NHS problems – taking legal action
NHS care is usually very good and most people don’t have any problems. But occasionally things can go wrong. In some cases, you may be able to take legal action for clinical negligence but this page tells you more about other legal action you might be able to take.
In most cases, making a complaint using the NHS complaints procedure will solve a problem. But in some cases, you might need to take legal action.
You could start legal action as well as making a complaint. Taking legal action shouldn’t normally prevent or delay your complaint being investigated through the NHS complaints procedure if you want it to be. However, in very exceptional circumstances this could happen, for example, if a judge rules that the investigation of a complaint would interfere with the legal case. If you’re told that legal action is why your complaint isn’t being investigated within a reasonable time-scale, you should get independent advice.
Remember that legal actions can be expensive and time-consuming and you’ll need expert advice before you consider taking legal action.
Getting a decision changed – judicial review
Judicial review can be used when a public authority has:
- acted in a certain way
- failed to act in a certain way
- made an unlawful decision.
Judicial review may be appropriate if you urgently need to challenge a decision. You’ll need specialist legal advice about judicial review.
An NHS hospital makes a decision to put a ‘do not resuscitate’ on a patient’s note without discussing it with the patient or their family.
A clinical commissioning group refuses to fund a certain treatment which you have the right to.
Human rights law
You may be able to take legal action for a breach of one or more human rights under the Human Rights Act 1998, for example:
- the right to respect for private and family life
- freedom of thought, conscience and religion.
You’ll need specialist legal advice about taking action under human rights law.
It’s against human rights law if things are done to you which you find humiliating and don’t want.
It’s against human rights law if you’re left in pain or suffering when something could be done to make it better.
Examples of discrimination include:
- you’re refused a healthcare service because of who you are, for example, you’re refused treatment for lung cancer just based on your age
- your healthcare treatment is of a worse quality than would be normally offered
- staff behave in a way which causes you distress or offends or intimidates you. This is called harassment.
Discrimination is only against the law if it’s because of things like your age, your disability, your sexual orientation or your race. You can take action about discrimination.
A security officer at the hospital where you’re staying is being verbally abusive towards you because you’re disabled. This could be harassment because of disability.
A male to female transgender patient was upset about being placed on a male ward for medical treatment. She felt that this was humiliating and that she was being offered a worse service because she was transgender. This could be discrimination because of gender reassignment.
If your injury was caused by faulty medical equipment or products
If your injury was caused by a faulty medical device, for example, an artificial hip, you may be able to claim for compensation under the Consumer Protection Act 1987. This also applies to medical products, for example, if you were injured or made ill from a blood product. Your claim would be against the manufacturer of the product (or the importer or supplier), not the hospital or doctor who treated you. There are specialist solicitors who specialise in this type of claim.
You will almost always need specialised legal advice to take one of the cases described above. Your local Healthwatch might be able to give you the details of local specialist solicitors, or you could contact Action against Medical Accidents (AvMA) or the Public Law Project (about judicial review).