16. Section 4 of Health Service Commissioner Act 1993 says we cannot investigate a complaint if there is or was a legal remedy that the person affected could pursue or could have pursued unless it is (or was) not reasonable for them to do so.
17. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to. In this case, Mr R is complaining about the Trust’s failure to adhere to its sepsis policy.
18. We have discussed this with Ms R to understand his circumstances and the outcomes he wants. Mr R told us he has experienced the potentially avoidable loss of his wife, which has led to trauma and grief. He is looking for a financial remedy at level six of our published scale of injustice (SOI). Level six cases are the most serious we see, involving profound, devastating or irreversible impacts on the person affected. This includes cases involving an avoidable death.
19. Generally, the main outcome for a legal claim in court is financial redress. While we can make recommendations for financial remedy where we see something has gone wrong, the amounts we recommend are usually more modest than those of the courts because our approach is different to that of the courts. When we consider recommending a financial remedy, it is in relation to the impact on the complainant, whereas the legal process is more punitive and therefore, the sums are often higher.
20. We take the view that a legal remedy only exists when there is both a proper legal cause of action and the remedy sought is achievable through legal proceedings.
21. We consider there is a cause of action available to Mr R for clinical negligence in respect of the issue he has raised. In general terms, clinical negligence takes place when a patient who underwent a treatment becomes injured as a result of that treatment. Failure to carry out appropriate treatment could also amount to the negligence. We have seen the Trust has acknowledged failings in the way Mrs L was treated after she was admitted to hospital on 30 December and think this means Mr R has a cause of action available to him.
22. Financial damages is a remedy that can be achieved through a legal claim for clinical negligence. We think therefore Mr R has a legal route available to him to achieve the outcome he wants. In saying that, we have made no assessment of the likelihood of success of such action. We have simply looked at whether there are any routes available to him.
23. Because we have decided potential legal routes are available for Mr R, we must then go on to consider whether it is reasonable for him to pursue a legal remedy.
24. In his complaint form, Mr R said he wanted financial remedy. We spoke to Mr R about whether he had considered seeking legal advice in this matter. He told us he had not so far and he wanted to discuss his complaint and potential outcomes with his son before we talked again. We spoke to Mr R again and he said he had now spoken to his son. He told us he wanted service improvements so no other family would have to go through the same as him. He also said he wanted financial remedy to take into account the financial loss he has incurred because he had to take a significant amount of time off work after Mrs L’s death, and the loss of her income.
25. We asked Mr R if there were any reasons that would prevent him from pursuing legal action. We explained these could be, for example, financial or emotional reasons.
26. Mr R told us he had no specific reason for not pursuing legal action. He said we were professional and he trusted us and would prefer to pursue his complaint through us.
27. We acknowledge Mr R’s view that he is keen for us to consider his complaint. However, we take the view that pursuing a legal remedy though the courts will often involve having a dedicated solicitor/ legal professional who has a vested interest in winning the case. This might mean that a complainant would feel more supported through a legal route than through the complaints process with us, who is impartial and unable to take sides.
28. In line with our legislation, where it is an option for someone to take or have taken legal action, we expect or would have expected them to do so, unless it is unreasonable. We have seen no basis to suggest it is unreasonable. As it seems reasonable to explore legal action further, we suggest Mr R seeks independent legal advice and explore his legal options in the first instance.
29. In addition to financial compensation, Mr R also seeks service improvements. This is not something the courts are likely to directly achieve for him, although they may be implemented as a byproduct of any legal action. This means that, if Mr R pursues legal action for the financial remedy he seeks, he can return to us after legal action is complete for any outcomes that the courts could not achieve for him. It is also open to Ms R to return to us if he explores legal action and it becomes clear that it is no longer reasonable for him to pursue that route. If that happens, we will need to consider our time limit in line with the ‘Health Service Commissioners Act 1993’, so it is important he returns to us promptly.
30. We thank Mr R for bringing his complaint to us. The impact Mr R says he has experienced because of these events is not lost on us and we acknowledge how difficult this has been for him and his family.