12. 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. This ensures the Ombudsman does not interfere with matters which are in the remit of the Courts.
13. We have discussed this with Mr N to understand his circumstances and the outcomes he wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
14. Mr N says that the Trust’s failure to recognise Ms L’s specific vulnerabilities and to promptly treat her with antibiotics led to Ms L’s death. If Mr N is correct, he would have a legal cause of action. He can pursue a clinical negligence claim against the Trust, as he is claiming Ms L’s care fell below the expected standard and was ‘negligent’. He is seeking financial remedy for loss of earnings, costs associated with supporting Ms L in hospital, funeral expenses and the traumatic impact of the Trust’s actions on Ms L, himself and his family. Mr N is also seeking an independent investigation of his complaint and service improvement.
15. There is a clear available legal route which Mr N could use to potentially achieve his desired outcome of financial remedy and an independent investigation. Service improvements may also be achieved as a byproduct of legal action.
16. Legal action is therefore something we think Mr N should explore, given the serious nature of his concerns, what he believes the significant impact of those were on Ms L and the financial compensation he is seeking.
17. We asked Mr N if he had any barriers that might prevent him being able to pursue this route. He told us he did not have any barriers, although due to his and his family’s financial situation any advice would need to be on a no-win no-fee basis.
18. He also told us he had already begun making enquiries with a solicitor. He explained he had not completed these as he was unsure which route to choose. He explained this was because his family were concerned about the optics of taking legal action on the NHS. He said they felt it would look better if PHSO were to recommend a financial remedy.
19. We reminded Mr N that the law says we cannot investigate if a person has a legal route available to them. We also informed Mr N of the amounts of financial remedy associated with our highest-level impacts on our severity of injustice scale. We explained it would be unlikely we would recommend the level of financial remedy that a court might. Mr N agreed he would be likely to get a far higher payment from the courts, said he understood the reasons for taking legal advice and would do so.
20. It is important to note that our process is not guaranteed to be quick. Mr N currently has just under two years remaining of the three-year limitation on legal action.
21. We would not wish to deny Mr N the opportunity to take legal action by considering his complaint and causing him to be outside of the three-year limitation for legal action.
22. Additionally, as set out above, the law prevents us from investigating a complaint where the complainant could pursue legal action, unless we think it would unreasonable. In this case, Mr N has a clear legal route, and it appears there are no barriers to him securing representation or pursuing this.
23. A solicitor will be able to advise Mr N whether he has a case, and a court would be able to carefully consider and assess whether Ms L’s care was negligent. It would also be able to consider what the impact of that was on her, and determine accountability, including awarding an appropriate amount of compensation if applicable.
24. In summary, we consider it is reasonable for Mr N to pursue legal remedy. Mr N can return to our service if he is unable to get legal representation, or if he has outstanding outcomes we can achieve following legal action.
25. If Mr N chooses to bring the complaint back to us, we would advise he does so as promptly as possible. This is because we have a one-year time-limit by which to consider complaints (from the day a person became aware of their reason to complain). We have discretion to set this time-limit to one side if there are strong reasons to do so. We will consider the time it has taken us to consider the complaint and any other delays outside of her control.
26. We are sorry to hear of Ms L’s death and the devastating impact this has had on Mr N and the rest of Ms L’s family.