The Dudley Group NHS Foundation Trust

3. Ms E complains The Dudley Group NHS Foundation Trust delayed carrying out carbon dioxide tests which led to a delay in her mother, Mrs E, receiving non-invasive ventilation between February and March 2024.

4. Ms E also complains about staff communication around the decision to stop her mother’s active treatment. She says staff did not discuss this with the family until they had stopped treatment. She believes staff did not discuss stopping active treatment with her mother either as she would not have agreed to this.

5. Ms E considers her mother would not have died if she had received non-invasive ventilation sooner. She says the Trust’s actions have caused the family distress and have significantly impacted her and her brother both mentally and financially.

6. In bringing the complaint to us Ms E would like the Trust to acknowledge what went wrong, apologise, make service improvements and pay her a financial remedy between level five and six on our scale.

7. What follows is a summary of events. We have not included all details as both parties are aware of this.

8. Mrs E was a 68-year-old woman with chronic obstructive pulmonary disease (COPD), a lung condition that causes breathing difficulties, bronchiectasis, a condition where there is permanent enlargement of the airways in the lungs, and pseudomonas (an infection). She was a hospital inpatient during the period of complaint.

9. On 27 February 2024 she attended the emergency department with chest and abdominal pain. Staff had previously discharged her from hospital on 29 January following treatment for an exacerbation of bronchiectasis, type two respiratory failure, this occurs when the lungs cannot properly remove carbon dioxide from the body, and cellulitis (a bacterial skin infection).

10. Staff began providing Mrs E with non-invasive ventilation (NIV), a respiratory support method that helps patients breathe easier, from 28 February.

11. In the early hours of 1 March clinicians decided to move Mrs E to end of life care. She sadly died later that day.

14. The Health Service Commissioners Act of 1993 (HCSA) says we cannot investigate a complaint where a person has, or had, the option to take legal action. This is unless we consider this is (or was) unreasonable in the circumstances.

15. We consider Ms E may be able to make a clinical negligence claim. This is because she has told us the Trust’s actions led to her mother’s death.

16. Ms E is seeking a financial remedy. We shared our severity of injustice scale (SOI) with her, which sets out our approach to recommending financial remedies. Whilst she was unable to specify a figure, she would like a remedy between levels five and six on our SOI. She is therefore seeking a significant sum, possibly higher than we might recommend if we were to uphold her complaint. Ms E may be able to achieve a higher amount if any legal action she takes is successful.

17. After establishing there is a possible legal route, we have gone onto explore with Ms E if it reasonable for her to pursue.

18. We spoke to Ms E to understand the complaint, the injustices she says she has faced resulting from her experiences and whether legal action would be reasonable for her to pursue. During our calls Ms E said she was open to seeking legal action and had been considering this as an option. She said she came to us first as she was concerned a solicitor would care more about money than whether anything went wrong with her mother’s care.

19. During our discussions, Ms E did not make us aware of any surrounding circumstances which lead us to consider it unreasonable to pursue a legal route.

20. We consider it is reasonable for Ms E to pursue legal action before she asks us to consider her concerns about her mother’s care. If she is unsuccessful or cannot achieve her desired outcome, she can bring her complaint back to us. We cannot look at concerns a court has already examined, but we can consider if there is anything remaining we can look at, and if there are any other outcomes we may be able to achieve for her.

21. Whilst Ms E does not have a possible cause of action for her concerns about communication, these are closely linked to her main concern about her mother’s care. It would not be appropriate for us to consider looking at the Trust’s communication in isolation. We would not be able to achieve the outcome she wants by solely looking at this part of her complaint. This is because Ms E says her main concern is her mother’s care and her concern this resulted in her sad death.

22. If Ms E wants to bring her complaint back to us, she should do this as soon as she can. This is because complainants must come to us within 12 months from the date they were aware they had reason to complain. We do have some discretion when applying our time limit but there must be good reason for us to put this to one side.

23. For the reasons we have provided, we shall take no further action on the complaint. We hope we have explained our decision clearly. We recognise the significant distress her mother’s death has caused her and thank her for bringing her concerns to us.

1. We have carefully considered Ms E’s complaint about the Trust. We are sorry to hear of her mother’s death and the significant impact this has had for her and her family.

2. In speaking to Ms E, we consider she could explore legal action on the main part of her complaint, and it is reasonable for her to do so. We have explained the reasons for this within the following statement.