12. 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.
13. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.
14. We have discussed this with Miss S to understand her circumstances and the outcomes she wants. Miss S told us she has experienced the potentially avoidable loss of her son and is looking for a financial remedy.
15. 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.
16. 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.
17. We consider there is a cause of action available to Miss S for clinical negligence in respect of the issue she 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.
18. We have seen the Trust wrote to Miss S on 4 June 2025. It acknowledged failings in its care and treatment of E and said it is possible E might have survived if those failings had not occurred. We think this means Miss S has a cause of action available to her, specifically clinical negligence.
19. When we spoke to Miss S on 15 October, she told us a solicitor has accepted her case. Miss S sent us a copy of a letter she has received from a legal firm (dated 10 July 2025) which confirms it is investigating her claim for clinical negligence in respect of the care given to E by the Trust.
20. 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. In Miss S’ case, it seems reasonable for the current legal action to be completed in the first instance.
21. In addition to financial remedy, Miss S told us she wants a full investigation and for the Trust to acknowledge its failings. These are things that may be achieved as a byproduct of any legal action. However, when Miss S’ legal action is completed, she can return to us for any outcomes that the courts could not achieve. It is also open to Miss S to return to us if it becomes clear that it is no longer reasonable for her to pursue legal action. If that happens, we will need to consider our time limit in line with the ‘Health Service Commissioners Act 1993’, so it is important she returns to us promptly.
22. We thank Miss S for bringing her complaint to us. The impact Miss S says she has experienced because of these events is not lost on us and we acknowledge how distressing this has been for her and his family.