7. The Health Service Commissioners Act 1993 is the law that gives us our powers to investigate complaints about the NHS in England. Section 4 of this law says that if a person has or had a legal route available to them, and it is or was reasonable for them to pursue this, we cannot investigate the complaint.
8. Miss A complains that the Trust’s care fell below the expected standard and that this caused harm to her and O. She would like the Trust to compensate her financially for this, including reimbursement of her financial losses and covering the cost of future healthcare that her son may need.
9. When a person claims that the medical care they received fell below an acceptable standard, and that this caused harm, this could meet the tests required to bring a medical negligence claim before the courts. Based on the circumstances of this complaint, we are satisfied that Miss A had a legal route available to her. This is because her complaint appears to meet the tests for bringing a medical negligence claim and legal action could have achieved the outcomes she is looking for.
10. We recognise that in some circumstances it might not be reasonable to expect someone to have taken legal action. The law gives us some limited discretion to investigate complaints where it is not reasonable to expect the person to have done that. We must consider this consistently for each case we receive, and we consider the following factors:
• whether the legal route is/was the only way that the person could obtain the outcome(s) they are seeking • if legal action could achieve all of the outcomes they are looking for • the ability of the complainant to obtain the relevant funding for making the claim • how difficult it would be to make the claim due to the complexity of the legal action required • the age and particular circumstances of the complainant • the time that would be needed to pursue legal action, for example if someone may not live long enough to see the outcome of legal action.
11. Medical negligence claims have a limitation period of three years. This means a claim can only be brought in exceptional circumstances after this three-year period has passed. If this time has passed when a person approaches our service, we must still consider whether it was reasonable for them to have explored their legal options. In this case, the time that has passed appears to have gone beyond the three-year limitation period. Therefore, we have considered whether it was reasonable for Miss A to have pursued this option prior to the limitation period expiring.
12. Miss A had a potential medical negligence claim that could have achieved all of the outcomes she is looking for. There are also some outcomes that we could not achieve but the courts could. This includes her wanting reimbursement for ongoing future medical costs. We consider that legal action may have been a more appropriate option for Miss A, given that it could have achieved all of the outcomes she is looking for and we cannot.
13. With regards to whether Miss A had the funding to pursue a claim, we recognise that many people do not have the financial means to pursue a medical negligence claim. This can be a significant barrier to taking legal action. That said, many solicitors’ firms offer an option where the legal fees are not paid unless the case succeeds in court. This is known as ‘no-win-no-fee’ representation. Solicitors can be cautious about this type of representation and it is not available for every case. However, we expect people to have at least reached out and explored this option with solicitors’ firms before we can conclude there was an unreasonable financial barrier to taking legal action.
14. The Trust signposted Miss A to explore her legal options in its response to her dated 23 August 2022. In this letter it advised her that in order to pursue compensation she would need to make a legal claim and provided contact details for pursuing this further. It also signposted her to an organisation called Action Against Medical Accidents for support in bringing a claim.
15. We cannot know whether, had Miss A explored her legal options at the time, a solicitor would have offered affordable representation. However, we are satisfied that Miss A could have explored this at the time, especially having been advised to do so by the Trust. Because of this, we cannot reasonably conclude that there were significant financial barriers to pursuing this claim.
16. The complaint itself would not have been any more complex than any other standard medical negligence claim. For this reason, we do not consider the complexity of the case posed a significant barrier to taking legal action.
17. We have attempted to reach out to Miss A to ask her whether there were any other reasons why she did not explore the legal route available to her before she approached our service. Despite contacting Miss A about this and asking her advocate to make contact with her on our behalf, she has not responded to our attempts communicate with her.
18. We have seen no personal circumstances that would reasonably have prevented Miss A from exploring legal action to achieve the compensation she is seeking. We are not aware of any time constraints, for example a terminal illness, which may have meant that legal action was not a reasonable option for Miss A. We have also not seen any evidence that the cost of taking legal action would have been disproportionate to the compensation being sought by Miss A.
19. In summary, Miss A had a potential claim for medical negligence, and was previously signposted to explore her legal options by the Trust in August 2022. She has not done this, and we have seen no evidence that indicates it was unreasonable to expect her to have done so. Because of this we have decided there was a legal route available to Miss A that could achieve the outcomes she is looking for. We have also decided it was reasonable for her to pursue this option. Because of this, we cannot take further action on Miss A’s complaint.