A practice in the Hampshire area

4. Mr O complains that between November 2022 and January 2023 the Practice failed to identify that his wife, Mrs O’s, symptoms were indicative of lung cancer and refer her promptly for further tests.

5. He says this delayed his wife’s diagnosis of lung cancer by three months, and that she lost the opportunity for a better clinical outcome and more time due to this delay. He adds that this was very distressing for his family and has caused him to struggle with his mental health.

6. Mr O would like the Practice to acknowledge and apologise for what happened. He would also like it to improve its service to prevent the same mistakes happening again and compensate him for the distress caused by these.

8. The Health Service Commissioners Act 1993 is the law that gives us our powers to investigate complaints about NHS services in England. Section 4 of this legislation says that where a person can achieve what they are looking for via proceedings in a court of law, we cannot investigate the complaint unless it is unreasonable to expect the person to do this.

9. When we receive a complaint about NHS services in England we must, therefore, consider:

• whether or not there is a legal route available to the person; and • if it is reasonable to expect the person to pursue this route.

10. Mr O is claiming that the care his wife received fell below the expected standard and that this caused harm. This means there could be a claim through the courts for medical negligence.

11. A claim of medical negligence must meet three key tests: • there was a duty of care to the person • there is a claim this duty of care was breached • the breach in the duty caused harm.

12. In this case, the Practice had a duty of care to Mrs O and Mr O says that this was breached because her care fell below a reasonable standard. He says this led to his wife losing the opportunity for better treatment options and, as a result, dying sooner than she should have done. This also caused Mr O to experience emotional anguish.

13. Mr O’s complaint meets the three-step test for a medical negligence claim and we are satisfied there is a legal route available to him. We have, therefore, considered whether it is reasonable to expect Mr O to pursue this. We do not take into account whether or not legal action would be likely to succeed; we only consider whether it would be a reasonable option for him to look into.

14. When we consider whether it is reasonable to expect a person to explore legal action we consider a number of factors, including:

• whether legal action would achieve all of the outcomes the aggrieved is looking for • the amount of financial remedy being sought and if pursuing legal action would likely cost more than, or take up a disproportionate amount of, this remedy • the ability of the complainant to obtain the relevant funding for making the claim • the complainant does not want to pursue legal action and there is a good reason why.

15. Mr O is seeking financial compensation, an acknowledgement and an apology, and service improvements. A claim for medical negligence could directly achieve financial compensation, but it could not directly achieve the other outcomes sought. These outcomes can be achieved indirectly, however, if legal action were to succeed. Furthermore, if legal action did not achieve these outcomes, Mr O could return to our service after the process concluded and ask us to look into this further.

16. In cases where legal action cannot directly achieve all the outcomes sought this does not mean it is unreasonable to expect a person to pursue this option. We consider it reasonable for Mr O to pursue this option and return to us to achieve the other outcomes if they remain outstanding.

17. Mr O has not indicated exactly how much money he is seeking; however, he has said that he expects an award would fit into level six of our severity of injustice scale. This would be an award of over £10,000. Further, several solicitors’ firms that specialise in medical negligence indicate that cases involving the death of a person can see awards up to and over £100,000. This means it is unlikely the potential remedy would less than the cost of taking legal action because it is unlikely legal fees would take up a disproportionate amount of such an award.

18. We asked Mr O whether he had considered taking legal action and he replied that he had not yet explored this option because he had not had access to his wife’s medical records. A person does not need to access these records in order to pursue a claim, however this misunderstanding means that Mr O has not yet explored whether or not he would be able to obtain affordable representation.

19. Legal fees can present an unreasonable barrier to pursuing legal action where a person does not have the financial means to retain representation. However, there are a number of no-win-no-fee arrangements available that Mr O could explore. Cases taken on by a solicitor on a no-win-no-fee basis do not pay legal fees unless the case succeeds in the courts. This means that the financial barrier to obtaining representation is removed. We usually expect people to have explored the affordability of legal representation before we conclude whether or not it is reasonable to expect a person to take legal action. As Mr O has not done this, we cannot robustly conclude there would be an unreasonable financial barrier to him taking legal action regarding his wife’s care.

20. When we asked Mr O about legal action he did not indicate that there were any other reasons why he could not pursue this. His email to us, dated 3 July 2024, outlined that he was interested in pursuing this option and that the only reason he had not yet looked into this was because he did not have his wife’s medical records. Mr O can request these under the Access to Healthcare Records Act 1990. Under this Act, NHS services have a statutory duty to provide the medical records of a deceased person where there is a potential legal claim.

21. Having considered the complaint Mr O has brought to us and the outcomes he is looking for we consider there is a legal route available to him and that it is reasonable for him to pursue this. If Mr O faces financial barriers or there are other factors that mean it is no longer reasonable to expect him to pursue this option, he can approach our service again and we will reconsider whether we can look into his complaint. He can also approach us again with regards to the outcomes legal action cannot directly achieve if these remain outstanding once legal action concludes.

1. We have carefully considered Mr O’s complaint about the a practice in the Hampshire area (the Practice) and we consider he could take legal action on the matters he has brought to us.

2. We have considered that Mr O could pursue a claim for medical negligence through the courts, and that it is reasonable for him to pursue this route. This means we cannot take further action on his complaint.

3. We recognise the serious and distressing nature of the concerns raised by Mr O, and our decision does not detract from this.