University Hospitals Birmingham NHS Foundation Trust

4. Mrs R complains about the care and treatment her late father, Mr E, received from the Trust in December 2021.

5. Mrs R complains that:

• the Trust failed to give her father his steroid treatment and failed to give him food or fluid in late December - she believes this caused his condition to deteriorate, resulting in his death • the Trust had a DNACPR (do not attempt cardiopulmonary resuscitation means if your heart or breathing stops, the healthcare team will not try to restart it) in place, which meant it did not try to resuscitate Mr E and he died • the Trust did not give Mr E basic personal care • the Trust did not give Mr E an NIV machine (a non-invasive ventilation machine gives breathing support without the need for invasive ventilation through the windpipe) on 18 December, which caused him to have low oxygen and a weak pulse • the post-mortem results showed the Trust was treating Mr E for health conditions he did not have.

6. Mrs R complains about how the Trust handled her complaint. She says it arranged several meetings and she had to relive the events every time. Mrs R is also unhappy with the Trust’s responses to her complaint. She complains the response contradicted what was said in the meeting.

7. Mrs R says she feels the Trust’s negligence caused a decline in her father’s health. She says her father’s death was extremely traumatic for herself and the family and the effects of this are ongoing. She explains his life should not have ended the way it did and his death was avoidable.

8. Mrs R wants financial compensation and for the Trust to acknowledge its neglect.

9. Mr E had a history of tongue cancer and was in his seventies. On 10 December 2021, he was admitted to hospital with muscle weakness in his neck, upper arms and upper legs.

10. Mrs R says she visited her father and found the NIV machine was broken. She says the Trust’s failure to replace it put Mr E’s life at risk. Mrs R says this and the lack of personal care meant she and her family had to stay with Mr E to care for him.

11. Mrs R says the Trust did not try to resuscitate Mr E even though the family did not consent to having a DNACPR.

14. 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.

15. We have discussed this with Mrs R to understand her complaint, the outcomes she wants and her ability to take legal action. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.

16. Mrs R says failings in the Trust’s care and treatment caused Mr E’s death. Mrs R may be able to make a legal claim to look into this. We realise legal action may not be able to consider how the Trust handled her complaint. We address these in more detail below.

17. We looked at whether Mrs R could achieve the outcomes she is looking for by taking legal action. Mrs R wants financial compensation and for the Trust to acknowledgement its failings and the impact it had of Mr E and his family.

18. Our guidance on financial remedy includes a tool called our severity of injustice scale. This scale has six different levels of injustice (how someone says they have been affected by what happened) that increase in severity. Each level links to a range of financial compensation we would usually recommend if we completed a detailed investigation and found failings.

19. We discussed with Mrs R the amount of financial compensation she wants to resolve her complaint. Mrs R told us she thinks her injustice equals level six on our scale as she believes her father’s death was avoidable. Level six is for financial compensation of £10,000 or more.

20. If we were to find that Mr E’s death was avoidable, the figure Mrs R wants is in line with our scale. But Mrs R may also be able to achieve this amount by taking legal action.

21. We recognise Mrs R wants more than financial compensation. We appreciate this is not something someone can directly request as an outcome to a clinical negligence claim. But it can be achieved as an indirect result of legal action.

22. We considered if it is reasonable for Mrs R to look into taking legal action. We looked at her circumstances and ability to take legal action.

23. We asked Mrs R if there are reasons why she cannot take legal action. She explained she came to us because the Trust’s final response letter said to do this. Mrs R also said her sister had mentioned a negligence claim. Mrs R suggested she was still considering whether to get legal advice.

24. Mrs R has not given any reasons why she would be unable to take legal action. So we have not seen any barriers that would stop her from exploring this. Because of this we consider it is reasonable for her to get legal advice. By law, because Mrs R has a legal option available to her and it is reasonable for her to take it, we cannot investigate her complaint.

25. We appreciate our decision may be disappointing. We recognise she wants a resolution to events that have been very distressing for her and her family. We hope our decision assures her that we have carefully considered what is the best way to resolve things for her.

26. If Mrs R gets legal advice and finds she cannot take legal action, she can come back to us to ask us to consider her complaint again. We would need to see evidence of any legal advice to show she has explored this route.

27. If Mrs R is unable to achieve the acknowledgement she wants by legal action, she can return to us and ask us to reconsider her complaint. We would look only look at any issues and outcomes that have not been considered by legal action.

28. Lastly, we have a time limit for considering complaints. The law says a complaint should be made to us within 12 months of someone becoming aware of the need to complain. We can put this time limit to one side, but only where there are good reasons to. If Mrs R does want us to consider her complaint again, she should come back to us quickly.

1. Mrs R has complained to us about the care and treatment her father, Mr E, received from University Hospitals Birmingham NHS Foundation Trust (the Trust). We appreciate this is a difficult matter for them and the family.

2. We have carefully considered Mrs R’s complaint and have decided she may be able to resolve it by taking legal action. We think it would be reasonable for her to explore legal action and this means we cannot consider her complaint further at this time.

3. We hope this statement clearly explains the reasons for our decision.