Tees, Esk and Wear Valleys NHS Foundation Trust

3. Miss E complains about the actions of the Trust in January 2020 when it failed to put her son on the ADHD pathway.

4. She says:

· her son was rejected from the pathway despite her informing the Trust she did not need to take him on a positive behaviour course (PBC), as she was a headteacher and a special educational needs co-ordinator (SENCO). She was not informed declining the course would interfere with her son’s assessments

· the reasons she declined the PBC were never recorded in the Trust’s records

· the complaints team failed to enforce learnings from this complaint.

5. Due to these failings Miss E said she and her son have been misinformed and have suffered undue distress and delays in her son’s care.

6. Miss E is seeking an apology, acknowledgement of failings and systemic changes so this does not happen to anyone else. She is also seeking financial compensation of £5000.

7. Miss E took her son to the Trust in 2019 when she noticed his behaviour was increasingly problematic and detrimental to his ability to receive a consistent education. He was initially accepted onto the ADHD pathway, however, Miss E complains her son was later rejected after she said she would not take him on the positive behavioural course. She declined this observation as she explained to the Trust, she was a headteacher and already had relevant training and qualifications (SENCO) to understand the traits her son was displaying. However, the Trust removed him from the ADHD pathway without telling her that if she did not take him on the observations, he would be rejected for the pathway.

8. Miss E also complains she was not told when her son was removed from the pathway, which added a considerable length of time to him getting his eventual ADHD diagnosis.

11. 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. We have discussed this with Miss E 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 into.

12. We noted Miss E was seeking financial remedy for the failings she believes occurred while she was trying to obtain her son’s ADHD diagnosis. We asked Miss E how much she was seeking and explained we can achieve moderate compensation claims in line with our severity of injustice scale. After an initial review of Miss E’s case, she was advised her complaint would likely sit between a level one and level two (approximately £0 - £400) if we upheld the complaint and found failings during our investigation. In some cases, we may uphold a complaint but decline to offer any compensation if we deem the case to be level one on our severity of injustice scale, once we have reached a final decision.

13. Miss E was not satisfied with the level of financial compensation we may be able to achieve and confirmed she would ideally want to seek legal remedy.

14. Miss E has a legal remedy available to her through the courts for clinical negligence. She claims negligence and incompetence in her son’s care led to her son having to wait 18 months for an ADHD diagnosis. This meant he fell behind at school and even struggled to manage his behaviour at home. After discussion with Miss E, she has confirmed she would be happy to go ahead with legal action in the hopes of achieving a more substantial financial remedy.

15. There may be some aspects of her complaint an Alternative Legal Remedy does not cover as the courts are limited in the sorts of redress they can offer. Most redress is financial. However, courts can make recommendations as well as financial remedy. Therefore, we cannot assume a complainant will not achieve remedies such as service improvements or an apology through legal action as a by-product.

16. Section 4 of the Health Service Commissioner Act 1993 (HSCA) states ‘The commissioner shall not investigate in respect of action in relation to which the aggrieved has or had a remedy by way of proceedings in any court of law.’ Based on the information at hand at this stage, there do not appear to be any barriers to her proceeding with legal remedy to achieve her desired outcomes.

17. If Miss E is unable to pursue legal remedies for any reason it is open for her to return to us. The law (Section 9(4) of the HSCA) says a person needs to make their complaint to us within a year of becoming aware of the problem. Miss E should therefore not delay in returning to us should she wish to. We will, of course, review each complaint on a case-by-case basis as we are aware of the additional delays we have now when allocating health cases.

1. We have carefully considered Miss E’s complaint about Tees, Esk and Wear Valleys NHS Foundation Trust (the Trust). We consider Miss E could take legal action on the matter she has brought to us. As such, we have decided not to consider her complaint further and have discussed this with Miss E.

2. We are sorry to hear about Miss E and her son’s experience with the service received from the Trust when he was waiting for an attention deficit hyperactivity disorder (ADHD) diagnosis. We appreciate it must have been a difficult time for both him and his mother, and understand what she has told us about how this affected him.