10. 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.
11. We obtained information from Mr F about this 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.
12. Mr F complains about poor clinical and nursing care. He links this care to his father’s death and his bereavement. He seeks financial remedy to resolve his complaint. Through a clinical negligence claim, he may obtain a financial remedy.
13. We decided it is reasonable for Mr F to explore taking this legal action to obtain this outcome. We explain why below.
14. When the person complaining to us seeks financial remedy, we should consider what we are likely to recommend if we find the injustice they allege. If they seek more than we usually recommend, we are more likely to consider it is reasonable for them to pursue legal action.
15. We asked Mr F what his expectations are regarding financial remedy and how much he wanted. He confirmed he had no specific amount in mind.
16. As he had no specific figure in mind, based on our Guidance on Financial Remedy, we explained the amounts we would usually recommend if we found the injustice Mr F alleged. We also explained how we may recommend a smaller amount if we found a less severe injustice. We asked whether the amounts we would usually recommend were enough for Mr F.
17. In response, Mr F said his father avoidably died. Following his review of our Guidance on Financial Remedy, he said this impact fits into the most severe injustice type within our severity of injustice scale. Our Guidance on Financial Remedy contains our severity of injustice scale.
18. Mr F added there were multiple failings in his father’s care. He said each failing had a separate injustice. He expected us to consider the impact and duration of each of these injustices. He said a series of smaller injustices can together have a significant impact.
19. He said he already made it clear to us what the impact of the events in his complaint were. He said the level of financial remedy was for us to deal with.
20. Having reviewed the information from Mr F about the financial remedy he wants, we are not satisfied he considers the amounts we would usually recommend are enough to resolve his complaint.
21. He has noted his father’s death fits into the highest level of our severity of injustice scale. This is where we usually recommend the highest amounts of financial remedy. He has not confirmed the amounts we normally recommend in these circumstances are enough.
22. Beyond that, he says there are also other episodes of failings with separate injustices which makes the impact in his case worse. He requests we consider this in respect to financial remedy.
23. Noting the above, we consider Mr F’s starting point for the financial remedy he wants is at the upper end of our severity of injustice scale. From there, he is suggesting ways we should find reasons to add to the amounts we usually recommend in these circumstances.
24. While we can consider multiple injustice types, our Guidance on Financial Remedy says they do not usually add to the overall severity of injustice. We normally determine a financial remedy based on the primary injustice. In this case, the primary injustice and the associated financial remedy would be for Mr F’s bereavement arising from the avoidable death he alleges.
25. Given Mr F suggests ways we could and should add more to the remedy our guidelines recommend for this type of injustice, we consider he seeks more financial remedy than we usually recommend. As he seeks to maximise any financial remedy, these are circumstances when we are more likely to consider it reasonable for someone to explore legal action.
26. This meant we then assessed Mr F’s ability to explore legal action further and whether it is reasonable for us to expect him to do so.
27. We appreciate Mr F told us he could not afford legal representation to make a clinical negligence claim. Since his father died, he explained he has been reliant on agency work. This means he has worked very little since his father’s death.
28. He also said it would be unfair for us to expect him to take legal action. This was because he previously approached us, and we decided not to look at his complaint at that time. This was because we said he had not yet exhausted the Trust’s complaint process, and we arranged for the Trust to respond to him further.
29. We do not see our previous decision on Mr F’s complaint influences whether he has available legal action which is reasonable for him to take. As we see he has the option of exploring legal action to achieve the outcome he wants, we must consider whether it is reasonable for him to do so.
30. We did not see his agency work prevents Mr F exploring a claim with no-win no-fee solicitors. This kind of solicitor can assess whether they take on a claim without him needing to fund it.
31. We recognise Mr F told us he spoke to five or six law firms after his father’s death. He said one of them agreed to take his case on, but not on a no-win no-fee basis. He added the other firms said he should complain to the Trust first through its complaint process. After doing so, the firms said they could assess his case again.
32. Mr F has now exhausted the Trust’s complaint process. As he now matches the criteria these law firms explained when they might reassess his case, we consider it is reasonable Mr F now explores this option.
33. We did not see other factors preventing Mr F exploring legal action. We can consider other factors on whether legal action is reasonable like:
• the age and health circumstances of the complainant, and whether the time legal action might take is a reason for us to look at the case • how difficult it would be for the complainant to make the claim due to the complexity of legal action • whether legal action is the only way the complainant can obtain their outcome(s) • whether legal action could achieve all the outcomes the complainant is looking for.
34. We appreciate Mr F told us he is an older person, and he had been through cancer treatment in the year or so after his father died. We recognise he told us he has experienced depression following his father’s death.
35. That said, despite these factors, we saw he made the enquiries with solicitors we explained in paragraph 31. As he has now been through treatment, we cannot currently see such health factors would prevent him exploring legal action.
36. As Mr F has been able to explain his complaint to us, and previously to solicitors prior to completing the Trust’s complaint process, we cannot see the complexity of the issues make it unreasonable for him to explore legal action.
37. As the amount of financial redress Mr F wants is more than we usually recommend, legal action is likely the only way to obtain this. Given he seeks only financial redress, taking legal action can also achieve all the outcomes he is looking for. These are reasons when we are more likely to expect the person complaining to pursue legal action.
38. As we cannot see factors preventing Mr F exploring legal action, we consider this is a route which is reasonable for him to explore to obtain financial remedy. This means we cannot consider his complaint further.
39. We recognise this may be a disappointing outcome for Mr F. We understand he approached us in the hope we could consider his case and achieve the outcome he wants.
40. We hope this statement clearly explains our decision and how we considered his complaint. We hope it assures him we carefully considered the outcome he wants and what we can achieve before we reached our decision.