Summary: We will not investigate this complaint about the Council’s decision not to prosecute an NHS Trust for serving a meal to Mr X’s wife which contained ingredients to which she is allergic. We have not seen enough evidence of fault in the way the Council decided to issue the Trust with a caution instead of proceeding with a prosecution.

The complaint

1. Mr X complains that the Council has failed to follow the correct procedure in deciding not to publicly prosecute an NHS trust leaving patients at risk. He says the Council manipulated the evidence that was considered to exclude information, the absence of which was used to justify only offering a caution.
2. Mr X also complains the Council then failed to respond to his complaint, to deliberately delay and restrict his options to challenge their decision until after the NHS trust signed the caution.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X complains about the Council’s decision not to prosecute a hospital for serving his wife a meal which contained undeclared mushrooms when she had advised staff she is allergic to them.
7. He says the hospital has been allowed to get away with nearly killing his wife and endangering her life because of the Council’s failure to prosecute.
8. The Council’s Food and Feed Enforcement Policy says:
   “In deciding whether legal proceedings should be taken, Officers will have regard to the Authority’s legal procedures and the general principles set out in the Code for Crown Prosecutors. Once the Authority is of the opinion that legal proceedings may be instigated, the case is considered in the light of the following factors:

• The seriousness of the offence.
• The previous history of the food business operator or company.
• The likelihood of the defendant being able to establish a due diligence defence.
• If relevant, the availability of witnesses and their willingness to co-operate.
• The willingness of the food business operator or company concerned to prevent a recurrence of the problem.
• The public benefit and interest of a prosecution.
• Any explanation offered by the food business operator or company.

9. In this case the Council says it considered the following:
• There was enough evidence to provide the realistic prospect of a conviction.
• The incident took place in a hospital which might be expected to have a higher duty of care towards consumers.
• It was a potentially life-threatening event.
• Mrs X was vulnerable and relied on the hospital to look after her.
• The offence was not deliberate.
• The Trust had procedures in place to ensure Mrs X’s allergy was recorded.
• There have been no previous food allergen incidents; and
• Measures have been put in place to reduce the risk of such an event reoccurring.
10. Having considered the information available, the Council decided to resolve the matter by issuing a formal caution against the Trust.
11. The Trust accepted the Caution which means it accepts responsibility for the incident. The Council confirms the cause is recorded against the Trust and will be relevant if there is another similar incident.
12. I understand Mr X disagrees with the Council’s decision to issue the Trust with a caution, rather than prosecute. However, the Council is not required to prosecute an offender, just because an offence has been committed. It is for the Council to consider the evidence and make a decision according to its published policy and the Code for Crown Prosecutors. In this case the Council has set out the evidence considered and reasons for deciding not to prosecute the Trust. This is a decision it is entitled to make.

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Final decision

13. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman