Issue 1 – Unanswered questions
10. Mr B complains there are unanswered questions stemming from his concerns about the care and treatment he received from the Trust.
11. NHS Resolution provided us with comments, explaining Mr B made a compensation claim, which is managed within a legal framework. It explained there is a pre-action protocol for the resolution of clinical disputes, which sets out a code of good practice the parties are expected to follow before court proceedings are issued. NHS Resolution said matters of dispute can only be resolved through litigation if the claimant remains dissatisfied with the conduct of the claim.
12. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that anything has gone wrong.
13. We consider NHS Resolution’s response is appropriate. It is the role of the Trust to respond to any questions a complainant has about their care and treatment. Whereas NHS Resolution’s role is to manage and respond to anticipated or issued legal proceedings.
14. We are sorry Mr B still has questions about what happened. If he feels some of his questions have not been answered, he can either raise this with the Trust through the complaints process, or pursue his legal claim which may provide further answers.
Issue 2 – Refusal to provide expert report
15. Mr B asked NHS Resolution for a copy of the expert report it referred to in its letter of response to Mr B’s letter of claim.
16. In response, NHS Resolution said its expert evidence will be disclosed at the appropriate stage of proceedings, should litigation go ahead.
17. NHS Resolution provided us with comments, explaining that in refusing pre-action disclosure of the expert report, it relies on the legal right of litigation privilege.
18. We have compared what should have happened with what did happen and have not found any indications that anything has gone wrong.
19. The Law Society explains that litigation privilege protects confidential communications between lawyers or their clients and any third party for the purpose of conducting existing or reasonably contemplated litigation.
20. We consider that the expert report Mr B requested would be covered by litigation privilege while legal action is being considered. Therefore, NHS Resolution gave a good reason for why it would not disclose the report. If Mr B wishes to pursue this further, he will need to seek independent legal advice.
Issue 3 – Bullying
21. Mr B says he has experienced bullying by NHS Resolution. He refers to staff demonstrating cold treatment, taking advantage of him being mentally debilitated, increasing stress through repeated unexplained requests for extensions and threatening letters of court proceedings. He told us this has caused him significant stress, which we are sorry to hear.
22. NHS Resolution provided us with comments. It said where there are concerns of general handling, conduct or behaviours of staff, it would review such matters through its complaints policy. NHS Resolution also explained where concerns are out of the scope of its complaints policy, for instance those which are mostly about disagreements on the conduct of a claim, it provides a route through a local claims framework.
23. NHS Resolution says it is not aware of any formal complaint or claims being raised by Mr B about bullying. NHS Resolution says it has reviewed its file and cannot find any evidence to support allegations of bullying. However, it is keen to ensure it addresses any concerns Mr B has and says it is open for him to raise these directly.
24. We are the final stage of the NHS complaints process. The Health Service Commissioners Act 1993 says we should only investigate a complaint once the organisation has had the chance to provide a final response, unless it was not reasonable for this to happen. We have not seen any reason why Mr B should not raise his complaint with NHS Resolution first. If Mr B does raise this complaint with NHS Resolution, he can bring his complaint to us if he is not happy with the response, and we will consider this. We will need to consider our time limit, which is that complaints should be brought to us within one year of when a person became aware of the reason to complain, unless it was not reasonable to do so.
25. We have seen no indication NHS Resolution has done anything wrong in relation to Mr B’s complaint that it left questions unanswered and did not provide the expert report. We consider Mr B’s complaint that he experienced bullying by staff is not ready for us, as NHS Resolution has not had a fair opportunity to respond.
26. We can assure Mr B we have carefully considered his complaint and the information he shared with us before making a decision. We are sorry this process has been stressful for Mr B to go through. We thank him for bringing his complaint to us.