9. Section 4 of the Health Service Commissioners Act 1993 says we cannot look into a complaint where a person has (or had) the option to take legal action, unless we think this is (or was) unreasonable in the circumstances. We have talked about this with Mrs A to understand her circumstances and the outcomes she wants.
10. We do not think about whether legal action would succeed but whether it would be a reasonable option to look into. Clinical negligence can take place where there has been a failure to give proper treatment and a patient becomes injured as a result of that.
11. Mrs A complains about several failures to identify and properly care for her arterial arteritis, which caused her great pain and suffering. She also says her condition became so serious she needed a very high dosage of steroid treatment, which had a number of impacts on her health.
12. Mrs A would like a compensation payment as one outcome of her complaint. She told us in her complaint form to us that, although she thinks £100,000 is a small amount of compensation for her complaint, she is willing to accept this.
13. During a first telephone talk with Mrs A, she told us she would like the highest compensation payment possible. After this call, we sent our Severity of Injustice Scale to Mrs A and asked her to think about which level she believes her complaint falls into. Mrs A told us she believes her complaint falls into level six on our scale, which would mean a payment of £10,000 or more.
14. We think Mrs A has the option to take legal action to take her complaint further, based on the clinical nature of the issues she complains about and the compensation payment she would like.
15. We therefore asked Mrs A whether she thought she might take legal action. Mrs A said she spoke to one solicitor over the telephone and asked some solicitors online. She said each refused to take on her case on a ‘no win no fee’ basis.
16. We asked Mrs A to show us written evidence of the legal advice she got from the solicitors she got in touch with. We explained we need this to properly think about whether Mrs A has a legal route that is reasonable for her to take.
17. We also asked Mrs A to let us know any reasons she may feel it is not reasonable for her to take legal action on her complaint, and why. Mrs A told us she cannot afford to pay for legal action herself. She did not give further details of this.
18. Mrs A told us she doubts she kept any paperwork about the advice she got and cannot remember the name or the company of the solicitors she spoke to ask for their advice in writing. She said she is in Australia until 20 April 2023 and said she may be able to try to find the solicitor she spoke to over the phone after she returns home.
19. Mrs A said an advocate from Mind (a charity supporting people with mental health problems in England and Wales) helped her in making this complaint and holds all the information she has about it. We therefore contacted Mrs A’s advocate. They told us they reviewed all documents they got from Mrs A while supporting her with her complaint. They said they did not get any copies of correspondence from solicitors.
20. Mrs A told us she doubts she has any information if Mind was not able to help, and it is very unlikely she can find the solicitors she got in touch with. She said if she does find them, she thinks she will have to pay around £200 for a letter confirming the information we need and asked if we would pay for this.
21. Mrs A repeated that she could not find a solicitor to take on her case on a ‘no win no fee’ basis and she cannot afford to spend money on this herself. She said we cannot expect her to pile up solicitors' bills with no chance of them having success in a claim for her.
22. We understand Mrs A is worried about paying solicitors’ fees without knowing whether her claim will be successful. When deciding whether we can look into a complaint, we do not think about the chances legal action has of succeeding but whether it would be a reasonable option to look into. When thinking about this, we can take into account a complainant’s financial situation.
23. Mrs A has told us she cannot afford to pay for legal advice herself. However, ‘no win no fee’ claims are still an option, and Mrs A has not given us any evidence to show she has spoken with solicitors who have said they would not take on her case on this basis.
24. Mrs A told us it is unlikely she can give us this evidence. She said she may be able to try to chase a written response when she returns home. However, she has said she is not willing to pay the fees she believes this will bring.
25. We have looked into everything Mrs A told us in this decision. We have not seen any evidence to show it is not reasonable for Mrs A to take a legal route with her complaint.
26. It is not clear whether Mrs A will be able, or willing, to give us this information when she returns home after 20 April 2023. However, without this we have no evidence to show it is not reasonable for Mrs A to take legal action.
27. We understand Mrs A has had a very painful experience and this has impacted her overall quality of life. We therefore understand her reasons for bringing this complaint to us, looking for a large compensation payment.
28. It is in Mrs A’s best interests to properly look into a legal route, as it is unlikely we can get her the financial outcome she would like. The Courts may be better suited to do this.
29. We have also kept in mind that clinical negligence claims must be made within three years from the date of an incident happening or the date of the claimant’s knowledge of damage, whichever is later. Mrs A therefore has little time to take the action more likely to get the outcome she would like.
30. Considering this, it is also necessary for us to give Mrs A this decision as soon as possible, rather than taking up more of the time she has to take legal action by saying we will wait for information she might be able to give us after 20 April 2023.
31. This is because we may still decide at that point that it is reasonable for her to take legal action if she cannot give us this evidence, or if the evidence is not enough to make a different decision. In this case, we would have unfairly taken up more of the time Mrs A has for taking legal action.
32. In making our decision, we have taken into account that a compensation payment is not the only outcome Mrs A would like. She would also like an explanation, apology and service improvements, which are outcomes we can get.
33. We still think it is necessary for Mrs A to take legal action on this complaint first, as this is more likely to get her the large compensation payment she would like, and she has little time to do this. Because Mrs A wants a large amount of compensation, we think this is an important outcome for her.
34. While we accept the other outcomes Mrs A would like are not ones the Court alone can get her, these may follow if she takes legal action against the Practice.
35. If Mrs A does not take legal action, or this does not get her all the outcomes she would like, she can come back to us, and we can look at her complaint again. Mrs A should do this after looking into a legal route as we can set our time limit aside if it is reasonable to do so and we can take into account the time it has taken to take legal action.
36. We think it is still reasonable for Mrs A to take legal action, and that this is more likely to get her the outcome she would like. Because of this, we have decided not to look into Mrs A’s complaint further.
37. We accept how difficult this whole experience has been for Mrs A and the ongoing impact it has on her health and well-being. We understand her reasons for bringing this complaint to us.