25. Even if we were to accept Mr A’s point here, it does not explain the time between the Trust’s final response and Mr A complaining to us. We have considered this further below.
26. Mr A has also told us he was working as a key worker at the time of his father’s death. He has told us he became grief stricken. We appreciate this must have been a very distressing time for him and his family.
27. We can also see Mr A took the case to a solicitor, however, the case was declined on a ‘No win No fee’ basis in August 2021.
28. We appreciate the reasoning provided and how it would have been significant for Mr A. However, this would not meet our threshold for a reason to put our time limit to one side.
29. In particular, it does not explain the prolonged period between the Trust’s final response (December 2020) and Mr A approaching the Parliamentary and Health Service Ombudsman (October 2021). This was 18 months after Mr I had died. During this time, Mr A had pursued the complaint with the Practice and approached a solicitor.
30. In our telephone discussion and email correspondence, Mr A did not make us aware of any other significant barriers which would have prevented him from pursuing this complaint with us sooner.
31. As such, we have not seen a reason to put our time limit to one side. We appreciate our decision may be disappointing for Mr A, but we hope our explanation is clear.
The Practice’s failure to refer
32. Mr A has told us the Practice failed to investigate Mr I’s symptoms and failed to refer him to a specialist. He said this failure led to his father’s cancer being missed. We have set out in paragraph 16 what the law says about our time limit, and what we consider in relation to this.
33. We consider the latest Mr A would have been aware he had a reason to complain about the Practice was when Mr I was diagnosed with metastatic cancer. This was in February 2020.
34. As we have already set out in paragraph 19 above, there are indications the complaint is out of time. We have again considered whether there are good reasons why Mr A did not bring the complaint to us sooner.
35. We have considered whether there was any unreasonable delay in the Practice’s complaint response.
36. Mr A made his first complaint to the Trust on 23 October 2020. In this, he complained about both the Trust and the Practice. The Trust forwarded Mr A’s concerns about the Practice to NHS England.
37. The Practice provided a complaint response on 17 January 2021. Mr I’s family sent additional questions and the Practice sent a second response on 2 March 2021.
38. NHS England provided a response on 6 May 2021. It is currently unclear when the Trust forwarded the complaint on to NHS England. The earliest it could have been done was on 28 October 2020 when Mr A returned his consent form to the Trust. NHS England’s response was provided after six months and seven days.
39. Mr A’s complaint to us is eight months out of time. If we put the NHS England delay period to one side, the complaint would still be out of time by around two months.
40. We have set out in paragraphs 26-27 the reasons Mr A has given for not making his complaint to us sooner. We understand Mr A’s reasoning for this delay and we empathise with his position. We appreciate how distressing these events would have been.
41. In our view, Mr A has not provided a good reason for why he was unable to bring his complaint to us sooner. There is a prolonged period between NHSE’s final response (May 2021) and the complaint being made to us (October 2021). We have seen during this time he was able to approach a solicitor, which suggests he would also have been able to make a complaint to us.
42. We have considered whether there is good reason for us to put the time limit to one side. The reasons Mr A provided have not persuaded us there is a good reason why he could not have complained sooner. We are sorry that we cannot consider Mr A’s complaint further and we appreciate our decision may be disappointing.