Taking Legal Action Against the NHS: Judicial Review, Negligence, Equality & Human Rights

Start here: what do you want the law to do?

Start with the outcome you need rather than the legal terminology.

I want an NHS policy or decision stopped, overturned or reconsidered

Potential route: judicial review.

Judicial review examines whether a public body acted lawfully when making a decision, adopting a policy or failing to act.

It can potentially be used to challenge matters including:

• unlawful commissioning policies;
• treatment-access rules;
• eligibility decisions;
• failure to comply with statutory duties;
• procedurally unfair decisions;
• irrational decisions;
• Equality Duty failures;
• and Human Rights Act issues.

Go to judicial review →

NHS treatment caused me physical or psychological injury and I want compensation

Potential route: clinical negligence.

You generally need to establish that the care fell below the legally required standard and that this breach caused or materially contributed to compensable harm.

A poor experience or mistake does not automatically establish a negligence claim.

Go to clinical negligence →

I believe an NHS service or policy discriminated against me

Potential routes: Equality Act proceedings and/or judicial review.

The route depends on whether you are challenging:

• individual discriminatory treatment;
• an indirectly discriminatory policy;
• failure to make reasonable adjustments;
• or the way a public authority discharged the Public Sector Equality Duty.

Go to Equality Act claims →

I believe an NHS public body violated my human rights

Potential route: Human Rights Act proceedings, sometimes alongside judicial review or another legal claim.

Possible issues can include life, bodily integrity, privacy, reproductive autonomy, liberty and discrimination within the scope of Convention rights.

Go to Human Rights Act claims →

A clinician did not explain an important risk or reasonable alternative before I agreed to treatment

This may potentially form part of a clinical-negligence claim based on informed consent.

The principles established in Montgomery require reasonable care to ensure patients understand material risks and reasonable alternatives.

There must still ordinarily be a legally relevant causal link between the consent failure and the harm claimed.

Read about consent claims →

The ICO has ruled against me and I believe its FOI decision is legally wrong

Potential route: First-tier Tribunal (General Regulatory Chamber).

An appeal from an ICO Decision Notice is generally made to the Information Rights jurisdiction of the First-tier Tribunal.

Read about information-rights appeals →

A relative died and I believe NHS failures may have contributed

Potential legal routes may include:

• the coroner and inquest process;
• clinical-negligence or fatal-accident claims;
• Human Rights Act issues in appropriate cases;
• and regulatory or professional proceedings.

Go to deaths and inquests →

Is maladministration or misconduct automatically a legal claim?

No.

This distinction matters enormously.

Words such as:

• maladministration;
• misconduct;
• serious mismanagement;
• poor governance;
• lack of transparency;
• and failure of accountability;

can describe serious problems without necessarily creating a standalone civil claim.

For example:

Judicial review: challenging unlawful NHS decisions and policies

Judicial review is one of the most important legal mechanisms for holding NHS public bodies to account.

It allows the court to review the lawfulness of a decision, action or failure to act by a public body.

This can include decisions made by:

• Integrated Care Boards;
• NHS England;
• NHS trusts and other public NHS bodies;
• government departments;
• local authorities;
• and some regulators or other bodies exercising public functions.

Judicial review is particularly relevant to healthcare where the problem concerns:

• a commissioning policy;
• refusal to fund treatment;
• an eligibility rule;
• rationing;
• failure to follow legislation;
• failure to consider relevant clinical evidence;
• an unfair process;
• equality duties;
• human rights;
• or an unlawful failure to act.

Judicial review is generally concerned with how lawfully the decision was reached, rather than asking the judge to substitute their own preferred healthcare policy simply because they would have chosen differently.

What can make an NHS decision unlawful?

Public-law challenges can involve several overlapping grounds.

Acting outside legal powers

A public body must act within the powers Parliament has given it.

Using powers for an improper purpose

A legal power should be exercised for the purpose for which it was conferred.

Failing to consider relevant matters

A decision-maker may act unlawfully if legally relevant evidence or considerations are ignored.

Taking irrelevant matters into account

The reverse can also create a public-law problem.

Procedural unfairness

Decision-making may be challengeable where the process was unfair.

Irrationality

Some decisions may be challengeable where they fall outside the range of decisions lawfully open to the decision-maker.

Failure to comply with statutory duties

For NHS bodies this can potentially include duties concerning:

• equality;
• health inequalities;
• patient involvement;
• quality;
• and other statutory requirements.

Human-rights incompatibility

A public body's exercise of its functions may be challengeable where it unlawfully interferes with Convention rights.

Equality-law failures

Judicial review is an important route for challenging failures in the discharge of the Public Sector Equality Duty.

What can the court do in judicial review?

Depending on the case, the Administrative Court can grant remedies including:

• a quashing order — setting aside an unlawful decision;
• a mandatory order — requiring the public body to do something;
• a prohibiting order — preventing unlawful action;
• a declaration — formally stating the legal position;
• an injunction — requiring or preventing conduct in appropriate cases;
• and, where another legal basis exists, potentially damages alongside judicial-review relief.

Judicial review is not normally a route for obtaining damages alone.

A common outcome is not:

“The judge makes the healthcare decision instead.”

It may instead be:

“The original decision was unlawful and must be reconsidered lawfully.”

How quickly must judicial review be brought?

The three months is therefore not a safe waiting period.

A claimant can potentially be too late even within three months if they failed to act promptly.

Nor can the parties simply agree between themselves to extend the judicial-review deadline.

This is one of the most important reasons to approach a public-law solicitor early.

What is a judicial review Letter Before Claim?

Judicial review has a formal Pre-Action Protocol.

Before proceedings are normally issued, the proposed claimant sends the public body a detailed Letter Before Claim.

It usually identifies:

• the decision being challenged;
• the claimant;
• the relevant facts;
• the legal grounds;
• the remedy sought;
• any information or documents required;
• and the date by which a response is requested.

The purpose is to:

• clarify the legal dispute;
• give the public authority an opportunity to reconsider;
• obtain relevant information;
• and potentially resolve the case without litigation.

But the Pre-Action Protocol does not extend the judicial-review limitation period.

What if an NHS decision is urgent?

Some healthcare disputes cannot wait weeks for ordinary correspondence.

Examples might include:

• imminent withdrawal of treatment;
• urgent refusal of clinically necessary care;
• a service closing;
• a decision about discharge or placement;
• or another time-sensitive public decision.

A specialist solicitor can advise whether urgent judicial-review proceedings, interim relief or an injunction may be appropriate.

Where the situation is urgent, say so clearly when contacting a solicitor:

Clinical negligence: when NHS care causes harm

Clinical negligence is very different from judicial review.

Judicial review primarily asks whether a public decision was lawful.

Clinical negligence asks whether healthcare fell below the legally required standard and caused compensable harm.

Examples can include:

• delayed diagnosis;
• misdiagnosis;
• surgical error;
• medication error;
• birth injury;
• failure to treat;
• failure to monitor;
• and failures of informed consent.

What must be proved in clinical negligence?

A successful clinical-negligence claim generally requires proof of three fundamental elements.

1. Duty of care

The healthcare provider owed the patient a legal duty.

2. Breach of duty

The care fell below the legally required standard.

3. Causation and damage

The breach caused legally recognised harm or made the outcome materially worse.

Can failure to obtain informed consent become negligence?

Yes, potentially.

In Montgomery v Lanarkshire Health Board, the Supreme Court confirmed that clinicians must take reasonable care to ensure patients understand:

• material risks of the recommended treatment;
• and reasonable alternative or variant treatments.

A consent claim therefore may arise where a patient was not given information legally required for an informed decision.

But identifying a consent failure is not necessarily the end of the case.

For compensation, causation still matters.

The legal team may need to establish matters such as whether, if properly informed, the patient would have:

• declined treatment;
• chosen a reasonable alternative;
• delayed treatment;
• or otherwise avoided the harm that occurred.

Related guide: Human Rights, Consent, Bodily Autonomy & the NHS Constitution.

What is the clinical-negligence time limit?

Clinical-negligence claims are generally subject to a three-year limitation period.

The period commonly runs from:

• the date of the negligent event;
• or a later “date of knowledge” where the claimant did not initially know the relevant facts connecting significant injury with the act or omission.

Different rules apply in some circumstances.

For example:

• for children, the ordinary three-year period generally does not begin until adulthood;
• special rules apply where a person lacks relevant mental capacity;
• and courts have limited discretion concerning some late claims.

Do not rely on an exception without specialist advice.

Taking legal action under the Equality Act

The Equality Act 2010 can provide civil remedies where NHS services or public functions involve unlawful discrimination.

Potential issues can include:

• direct discrimination;
• indirect discrimination;
• discrimination arising from disability;
• failure to make reasonable adjustments;
• harassment where the relevant legal provisions apply;
• and victimisation.

Claims concerning services and public functions are generally brought in the County Court in England and Wales.

The ordinary time limit for these claims is short:

Different issues can arise where conduct extends over a period, and courts have some discretion in relation to late claims.

Again, do not assume a complaint to the NHS or EHRC pauses the limitation period.

Related guide: NHS Equality, Discrimination, PSED & Health Inequalities.

How do you challenge a failure of the Public Sector Equality Duty?

The Public Sector Equality Duty requires public bodies to have due regard to specified equality aims when exercising their functions.

If the challenge concerns how an NHS policy or public decision was made, a failure to comply with the PSED is commonly challenged through judicial review.

The question is not simply whether an EqIA form exists.

A legal challenge may examine whether:

• the relevant equality impacts were actually identified;
• decision-makers had adequate information;
• the analysis occurred at the right time;
• due regard was real rather than formulaic;
• and equality was considered while the policy was still capable of being influenced.

A PSED challenge is different from an individual damages claim for direct or indirect discrimination.

The two can sometimes arise from the same factual situation but they involve different legal questions.

Taking legal action under the Human Rights Act

The Human Rights Act 1998 makes it unlawful for a public authority to act incompatibly with Convention rights, subject to statutory exceptions.

For healthcare, potentially relevant rights can include:

• Article 2 — right to life;
• Article 3 — protection from inhuman or degrading treatment;
• Article 5 — liberty and security;
• Article 8 — private and family life, including bodily integrity and personal autonomy;
• and Article 14 — discrimination in the enjoyment of Convention rights.

A person bringing a Human Rights Act claim ordinarily needs to be a victim of the alleged unlawful act.

The Human Rights Act permits proceedings against the public authority or reliance on Convention rights within other legal proceedings.

The normal statutory time limit is:

The court can permit a longer period where it considers that equitable, but this should never be assumed.

If the human-rights issue is being pursued through judicial review, the much shorter judicial-review rules can also become relevant.

What if the legal dispute concerns FOI or information rights?

Freedom of Information disputes normally follow a specialist route.

The usual sequence is:

NHS public authority → Internal Review → ICO → First-tier Tribunal

If the Information Commissioner issues a Decision Notice and you believe that decision is legally wrong, you can generally appeal to the First-tier Tribunal (General Regulatory Chamber).

The normal deadline is:

Further appeals can potentially proceed on points of law through the Upper Tribunal and higher courts, subject to permission and the relevant procedural rules.

Related guide: How to Use Freedom of Information to Investigate NHS Decisions.

What legal routes exist after an NHS-related death?

A death potentially involving healthcare failures can engage several distinct processes.

Coroner and inquest

A coroner investigates certain deaths, including some deaths that are violent, unnatural, unexplained or raise particular legal questions.

An inquest is not a civil negligence trial and does not normally determine civil liability.

But it can establish important facts surrounding the death.

Article 2 inquest

In certain cases involving state responsibility, the right to life can require a broader investigation into the circumstances of a death.

Prevention of Future Deaths

If an inquest reveals circumstances creating a risk that future deaths could occur, the coroner can issue a Regulation 28 Prevention of Future Deaths report.

Civil proceedings

Separately, families may potentially have:

• clinical-negligence claims;
• claims arising from a death under relevant statutory provisions;
• or Human Rights Act claims in appropriate cases.

Inquest work and healthcare deaths are highly specialist areas, so specialist representation can be particularly important.

Important legal deadlines at a glance

What evidence should you prepare for a solicitor?

You do not need to send 500 pages in your first email.

In fact, a solicitor may understand your case more quickly if you initially provide a structured summary.

1. One-page case summary

Explain:

• what happened;
• who made the decision or provided the care;
• what you believe was unlawful or negligent;
• what harm or impact resulted;
• what has happened since;
• and what outcome you want.

2. Clear chronology

Use exact dates.

3. The decision or policy being challenged

Attach the actual policy, letter, decision notice or healthcare record if you have it.

4. The strongest evidence

This might include:

• medical records;
• expert opinions;
• complaint findings;
• Ombudsman findings;
• FOI disclosures;
• EqIAs;
• Board papers;
• emails;
• clinical guidance;
• or other documentary evidence.

5. Explain the deadline

If you know the date of the decision or injury, put it prominently in the first message.

A solicitor needs to assess limitation immediately.

6. Explain what has already been tried

List:

• complaints;
• appeals;
• Ombudsman involvement;
• regulator referrals;
• FOI requests;
• and responses from the NHS.

This is particularly important in judicial review because the court generally expects suitable alternative remedies to be considered.

How can NHS legal action be funded?

Legal action can be expensive, and different areas of NHS litigation are funded differently.

Legal aid

Legal aid can potentially be available in areas including:

• public law;
• judicial review;
• discrimination;
• some claims against public authorities;
• some inquest-related work;
• and limited categories of clinical negligence.

Eligibility can depend on:

• the type of case;
• the merits;
• the person's financial circumstances;
• and the particular scope of the legal-aid scheme.

Legal aid for clinical negligence is particularly restricted, so many claims are funded another way.

Conditional Fee Agreement — “No Win, No Fee”

Many claimant clinical-negligence solicitors offer Conditional Fee Agreements.

The exact arrangement matters.

Ask:

• what you pay if you win;
• whether a success fee is deducted from damages;
• what expenses or expert fees are covered;
• and what happens if the case is lost.

After-the-Event insurance

ATE insurance may be used alongside litigation funding to protect against specified costs risks and disbursements.

Read the policy and funding agreement carefully.

Existing legal-expenses insurance

Check whether you already have legal-expenses cover through:

• home insurance;
• another insurance policy;
• professional membership;
• or a trade union.

Private funding

You may instruct lawyers privately and pay their fees.

Crowdfunding and public-interest litigation

Some strategic judicial-review cases are funded partly through public fundraising, particularly where the dispute affects a wider group.

Crowdfunding does not remove costs risk, so this should be planned with the legal team rather than treated simply as a fundraising exercise.

Costs risk matters

In civil litigation, losing can potentially create liability for some of the other side's legal costs.

Different protection regimes can apply depending on the case and funding arrangement.

This is particularly important in judicial review.

Ask about adverse costs at the first meeting.

How do you choose the right NHS solicitor?

“Healthcare lawyer” can mean very different things.

Some lawyers defend NHS organisations.

Some represent patients in negligence claims.

Some specialise in judicial review and challenges to healthcare policies.

Some specialise in inquests.

Others work principally in mental-health law, Court of Protection, discrimination or human rights.

If the issue is clinical injury

Look for a claimant clinical-negligence specialist.

If the issue is an NHS policy or commissioning decision

Look for a solicitor specialising in:

• public law;
• judicial review;
• healthcare law;
• human rights;
• and, where relevant, equality law.

If your case crosses several areas

Say so immediately.

For example:

“This concerns a commissioning policy affecting reproductive healthcare. Potential issues include public law, sex equality, PSED, Article 8 and access to treatment.”

A clinical-negligence solicitor may not be the right person for that case even though it concerns healthcare.

Where can you find specialist lawyers?

AvMA — Action against Medical Accidents

For clinical-negligence claims, AvMA maintains a specialist accreditation scheme and solicitor directory.

Its Specialist Clinical Negligence Panel accredits lawyers experienced in representing injured patients and families.

AvMA recommends using a specialist accredited clinical-negligence solicitor where possible.

The Law Society — Find a Solicitor

The Law Society's search service allows people to find solicitors by:

• legal specialism;
• location;
• legal-aid availability;
• and professional accreditation.

Useful search terms can include:

• clinical negligence;
• administrative and public law;
• human rights;
• civil liberties;
• discrimination;
• and inquests.

Legal Aid Agency

The government's legal-aid adviser search and provider directory allow people to identify firms with Legal Aid Agency contracts in categories including:

• public law;
• clinical negligence;
• discrimination;
• community care;
• mental health;
• and claims against public authorities.

Public Law Project

The Public Law Project is a specialist charity concerned with public-law rights and access to justice.

Its resources explain judicial review and other methods of challenging unlawful public decision-making.

It is particularly useful for understanding how public-law challenges work, although it cannot take every individual case.

Examples of firms working in NHS and public-law challenges

Bindmans LLP

Its published practice includes:

• judicial review;
• public law;
• human rights;
• health and community care;
• healthcare access;
• and challenges involving public bodies.

Its healthcare practice specifically describes using judicial review and other legal remedies to enforce rights relating to NHS and health services.

DPG Law — Deighton Pierce Glynn

DPG's published healthcare and public-law work includes:

• access to NHS treatment;
• judicial review;
• healthcare policy challenges;
• equality and discrimination;
• human rights;
• information and privacy;
• and strategic public-interest litigation.

Its healthcare team has acted in challenges concerning NHS-funded treatment and commissioning decisions.

Leigh Day

Leigh Day has separate practices dealing with:

• medical negligence;
• human rights;
• public law;
• access to treatment;
• and judicial-review challenges to NHS healthcare decisions.

Its published public-law work includes challenges to NHS treatment-funding and commissioning decisions.

Russell-Cooke

Its public-law and community-action practice describes acting in judicial review and public-interest challenges involving:

• NHS bodies;
• healthcare decision-makers;
• equalities;
• and public authorities more broadly.

Irwin Mitchell

Its claimant medical-negligence practice acts in NHS negligence cases involving injury caused by allegedly substandard healthcare.

This is principally relevant where the objective is compensation for clinical harm rather than judicial review of an NHS policy.

For clinical negligence: use the specialist directory, not just this list

There are many excellent claimant clinical-negligence firms across England and Wales.

Rather than relying on a short list of large firms, check the AvMA Specialist Clinical Negligence Panel and the Law Society's accredited solicitor search.

That gives you a much wider choice of lawyers with relevant specialist expertise.

How should you approach a solicitor?

Make it easy for the solicitor to identify:

jurisdiction + urgency + legal issue + evidence + outcome.

A useful first approach can look like this:

If the deadline is urgent, put that in the subject line.

Court, regulator or Ombudsman: which one actually gives you the outcome you want?

Sometimes the same underlying facts justify more than one route.

For example, a restrictive NHS policy could potentially produce:

• a PHSO maladministration investigation;
• a PSED challenge;
• an Equality Act issue;
• a Human Rights Act issue;
• and a judicial-review challenge.

But each process answers a different question.

Other Fighting Back guides

• Who Oversees the NHS? — regulators, Ombudsmen and accountability bodies
• How to Escalate an NHS Concern — identify the problem and the correct accountability route
• FOI & Transparency — obtain the documentary evidence behind NHS decisions
• Human Rights & the NHS — consent, bodily autonomy and the NHS Constitution
• NHS Equality — discrimination, PSED and health inequalities
• Advocacy & NGOs — reproductive-rights and patient-support organisations

Official sources used for this guide

This guide has been prepared using current legal and official material including:

• Civil Procedure Rules Part 54 — Judicial Review and Statutory Review;
• Pre-Action Protocol for Judicial Review;
• Pre-Action Protocol for the Resolution of Clinical Disputes;
• NHS Resolution — advice for claimants and guidance on clinical-negligence limitation;
• Limitation Act 1980;
• Equality Act 2010;
• Equality and Human Rights Commission guidance on discrimination claims and limitation;
• Human Rights Act 1998;
• Montgomery v Lanarkshire Health Board [2015] UKSC 11;
• HM Courts & Tribunals Service — Information Rights appeals;
• Legal Aid Agency guidance and provider directory;
• Law Society — Find a Solicitor;
• AvMA — Specialist Clinical Negligence Panel;
• and Public Law Project guidance on judicial review and public-law challenges.