Antenatal testing
17. O was born in July 2018 but he was not diagnosed with beta thalassaemia until April 2020. This is the date Mrs H was aware she had reason to complain about Trust A.
18. The law says we should not consider a complaint made later than 12 months after the complainant became aware of the problem, unless there is a good reason to put the time limit to one side.
19. Mrs H should have brought this part of her complaint to us by April 2021. She brought the complaint to us in November 2023, two and a half years after the time limit. We spoke to Mrs H to understand the reasons for the delay in bringing the complaint to us.
20. Mrs H told us after O’s diagnosis her focus was on his immediate needs and she also had to have counselling to help her cope. We understand she made a complaint with Trust A, and after she had a final response from it she made a complaint to Trust B for the delay in diagnosing O.
21. We understand making the complaint to Trust B, caring for O and having counselling would have taken most of her focus. Mrs H did contact us and we asked for her to complete the complaints process with Trust B before we could consider her complaint. We wanted to consider the complaints together as they may have been linked. So we appreciate it took time to approach us with a complaint that was ready for us. We can also see that at the time she came to us, there was a delay in being able to allocate the complaint to a caseworker due to the amount of work we were handling. It was not until October 2022 that we could speak to her about her case. We have taken all these reasons into consideration.
22. When we spoke with Mrs H in October 2022 we discussed the complaint about Trust A, but, she told us she was taking legal action against it and did not want us to look into it. At this point we considered this part of her complaint to be withdrawn.
23. In November 2023 Mrs H asked us to look into the complaint against Trust A as well as the complaint about Trust B. This was 13 months after she withdrew the complaint against Trust A. We looked at whether we could do this considering the delay.
24. We asked Mrs H what had happened with the legal action and she told us she was speaking with the Thalassaemia Society who told her to have genetic testing to see if she was a carrier of the gene. Because of this, she did not think she had a good chance of successful legal action. Mrs H confirmed she did not get legal advice.
25. While we appreciate Mrs H’s actions, we do not think this is a good enough reason to put the time limit to one side.
Diagnosis
26. The law says we will not investigate if the person could resolve their complaint and achieve the outcomes they are looking for by taking legal action, unless it is unreasonable for them to do this.
27. We discussed this with Mrs H 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 in to.
28. Mrs H said the Trust failed to diagnose O with beta thalassaemia between July 2019 and March 2020. She told us because of this O fell ill many times because his undiagnosed condition was not being managed. He was so ill he attended the emergency department four times and was hospitalised three times. Mrs H also told us O took unnecessary medication, experienced unnecessary trauma and pain and the whole family were distressed and concerned throughout this time.
29. Mrs H complains Trust B were negligent in missing opportunities to diagnose O with beta thalassaemia and she would like to be compensated for the impact this had on O, her and her family. We do not know at this point what the long-term impact on O is and we cannot comment on his future health as it is not our place to do this. It does seem that legal action is an option for Mrs H. We looked at whether it is reasonable for her to look into this.
30. We asked her if she had taken any legal advice and if there was anything stopping her from doing this. She told us it is a lot of work and would take time she does not have. While we understand Mrs H has to prioritise the care of her family and son, we would expect her to be able to make enquiries into the possibility of taking legal action and what legal action would involve. We told Mrs H we would expect complainants to see if they had a legal route available and suggested this could be done by using a ‘no win no fee’ solicitor.
31. We also considered what she is trying to achieve by bringing her complaint to us. She is looking for an acknowledgement of failings, service improvements and a financial payment. We sent Mrs H information on how we decide on financial payments to recommend before discussing this further with her.
32. Mrs H told us she did not know how much money she would want, but she did say if she was not happy with the amount she would reject it or then take legal action. This tells us the amount of money is important to Mrs H and she would be willing to get it elsewhere should she not think it was enough. It suggests legal action is a potential route for her. We shared with her that based on what we can see about her complaint, we may be able to achieve about £500 to £1,000 if we investigated and found failings. Mrs H asked if she could reject this amount and we explained this was not possible.
33. We note that as well as money she is looking to achieve an acknowledgement of the Trust’s failings and service improvements. While these would not be directly achievable through a successful legal action, they are likely to be achieved as a by-product of a claim.
34. It seems reasonable for Mrs H to look into taking legal action. Should Mrs H have any outstanding outcomes after completing legal action she can bring the complaint back to us. We explained if she cannot get legal support she can approach us again but we would expect to see some evidence that she has tried to get legal help. If Mrs H does wish to come back to us, we would ask her to do this without delay to avoid any issue with our time limit.