To sue the NHS for negligence?

[TardyMardy]

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?

Things like ASD are tested with judgment. There will be criteria and check lists to test people but there is no way to prove or disprove it really. Even with conditions that require blood tests or MRIs to diagnose, it's not always perfect so I'm sure you can see why ASD can go undiagnosed.

However, the difference in people between the ages of 12 and 17 is very drastic, even without ASD. It's likely his symptoms have changed as he has and now it is more obvious he has ASD. If there had been another assessment when he was 14/15 they may have noticed symptoms.

Suing them won't bring back the years he was undiagnosed, you'd be better off using that time and energy to help him now. There are support groups, charities and schemes that can help him, but you need to be willing and try to keep the past in the past.

I have a ds with ASD.. For me as my ds growa it becomes more noticable..
My Ds also masks so concerned they wouldn't see what I saw ..

My point been sometimes it isn't as simple as looking at an x ray.

You can be upset, I would write via pals what you feel was missed and could have been done differently but sue no.

You have yours diagnosis time to look foreward.

What did his schools say about him ? Did they put him forward for assessment ?

My Ds was initially assessed for ASD when he was two. He was seen as having a Global developmental delay and had markers on the triad of impairment that indicated autism so a referral was made to Midlands Psychology to make the diagnosis. A clerical error meant his referal was lost in the system and we never actually received the diagnosis from them until he was 12.

He had senco support all through nursey including play thearapy, speech and language therapy, behaviour therapy, a nutritionist and even had one to one key worker. Support for both me and my son.

He reached primary school and the head flat out denied he was autistic and just saw him as a naughty, lazy boy with a terrible single parent (so did many cruel parents of his peers) so I understand this aspect of wanting a diagnosis to show it is not his fault or your parenting. BUT I fought tooth and nail for him so he still received senco support throughout, even including involvement from an educational pyschologist and occupational therapy. Since having the diagnosis it has not made any difference to the level of support he has received at secondary school. His senco even said the Autism outreach team can work with ANY pupil who presents as needing their support, whether they have a diagnosis or not.

He was not given support based on a diagnosis he was given support based on what needs presented so suing the NHS for lack of support would be pointless. If at primary he did not receive support i would have moved him to where he did get support.

@negomi90

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.

This is the best post on the topic I have seen.

My personal views are that labels tend to do more harm than good and where a functioning needs based system exists they should essentially be unnecessary.

go for it. you might not win (in my experience there is a lot of back covering) but I found it gave me the answers I needed so I could move on.

Yabvu

I'm also neuro diverse and my symptoms became much more obvious when I was an older teen.

I am really sorry for the circumstances you and your son are in and of course you can start a complaints procedure or a legal procedure. If you are thinking of going straight to law, either you have a considerable amount of money because it won't be cheap, or you are thinking of going no win no fee, about which I know a little. Its really rare for NWNF organisations to not require any outlay from the plaintiff. In those cases, the case is such a slam dunk that the NHS would cough up anyway because they really really screwed up and its obvious and serious. In other cases where NWNF think there may be a case, the plaintiff/customer takes out an insurance policy to cover the NWNF "fees" The company is guaranteed to be paid and the plaintiff knows how much they stand to be out of pocket by if they lose but its still expensive and needs cash up front.
I think the other problem you are facing which hasn't been mentioned is the intervening 5 years between the assessments. Not only could your son have changed but also the diagnostic assessment process itself will have moved on....so the test would be not if a second professional assessed that 12 year old boy NOW but if a second professional had assessed that 12 year old boy THEN.

Yabu.

You've had two tests done - One said he had it, one said he didn't. So, that's not proof he has it. It's 50/50.

Was the second test private? If so, they're a business, they'll tell you whatever you want to hear if you're paying them.

What did you do between the ages of 12 and 17? If you did nothing, this is not NHS negligence. That's five whole years. You're his parent and you have to advocate for him.

I hope he is doing well at the moment and I hope he now gets the support he needs.

We had a diagnosis at about age 9. And to be honest its not made any difference, other me being able to say to teachers, that's not bad behaviour its autism. But even then half of them don't seem to get it or believe me or whatever. A diagnosis doesn't necessarily lead to any extra help or support you still have chase and harass to get anywhere with anything. That's the country we live in unfortunately. Sue the government? If you want to help him find something he can focus on, engage his monotropism, that's where viable employment lies.

what happened between him being 17 and 19?
Why are you only considering this now?
Your son is legally an adult so surely would have to pursue this in his own right.
At the end of the day I feel for you , I really do. However some ASD does become more prominent as teenagers age and this may have been the case with your son. There is also a large gap between him being 12 and 17 when he was assessed and reassessed. The NHS legal team will have a field day with that and put it back onto your parental responsibility.

Hindsight is a wonderful thing but the reality is that you have no way of knowing if a diagnosis at 12 would have actually mapped out your sons future any differently. It's time to move forward & plan ahead and try to not attribute blame and guilt anywhere; honestly it will get you nowhere and leave you exhausted and further frustrated

YABU.

I think YABU to sue

It may not have been so obvious when he was 12

Plus the nhs does not have endless resources

What do you want to achieve?

I wouldn’t listen to Mumsnet’s armchair lawyers on this. The amount of shite I see confidently posted on here by people who aren’t lawyers and don’t know what they’re talking about is astonishing. On the first page of this thread alone are several posters incorrectly defining ‘gross negligence’. It’s surprising how many people think their vague sense of what is right is the equivalent to a law degree when it comes to this subject.

To establish medical negligence you need to prove the following things:

1. That there was a normal / usual course of practice

1. That they normal / usual course of practice was not followed

1. That the course of practice adopted by the medical professional was one that no professional person of ordinary skill would have taken if he/she had been acting with ordinary care.

This can be a difficult test to meet, especially with something which is quite nebulous like a diagnosis of ASD. It will depend on your circumstances.

I would speak to a solicitor specialising in medical negligence claims and get their view on the merits of your case. For a few hundred pounds you will be able to get an opinion on whether it is worth pursuing a claim.

YABU

If you were that concerned when he was 12

Then

You would go get a second opinion

And

You would of done anything and found the money from somewhere to go private

Why are people always looking to blame someone else

You don't have a claim. 12-17 is a long time to not ask for another assessment. Did school fail you? Did you move schools aswell?

I pushed hard to get AS diagnosis when I was at first told by primary school they didn't think he did.

Yes sue them, why not? They've got millions just sitting around to pay of spurious claims with

What did his school say from the time he was 12 to 17. If he’s autistic signs were so severe that you thought a residential school was the only appropriate option - quite an extreme course of action since many children who are diagnosed with ASD go to regular secondary schools or non residential specialist schools - did they not recommend to get him reassessed earlier?

A diagnosis is also no guarantee for extra support so I don’t know how you can sue on that basis.

@Blackkoala

I wouldn’t listen to Mumsnet’s armchair lawyers on this. The amount of shite I see confidently posted on here by people who aren’t lawyers and don’t know what they’re talking about is astonishing. On the first page of this thread alone are several posters incorrectly defining ‘gross negligence’. It’s surprising how many people think their vague sense of what is right is the equivalent to a law degree when it comes to this subject.

To establish medical negligence you need to prove the following things:

1. That there was a normal / usual course of practice

1. That they normal / usual course of practice was not followed

1. That the course of practice adopted by the medical professional was one that no professional person of ordinary skill would have taken if he/she had been acting with ordinary care.

This can be a difficult test to meet, especially with something which is quite nebulous like a diagnosis of ASD. It will depend on your circumstances.

I would speak to a solicitor specialising in medical negligence claims and get their view on the merits of your case. For a few hundred pounds you will be able to get an opinion on whether it is worth pursuing a claim.

I stand by my advice on NWNF.

He is now 19, with absolutely no qualifications, not in education or employment, with little hope of getting any.

You need to get your son onto a level 1 course, at a college with good SEN provision.
An EHCP can go up to 25 years old, with a maximum course qualification of level 3 (equivalent of A-levels), so if your son starts in September 2022 then (if he is 20 years old) he will have 5 years to finish the qualifications which is plenty of time as a level 1 course is 1 year, a level 2 course is 1 year, and level 3 course is 2 years.

I'd start with getting a social worker from the Adult autism team at your council for your son, and getting them to help you getting your son an EHCP and getting them a place at the right college come September 2022.

You can try but I don’t see how you’d successfully get anywhere. You’d have to prove that no other reasonable doctor wouldn’t have said he didn’t have autism at the age of 12 and considering it’s done upon an assessment not blood screenings etc where you can prove something was missed this would be very hard. How autism presents itself in someone at the age of 12 and 17 can dramatically change too. Did you seek a second opinion when he was 12? Did you have professionals in the school suggesting he has obvious autism? Was SENCO involved?

Also, having a diagnosis doesn't always guarantee support.

What do you hope to gain? Money?

Now he has the diagnosis, is he not entitled to PIP and specialist support?

There’s no guarantee a diagnosis age 12 would have secured him a place at a specialist residential school. If he was assessed to be coping with mainstream education at the time, why would an ASD diagnosis mean a residential school?

How someone presents at 12 is often very different to how they present at 17. Hormones, general pre-teenage behaviours can mask ASD.

Many people, especially females, aren’t diagnosed until they’re in their 20s or 30s.

Also was the second diagnosis NHS or private? If private the NHS may dispute it or decline to acknowledge it.

@Blackkoala has it correct to get advice and sooner rather than later. I don’t know the deadlines to start a case which concerns diagnosis if a child who is now an adult.

In addition to proving the negligence you also need to show that your son suffered harm due to the negligence. In some medical negligence that could be obvious- if a surgeon leaves a scalpel in the patient and they need further surgery or have permanent injury. With this diagnosis it is much less clear what would have happened. As others have said special education should be needs led. It may be hard to show that not knowing the DS had autism contributed to mental illness.

Yes your son, your son and you (or you if he lacks capacity to deal with his affairs) talk to a solicitor with all the facts. This is not an easy or quick route.