9.The law (HSCA 1993) 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 Mr O 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.
Is there a legal route?
10.In reaching our view, we consider if a complainant has an opportunity to pursue the complaint legally. We refer to this as an ‘alternative legal remedy’ in relation to the complaint, based on the remedy they are seeking, one that a court could reach determination on.
11.Mr O stated in an email to the Surgery that he was pursuing legal advice regarded failings he believed a GP at the Surgery had made in his care. Further, Mr O added in a separate email that he had advised staff at the Surgery that he would pursue this matter legally if he did not get an explanation and apology from the GP who he believes has been negligent in his care. Mr O then told Surgery staff by email that he would proceed with legal action.
12.During a call with our office, Mr O detailed that he believes the issues raised in his complaint are clinical negligence in that the lack of information provided in the referral by his GP has had a detrimental effect on his health, that there has been a failing or a breach in care causing his health to suffer. Mr O detailed in this call that he had been active in contact with a legal firm regarding a claim for clinical negligence and was currently awaiting a report from a urologist regarding the impact of the lack of sufficient information in the referral before speaking further with the legal firm.
13.Mr O is alleging clinical negligence in that a GP failed to provide the necessary information in a referral form sent to Urology. Mr O explained in an email that the GP did not include a sufficient history or information in the referral to Urology which meant it was not designated as Urgent. Further, Mr O believes this would have alerted the surgical team for his knee surgery that there may be complications, and they may have postponed his surgery.
14.Mr O states the impact of this is that it took four attempts to catheterise him prior to his knee surgery. This has led to him suffering a bladder infection and bowel obstruction which led to him being urinary incontinent and having ongoing problems. Mr O is therefore alleging that he became injured as a result of the treatment. He believes this would not have happened if sufficient information and his history been included in the referral sent to Urology by the GP.
15.Thus, there may be a claim for clinical negligence and in our two-stage test next asking ‘is it reasonable to pursue?’
Is it reasonable to Pursue?
16.During a call with our office, Mr O stated that he would be looking for financial remedy of minimum £10,000 and above which would fit into the top of level five on our severity of injustice scale and could extend into and beyond level six. The severity of injustice scale is a published document that allows the Ombudsman to reach consistent open decisions on the severity of the cases we look at. The scale is broken down into six bandings ranging from level one low impact failings up to level six where often the Ombudsman may see loss of life, permanent disability or profound negative impacts on a person.
17.In using the scale, we do not consider whether legal action would succeed but whether it would be a reasonable option to look in to. Should clinical negligence be proven through legal action, the compensation could be a very significant sum.
18.We discussed the amounts the Ombudsman may award with Mr O if we considered financial redress for non-financial loss suitable and if we considered financial was a suitable remedy. Mr O states the impact of these issues is ongoing, potentially life changing, and he is unsure if they will be lifelong or could be corrected. It is therefore not clear at this moment in time what level on our severity of injustice (SOI) scale that Mr O’s complaint would fit into.
19. That said, we do also know Mr O is active with a legal enquiry. The outcome sought of financial remedy is something that can be achieved through legal action. Mr O is also looking for an apology and an explanation of what went wrong with his care. These are outcomes that could be achieved as by-products of a legal claim if the Trust agreed to pay compensation.
20.Mr O stated during a call that he would prefer to go through our office with his complaint as he does not trust solicitors. He added that he has savings of £25,000 that he could use for legal action but wants to save this for his grandchildren. He did not raise any barriers to taking legal action.
21.The Health Service Commissioners Act 1993 is clear that in law we cannot investigate a complaint if there is or was a legal remedy unless it is not reasonable for the complainant to do so. Mr O has made clear that he has the finances to pursue a legal claim. He also stated during a call to our office that a solicitor’s firm is willing to take the case on a no win no fee basis however he may need to pay for some things upfront.
22.Mr O states he does not trust solicitors however this is not a barrier to him taking legal action. A solicitor/ legal professional would have a vested interest in winning Mr O’s case and therefore would assist him through the legal claim process.
23.Some of the points of Mr O’s complaint would not be deemed as potential clinical negligence such as rudeness and disparaging remarks from a GP during an appointment on 16 February 2024. However, it is clear from speaking to Mr O that the main focus of his complaint, the primary issue, is the lack of sufficient information sent in a referral which led to him suffering injury. If there are any outstanding outcomes that cannot be achieved through the legal claim or Mr O would like us to look at issues separately after legal action has concluded, he can bring the complaint back to us to consider in the round.
In summary
24.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 engaged with Mr O to understand his outcomes and if reasonable to pursue legal action.
25.Mr O has until April 2027 to seek legal advice and pursue legal action if legal advice confirms he has a claim. We do not want to disadvantage Mr O with regards to the amount of compensation he could achieve via legal action or the time he has to make such a claim. Mr O has the option to refer the complaint back to us if legal action is not an option for him.
26.We would not consider it fair to the Surgery to potentially have to deal with two concurrent investigations if we were to investigate at the same time as legal action taking place. The main part of this complaint is the lack of sufficient information and history in the referral sent to Urology. If legal action does not bring a resolution to all the parts of Mr O’s complaint, then he can bring those parts of her complaint back to our office.
27.We consider Mr O has an alternative legal remedy available for the main part of his complaint. We also consider it is reasonable for him to pursue this. Therefore, this complaint by Mr O has an alternative legal remedy.
28.Mr O can return to us with any outcomes not achieved through the courts afterwards by contacting his caseworker. However, there are time limits to the Ombudsman considering complaints (details can be found here https://www.ombudsman.org.uk/makingcomplaint/what-we-can-and-cant-help) and therefore Mr O should bring his complaint back to us promptly should legal action not be available.
29.For the reasons we have provided, we shall take no further action on the complaint as an alternative legal route exists for the main part of this complaint and is reasonable to pursue. Therefore, this complaint by Mr O has an alternative legal remedy. We recognise the impact these events have had on Mr O and we appreciate it may have been difficult for Mr O to speak about the events that occurred within this complaint.