10. The law says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances.
11. We have discussed this with Mr U to understand his circumstances and the outcomes he wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
12. Based on the information Mr U provided, we think he has a legal route to resolve his concerns. Mr U says the Trust’s failings can be directly linked to his mother’s deterioration and death. We are sorry to hear about these serious concerns and the distress this caused Mr U.
13. Mr U explained he wants an acknowledgement of failings, service improvements, an apology and a financial payment of £10,000.
14. Mr U could make a clinical negligence claim. We discussed this with Mr U and he gave us reasons why he cannot take legal action.
15. Mr U explained he does not want to ‘keep digging up past experiences about the complaint’. He told us this would be distressing for him. Mr U also explained he is hesitant to take legal action because of the costs involved.
16. We have carefully considered these reasons. Due to the serious nature of the complaint, it would be reasonable for him to make a clinical negligence claim. If we did look at the case, we could be denying Mr U a more significant and appropriate outcome. We have also considered that he may wish to explore this option while he is within the time limits specified by law for making such claims. For clinical negligence claims, this is three years from the event or date of knowledge.
17. We recognise that pursuing a claim would involve, as Mr U says, ‘digging up past experiences about the complaint’. We understand this can be emotionally challenging. This would be no different if we considered the complaint, as the same information will need to be reviewed and discussed. We do not consider this to be a reason to not take legal action.
18. Mr U has confirmed he has not discussed the case with any solicitors and is unaware of the costs. Based on this we do not consider this to be a barrier in Mr U taking legal action, as he is unaware of the costs and whether he can afford this. We also know there are ‘no win, no fee’ organisations that could help Mr U.
19. We recognise that Mr U has outcomes which may not be achieved through legal action, like an apology and service improvements. We understand his main outcome is for a financial payment so we think it is reasonable for him to explore legal action.
20. If after exploring the legal route there are any parts of Mr U’s complaint that he has been unable to achieve, he can return to us, but he must do this soon as possible. This is because of our time limit. Our time limit is clear that complainants must come to us within a year of when they first became aware of the issues being complained about. If a complaint comes to us outside of this, we will have to look at the reason for the delay.
21. If Mr U does come back to us, we will consider the action that he has taken, how far his case progressed and whether his complaint is in time. We will then decide if we can consider his complaint further.
22. For the reasons explained above, we are not continuing with our investigation because it is appropriate for Mr U to explore his legal options.
23. We are sorry to hear of the events that led to Mr U’s complaint. We understand how distressing this will have been and appreciate the efforts he has made in bringing his complaint to us.