16. The law (Health Service Commissioners Act) 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 have discussed this with Miss A 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.
17. Section 4(1)b of the Health Service Commissioners Act 1993 states the Ombudsman shall not investigate if there is a remedy by proceeding the complaint through any court of law. Further to this, the Act states that the Ombudsman must be satisfied that in considering personal circumstances of a complaint, it is not reasonable to expect the complainant to resort to legal proceedings.
18. This translates into our own policy, referred to as a ‘two stage legal test’ that we must look at before any consideration of a complaint. The two stages being, to enquire before we investigate any complaint is there a legal route for the complainant and is it reasonable for them to pursue this?
Is there a legal route?
19. Through speaking with Miss A and reading her complaint form, we recognise the strength of feeling she has about the care she received. Miss A believes the Medical Centre did not provide correct information about her referral options, including the Right to Choose pathway, and that this resulted in her pursuing private assessment and treatment.
20. In her complaint form Miss A describes the Medical Centre’s actions as ‘negligence’ and says she was put into a position she would not have been in if she had been treated correctly. She says she incurred close to £2,000 (possibly more) for private treatment and medication, and that her fiancé took out a loan to meet these costs, which also attracted interest.
21. Miss A also says she experienced significant distress and inconvenience over an 18-month period and would like compensation for the stress and time she spent pursuing the matter.
22. By bringing her complaint to us, Miss A is seeking a financial remedy of around £3,500, comprising approximately £2,500 for private costs/loan costs (including interest) and £1,000 for distress and inconvenience. We therefore consider the primary outcome Miss A is seeking is financial redress for losses and impact she says arose from the Medical Centre’s actions.
23. Where someone is seeking financial redress for losses said to have been caused by failings in clinical care or clinical decision-making, this may amount to a claim in clinical negligence. A court is able to determine liability for clinical negligence and award damages for financial loss and, where appropriate, compensation for pain, suffering and loss of amenity and/or psychiatric injury.
24. Further to this, clinical negligence claims for NHS care can commonly be progressed through the NHS’s arrangements for resolving such claims, including via NHS Resolution, which handles claims on behalf of NHS bodies and aims to resolve them fairly, often without court proceedings. https://resolution.nhs.uk/.
25. We recognise the Ombudsman can recommend financial remedies in some cases, including payments for distress and inconvenience, and in a small number of cases recommendations relating to reimbursement of costs. However, we are not able to determine legal liability for clinical negligence or assess and award compensation in the way a court can.
26. Where the outcome sought is reimbursement of private treatment costs and other compensation said to arise from alleged negligence, Then if there is no further grounds or considering reasonableness, we would take the view the legal route is better placed to consider the matter and provide the type of remedy being sought.
27. For these reasons, we consider Miss A has a legal route available to her in relation to the matters she has brought to us. In reaching this view, we are not deciding whether legal action would succeed. We are only deciding whether a legal route exists which is a reasonable option to look into.
Is it reasonable to pursue a legal claim?
28. After establishing there is a legal route available, we have gone on to explore whether it is reasonable for Miss A to pursue it.
29. When considering reasonableness, the factors we consider are based on the individual circumstances of a complaint. Although not an exhaustive list, examples include whether the costs are proportionate to the claim (if not able to pursue via a no win, no fee agreement), how long legal proceedings may take, and the age and health circumstances of the complainant.
30. We spoke with Miss A to understand the complaint, the injustices she says she has faced as a result of the Medical Centre’s actions, and whether pursuing a legal route would be reasonable. Miss A explained she had pursued the NHS complaints process first and came to the Ombudsman because she was not satisfied with the outcome. Miss A also said she does not intend to pursue a legal route and would like the Ombudsman to determine an appropriate remedy within our usual remit.
31. During our correspondence with Miss A, we explained the law that governs our work, which says we cannot investigate a complaint where a complainant has (or had) a legal route available, unless it would be unreasonable to expect them to pursue it. We explained we do not decide whether a legal claim would succeed. We also explained that NHS Resolution is also an established route for considering clinical negligence claims for NHS care, and that it is intended to resolve claims fairly outside of court where possible.
32. We recognise Miss A says she has experienced significant distress and inconvenience over an 18-month period and that she incurred substantial private costs, including interest on a loan. We also recognise Miss A describes the Medical Centre’s actions as negligence and is seeking reimbursement of her private costs and compensation for the impact.
33. Miss A has not informed us of any factors that would make it unreasonable for her to pursue the legal route available. We have not been made aware of barriers that would prevent Miss A from making enquiries to NHS Resolution or obtaining advice about whether she has a claim.
34. Miss A’s preference for the Ombudsman to consider the complaint instead of pursuing the legal route does not make it unreasonable for her to explore that route.
35. After considering the information provided by Miss A, we consider it is reasonable for her to pursue the legal route available, to explore legal representation. This is because the route remains open to her, it is better placed to consider the type of financial redress she is seeking, and we have not been made aware of any factors that would make it unreasonable for her to explore it.
In summary
36. 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 have engaged with Miss A to understand her circumstances, the outcomes she hopes to achieve, and whether it is reasonable for her to pursue a legal route.
37. In doing so, we recognise Miss A believes the Medical Centre’s actions amounted to negligence and that she says she incurred substantial private costs (including loan interest) and experienced significant distress and inconvenience over an 18-month period. Miss A is seeking a financial remedy of approximately £3,500.
38. Having considered the two-stage legal test, we are satisfied that a legal route remains available to Miss A through NHS Resolution, and we have not been made aware of any barriers or other circumstances which would make it unreasonable for her to pursue it.
39. For the reasons we have provided, we shall take no further action on the complaint at this stage, as an alternative legal route exists and it is reasonable to pursue.
40. We acknowledge that this must have been a very difficult period for Miss A and are pleased to hear that a shared-care agreement is now in place for her ongoing ADHD treatment. We would like to thank Miss A for taking the time to bring her complaint to us.