How to Make an NHS Clinical Negligence Claim: A UK Guide

At a glance

• What this covers: claims for clinical negligence against NHS bodies in England. Wales, Scotland and Northern Ireland have separate arrangements.
• The two legal tests: breach of duty (the care fell below the standard of a reasonably competent clinician in that field — the Bolam test, refined by Bolitho) and causation (that breach caused your injury or worsened your outcome).
• Time limit: three years from the date of the negligent act or from the date you first had the relevant knowledge (Limitation Act 1980, s.11 and s.14). Children: three years from their 18th birthday. People lacking mental capacity: time may not run at all.
• Who pays: NHS Resolution through the Clinical Negligence Scheme for Trusts (CNST). Individual clinicians are not pursued personally.
• The formal process: governed by the Pre-Action Protocol for the Resolution of Clinical Disputes. A letter of claim triggers a four-month period for the NHS to investigate and respond.
• Funding: mostly conditional fee agreements (no-win no-fee). Legal aid is still available for birth injury cases involving neurological damage (LASPO 2012, Sch.1).
• Outcome: the majority of claims resolve without a contested trial.

What clinical negligence means in law

Clinical negligence (sometimes called medical negligence) is not simply a bad medical outcome. It is a civil wrong requiring two distinct elements to be proved: first, that the healthcare provider breached their duty of care; second, that the breach caused the harm being claimed for. Both elements must be established — a poor outcome alone, even a tragic one, is not sufficient.

Breach of duty: the Bolam and Bolitho tests

Every NHS clinician owes a duty of care to their patients. Breach of that duty is assessed against the standard of a responsible body of practitioners in the same field. This is the Bolam test (from Bolam v Friern Hospital Management Committee [1957]): a clinician is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular area. It follows that the existence of a different school of clinical opinion — the fact that another doctor might have done things differently — does not by itself establish negligence.

The Bolam test was refined by the House of Lords in Bolitho v City and Hackney Health Authority [1997]: a body of clinical opinion, however genuinely held, must also be capable of withstanding logical analysis. Courts will not defer to expert medical consensus where it cannot be shown to have a defensible logical basis. In practice the Bolitho qualification rarely changes the outcome, but it matters: it prevents a negligent practice from hiding behind the fact that others follow the same approach.

Causation: more than a link

Even where breach of duty is established, a claimant must also prove that the breach caused the injury or materially contributed to it. The breach does not have to be the only cause, or even the main cause, but it must have more than minimally or trivially contributed to the outcome. If the same harm would have occurred with competent care — because, for example, the condition was already irreversible — a claim will fail on causation even where the standard of treatment was poor. This is why independent expert evidence on causation is as important as evidence on breach.

Who handles NHS claims: NHS Resolution and the CNST

When a clinical negligence claim is brought against an NHS trust in England, it is managed and funded through NHS Resolution, the arm's-length body that runs the Clinical Negligence Scheme for Trusts (CNST). All NHS trusts and foundation trusts in England are members of the CNST, and the scheme covers incidents that occurred on or after 1 April 1995.

NHS Resolution takes over full conduct of the claim on behalf of the relevant trust and meets all associated costs. The individual clinician — doctor, nurse, midwife, or other healthcare professional — is not personally sued for compensation in the ordinary course of NHS claims. GPs and other primary care providers have separate indemnity arrangements but the practical effect is the same: the claim is handled by a specialist organisation, not a named individual.

Understanding this matters when you are thinking about the emotional dimension of bringing a claim. You are seeking compensation from the NHS as a system, not ruining an individual clinician's career.

Step 1: decide whether to complain first

The NHS complaints procedure and a clinical negligence claim are separate routes that serve different purposes. You are not required to complain before you can sue.

The NHS complaints procedure aims to secure an explanation of what happened, an apology where appropriate, and improvements to practice. It ends, if not resolved at trust level, with referral to the Parliamentary and Health Service Ombudsman (PHSO), which can make findings and recommendations but cannot award the compensation a court can. Crucially, the complaints process is not designed to determine legal liability or negligence — it is a different exercise.

A clinical negligence claim is a civil action for financial compensation requiring proof of breach of duty and causation. It is the route you take if your primary goal is damages.

In practice, many patients find it useful to pursue the complaints process first or in parallel. The trust's written responses can clarify what happened, sometimes reveal information that the legal team will later want to see, and may produce an acknowledgement of error that proves valuable. An ongoing complaint does not prevent you from also taking legal advice or pursuing a claim, and vice versa.

Step 2: obtain your medical records

Before any expert can advise on your case, your legal team will need to see your medical records. You have a right of access to your personal health data under the UK General Data Protection Regulation (UK GDPR). You — or your solicitor — can make a subject access request in writing or verbally to any part of the relevant NHS organisation. There is no charge.

The healthcare provider must respond within one calendar month, though a two-month extension is permissible for complex or multiple requests (with notice given in the first month). If the provider fails to supply records within 40 days, the Pre-Action Protocol for the Resolution of Clinical Disputes provides that an application can be made to the court under CPR r.31.16 for pre-action disclosure. The court can impose costs sanctions for unreasonable delay.

Under the protocol, a request for records should be as specific as possible about which records are required. In birth injury cases, for example, a complete copy of the CTG trace is typically required. The protocol also provides a standard form for requesting records (Annex B to the protocol).

Once records are obtained, your legal team will arrange them in an indexed, paginated bundle — the foundation for the expert evidence that follows.

Step 3: get a specialist legal view

Clinical negligence is a highly specialist area. Not every personal injury solicitor handles NHS claims, and the technical nature of the Bolam/Bolitho tests and the expert evidence involved makes specialist expertise important. Many firms that handle clinical negligence work on a conditional fee (no-win no-fee) basis if the case appears viable on the evidence.

An experienced adviser will carry out an initial assessment of whether both breach of duty and causation are realistically arguable on the facts. If neither can be supported by independent expert opinion, a claim will not survive.

Step 4: independent expert evidence

Independent expert evidence is the backbone of any clinical negligence claim. Your legal team will instruct medical experts — one or more specialists in the relevant clinical disciplines — to report on:

• whether the care received fell below the standard of a responsible body of competent practitioners in that field (the breach of duty question);
• whether that shortfall caused the injury or materially contributed to it (the causation question);
• the claimant's condition, prognosis, and the care and support they will need in future.

Separate experts may be needed for each of these questions. Obtaining expert evidence in specialist areas — neurology, oncology, obstetrics, for example — takes time and is expensive, which is one reason clinical negligence claims can take longer to resolve than other personal injury cases.

Without a supportive expert opinion on both breach and causation, a claim is not viable. This is the honest threshold a solicitor will apply at the outset, and it is why early specialist advice matters: pursuing a claim that cannot satisfy the legal tests is costly for everyone.

Step 5: the letter of notification and the letter of claim

The formal pre-action process is governed by the Pre-Action Protocol for the Resolution of Clinical Disputes, which sets the standard of reasonable pre-action conduct expected by the courts.

Letter of notification (optional but advisable)

Before the formal letter of claim is sent, a letter of notification can be sent to the trust (copied to NHS Resolution) to put the defendant on early notice that a claim is likely. The trust should acknowledge within 14 days and should consider commencing its own investigation. An early notification is not mandatory, but it is useful: it starts the defendant's investigation and can shorten the overall timeline.

Letter of claim

The letter of claim is the formal step that starts the pre-action protocol clock. It should set out:

• a clear summary of the facts and the alleged adverse outcome;
• the main allegations of negligence and the causal link with the injury;
• a description of the claimant's injuries, condition, and prognosis;
• an outline of the financial losses claimed;
• details of how the case is funded.

Any letter of claim sent to an NHS trust should be copied to NHS Resolution. Under the protocol, proceedings should not normally be issued until four months after the letter of claim — this is the period within which the defendant is expected to investigate and respond.

Letter of response

The defendant must acknowledge the letter of claim within 14 days and must provide a full letter of response within four months. The letter of response must address each allegation specifically: admitting what is admitted, denying what is denied, and explaining why. If the defendant requires more time, an extension request should be made promptly and the claimant should adopt a reasonable approach to a genuine request.

If the claim is admitted or partially admitted at this stage, negotiations about the value of damages can begin. If liability is denied, the parties should consider whether to issue proceedings, attempt mediation or other alternative dispute resolution, or seek a preliminary hearing on a discrete issue such as limitation.

Funding your claim

Conditional fee agreements

The primary funding route for clinical negligence in England and Wales is the conditional fee agreement (CFA) — the no-win no-fee arrangement under which the solicitor charges no base fee if the claim fails. If the claim succeeds, the solicitor is entitled to a success fee, though since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that success fee is no longer recoverable from the losing defendant. It is instead deducted from the claimant's damages, subject to a cap of 25% of certain heads of award (excluding future care and future financial loss). An after-the-event (ATE) insurance premium to cover the risk of the opponent's costs in the event of failure may also be payable from damages, though the recoverability rules are complex and your solicitor will explain them.

Legal aid for birth injury cases

Legal aid was largely withdrawn from personal injury and clinical negligence in 2013. One important exception remains: legal aid is still available for clinical negligence claims involving neurological injury to an individual who is severely disabled as a result, where the negligence occurred during or shortly after birth — specifically within eight weeks of birth (or eight weeks from the due date for premature births before 37 weeks' gestation). This reflects the catastrophic, life-long nature of birth-injury cases and the costs involved in pursuing them. The statutory basis is Schedule 1, Part 1 to LASPO 2012.

Damages-based agreements

In some cases solicitors may offer a damages-based agreement (DBA), under which the solicitor's fee is a percentage of the damages recovered. DBAs are less common in clinical negligence than CFAs, but they are an option.

Valuing the claim: the Judicial College Guidelines

Compensation in a clinical negligence claim falls into two broad categories.

General damages cover pain, suffering, and loss of amenity — the non-financial impact of the injury. These are assessed by reference to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, a document published by the Judicial College that sets out bracket ranges for a wide spectrum of injuries. Courts and practitioners use these ranges to achieve consistency. The Guidelines do not specify figures for individual cases; expert medical evidence about the nature, severity, and prognosis of the injury is required to position a claim within the appropriate bracket.

Special damages cover quantifiable financial losses, both past and future: loss of earnings, the cost of care, medical treatment and therapies, equipment, transport, home adaptations, and accommodation. Future losses are typically calculated using actuarial multipliers. In catastrophic injury cases — serious brain injury, high-level spinal injury, cerebral palsy following birth injury — the future care and support element is often the largest head of loss by a substantial margin.

No figures should be quoted without expert evidence and specialist legal advice specific to the individual case.

What happens if the case does not settle

If a letter of response denies liability and negotiations fail to produce a settlement, the claimant's solicitor may issue court proceedings. This is often done as a procedural step to protect the limitation period rather than as a signal that a trial is inevitable. The majority of clinical negligence claims — including those where proceedings have been issued — still resolve by negotiation, mediation, or other forms of alternative dispute resolution before a contested hearing.

Where a case does go to trial, it will be heard in the High Court (King's Bench Division, Clinical Negligence list) for higher-value claims. Expert witnesses will give oral evidence and be cross-examined. A judge will decide both liability and quantum (or these may be split into separate hearings). Trials in complex clinical negligence cases are lengthy and expensive for both sides, which is itself a driver of settlement.

This guide covers England and Wales only. It reflects the law and procedure current as at June 2026. It is intended as general information and not as a substitute for advice specific to your situation.

Last reviewed: June 2026 · Next review due: June 2027 or on legislative or procedural change.