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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

Original poster

To sue the NHS for negligence?

51 replies

TardyMardy · 30/09/2021 13:12

DS had a full ASD assessment when he was 12 due to many years of concerns. We had to wait 2 years for the assessment. We were told he did not have it.

He was reassessed at age 17 and we were told he did have it. In fact the Consultant said it was obvious within a few minutes of the assessment.

Without an ASD diagnosis, I was unable to source suitable education for DS as the only way he could get that was through a residential school.

He has suffered terribly from being misunderstood and his mental health is in a terrible state due to not having proper support. He is now 19, with absolutely no qualifications, not in education or employment, with little hope of getting any.

WIBU to try to sue for gross negligence?

OP posts:
EishetChayil · 30/09/2021 13:18

Of course you would be unreasonable.

The NHS is on its knees.

Gross negligence is for a surgeon leaving a scalpel inside a patient, or a nurse giving the wrong drug.

Thegirlhasnoname · 30/09/2021 13:23

You could try to sue, nobody is stopping you. But, as somebody who works for the organisation who deals with claims against NHS England, I don’t think that would fit in the realms of gross negligence and you’d possibly be asked to pay our costs in the event it went to court

As pp said, gross negligence is things like a surgeon chopping off the wrong limb

AudacityBaby · 30/09/2021 13:24

The test is really high - if another qualified medical professional could have made the same diagnosis at 12 then courts are unlikely to find clinical negligence.

You could ask for a free consult from a lawyer but I wouldn't fancy your chances.

(I'm not qualified in this area but I am a lawyer and I spoke to a clin neg solicitor a couple of years ago about a failure to diagnose a physical issue which had life-altering consequences. They said it was arguable but I'd face a difficult 2 years trying. I didn't bring the claim in the end.)

MatildaTheCat · 30/09/2021 13:24

YANBU to think about it and to speak to a lawyer who specialises in similar cases.

However I would worry that the NHS would state that at the time of the first assessment he did not meet the threashold. Did you seek further reviews in between? Also there is a three year window for taking legal action so it may be too late though in these circumstances there may be exceptions.

I wish your son luck and hope he does find ways to meet his potential.

SW1amp · 30/09/2021 13:26

I’m not a lawyer but what you’ve described doesn’t sound like gross negligence

You’d have a hard time proving that he had such severe ASD that only a specialist school could have got him qualifications and yet none of the SEN teachers at his school noticed
Plus don’t people present differently with age?

Yoursaintlyglowofconcern · 30/09/2021 13:29

Sorry that’s happened.
It comes down to the judgement of the person making the assessment using the appropriate scoring tools. Sometimes professionals reach different conclusions. You’re absolutely entitled to a second opinion, which is effectively what’s happened here albeit years apart. I’m not sure how you would prove negligence. Unless you could actually prove the first professional wasn’t competent or did something wrong in the original assessment.

Ughmaybenot · 30/09/2021 13:29

I can understand how upsetting this much be for you, it’s awful for you and you poor son, but I think you’d be on a hiding to nothing here. It would bring a lot more stress and upset into your life and it would be very difficult to prove anything I should think.

noprofessional · 30/09/2021 13:33

What stopped you seeking a second opinion or re-assessment between him being 12 and 17? One could argue you were negligent not to do that 🤷‍♀️

smallybells · 30/09/2021 13:37

I think it'd be hard to prove it was missed at 12, was a second opinion sought?

If he was then diagnosed 5+ years later, I would think they could say it wasn't evident at a young age, would you say his ASD became more pronounced or worse between 12-17? If so he may not have met the thresholds when younger, and it was only when older that he did.

With the current diagnosis are you able to access any young adult support / learning / courses for him? If the diagnosis was at 17, what has happened for the last two years?

negomi90 · 30/09/2021 13:42

Services are supposed to be needs assessed not label assessed.
Some autistic children need minimal support and go on to be world leading neurosurgeons. Some children without autism need a lot more support and special schools.
It would be very hard to prove that the lack of label deprived your son of significant support he needed. And if you can prove it, then that would be the fault of the school/education/council because it means that they weren't meeting his needs as they were.
An autism diagnosis is not cancer where the diagnosis requires urgent treatment. The lack of diagnosis wouldn't have deprived him of life saving treatment. His needs and who he is would have been the same regardless of the label attached and it sounds like that was where the failure lies. Lack of support in other agencies is not the NHS's fault.

lifeturnsonadime · 30/09/2021 13:45

You would, presumably, have to show that a diagnosis at an early age would make a difference.

I have two children WITH ASD diagnoses who are being failed by both the education system, the LA KNOW they are breaking the law but don't care and by the CAMHS system who 'do not treat children on the autism spectrum for anxiety and depression', even when they are so anxious and depressed they can't function.

The whole system sucks. I don't think you will have a claim to be honest.

Hopefully his life will become better now with a later diagnosis.

Nightbringer · 30/09/2021 13:48

There's no simple answer to this. Its very complex.

Just because one person says it's obvious now, doesn't really mean anything. You would actually have to prove that the original assessment shouldn't have been able to miss it

Also, you can't prove to what diagnosis extant a diagnosis would have changed where he is now. Alot of that depends on services in your area, how good they would have been for him, waoting lists, the school, how much the family would have engaged with the services.

You need specialist advice where you can talk through everything.

YukoandHiro · 30/09/2021 13:48

I'm afraid gross misconduct is usually when, say, a mother dies in childbirth due to a fuck up. You can have a go but you won't get anywhere with a case based on such a complex grey area of diagnosis criteria.
I'm really sorry you're going through this. What support does your son have now? Life is long, he's only young. Lots of time for him to gain qualifications. What are his interests? Would he be able (cognitively) to work and if so is there an area he'd like to seek employment in? If so maybe this is a good place to work back from

User5490453456 · 30/09/2021 13:49

What exactly would you be suing the NHS for? There needs to be a relatable sum in relation to damages cost. For instance loss of earnings due to inability to work or covering the cost of 24H care. As your son just turned 18 it's very difficult to quantify what the losses were and what you need extra money for. Even if the NHS paid you a few million, would that give him a productive life starting from this point on?

toolazytothinkofausername · 30/09/2021 13:55

If you think getting a diagnosis gets you instant access for support in education then you are very much mistaken.

Both my boys were diagnosed aged 3 years old, and I have been fighting tooth and nail to get them the correct support. Many phone calls, emails, even stalking people who ignore me in order to talk to them in person. I've been through tribunals which has left me broken Sad
I am still fighting this crushing fight, and will continue to do it for another decade Angry

TableFlowerss · 30/09/2021 14:07

I echo the above poster, having a diagnosis doesn’t mean you get any more support. To be honest, it sound like the ASS wouldn’t be on the severe end of the spectrum. It seems only those that are are entitled to funding….

At my DC school, whether you have a diagnosis or not, SEN support is based on need in the classroom and not the diagnosis.

Have a look in the SEN section on here and you will see the struggle is real.

TableFlowerss · 30/09/2021 14:07

your DC’s ASD

MrsSkylerWhite · 30/09/2021 14:12

Apologies, I’m not sure I’m following correctly?
You say he was assessed at 12 and 17 and both assessments found him not to have ASD.

Are you saying that at 19, he does now have that diagnosis?

If not, I’m afraid I don’t understand what you believe you would be basing such a case on?

Zilla1 · 30/09/2021 14:14

Did you participate in the assessment at the time and understand the tools and your DC's presentation to be sure that the HCP was negligent based on the evidence in front of them at the time? Is it possible what 'is obvious' now to a different HCP could be due to changes in your DC aged 12 and 17.

thinkbiglittleone · 30/09/2021 14:15

Did you seek other opinions when he was 12?
When was the next review or was it at 12 then not again until 17?

They may just claim at the time of the assessment the determination Was correct but that has now changed in the 5 years.
They may query why it's taken 5 years to take action

TableFlowerss · 30/09/2021 14:15

@MrsSkylerWhite

Apologies, I’m not sure I’m following correctly? You say he was assessed at 12 and 17 and both assessments found him not to have ASD.

Are you saying that at 19, he does now have that diagnosis?

If not, I’m afraid I don’t understand what you believe you would be basing such a case on?

He was assessed at 12 but the didn’t think he had ASD.

He was then assessed at 17 and the assessor thinks he does.

That’s my understanding of it

sunsshineshowerss · 30/09/2021 14:17

Sorry OP I understand you feel failed by the NHS but you haven't got a cat in hells chance of suing.

When he was initially assessed at 12, he may not have been as bad or showed the same red flags as his most recent assessment. No proof other than your word?

Why haven't you pushed for further assessments and pursued this more. Wrote letters - second opinions etc

EnjoyingTheArmoire · 30/09/2021 14:19

Putting your efforts into trying to get him some help right now/a direction to take would be a much better use of your time IMO.

Yoursaintlyglowofconcern · 30/09/2021 14:20

You’re absolutely entitled to a second opinion,

Sorry just to clarify for accuracy I should have said you are entitled to ask for a second opinion under the NHS constitution. It’s not a legal right. But it does happen a lot.

MrsSkylerWhite · 30/09/2021 14:22

Today 14:15 TableFlowerss

MrsSkylerWhite
Apologies, I’m not sure I’m following correctly?
You say he was assessed at 12 and 17 and both assessments found him not to have ASD.

Are you saying that at 19, he does now have that diagnosis?

If not, I’m afraid I don’t understand what you believe you would be basing such a case on?
He was assessed at 12 but the didn’t think he had ASD.

He was then assessed at 17 and the assessor thinks he does.

“That’s my understanding of it“

Ah, yes. Misreading on my part, thanks.