9. 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.
10. We have discussed this with Miss E 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. Miss E says that the Trust’s failure to electronically record Mr E’s vital observations, and escalate his care when he was bleeding, led to his death. If Miss E is correct, she would have a legal cause of action.
12. She can pursue a clinical negligence claim against the Trust, as she is claiming Mr E’s care fell below the expected standard and was ‘negligent’. She is seeking financial remedy of at least £12,500.
13. There is a clear available legal route which Miss E could use to potentially achieve her desired outcome of financial remedy.
14. Legal action is therefore something we think Miss E should explore, given the serious nature of her concerns, what she believes the significant impact of those were on Mr E and the financial compensation she is seeking.
15. We asked Miss E if she had any barriers that might prevent her being able to pursue this route. She told us she did not have any barriers, although due to her financial situation any advice would need to be on a no-win no-fee basis.
16. It is important to note that our process is not guaranteed to be quick. Miss E currently has just under two years remaining of the three-year limitation on legal action.
17. We would not wish to deny Miss E the opportunity to take legal action by considering her complaint and causing here to be outside of the three-year limitation for legal action.
18. 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, Miss E has a clear legal route, and it appears there are no barriers to her securing representation or pursuing this.
19. A solicitor will be able to advise Miss E whether she has a case, and a court would be able to carefully consider and assess whether Mr E’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.
20. In summary, we consider it is reasonable for Miss E to pursue legal remedy. Miss E can return to our service if she is unable to get legal representation, or if she has outstanding outcomes we can achieve following legal action.
21. If Miss E chooses to bring the complaint back to us, we would advise she 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.
22. We are sorry to hear of Mr E’s death and the devastating impact this has had on Miss E and the rest of Mr E’s family.