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. We have discussed this with Ms J 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 into.
11. Ms J says because of the Trust’s actions, she experienced much physical harm and mental distress, that still affects her ability to live a normal life. She says she wants a financial payment. Because of this, we think Ms J could make a clinical negligence claim.
12. Ms J told us she contacted solicitors before getting a final response from the Trust, but she was not successful because she needed evidence that her complaint had been responded to. She says she has not contacted any solicitors since because she was waiting for a decision from us.
13. We explained we cannot investigate her complaint if she has not looked into her legal options fully. We asked her for reasons why she had not taken legal action or looked into this again and she says there were none.
14. Ms J says she only wants a financial payment. We asked Ms J how much money she wants to put things right for her and she did not know. She explained the amount would have to be high to reflect her situation. She said she wanted to get as much as she can.
15. We explained how we use our severity of injustice scale (the scale) to help us decide on the right amount of payment. We also refer to other cases where we have made similar recommendations.
16. We The scale has six levels and these range from level one where we see a low-level injustice to level six, for cases of irreversible damage, loss of life or extreme failings. The scale is available on our website.
17. We think Ms J’s case falls at level five on the scale. Typically, level five cases will be when the person affected has experienced a marked and damaging effect on their ability to live a relatively normal life and in these cases, recovery is likely to take a significant amount of time.
18. We explained that in these cases we recommend between £3,000 to £9,950. We also explained we recommend the amount based on the injustice we find. So, if we found a smaller injustice, the amount of money we may recommend would be less. It seems Ms J is looking for a higher amount than what we would be likely to recommend.
19. We discussed with Ms J what we can achieve like an apology and improvements to service but she is not looking for these outcomes.
20. We have not seen anything that would stop Ms J from taking legal action. She can contact free legal services who may be able to offer her advice or she can contact solicitors directly. Ms J did not tell us about her financial circumstances but she could look into using a ‘no-win, no-fee’ service.
21. If her circumstances change and it becomes clear it would no longer be reasonable for her to take a legal route, she could come back to us and ask us to investigate her complaint.
22. The care and treatment Ms J is complaining about happened in May 2022. We discussed with Ms J how there is a time limit of three years to make a clinical negligence claim. She needs to make a clinical negligence claim by May 2025 to be in time.
23. Ms J can contact us again if legal action is not successful or about anything that legal action did not consider, but we will need to consider our time limit.
24. We are sorry to hear about the circumstances of Ms J’s complaint and thank her for bringing her complaint to us.