8. The law says we cannot investigate a complaint where a person has the option to take legal action, unless we consider this is unreasonable in the circumstances. We have discussed this with Miss A 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 into.
9. It is our understanding a legal claim by way of clinical negligence or under the Fatal Accidents Act may be available. This is because Miss A has told us the Trust did not provide her daughter with the correct aftercare, and this contributed to her death.
10. Miss A seeks service improvements and a financial remedy. We gave information to her about our approach to recommending financial remedies, as set out in our severity of injustice scale (our scale).
11. Miss A told us she would like a financial remedy above level six (£12,500) on our scale. She explained she has not yet spoken to a solicitor, but it is something she has thought about doing after our investigation.
12. Most clinical negligence claims are funded by way of no win no fee agreements which would not incur any upfront costs. There does not appear to be any concerns about this type of funding. We consider there are no barriers to her proceeding with this.
13. While we can make recommendations for financial remedies, the amounts we recommend are typically modest when compared with what legal action can sometimes achieve. We do not achieve financial outcomes like the courts do.
14. If we found failings, it is difficult for us to say at this early stage what the impact would be. Because Miss A has already thought about seeking legal action and is asking for a larger financial remedy, it would be the best route for her to explore achieving the financial compensation she and her family seek. We cannot guarantee we would recommend above level six on our scale.
15. A legal claim cannot directly set out to achieve the service improvements Miss A seeks, but it is possible she could achieve these as a by-product of a legal case.
16. It is therefore reasonable for Miss A to proceed with the legal action. If she is unsuccessful in pursuing legal action or is unable to achieve the outcomes she wants, she can bring her complaint back to us to consider. We cannot look at concerns a court has already examined, but we can consider if there is anything remaining, and if there are any other outcomes we may be able to achieve for her.
17. If Miss A wants to bring her complaint back to us, she should do so as promptly as she can. This is because we have a time limit for looking at complaints which is 12 months from the date the person was 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.
18. We thank Miss A for bringing her complaint to us for us to consider. We understand the distress these issues have caused her and recognise the heartbreaking circumstances of her complaint. We would like to again offer our condolences for her loss and hope this decision statement clearly explains our reasoning.