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. We have discussed this with Mrs H 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.
11. When considering Mrs H’s complaint, it appears there may be a legal remedy available to her through the courts. This is because she believes the Trust delayed initiating her cancer treatment resulting in her cancer spreading and her neck collapsing.
12. Given Mrs H believes her cancer spread, causing her neck to collapse, due to the delay in treatment provided by the Trust, it appears she may have a claim of clinical negligence.
13. As an outcome to her complaint, Mrs H has told us she is seeking a financial remedy and for the Trust to admit its failings. When we explored this with her, she told us he was seeking a financial remedy in the sum of £12,500.
14. It appears that both we and the courts could potentially achieve the outcome Mrs H is seeking. Through our investigation we can get the Trust to admit its failings if any are present. Through the course of legal proceedings, as a by-product, the courts could also get the Trust to admit its failings. Both we and the courts may potentially achieve the financial remedy Mrs H is seeking.
15. In our view, Mrs H appears to have a cause of action by way of clinical negligence to take this case to court and that this may achieve the outcomes she is seeking. We have gone on to consider whether it was reasonable for Mrs H to explore a legal route.
16. We have discussed the potential need to explore an alternative legal route with Mrs H during a phone call. She raised concerns in relation to having to pay for legal representation. We asked if she had considered ‘no win no fee’ solicitors which she said she had not. She said this was something she wanted to explore. We have not seen any evidence to suggest there would be barriers to Mrs H exploring legal action.
17. Considering the information above we feel it is reasonable for Mrs H to explore a legal remedy to try and resolve her complaint. Whilst we appreciate, she came to us first, the law is clear that we cannot investigate if there is a legal remedy available to the complainant and it is reasonable for them to use it.
18. Mrs H is aware if her circumstances change, legal action cannot be pursued, or it does not achieve all the outcomes she seeks, she can approach us again in a timely manner. We have provided her with information about our time limits.
19. In summary, we have decided there is a potential legal remedy available to Mrs H and it is reasonable for her to pursue this. As such we will not be taking any further action on her complaint.
20. We thank Mrs H for bringing her complaint to us.