If a claimant has already, or at any point begins taking legal action against the Trust, pertaining to this complaint, then the complaints procedure stops.
They cannot run concurrently, unless the complaint is about something not connected with the legal action. This also applies if the complainant expresses the intention in writing to take legal action at some point.
This does not apply if legal advice is sought informally to discuss concerns.
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Each ICAS provider ensures that ICAS advocates/caseworkers have access to professional legal advice, via a contracted provider. Staff should refer to their line manager for information about how to contact/use the service.
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Department of Health advice on legal action and complaints (external link)
“If you are taking legal action or state in writing that you intend to start legal action then you may not also use the NHS complaints procedure, unless part of your complaint is about something not connected with the legal action. If you stop the legal action (or there are outstanding issues that have not been resolved by the legal action), then you can still use the NHS complaints procedure to pursue your concerns.”
NHS Litigation Authority advice to patients (external link) provide helpful background information on how negligence claims are handled, and what alternatives there are to legal action when something goes wrong in the NHS.
What if the complainant is unsure?
In the early part of the process, it may not be clear whether the complainant simply wants an explanation and apology, with assurances that any failures in service will be rectified for the future, or whether the complainant is in fact seeking information with formal litigation in mind.
Prima facie evidence of negligence should not mean that the complainant cannot have a full explanation of events and, if appropriate, an apology: an apology is not an admission of liability.
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'Clinical negligence' is the legal term used to describe a medical accident where a patient has been harmed, not because of a complication that could not have been avoided, but because a doctor or other healthcare professional has not given the proper standard of care. It doesn’t always mean that this person was incompetent. It can just mean that in a particular case, they made a mistake that they shouldn’t have.
Clinical negligence includes things such as:
- making a mistake during surgery;
- giving you the wrong drug; or
- making the wrong diagnosis.
Clinical negligence can also include not doing things that should be done, such as:
- not giving you treatment you needed;
- not getting your consent (agreement) to treatment; or
- not warning you about the risks of a particular type of treatment.
Action against Medical Accidents AvMA (external link)
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What does the complainant want to achieve?
It is important to clarify the complainant’s intentions on this point. Legal action is about compensation: the NHS complaints procedure does not offer financial compensation. Complainants should use the NHS complaints procedure if their only, or main, goal is to obtain an explanation or an apology. Obtaining more information may help them decide that other action might be appropriate.
It is important too, that the complainant is aware of what can be involved in taking legal action.
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The decision to take legal action should not be taken lightly. It can be costly, lengthy and very stressful to the individual. You will be required to go over what happened to you many times which you may find traumatic and upsetting. You will normally require the services of a specialist clinical negligence solicitor, as a clinical negligence claim is nearly always complicated.
Clinical negligence claims are often complex cases, for you to be successful in your legal claim there are two strands of the case, negligence and causation, and you must succeed in both:
- Negligence: that the care you received fell below medically acceptable standards (note: care which is less than best practice may still be ‘acceptable’ in the legal definition and not ‘negligent’), and
- Causation: The breach of duty or negligence of the clinician directly resulted in an injury to you.
As stated you must succeed on both, it is not enough that you succeed in proving that someone did something wrong when treating you, you must also prove you suffered an injury as a result of that incident.
AvMA factsheet (external link) |
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Making Amends
An important review is currently underway in the NHS a review of the system of compensation for clinical negligence. In his report Making Amends, (external link) The Chief Medical Officer,
Sir Liam Donaldson recommends the creation of a new NHS Redress Scheme to be used when NHS care and treatment goes wrong. It is proposed that a national organisation will administer the redress scheme which will offer remedial treatment, rehabilitation and care where needed; explanations and apologies and financial compensation where appropriate.
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There is a time limit of three years from the date of the incident to begin legal action (except in the case of children).
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Legal aid
Sometimes legal aid may be available.
The Legal Aid Scheme has been replaced in the UK by the Community Legal Service Fund. The Law Society now restricts to around 100 the number of law firms that are able to offer Legal Aid for medical or clinical negligence claims. This means that a family solicitor may not be qualified to pursue a medical negligence claim.
The Legal Services Commission (external link) has produced a 32 page practical guide to obtaining community legal service funding including the eligibility criteria.
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