When a patient is harmed as a result of their NHS treatment, they should receive appropriate and timely compensation. However, the current adversarial system of clinical negligence compensation is far from ideal for everyone involved:

• it is a lengthy and stressful process for both patients and health professionals
• it does not promote learning from mistakes
• it is financially unsustainable for the NHS.

Ten Year Health Plan for England

As part of the Government’s plan to ‘build a health service fit for the future’, David Lock KC has been asked to provide expert advice on the rising legal costs of clinical negligence claims, ahead of a review by the Department of Health and Social Care in the autumn (2025). The Ten Year Plan also outlines that this review will look at how to improve patients’ experience of clinical negligence claims.

Consensus for change

The current system’s failings have been highlighted repeatedly and there is consensus: the previous House of Commons’ Health and Social Care Committee reviewed the evidence and surmised that, “The system for compensating injured patients in England is not fit for purpose. It is grossly expensive, adversarial, and promotes individual blame instead of collective learning”. The Times Health Commission drew a similar conclusion, describing “a flawed compensation system that discourages openness and makes it harder for the NHS to improve its processes when things go wrong”; and a previous government minister acknowledged that even well-handled cases can be stressful for all parties. She went on to say that when something goes wrong, leading to an investigation, it can place a significant strain on a “whole clinical unit” and negatively “affects staff morale”.

Most recently, the Public Accounts Select Committee told the Government that it is “disappointed that huge improvements still need to be made to better protect both patients and public money” in the area of clinical negligence – noting that “an astounding £58.2bn has been set aside to cover the potential cost of clinical negligence events in the latest accounts – the second largest liability across government after nuclear decommissioning”.

Off the back of its findings, the select committee has called on the Government “to set out a plan with clear actions to improve patient safety across the NHS, and in particular in maternity services”, highlighting that, under the status quo, “an astronomical” 19% of money awarded to claimants in 2023-24 actually goes to their lawyers (£536m of the total £2.8bn paid that year) – on top of the fees payable for the Government Legal Team. Reacting to this report, the Medical Defence Union, too, has called on the Government to reform the current system and to prioritise proposals for legal reform.

Clearly, there is a united demand for action on clinical negligence. The BMA is urging governments across the UK to act now, in support of the proposals for reform that we have outlined here. We believe these measures would bring about a fairer system in which clinical negligence claims are resolved more quickly, with prompt and just compensation for those who are wrongly harmed, while also encouraging a national system of learning to improve patient safety.

The current system

The current system is unsatisfactory for patients, for doctors, and for the NHS.

Unsatisfactory for patients

• The current clinical  negligence system is adversarial and based around litigation, which is invariably extremely stressful for patients.
• The process can take many years, sometimes even decades to achieve resolution and compensation. For example, with birth injuries in England the current average time between notification of a claim and settlement with payment of damages is approximately 6.5 years.
• The sole focus on compensation for the injured patient takes the focus away from the incident, and from learning how to improve systems and processes to ensure patient safety.
• The current system also fosters a defensive culture, rather than a candid and transparent one, which limits its ability to learn lessons and improve service quality and safety.
• Around a quarter of the total money awarded for clinical negligence in England was paid to lawyers rather than to the injured patient.

Unsatisfactory for doctors

• The system is also very stressful for health professionals who feel their professional integrity has been undermined, and for whom the emotional consequences can be very severe.
• There have been cases which have highlighted the fear by doctors that they can end up taking the blame for organisational failings beyond their control.
• Compensation can sometimes be paid to patients without the knowledge of the health professionals involved so they have no opportunity to learn from the incident.
• Healthcare professionals leaving the NHS because of clinical negligence claims has been recognised as “a hidden but real cost of litigation”.  

Unsatisfactory for the NHS

In the NHS, the cost of litigation comes from the overall NHS budget thus reducing the money available to spend on treating patients.    

Over the last 10 years the cost of litigation has increased significantly:  

• In England, the costs were 2.8 billion in 2023/24 (up 6.8% on 2022-23) with legal fees of 536 million – 20% of the total compensation bill. The DHSC in England has set aside £58.2 billion to pay for the estimated future cost of claims, which is almost a third of the total annual spend on health and social care.
• In Northern Ireland, the costs were £40million for 2021/22 (doubling from the previous year).
• In Wales, total payments in 2023/24 were £112 million.
• In Scotland, in 2023/24 the cost of clinical negligence claims was £44 million.  

Our proposals to the UK Government

1. Reform the current adversarial clinical negligence system to tackle the rising number and cost of clinical negligence claims and enable a move away from a ‘blame’ culture to a culture of learning to deliver high quality, safe services across the NHS.
2. Make a gradual move to a no-fault scheme, based broadly on the New Zealand model, starting with one specialty as a pilot to learn lessons and refine the system. The no-fault scheme would remove the need for legal representation for the parties, with attendant legal costs. However, each potential claim would be submitted for evaluation, and review by a panel of trained independent clinical experts to determine whether the injury was a result of the treatment, and to ensure, as far as possible, that exaggerated and fraudulent claims are excluded from the process.   
3. Introduce a national system to investigate clinical errors and systemic failings to make findings and recommendations that will improve safety and learning, both locally and nationally, and to ensure that patients are provided with appropriate apologies, explanations, and assurance that improvements will be made.
4. Amend S2(4) of the Law Reform (Personal Injuries) Act 1948 so that it no longer applies to public bodies. This would remove the current provision which requires that compensation is calculated to cover the cost of private treatment, with no obligation to use the money in this Page 2 of 3 way. Other properly funded arrangements would need to be put in place, however, to ensure that patients who are harmed by treatment in the NHS do not face long delays accessing the treatment and social care they need.
5. Standardise the loss of earnings claims for children and young people under the age of 18 (the current system differentiates between high and low earning parents).