8. The law says we cannot investigate a complaint if the 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 T 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.
9. During our telephone call on 2 December 2024, we discussed our severity of injustice scale, which sets out the amounts of financial remedy we would typically recommend if we identified service failures for different types of complaints. Mr T explained that he would like financial remedy to remedy the distress and suffering he experienced following incorrect discharge and the time he spent to deal with Trust complaint procedure since January 2024. Mr T believes the Trust was negligent in the care provided.
10. Mr T reviewed our scale and stated he would be seeking an amount in line with level five on the scale. We think this amount is higher than we may recommend if we investigated and upheld this complaint.
11. As Mr T claims that failings in care caused him to suffer pain for months, and this impacted his physical and mental health, he could pursue a clinical negligence claim. Although a clinical negligence claim may not focus on the stress Mr T suffered from making a complaint, it could potentially address most of Mr T’s concerns. A successful clinical negligence claim may be able to achieve the significant financial remedy Mr T is looking for.
12. We asked Mr T if there are any barriers to him taking legal action. Mr T did not explain any barriers as to why he would not be able to seek legal advice. Mr T said that he was intending to sue the Trust for medical negligence, however wanted to come to us first.
13. We understand why he came to us first and tried to resolve his complaint without legal action. We must act in line with the law and therefore do not think it is appropriate for us to consider Mr T’s complaint further until he has taken legal advice about the possibility of a clinical negligence claim.
14. Mr T explained that he would also like the Trust to resume his care. This may not be achievable through legal action.
15. Although it is not our role to arrange healthcare, we spoke to the Trust to clarify it the previous offer of a clinical review was still available to Mr T. The Trust explained that Mr T is welcome to book an appointment with a clinician to assess whether it can offer any further treatment. We wish him luck with any ongoing care.
16. In summary, we have decided we should not consider Mr T’s complaint further at this time. This is because he could take legal action, and we have seen no good reason why he should not explore this further.
17. Mr T may ask us to reconsider his case if he learns there is not a legal route for his case, if he cannot get legal representation, or if there are outstanding outcomes he cannot achieve by legal action.
18. If Mr T does return to us in the future, we would need to carefully consider the outcome of any legal enquiries and the outcomes he is seeking.
19. We would also need to consider the time which has elapsed, as our time limit will still apply. The law says complaints should be brought to us within one year of when the person became aware of their concerns. We may put aside this time limit in some cases where there are good reasons for the delay. It is important that Mr T seeks legal advice and if he returns to us, does so without delay.
20. We understand how difficult Mr T’s experience has been and we are sorry we are unable to assist in the way he expected at this time. We would like to thank Mr T for bringing this complaint to our attention.