Making a Medical Negligence Claim Against the NHS

NHS Negligence Claims: Overview

The National Health Service is the largest provider of healthcare in the UK and is by far the most common defendant in clinical negligence claims. Making a claim against the NHS follows the same legal framework as any clinical negligence claim — the same standard of care, the same causation test, the same limitation rules — but involves specific bodies and indemnity schemes that it is helpful to understand.

What Is NHS Resolution?

NHS Resolution (formerly the NHS Litigation Authority) is an arm's-length body of the Department of Health and Social Care that manages negligence claims against NHS trusts in England. Its functions include:

• Receiving and investigating claims against NHS trusts
• Appointing panel solicitors to defend claims
• Settling meritorious claims and defending unmeritorious ones
• Operating indemnity schemes on behalf of NHS trusts
• Learning from claims to improve patient safety

NHS Resolution is not an obstruction to meritorious claims. It employs experienced clinical negligence claims managers who assess claims on their merits. Where breach of duty and causation are established and quantum is reasonable, NHS Resolution will negotiate and settle.

NHS Resolution's annual reports show total expenditure on clinical negligence settlements running into billions of pounds per year — reflecting both the scale of NHS activity and the willingness of the organisation to settle claims with merit.

The Clinical Negligence Scheme for Trusts

The Clinical Negligence Scheme for Trusts (CNST) is the primary indemnity scheme operated by NHS Resolution. All NHS trusts in England are members. Under the CNST:

• Trusts pay annual contributions to NHS Resolution based on their size, specialty mix, and claims history
• NHS Resolution indemnifies trusts against clinical negligence claims
• The scheme covers both the compensation paid to claimants and the legal costs of defending claims

The NHS Litigation Authority also operates the Existing Liabilities Scheme (ELS) for older claims, and specialist schemes for general practice, ambulance services, and other NHS bodies.

NHS Complaint vs Legal Claim: Key Differences

These are frequently confused. They are entirely separate processes:

NHS Complaints Procedure

• Free to use
• Does not require a solicitor
• Can result in an apology, explanation, or systemic learning
• Cannot result in compensation
• Responses must be received within 25 working days (local resolution)
• Does not stop or start the legal limitation period

Legal Negligence Claim

• Requires instruction of a specialist solicitor
• Can result in financial compensation
• Requires proof of breach of duty and causation to expert standard
• Subject to the three-year limitation period
• Can run in parallel with a complaint

Making a complaint first is not a prerequisite to bringing a legal claim, and bringing a legal claim does not prevent you from also making a complaint. However, the Duty of Candour — the legal obligation on NHS providers to be open and honest with patients when things go wrong — means that investigation reports and root cause analyses produced through the complaints process can become relevant documents in subsequent litigation.

Parliamentary and Health Service Ombudsman (PHSO)

The PHSO can investigate NHS complaints in England where local resolution has failed. The PHSO can make findings and recommendations but cannot award compensation equivalent to a legal claim. Scotland, Wales, and Northern Ireland have their own equivalent ombudsmen.

Claims Against NHS GPs

NHS GPs are not employees of NHS trusts — they are independent contractors who provide services to the NHS under the General Medical Services (GMS) or Personal Medical Services (PMS) contract. This means:

• Claims against an NHS GP are not handled by NHS Resolution
• The GP practice (as a partnership or limited company) is the defendant
• Indemnity is provided through a medical defence organisation (MDO) — historically the Medical Defence Union (MDU), Medical Protection Society (MPS), or, since 2019, through the NHS GP Indemnity Scheme operated by NHS Resolution
• The NHS GP Indemnity Scheme covers qualifying NHS GP activity — claims against GPs for NHS work are now channelled through NHS Resolution via the scheme, but the procedural route differs from trust claims

Where a GP provided both NHS and private care, the indemnity position for each type of work may differ. Read more about GP negligence claims →

NHS Treatment vs Private Treatment

The legal standard of care is the same for NHS and private treatment. Patients receiving private healthcare are owed the same Bolam standard as NHS patients.

Where a patient receives private treatment, the defendant is the private hospital or clinic (as vicariously liable for its employed clinicians) or the individual clinician (where they were acting as an independent contractor). Private hospitals carry their own professional indemnity insurance.

Some NHS patients receive treatment from private providers under NHS contracts — for example, Independent Sector Treatment Centres (ISTCs) or diagnostic services commissioned from private providers. In these cases, the NHS commissioner and the private provider may both be potential defendants, depending on the contractual arrangements.

NHS Resolution Early Notification Scheme

The Early Notification Scheme (ENS) was introduced by NHS Resolution in 2018 to identify severe birth injury cases early and to investigate them promptly, with the aim of:

• Identifying whether NHS trust care fell below the required standard
• Learning from incidents to improve maternity safety
• Making early admissions of liability where appropriate
• Facilitating earlier compensation for affected families

NHS trusts are required to report cases of severe brain injury in term babies shortly after delivery. NHS Resolution's clinical review team then conducts an independent investigation.

For families affected by severe birth injury, the ENS represents an opportunity for earlier resolution than the standard litigation pathway — though specialist legal advice is still essential to ensure that any settlement reached is appropriate for the child's lifetime needs. Read more about birth injury claims →

Scotland: The Central Legal Office

In Scotland, clinical negligence claims against NHS Scotland boards are handled by the Central Legal Office (CLO), which performs broadly the same function as NHS Resolution. Claims are brought against the relevant NHS Scotland board — for example, NHS Greater Glasgow and Clyde, NHS Lothian, or NHS Grampian. The CLO instructs panel solicitors in private practice to handle defended claims. Read more about Scottish claims →

Northern Ireland: The HSC Litigation Authority

In Northern Ireland, claims against the Health and Social Care trusts are managed by the HSC Litigation Authority (HSCLA). There are six HSC trusts in Northern Ireland: Belfast HSC Trust, South Eastern HSC Trust, Northern HSC Trust, Southern HSC Trust, Western HSC Trust, and the Northern Ireland Ambulance Service HSC Trust. The HSCLA operates on broadly similar principles to NHS Resolution, managing claims, instructing solicitors, and settling meritorious cases. Read more about Northern Ireland claims →