Overview

• Clinical negligence is when healthcare professionals cause physical or mental harm to you because of the poor standard of care they give you.
• Proving clinical negligence can be difficult. You should get legal advice if you think you have a claim.
• If you win a clinical negligence claim, you will only get financial compensation.
• If you want an apology, or other outcome, you can think about making a formal complaint.
• You have three years to make a clinical negligence claim. This is 3 years from when it happened, or 3 years from when you realised it happened.
• You may be able to get legal funding to make a claim.
• You may be able to make a claim if a family member died because of negligence.

About

What is clinical negligence?

Clinical negligence is when healthcare professionals harm you because of a poor standard or lack of care or treatment.

The harm you have experienced could be physical or mental.

Clinical negligence is also known as medical negligence.

To have a chance of succeeding in a clinical negligence claim, you must show that:

• the healthcare professional or provider owed you a duty of care,
• the care was not of an acceptable standard, and
• as a direct result of this you suffered harm.

You can experience negligence from different medical professionals or teams. These can include:

• an individual healthcare professional, such as a psychiatrist, or
• a healthcare service, such as a mental health team.

Below are some examples of negligence which could cause you harm.

• Doctors didn’t notice symptoms of possible mental illness when they should have.
• There’s an unreasonable delay in treatment.
• Your hospital or mental health team discharged you too early.
• Your mental health team didn’t give you the right treatment.
• Professionals didn’t take reasonable steps to prevent someone dying by suicide.

You can make a clinical negligence claim about both NHS and private treatment.

What should I keep a record of?

If you think you have experienced clinical negligence, it's best to keep a record of:

• how the treatment, or lack of it, affected you,
• any extra money you have had to spend because of it, or loss of earnings if you are unable to work,
• any pain and suffering you have experienced, and
• anything else that is relevant.

This will help your legal adviser if you decide to make a claim. See further down this page for more information on how to make a claim.

Can I make a claim if a loved one has died because of negligence?

You may be able to make the following claims if a loved one has died because of negligence:

• bereavement damages of up to £15,120 if your husband, wife, co-habiting partner, or unmarried child under 18 has died, and
• for ‘loss of dependency’ if you were financially dependent on the person who has died.

Who deals with clinical negligence claims for the NHS?

NHS Resolution are a part of the Department of Health and Social Care. They deal with resolving disputes and clinical negligence claims for the NHS. You can find their contact details in the Useful contacts section at the bottom of this page.

What is alternative dispute resolution?

If you make a clinical negligence claim the NHS might try to resolve the issue without going to court.

This process is known as alternative dispute resolution.

The NHS has a mediation service. The NHS say it has been designed to support patients, families, and NHS staff in working together. This is to work towards the resolution of incidents, complaints, legal claims, and costs disputes. This can help to avoid the unnecessary expense, time, and stress of going to court.

The service will provide access to an independent and accredited mediator. The mediator is selected from a panel drawn from a wide range of backgrounds.

The NHS say 77% of claims were resolved in 2021/22 without court proceedings.

Following mediation, you might not be happy with the NHS’s suggested way forward. If this is the case, you can think about carrying on with your clinical negligence claim through the courts. You can ask your legal adviser for advice about this.

You can read more about alternative dispute resolution on NHS resolution’s website here: www.resolution.nhs.uk/services/claims-management/alternative-dispute-resolution

What is the difference between clinical negligence and making a complaint?

When you make a complaint to the NHS you won’t get usually get compensation.

But you might get things like:

• an apology,
• the treatment or care you want,
• a change in policy, procedure, or practice, or
• action against a healthcare professional, such as suspension or being dismissed from work.

If you want to claim compensation you have to make a clinical negligence claim.

You can make a complaint and a clinical negligence claim at the same time.

See our webpage on Complaining about the NHS and Social services for more information.

How to claim

What are the time limits for making a claim?

There is a time limit if you want to make a clinical negligence claim.

You must start the process:

• within 3 years of when the negligence happened, or
• within 3 years of the date that you realised that your injury was because of the negligence.

If you die within 3 years of when the negligence happened, then a clinical negligence claim can still be made. The claim must be made within 3 years:

• from the date of your death, or
• of your personal representative realising that your injury was because of the clinical negligence.

You might have lacked mental capacity when the clinical negligence happened. If you regain the mental capacity to make a decision you have 3 years to make a claim.

If you lack mental capacity a representative of yours might be able to make a claim.

See our webpage on Mental capacity and mental illness for more information.

How do I make a negligence claim?

If you think you have been the victim of clinical negligence, you should get legal advice.

Who are Action Against Medical Accidents (AvMA)?

To begin with, you can contact the medical accident charity, Action Against Medical Accidents (AvMA).

They can give you free, expert advice. They are a UK charity which gives free and confidential advice and support to people affected by clinical negligence.

Their helpline advisers are specially trained volunteers who are medical and legal professionals. They will listen to your story sympathetically and offer practical advice about what options are open to you. They can:

• explain some of the jargon and systems,
• help you decide what to do next, and
• put you in touch with other sources of support if needed.

AvMA’s contact details can be found in the Useful contacts section at the bottom of this page.

AvMA have information on making a claim on their website:
www.avma.org.uk/help-advice/guides/#making-a-claim

How can I find a find a clinical negligence solicitor?

You can search on the Law Society website to find a clinical negligence solicitor: www.solicitors.lawsociety.org.uk. Also, their details are in the Useful contacts section at the bottom of this page.

The Law Society have an accreditation scheme for clinical negligence solicitors. This can help you to find a good clinical negligence solicitor. You can find out more about the scheme here:
www.lawsociety.org.uk/public/for-public-visitors/using-a-solicitor/law-society-accreditations

Against Medical Accidents also have a list of accredited clinical negligence solicitors on their website: www.avma.org.uk/help-advice/find-a-solicitor

See our webpage on Legal advice - How to get help from a solicitor for more information.

Are there rules about making a claim for clinical negligence?

There are rules about making a claim for clinical negligence. A solicitor must do certain things before starting the claim. Your solicitor can advise you on the rules and should follow the correct procedures for you.

These rules are set out in the Civil Procedure Rules, which you can find here: www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_rcd#annex%20b

As part of the claims process your legal adviser will need you to consent to accessing your health records.

See our webpage on Access to health records for more information.

How long can it take to settle a clinical negligence claim?

Clinical negligence claims can be complex. So, it can take a long time to settle a claim and the process can be stressful.

Settlement of claims can take from 18 months for a simpler one to years for a more complex one. It might take less time if you agree a settlement with the NHS through alternative dispute resolution. See above for more information.

So, you can consider the potential downsides of making a claim against the potential benefits. To decide whether you should make a claim you can speak to:

• Action Against Medical Accidents. See above,
• A legal adviser. See above, or
• A trusted person, like a loved one.

Sometimes the NHS will:

• accept liability early on,
• pay you interim damages before your claim is fully settled.

Fees and compensation

How can I pay to make a clinical negligence claim?

You will need to pay fees to make a clinical negligence claim. There are different ways you can pay.

You can read more information about understanding legal costs for clinical negligence claims in a guide by Action Against Medical Accidents here:
www.avma.org.uk/wp-content/uploads/Understanding-legal-costs.pdf

You can’t get legal aid for clinical negligence. Unless it is about a child that suffered brain injuries. They must have been caused in pregnancy, childbirth or up to 8 weeks’ postnatal and have resulted in severe disability.

Legal aid means that the government pays for your legal advice if you can’t afford to pay it yourself.

You can check if you can get legal aid here: www.gov.uk/check-legal-aid

What is legal expenses insurance?

Legal expenses insurance is when an insurance policy you have pays your solicitor’s fees.

Some insurance policies, such as motor or household, include legal expenses insurance.

Your policy might cover legal expenses insurance. You can check with your insurance company to see what types of claim it will cover.

If you are a member of a trade union, you might have legal expenses insurance. You can check with your union representative.

You might have to see a solicitor that your insurer chooses. If you aren’t happy with the solicitor, you can ask the insurer if you can use your own.

What are conditional fee or 'no win, no fee' agreements?

A conditional fee agreement is an agreement that your solicitor will not get paid unless you win the case. They are known as 'no win, no fee' agreements.

If you win your case, you will have to pay your solicitor’s fees with your compensation money. The fee can be no more than 25% of your compensation.

If you lose your case, then you will not have to pay your solicitor. But you might have to pay the other side’s legal costs. You can take out an insurance policy called after the event insurance. This insurance will pay for the other side’s legal costs if you lose.

What is private funding?

This is when you pay the fees yourself. Clinical negligence cases can cost a lot of money. You can talk to your solicitor about fees before you decide to start a claim.

See our webpage on Legal advice - How to get help from a solicitor for more information.

How much compensation could I get?

If you win you can get compensation. The amount you will get depends on different things, including the following.

• How much pain or suffering you felt.
• How much you earn and how much money you lost because of not being able to work.
• How much you might earn in the future. The court works this out based on what you were earning in the past. Usually the higher your earnings, the more you will get.
• Whether you have children or relatives who depend on you to support them financially.

You can ask a solicitor how much compensation you might get. A solicitor can give more information on how the above will be calculated.

You can read more information about what compensation you can claim in a guide by Action Against Medical Accidents here: www.avma.org.uk/wp-content/uploads/Compensation.pdf

Useful contacts

NHS Resolution
NHS Resolution is part of the Department of Health and Social Care. They provide expertise to the NHS on resolving concerns and disputes fairly.

Phone: 020 7811 2700
Address: 8th Floor, 10 South Colonnade, Canary Wharf, London, E14 4PU
Email: nhsr.generalenquiries@nhs.net
Website: www.resolution.nhs.uk

Action Against Medical Accidents (AvMA)
(AvMA) is a UK charity which gives free and confidential advice and support to people affected by clinical negligence.

Phone: 0845 123 23 52
Address: Freedman House, Christopher Wren Yard, 117 High Street, Croydon, CR0 1QG
Website: www.avma.org.uk

The Law Society
The Law Society represents solicitors in England and Wales.

Telephone: 020 7242 1222
Address: 113 Chancery Lane, London, WC2A 1PL
Website: www.lawsociety.org.uk

© Rethink Mental Illness 2023

Last updated January 2023
Next update January 2026

Version number 9

You can access a fully referenced version of this information by downloading the PDF factsheet by using the link at the top of this page.

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