7. 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. We discussed this with Mrs E to understand what she is complaining about, what the claimed impact on her son was and what her desired outcomes are. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.
8. 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 negligence.
9. Mrs E clearly referenced ‘negligence’ when speaking to us about the care her son received at the Trust. She says the Trust failed to diagnose her son with autism, and did not provide any follow up care. She says these actions meant her son did not receive a diagnosis or help sooner, and the lack of follow up care meant her son got progressively worse.
10. From what Mrs E is complaining about she is making a possible claim of failure to carry out appropriate treatment which could amount to negligence. She would however need to take legal advice about this matter to establish this and if she could pursue this through the courts.
11. Mrs E told us she would like the fees she has paid privately reimbursed and at least £12,500 compensation. She said she wants this for the lack of care the Trust gave to her son and because it did not diagnose her son with autism and she had to obtain this privately. Mrs E wants a significant amount of compensation and that could be achieved via a legal claim. Mrs E could not pursue a legal claim specifically for acknowledgments of failings, apologies or service improvements, but she may achieve this as a byproduct of any legal claim.
12. We asked Mrs E if there were any barriers to her exploring legal action, she did not tell us about any.
Conclusion
13. There may be an alternative legal remedy available to Mrs E. Having taken all the circumstances into account, we consider it is reasonable for her to explore the possibility of taking legal action to address her complaint to achieve the outcomes she wants.
14. If, having explored legal action, Mrs E is unable to pursue that route, she may return to us if she wants us to consider her complaint. If she does that she should do so without delay as other parts of the law can limit what we can look at if there is any delay in contacting us.
15. We understand this might not be the decision Mrs E was hoping for, and we are sorry for any further distress this may cause. We hope we have clearly explained why we have decided not to consider Mrs E’s complaint any further. We are grateful to her for taking the time to tell us about her very difficult experience.