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 have discussed this with Mrs T to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed, but whether it would be a reasonable option to look in to.
12 It appears there is a potential clinical negligence action open to Mrs T, as she feels poor clinical care has led to a worse outcome for her and affected her daily life. Negligence, in law, is an act or failure to act (omission), that does not meet the level of appropriate care expected, which results in injury or loss. If a doctor or health professional is negligent when giving medical treatment, this is called ‘clinical negligence’.
13. As a legal remedy appears to be open to Mrs T, we then need to consider whether it is reasonable for her to pursue the matter in that way. In doing this we have considered the outcomes sought. This includes the amount of compensation she wants, and whether we are likely to recommend it, in relation to the injustice claimed. We discussed the figure Mrs T is hoping to achieve, by sharing our Severity of Injustice (SOI) scale with her.
14. Mrs T confirmed that she is seeking a Level 5/6 financial remedy (typically between £3,750 and £12,500+) on our SOI scale. She also wishes to see improvements made to the service to prevent a recurrence of these concerns.
15. If we were to investigate Mrs T’s complaint and see evidence of failings which led to a worse outcome for Mrs T, we may recommend a Level 5 financial remedy on our SOI scale. The payments for this level usually range from £3,750 - £12,450 and apply when the individual is significantly affected in their day-to-day life, with long-term recovery anticipated.
16. Mrs T has reported her mobility is seriously impacted, which may correspond with this level of injustice. However, we would still need to establish a clear link between any failings and the impacts experienced and this may influence our final recommendation. Therefore, our financial remedy may be lower than this depending on what we failings we can find, and what impact we can link it to.
17. We also note Mrs T is seeking service improvements, so the Practice improves the service it provides to other patients in these situations. Whilst this outcome may not be directly achievable via the courts, itmay still happen as a result of a successful legal claim.
18. We have next considered if there are any barriers to Mrs T taking legal action. Mrs T confirmed that she had not explored legal action due to her responsibilities as a full-time carer for her husband, and concerns over the financial and emotional strain that legal proceedings might bring. While we discussed ‘no win, no fee’ legal options, Mrs T felt that we were best placed to resolve her concerns.
19. While we acknowledge the personal circumstances Mrs T has shared, we also recognise her ability to raise concerns independently with both the organisation and our office, without additional support. Given this, we believe she may be able to access legal advice if she chose to, especially as any initial contact is likely to be by phone or email, in a similar way to how she has already communicated with us.
20. We also recognise that pursuing legal action would involve working with a solicitor who would act on Mrs T’s behalf, which may be a helpful option to consider given her ongoing caring responsibilities.
21. Overall, Mrs T has not identified any additional barriers to pursuing legal action, and the complaint remains within the three-year legal limitation period for a claim of clinical negligence. We therefore consider it is reasonable for Mrs T to explore an alternative legal remedy. Mrs T is encouraged to contact one or more legal firms about her case.
22. If Mrs T is unable to secure legal representation and receive written confirmation explaining why, then she is welcome to return to us with the evidence so that we can further consider her complaint. Mrs T can also return to us if following legal action, she has outstanding outcomes that the court was unable to order (such as service improvements), or if the court was unable to consider parts of her complaint.
23. We would ask that Mrs T to come back to us promptly if she is unable to proceed with legal action or if there are outstanding outcomes. This is because we are unable to investigate complaints brought to us 12 months after someone has become aware of the problem. We can put this time limit to one side if we think there is a good reason to do so and would consider any legal advice or action sought.
Conclusion 24. We recognise the significant impact these events have had on Mrs T’s daily life. We hope our explanation shows our careful consideration of Mrs T’s complaint and reassures her as to the next steps for seeking legal advice, and when she can come back to us if needed.