12. The law 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 to do so.
13. Timeline of events:
· January 2018 to 25 April 2018 is the period of events being complained about
· 25 April 2018 is the date of Ms A’s surgery, and potential date of knowledge for the complaint
· 9 November 2018: Ms A’s claimed date of knowledge
· 21 April 2019: Complaint raised to the Trust
· 12 July 2019: First response issued by Trust
· 20 August 2019: Ms A raises unaddressed concerns to the Trust
· 19 November 2019: Final response issued by the Trust
· 8 September 2020: Complaint raised to us.
14. We have discussed the timeline with Ms A to understand the reasons why she did not complain to us sooner. We have also considered the time the Trust took to respond to Ms A during the local complaint’s resolution process.
15. Ms A told us that when she contacted us there was no information about time limits in the information we provided, and that she was informed she must complete the process with the Trust first, so this was what she did. We have reviewed our email to Ms A (dated 9 August 2019) and she is correct that time limits were not mentioned.
16. Ms A explained that the contradictions in the two replies from the Trust, and its poor understanding of the complaint, has had a huge impact on her mental health. As a result, she was considering making her peace with things if the Trust at least tried to show some respect and give a sincere apology, but instead she says it blamed her.
17. Ms A told us this affected her mental state once again and is part of the reason it took time to escalate her complaint to us, as she needed to look after her mental health to keep her daily life going as a priority. As she was not aware there was a certain time limit to complain to us, she took the time to take care of her mental health so she could be ready to work on the case again.
18. Following the end of local resolution on 19 November 2019, Ms A waited nine months and 20 days before bringing the complaint to us on 8 September 2020. She has explained that when she gets depressed, the last thing on her mind is filing documents. She told us that the first concern becomes how to survive because the task of living day-to-day becomes extremely difficult.
19. Ms A explained that she does not feel it is fair to be penalised for this when we had failed to inform her of any time limits. While she had been able to deal with the complaints process with the Trust, receiving a disappointing outcome made her depression worse, leaving her requiring counselling, which made it difficult for her to consider taking the matter further immediately.
20. Ms A also says that our website being closed to new healthcare complaints for a period during the pandemic was a contributory factor to the delay. She explained she was ready to submit her complaint in March 2020 but was unable to. We stopped investigating health complaints from 26 March 2020 to 30 June 2020, and our Service Model Guidance (2019) says the following:
"We stopped accepting health complaints between 26 March and 30 June 2020 to not place additional pressure on the NHS during a national emergency. Some complainants will not have brought a case to us during this period as a result of this, and this may have led to their complaint falling outside of our time limits.
To ensure we take a fair approach to the time limit in these circumstances, we should exercise discretion on any case which would have been in time if made to us between 26 March and 30 June 2020, as long as it is sent to us by 31 August 2020. This does not apply to cases that were out of time already.”
21. Ms A missed the 31 August 2020 deadline by eight days. This date was confirmed on our website, so complainants attempting to bring complaints during the periods when PHSO was not accepting them would have been made aware of this.
22. There are two key delays to consider during the time prior to the complaint being brought to us.
23. The first to consider is the time taken between Ms A’s date of knowledge (when she became aware that there was something to complaint about) and the Trust’s final decision letter (dated 19 November 2019). There are two potential dates of knowledge to consider.
24. The first is 9 November 2018 (the date claimed by Ms A). This was the date she had an appointment at a different Trust (Trust 2), and she says this is when she became aware she had reason to complain. She says the doctor at Trust 2 did not explicitly express concerns of failures by the Trust. However, she says she felt as though errors had occurred. She claims she felt at this time the Trust did not carry out her surgery correctly and she was unhappy with the results.
25. If we accept this date, then the time between Ms A’s date of knowledge and the end of the local resolution process is one year and 12 days.
26. However, Ms A confirmed in a call to us that she was immediately unhappy with the reconstruction of her breasts following surgery on 25 April 2018. She had concerns then, and acknowledged she was unhappy with some aspects as far back as January 2018. Therefore, the date of knowledge was much earlier than November 2018.
27. If we consider 25 April 2018 to be the date of knowledge, then the time between the date of knowledge and the end of the resolution process is one year, six months and 25 days. The local resolution process once the complaint was raised took six months and 29 days.
28. The second delay to consider is between 19 November 2019 (the date of the Trust’s final response) to September 2020 (the raising of the complaint to us), a total of nine months and 20 days.
29. Our Service Model Guidance (2019) says:
‘Complainants whose cases we close as premature should be told about our time limit and that we can put it to one side if we consider it is reasonable to do so.’
30. It goes on to say:
‘We must consider how the time limit applies to the new complaint, from the date that the complainant became aware of what they are complaining about. We will take into account whether the complainant was informed about our time limits when we explained that their complaint was premature – if we didn’t warn them, it is more likely that we will put the time limit to one side’.
31. This is not to say that we will automatically set aside a time limit if we have not previously advised that it applies, but it is one factor that will be considered in our overall decision.
32. Our email sent to Ms A on 9 August 2019 advised her that the complaint was premature and that she must complete local resolution, but it made no mention of time limits. There is also no evidence to suggest that she was told about our time limits in a phone call or by any other method.
33. Regarding Ms A’s ongoing mental health concerns, we obtained her permission to review her clinical records, so we could seek advice on the treatment she was receiving at this time.
34. We then sought clinical advice from a Consultant Professor of Psychology, who reviewed the clinical records provided. They explained that based upon the clinical records there is no evidence that Ms A was seeking or having treatment for depression between 19 November 2019 and 8 September 2020, which is the time between receiving the final response and complaining to us. The only psychological treatment documented in the notes ends in April 2019 when she was discharged having made ‘excellent progress’.
35. There are no entries in the medical records to evidence that Ms A experienced depression, sought, or engaged in treatment at this time. Therefore, there is no evidence to support any relationship between her mental health and the delay in the complaints process currently.
36. From what Ms A has said, it does sound like she was finding things very difficult after she received the Trust’s response. The out of time decision here is very finely balanced, and therefore we took the step of attempting to examine the severity and impact on her depression before making a decision.
37. If there had been something more in the clinical records to support what Ms A has said, it would be easier to consider setting the time limit aside. However, with no evidence of that, we do not feel it is justified to set aside the time limit for the sole reason that we did not advise Ms A that the time limit applied when she initially contacted us.
38. We believe that Ms A was struggling at the time, but we do not think we have evidence that provides a good enough reason for a significant delay in her pursuing her complaint.