Medical Negligence Claims in Scotland

Scots Law and Medical Negligence

Scotland has its own distinct legal system, separate from the law of England and Wales. Scots private law is a mixed legal system — drawing on both civilian (Roman law) and common law traditions — and differs in important respects from English law in its substantive rules, procedural framework, and court structure.

Medical negligence in Scotland is governed by the Scots law of delict (the equivalent of English tort law). The core elements of a negligence claim are the same as in England: duty of care, breach of duty, and causation of damage. However, the sources of law, the procedural rules, and some of the substantive principles differ, and it is essential that Scottish medical negligence claims are handled by solicitors qualified and practising in Scots law.

Instructing an English solicitor to pursue a Scottish claim — or assuming that English procedural rules apply — is a serious error that can jeopardise the claim.

Standard of Care in Scottish Medical Negligence

The standard of care applied in Scottish medical negligence cases is broadly equivalent to the English Bolam standard — the question is whether the clinician acted in accordance with a practice accepted as proper by a responsible body of medical practitioners in that specialty.

Scottish courts have developed their own approach to this standard, influenced but not entirely governed by English case law. The landmark House of Lords decision in Hunter v Hanley [1955] SLT 213 — a Scottish case — established the Scottish standard of medical negligence before Bolam was decided in England. Hunter v Hanley held that to establish negligence against a doctor, the claimant must show: (1) that there is a usual and normal practice; (2) that the defender has not adopted it; and (3) that the course the defender adopted is one that no professional of ordinary skill would have taken if they had been acting with ordinary care.

The Bolitho refinement (that a body of medical opinion must withstand logical analysis) is applicable in Scottish courts, though Scottish judges have sometimes taken a somewhat different approach to expert evidence than their English counterparts.

Causation in Scotland applies the same balance of probabilities standard as in England — the but-for test and the material contribution doctrine apply in Scottish clinical negligence cases.

The Three-Year Triennale

The limitation period for personal injury actions in Scotland — including medical negligence — is three years under s.17 of the Prescription and Limitation (Scotland) Act 1973. This is referred to as the triennale.

The three-year period runs from the later of:

(a) the date on which the injuries were sustained, or
(b) the date on which the pursuer became aware (or it was reasonably practicable for them to become aware) that:
(i) the injuries were sufficiently serious to justify bringing an action,
(ii) the injuries were caused by an act or omission, and
(iii) the defender was a person to whose act or omission the injuries were attributable.

This date-of-knowledge test in Scotland is functionally similar to the English equivalent under s.14 of the Limitation Act 1980, though it is expressed differently in the statute.

For children, the triennale does not begin to run until the child's 16th birthday in Scotland (note: 16, not 18 as in England and Wales). This means a child injured by medical negligence in Scotland can bring a claim at any time until their 19th birthday.

For persons under legal disability (including mental incapacity), the triennale is suspended while the disability persists.

No Judicial Discretion to Extend Time in Scotland

This is one of the most significant differences between Scottish and English medical negligence limitation law. In England and Wales, the court has discretion under s.33 of the Limitation Act 1980 to allow a claim to proceed even after the three-year period has expired in certain circumstances.

Scotland has no equivalent discretion for personal injury actions. Once the Scottish triennale expires, the right of action is extinguished — not merely barred. There is no judicial power to revive it.

This makes adherence to the Scottish triennale even more critical than in England and Wales. Any Scottish claimant who believes their limitation period may be approaching must seek specialist legal advice without delay. There is no safety net.

Which Court Handles Scottish Medical Negligence Claims?

Scottish civil litigation is conducted in one of two court systems:

Court of Session (Edinburgh)

Scotland's supreme civil court of first instance. Clinical negligence claims of significant value — typically above £100,000, though there is no fixed threshold — are generally raised in the Court of Session. The Court of Session has specialist procedural rules for personal injury actions (Chapter 43 of the Rules of the Court of Session). It also has an Ordinary Procedure for complex cases.

Sheriff Court (local courts throughout Scotland)

The Sheriff Court has unlimited privative jurisdiction in personal injury claims following the Courts Reform (Scotland) Act 2014. Smaller or less complex clinical negligence cases may be raised in the Sheriff Court (particularly the All-Scotland Sheriff Personal Injury Court in Edinburgh, which was established to handle personal injury cases efficiently). The Sheriff Appeal Court handles appeals from Sheriff Court decisions.

The choice of court is a tactical and practical decision made by the pursuer's (claimant's) solicitor and counsel. Cases in the Court of Session require the involvement of counsel (an advocate) at certain stages; Sheriff Court cases can be conducted by a solicitor alone, though instructing counsel is common in complex cases.

Court of Session Procedure

The standard procedure for a clinical negligence action in the Court of Session under Chapter 43 involves:

Summons

The action is commenced by a Summons — the Scottish equivalent of a Claim Form — served on the defender (defendant).

Defences

The defender lodges Defences within the period specified. NHS Scotland boards are defended by the Central Legal Office (CLO) and panel solicitors.

Options hearing

The court holds an options hearing at which the judge considers the pleadings and gives directions for the future conduct of the case.

Proof

If the case proceeds to a hearing on the merits, it is a proof (not a trial in the English sense). A proof before a Lord Ordinary (a Court of Session judge). Evidence is led by examination and cross-examination of witnesses of fact and expert witnesses.

The procedure differs materially from English civil procedure — Scottish solicitors and counsel are essential.

All-Scotland Sheriff Personal Injury Court

The All-Scotland Sheriff Personal Injury Court (ASPIC) in Edinburgh was established to provide efficient handling of personal injury cases across Scotland regardless of where the incident occurred. It has a robust case management regime with fixed timetables.

Pursuers can raise an action in ASPIC as an alternative to the Court of Session, and in practice many clinical negligence claims are now raised there — particularly those below the higher value threshold at which Court of Session is clearly appropriate.

NHS Scotland: Who Is the Defendant?

In Scotland, NHS healthcare is delivered through 14 regional NHS boards plus a number of special NHS boards. Clinical negligence claims are brought against the relevant Health Board, not against the individual clinician or an equivalent of NHS Resolution. The principal territorial Health Boards are:

• NHS Greater Glasgow and Clyde (the largest)
• NHS Lothian (covering Edinburgh and surrounding areas)
• NHS Grampian (Aberdeen and north-east Scotland)
• NHS Tayside (Dundee and surrounding areas)
• NHS Lanarkshire
• NHS Ayrshire and Arran
• NHS Forth Valley
• NHS Highland
• NHS Borders
• NHS Dumfries and Galloway
• NHS Fife
• NHS Western Isles (Eilean Siar)
• NHS Orkney
• NHS Shetland

Special NHS boards — including the Scottish Ambulance Service and NHS 24 (the telephone triage service) — can also be defendants where the negligence occurred in their delivery of services.

GP practices in Scotland contract with the relevant Health Board. Claims against GPs for NHS work are typically brought against the GP or the practice, with indemnity provided through a medical defence organisation or, for qualifying NHS GP activity, through the Scottish equivalent indemnity arrangements.

The Central Legal Office

The Central Legal Office (CLO) is the body that manages clinical negligence claims against NHS Scotland boards. It is part of NHS National Services Scotland and performs a function broadly equivalent to NHS Resolution in England.

The CLO:

• Receives Letters of Claim from pursuers' solicitors
• Investigates claims on behalf of the relevant Health Board
• Instructs panel solicitors in private practice to handle defended claims
• Settles meritorious claims and defends those without merit
• Contributes to patient safety learning from claims

The CLO does not have an equivalent to the NHS Resolution Early Notification Scheme, though NHS Scotland has its own adverse event review processes, including the Significant Adverse Event Review (SAER) framework, which may produce investigation documents relevant to a claim.

Funding Clinical Negligence Claims in Scotland

Conditional Fee Agreements (CFAs — the "no win no fee" model used in England and Wales) are not used in Scotland. The equivalent mechanism in Scotland is a speculative fee arrangement.

Under a Scottish speculative fee agreement:

• The solicitor agrees to accept no fee if the case fails
• If the case succeeds, the solicitor charges their standard fees plus an agreed uplift (broadly equivalent to a success fee)
• The uplift in Scotland can be up to 100% of the solicitor's fees (not subject to the same LASPO cap as in England)

After-the-event (ATE) insurance is available in Scotland and operates on broadly similar principles to the English market — protecting the pursuer against the defender's costs if the case fails.

Legal aid is available in Scotland for clinical negligence cases in some circumstances — the Scottish Legal Aid Board (SLAB) assesses eligibility. The availability of legal aid in Scotland for this category of case is broader than in England, where legal aid for clinical negligence was largely abolished by LASPO 2012.

Compensation in Scottish Clinical Negligence Cases

The principles for assessing compensation in Scotland are broadly similar to England and Wales — general damages for solatium (the Scottish term for pain, suffering and loss of amenity) and special damages for patrimonial loss (financial losses).

The Judicial College Guidelines are used as reference material in Scotland, though Scottish courts are not bound by them and may assess solatium differently in some cases.

The personal injury discount rate in Scotland is set separately from the rates in England and Wales and Northern Ireland. The current rate is +0.5% (in force from 27 September 2024, replacing the previous -0.75% rate). The discount rate determines the multiplier applied to future losses, so changes to the rate materially affect the calculation of future loss awards in Scottish cases.

Periodical Payments Orders are available in Scotland under the Damages (Scotland) Act 2011 and are increasingly used in catastrophic injury cases.

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Finding a Scottish Clinical Negligence Solicitor

It is essential to instruct a solicitor qualified in Scots law and with specific experience in Scottish clinical negligence litigation. The Law Society of Scotland operates an accreditation scheme for personal injury solicitors, and specialist clinical negligence practitioners can be identified through:

• The Law Society of Scotland's Find a Solicitor directory
• Action Against Medical Accidents (AvMA), which holds a directory of specialist clinical negligence solicitors throughout the UK including Scotland
• The Faculty of Advocates directory (for advocates — Scottish counsel — who specialise in clinical negligence)

An English solicitor cannot conduct Scottish litigation. If an English firm is instructed by a Scottish claimant, it must instruct Scottish agents to handle the Scottish procedural aspects of the claim.