Guy's and St Thomas' NHS Foundation Trust

3. Ms R complains the Trust did not take account of her family history in a risk assessment in April 2018. She complains the Trust did not offer her the breast cancer gene (BRCA) mutation test (a blood or saliva test to look for changes in DNA that increase the risk of breast cancer) and refused to address all the concerns she raised in her complaint.

4. Ms R says the Trust failed to take account of genetic factors (her family history) in her score. Ms R was diagnosed with triple-negative breast cancer (TNBC) (a breast cancer that lacks or shows low levels of two female hormones and a protein) in May 2020, which is a direct result of being a carrier of the BRCA1 gene mutation. The BRCA gene is a gene that produces proteins that help repair damaged DNA. A BRCA gene mutation is when the DNA that makes up the gene becomes damaged. As a result, the BRCA is no longer effective at repairing broken DNA and helping prevent breast cancer.

5. Ms R wants service improvements and for the Trust to accept its failure and apologise to her.

6. Ms R wants financial compensation for the risk of the cancer returning, an increased risk of other cancers, a risk to her fertility and of developing lymphedema (a long-term condition that causes swelling in the body’s tissues), and the delay in being able to start a family. She also says the events have caused potential damage to her career prospects because of having to take extended sick leave.

7. Ms R also wants financial compensation for the discomfort caused by chemotherapy treatments (in which medicine is used to kill cancer cells) and the effects of Zoladex (a medication used to suppress production of the sex hormones, particularly in the treatment of breast and prostate cancer), vein damage and painful scarring from the sentinel lymph node biopsy (a test to find the first lymph node or nodes a cancer may spread to). She also wants financial compensation for the stress, anxiety and negative effects on her mental health for which she has had to ask for financial support.

8. In April 2018, the Trust referred Ms R to its cancer risk assessment service. Ms R had a consultation with a breast cancer family history nurse specialist.

9. In May 2020, Ms R was diagnosed with TNBC.

10. Ms R was subsequently told the TNBC was a result of her being a carrier of the BRCA1 gene mutation.

11. Following intensive treatment for breast cancer, Ms R complained to the Trust in April 2021. She asked for clarification about her score and why the Trust did not offer her a BRCA gene mutation test.

12. Ms R says there was a missed opportunity to identify her BRCA1 gene mutation because of a failure to accurately record and document her family history during her initial consultation at the cancer risk assessment service.

13. Ms R explains the failure to observe key facts about her family history and accurately document them in the consultation resulted in her not meeting the threshold for testing. She says had she been tested she would have taken measures to lower her risk of developing breast cancer.

16. The HSCA says we cannot investigate a complaint if a person has (or had) the option to take legal action, unless we consider this is unreasonable in the circumstances.

17. Ms R is complaining about the care and treatment she received from the Trust. Ms R says the Trust did not take account of her family history during a risk assessment in April 2018 and did not offer her the BRCA gene mutation test. One of the outcomes Ms R wants is financial compensation.

18. We have discussed this with Ms R to understand the outcomes she wants and her ability to pursue legal action.

19. During our phone conversation, Ms R said she has talked to a lawyer, who is exploring her clinical negligence claim (when a patient takes their medical practitioner and/or hospital to court for compensation). Ms R says she is waiting for advice from a solicitor. So, it appears Ms R may have a legal route available.

20. Despite Ms R’s health, we have not seen any barriers to her taking legal action. It appears she has the option of legal action to try and get the outcome she wants. As she is already in contact with a lawyer, it appears she can pursue this. It is reasonable for us to expect her to continue to do so.

21. As set out above, the HSCA says we cannot investigate a complaint if someone has the option to take legal action. Ms R believes there is a legal route available to her and she is actively pursuing this. This means, by law, we cannot consider her complaint further.

22. We appreciate our decision may be disappointing for Miss R. We recognise the seriousness of the incident Ms R complains about. We are very sorry for the circumstances which have led her to complain. We hope her legal claim can resolve the matters we have not been able to consider.

23. If Ms R receives legal advice which suggests she would be unable to pursue legal action further, she can ask us to consider her complaint again. We would need to see evidence of any legal advice she has asked for to show she has fully pursued this option.

24. The non-financial outcomes, like the service improvements Ms R wants, may come about as a by-product of legal action. Our Service Model Guidance says someone can return to us to achieve outcomes which they cannot normally get through legal action. So, this may be an option for Ms R if she does not achieve these outcomes following legal action.

25. Lastly, we have a time limit for considering complaints. The HSCA says a complaint should be made to us within 12 months of someone becoming aware of the need to complain. We have discussed with Ms R her complaint is potentially 26 months outside our time limit. We can extend this time limit but only when there are good reasons to do so. So, if Ms R wants us to consider her complaint again, she should come back to us quickly.

1. The Parliamentary and Health Service Ombudsman has carefully considered Ms R’s complaint about Guy’s and St Thomas’ NHS Foundation Trust (The Trust). We are sorry to hear the impact the care and treatment has had on her.

2. We accept the distress and sadness Ms R is experiencing and thank her for bringing her complaint to us. We consider Ms R could take legal action on the matter she has brought to us. This means we are unable to consider her complaint further at this time.