Clinical negligence

Explains what clinical negligence is, how to make a complaint about clinical negligence and where to find more information and support.

Your stories

Healthy talks with Conservatives in Manchester

Ally Cobb, Mind Senior Policy and Campaigns officer
Posted on 03/10/2013

Taking care of business at Mind

Emma Mamo
Posted on 04/10/2013

Reflecting on a tough year

Tom reflects on 2013, and the work that the Policy and Campaigns team has been doing on a number of issues.

Tom Pollard, Policy and Campaigns Manager
Posted on 16/12/2013

Legal challenge

How can I make a legal challenge?

If you want to make a legal challenge about negligent treatment, you will need to go to court. It's a good idea to get legal advice before going to court.

You can ask for your medical records to see what evidence there is to support your claim. See our pages on my personal information to find out how you can do this.

Letter of claim

Before going to court, you must send a letter of claim setting out your legal case. There are very specific rules this has to follow, called the Civil Procedure Rules (CPR). It can be easy to get it wrong, so it's important to get legal advice for this step.

In England, if your legal challenge is about the service you received under the NHS, NHS Resolution may respond on behalf of the hospital or healthcare professional.

Time limit

You’ll need to start the legal claim within three years from the date of the incident or from when you knew the injury was negligent.

  • For children, the three years starts when they turn 18. 
  • For someone who lacks capacity to make decisions, the time limit starts when they regain capacity. 

If your claim relates to the Human Rights Act, for example, preventable suicide, the time limit is reduced to one year.

It's a good idea to start your claim as soon as you can, because:

  • this will give you more time to investigate and prepare your case
  • there's a better chance that documents you need will still exist
  • people who are involved in your case will be able to remember more accurately what actually happened.

I'm a family member or carer. Can I make a legal challenge on behalf of someone?

If you're a family member or carer of someone who has experienced clinical negligence, you can bring a claim on their behalf if:

  • they’re under 18
  • they don’t have the capacity to complain at that time
  • they have died because of the negligent treatment.

Example

(Please note: this example talks about someone taking their own life.)

Les was a patient detained under the Mental Health Act and on one-to-one observations because she was suicidal and self-harming.

When she improved, she was given escorted leave, but she ran away and attempted suicide. The care team believed that she was a high risk of taking her own life but she was not put back onto one-to-one observations, and sadly she took her own life.

Her partner brought a claim of clinical negligence against the hospital as her death could have been prevented.

If you or someone you know is feeling suicidal, see our pages on suicidal feelings. Or call Samaritans on freephone 116 123 – they're open 24 hours and are there to listen.

How can I get legal advice?

It’s always important to get legal advice about your situation before going to court.

You can get in touch with a solicitor by using the Law Society's find a solicitor tool, or by calling them on 020 7320 5650. You can get a list of solicitors based in your area that specialise in clinical negligence. You can also see our useful contacts page for more information on where to find legal help.

Taking legal action can be complicated and stressful, and it's understandable that you might want some support to help you through the process. Our page on getting support when making a complaint has more information about who can help.

Can I get help paying for legal fees?

Here are some ways you might be able to get help paying for your legal fees:

Legal aid

Generally, legal aid isn’t available for clinical negligence. Legal aid is only available in cases where a child has a neurological injury resulting in them being severely disabled during pregnancy, child birth or the postnatal period (8 weeks) and they are financially eligible.

In rare circumstances, you might be able to get legal aid even though your case falls outside of the usual scope – this is called 'exceptional case funding'. You will need to speak to a legal aid lawyer to find out whether this applies to you.

Conditional fee arrangement

Solicitors may agree to a conditional fee agreement (CFA) or a 'no win no fee' agreement. This means that you won’t have to pay your solicitor's fees if you don’t win your case. However, a solicitor is unlikely to take on the case if they think it will lose. You can speak to a solicitor to see if they will take your case.

Check your insurance policy

It's also a good idea to check any insurance policies you have like a home contents or car insurance. Sometimes these policies also cover general legal expenses, which can be used to pay a solicitor.

Trade union

If you’re a member of a union at your workplace, then the union may have solicitors who can give you legal advice about your case.

What happens if my claim is successful?

If you go to court and are successful, the court can award you money as compensation, which are called damages.

Damages can include:

  • compensation for pain and suffering
  • costs of ongoing treatment and further operations
  • compensation for if you can’t carry out hobbies or daily activities (called ‘loss of amenity’)
  • loss of earnings
  • costs of extra care or equipment you need
  • costs of adapting your home; or
  • compensation for psychiatric or psychological injury.

However, even if you’re successful, a court can't:

  • force a hospital to change its working practices
  • improve standards
  • make a doctor or hospital apologise.

If you want the doctor or hospital to apologise, you can do this by making an informal or formal complaint. You can find more information on our page about complaining about health and social care.

What happens after my dispute ends?

One way or another, your dispute will eventually come to a conclusion. For some people, this can bring a lot of relief. For other people, this can be a difficult time, regardless of the outcome.

For example, you might:

  • feel disappointed, frustrated and angry if the outcome wasn't everything you hoped for
  • be satisfied and relieved with the outcome, but still feel overwhelmed by what you've been through
  • have spent a lot of time and energy on your dispute – perhaps months or even years
  • need to rebuild relationships with your care team
  • have already moved on from that care team and want nothing more to do with them
  • not really feel that things really have been resolved at all, but still feel that it's the right choice for you to end the dispute at this stage.

However you feel when your dispute ends, it's important to make time to look after yourself and think about what helps you stay well. Our pages on wellbeing and managing stress have some tips.


This information was published in November 2018. We will revise it in 2020.


Mental Health A-Z

Information and advice on a huge range of mental health topics

> Read our A-Z

Training

Helping you to better understand and support people with mental health problems

> Find out more

Special offers

Check out our promotional offers on print and digital booklets, for a limited time only

> Visit our shop today