12. The Health Service Commissioners Act 1993, which governs how we do our work, 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 do not consider whether legal action would succeed, but whether it would be a reasonable option to look into.
13. We have discussed this with Ms R to understand her complaint, 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.
14. An individual may pursue a clinical negligence case when the clinical care they received fell below medically acceptable standards, and they suffer an injury as a result.
15. Ms R says that because the Practice delayed acting upon tests and recommendations from referral, ignored her symptoms and dismissed her concerns, her health worsened. She now has chronic urinary retention, bowel incontinence, and at constant risk of developing sepsis. By the Practice labelling her symptoms as psychosomatic, this has put Ms R’s health and wellbeing at risk.
16. Considering this, we think Ms R may have a legal claim of clinical negligence available to her.
17. The General data Protection Regulations 2018 (GDPR) gives a person the right to claim compensation from an organisation breaking data protection law. This includes both ‘material damage’ and ‘non-material damage’, for example, if an individual has suffered distress. A personal data breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data.
18. Ms R says the Practice failed to add, and altered or removed, significant medical information to her medical records. She says this has caused issues for her when attempting to seek care from other health professions as they do not have a full picture of her health. She also says it has caused distress and frustration. As such, we think there is also a potential legal route Ms R could take here.
19. We have gone on to consider whether legal action would be able to achieve the outcomes she is seeking. Ms R has told us she would like an apology, an acknowledgement of failings and a financial remedy. She would also like her medical records to be accurately updated.
20. In trying to determine how much financial remedy Ms R is seeking as an outcome to her complaint, we provided Ms R informed about our Severity of Injustice (SOI) scale. The scale contains six different levels of injustice that a complaint could fall into, which increase in severity. Each level is then linked to a range of financial amounts we would usually recommend in those circumstances.
21. Ms R feels like her complaint falls into level six (£12,500 and above). Level six are the most serious we see, involving profound, devastating, or irreversible impacts on the person affected.
22. As Ms R is looking for a significant amount of money, this is something a court can potentially achieve. When we discussed this with Ms R, she said she is willing to forego a financial remedy. This is because she said it was more important for her to have an investigation and for the Practice to acknowledge what had happened.
23. We explained to her that we could keep a financial remedy as an outcome to her complaint, but that we may not even reach the amount she is seeking. This is not to say we have not recommended large financial remedies, as we consider things on a case-by-case basis.
24. In terms of the other outcomes she wants, we can achieve most, but not all, of them. We could potentially achieve an apology and an acknowledgement of failings. A court can also achieve these secondary to any compensation it may award.
25. However, regarding the medical records, only a court can recommend that aspects be changed. This is not something we could achieve for Ms R. It therefore seems the courts may be best placed to achieve all the outcomes Ms R has told us she is seeking.
26. In summary, it appears Ms R may have a legal claim available to her, which could potentially consider all of the outcomes she is seeking, which is something we could not do. We next considered whether there would be any barriers to Ms R taking legal action, or if there is any other reason why she could not explore legal action.
27. When we spoke with Ms R about legal action, she expressed reluctance as her previous experience of seeking legal action did not go well. Ms R said she approached a solicitor in January 2022. However, because she says there were issues with her medical records (which is something she has complained to us about), Ms R says she felt she was not being believed.
28. Ms R also said that if we did go ahead with an investigation and found failings, she would then feel comfortable to take legal action. This suggests there would be no barriers to her taking legal action, if she found someone to take her case.
29. In our communications with Ms R, it is clear she has been through a lot in last couple of years. Especially since she suffered a brain injury, and how this impacted her cognitive abilities.
30. As explained in paragraph 12, if we see someone has a legal route available to them, and there are seemingly no barriers in them pursuing it, we need them to exhaust this in the first instance. It is not the case that we would investigate first before someone then takes legal action.
31. Regarding the part of Ms R’s complaint about appointments, we do not think there is a legal remedy available. However, we do not think we could consider these while any legal action is ongoing without potentially impacting the court’s consideration. This is because the distress suffered in relation to these parts of the complaint, is part of the cumulative impact of how the Practice’s actions, or lack thereof, impacted her health.
32. As set out above, we think Ms R has the option to take legal action in relation to the majority of her complaint, and we have seen nothing to suggest it would be unreasonable for her to pursue this. In relation to the other parts of her complaint, we do not consider we could consider these further while any legal action is potentially ongoing.
33. If Ms R is unable to proceed with pursuing legal action, she can come back to us. For example, if legal were unable to take on her case. We would need to see evidence of this. Additionally, once the courts have had the opportunity to consider the clinical and medical record aspects of Ms R’s complaint, she can come back to us and ask us to consider any parts of the complaint not already considered by the courts.
34. We have made Ms R aware of our time limits as we are unable to investigate complaints brought to us 12 months after someone has become aware of the problem. We can put this time limit to one side if we think there is a good reason to do so.
35. We understand how important this complaint is to Ms R, and we hope our explanation in this statement helps Ms R understand our decision at this time.