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Claiming against the NHS in Scotland

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Medical negligence

Claiming against the NHS in Scotland

Almost everything written online about suing the NHS is written for England, and almost none of it applies here. There is no NHS Resolution in Scotland. You sue the health board itself, the solicitor on the other side works for the NHS, and the test for negligence is a Scottish case from 1955.

RFPublished by Rooney Family Law Limited, solicitors, regulated by the Law Society of Scotland · Last reviewed 14th August 2026

Who you are actually suing

In Scotland the defender is the health board. Not a national body, not a trust, and not the individual doctor. There are fourteen territorial health boards — Ayrshire and Arran, Borders, Dumfries and Galloway, Fife, Forth Valley, Grampian, Greater Glasgow and Clyde, Highland, Lanarkshire, Lothian, Orkney, Shetland, Tayside and Western Isles — together with eight national boards including the Scottish Ambulance Service, NHS 24 and the State Hospital.

A small point of form that tells you whether what you are reading is Scottish: the board is designated in a court action by its statutory corporate name, so the defender in the best-known case of all is “Lanarkshire Health Board” rather than “NHS Lanarkshire”.

England has NHS Resolution, an arm’s-length body which itself handles and settles claims on behalf of trusts. Scotland has nothing equivalent, and the difference is real rather than cosmetic.

CNORIS and the Central Legal Office

Two names come up constantly and they do different things.

CNORIS is the Clinical Negligence and Other Risks Indemnity Scheme, established by regulations made in 2000 under the National Health Service (Scotland) Act 1978 and administered through NHS National Services Scotland. It is a risk-pooling and reimbursement arrangement, not a defender and not a claims handler. Membership is mandatory for the health boards and the national boards. The member board bears the first twenty-five thousand pounds of each claim from its own budget, and the Scottish Government funds losses above that. A claimant never corresponds with CNORIS.

The Central Legal Office of NHS National Services Scotland is the in-house legal office that actually defends the claim. The Scottish Government’s own published research records that liability for medical negligence claims “has been handled on behalf of the Health Boards, by the Central Legal Office”. So the solicitor writing to your solicitor is an NHS lawyer, not a panel firm instructed by a national indemnifier.

The test: Hunter v Hanley

The governing authority in Scotland is Hunter v Hanley 1955 SC 200. Where a deviation from normal practice is alleged, Lord President Clyde set out three things that must be established: that there is a usual and normal practice; that the defender did not adopt it; and — the crucial limb — that the course the doctor took is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.

The Supreme Court restated the general formulation in Montgomery: the true test is whether the doctor “has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care”.

A correction to something frequently said about this

It is often asserted that the English case of Bolam has no application in Scotland. That is too strong. In McCulloch v Forth Valley Health Board [2023] UKSC 26 — a Scottish appeal — the Supreme Court described the Bolam test as “consistent with” what Lord President Clyde said in Hunter v Hanley, and applied “the professional practice test found in Hunter v Hanley and Bolam“. The accurate position is this: Hunter v Hanley is the Scottish authority and the case that will be cited in a Scottish court; Bolam is an English first-instance decision that does not bind a Scottish court; but the Supreme Court treats the two as expressing the same standard.

Montgomery v Lanarkshire Health Board [2015] UKSC 11 was a Scottish appeal, decided on 11th March 2015, and it altered the law on informed consent across the United Kingdom. At paragraph 87 the Court held that a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in a recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether a reasonable person in the patient’s position would be likely to attach significance to the risk, or whether the doctor is or should reasonably be aware that this particular patient would attach significance to it.

The effect is that the question is no longer what a body of doctors would have disclosed. It is what this patient would reasonably have wanted to know. There is a narrow exception at paragraph 88 where disclosure would be seriously detrimental to the patient’s health.

McCulloch then qualified Montgomery in an important way. Which alternative treatments count as reasonable is determined by the professional practice test, not by the materiality test. Only once a treatment is a reasonable alternative does the duty to inform the patient about it bite.

Complaining is not claiming, and it does not buy you time

The complaints route and the claims route are separate, they run to different bodies, and they run on different clocks. Confusing them is the single most damaging mistake people make.

A complaint goes first to the health board under the NHS Scotland complaints handling procedure. Normally it must be made within six months of the event, or of finding out that you have reason to complain, and in any event no longer than twelve months after the event itself. Stage one aims at a response within five working days, stage two within twenty. If you remain dissatisfied you may take it to the Scottish Public Services Ombudsman. Section 10 of the Scottish Public Services Ombudsman Act 2002 requires the Ombudsman not to consider a complaint made more than twelve months after the day the person first had notice of the matter, unless satisfied there are special circumstances.

None of that stops the three-year clock on a claim

Part II of the Prescription and Limitation (Scotland) Act 1973 contains no provision suspending or extending the limitation period on account of an NHS complaint, a duty of candour process or an Ombudsman investigation. People routinely spend two years exhausting the complaints procedure in the belief that it protects their position, and then discover it did not. Run the two in parallel. The complaint may produce documents and admissions that help the claim, but it buys you nothing in time.

There is one further trap. The complaints procedure says the NHS will not handle a complaint where you have raised legal proceedings or have clearly stated that you intend to — so announcing an intention to sue can close the complaints door. Take advice on the sequencing before you write.

Duty of candour

Scotland has an organisational duty of candour, imposed by Part 2 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 and the Duty of Candour Procedure (Scotland) Regulations 2018, both in force from 1st April 2018. Where an unintended or unexpected incident has occurred and a registered health professional reasonably believes it resulted in or could result in death, severe harm or specified injuries lasting twenty-eight days or more, the organisation must follow a set procedure: notify the person, offer a written apology and provide one if wanted, invite them to a meeting, carry out a review of the circumstances and produce a written report setting out what it will do to improve.

Section 23 of the 2016 Act provides that an apology given under the procedure does not of itself amount to an admission of negligence. That is worth knowing in both directions. It means an apology is not proof of a claim — but it also means the NHS has no reason to withhold one, and you are entitled to ask.

The time limit

Three years, under section 17 of the 1973 Act. In clinical cases the date of knowledge limb in section 17(2)(b) very often does the work, because a patient may not know for years that an outcome was attributable to an act or omission rather than to the illness itself. Time runs from when the pursuer became aware, or when it would have been reasonably practicable to become aware, of three things: that the injury was serious enough to justify an action, that it was attributable to an act or omission, and who was responsible.

Note the Scottish standard is “reasonably practicable to become aware”, not the “reasonable diligence” language of the English Act. Section 19A gives the court an equitable discretion to allow a late action, but it is a discretion, not an entitlement.

An action admitted late under section 19A also cannot be tried by jury. The whole of the Scottish position, including the rules for children, incapacity and death, is set out in medical negligence time limits in Scotland.

Where the patient has been left without capacity, section 17(3) disregards any period of legal disability by reason of unsoundness of mind, and the clock may not be running at all.

If legal aid is not available to you, the alternative is a success fee agreement. Where one is used for a personal injury or medical negligence claim, section 6(2) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 requires that you are not liable to pay the solicitor anything, outlays included, apart from the success fee, whether or not you obtain damages. The success fee comes out of the compensation and is capped at 20 per cent of the first £100,000, 10 per cent between £100,000 and £500,000, and 2.5 per cent above that. Since 30th June 2021 qualified one-way costs shifting has meant that losing does not ordinarily expose you to the board’s expenses either. See what no win no fee actually means in Scotland.

Civil legal aid remains available in Scotland for medical negligence, subject to financial eligibility, probable cause and reasonableness. This is a real divergence: in England and Wales most clinical negligence was taken out of scope by the 2012 reforms, and Scotland did not follow.

The Scottish Legal Aid Board’s civil keycard effective from 6th April 2026 sets the disposable income limits at three thousand five hundred and twenty-one pounds for a nil contribution and twenty-six thousand two hundred and thirty-nine pounds as the upper limit, with disposable capital limits of seven thousand eight hundred and fifty-three pounds and thirteen thousand and seventeen pounds. Recipients of Universal Credit, Income Support or income-based Jobseeker’s or Employment and Support Allowance are passported on income. Clawback applies, so money recovered in the case may have to go back. These figures are uprated periodically; the keycard is the authority.

If your claim is against a GP rather than a hospital

This changes who is on the other side. Independent contractor GPs in Scotland are not covered by a state-backed indemnity scheme. England has the Clinical Negligence Scheme for General Practice and Wales has its own equivalent; the General Medical Council’s guidance states that unless similar schemes are introduced in Scotland or Northern Ireland, GPs working there will not be covered and must arrange adequate and appropriate insurance or indemnity themselves. In practice that means a medical defence organisation.

So a claim against a GP practice is defended by a defence organisation rather than by the Central Legal Office, and the defender is the GP or the practice rather than the health board. It is a different opponent and a different negotiation, and it is a common source of confusion.

What is not the same as England

There is no compulsory pre-action protocol for clinical negligence in Scotland. The compulsory personal injury protocol introduced in 2016 expressly excludes clinical negligence, professional negligence and disease claims, and applies in any event only to represented claims reasonably valued at twenty-five thousand pounds or less. There is no letter of claim procedure of the English kind, no NHS Resolution, no Court of Protection, and no fixed English tariff for the value of the injury.

Sources

This page is general information about the law of Scotland and is not advice on your circumstances. Time limits are strict and the consequences of missing one cannot be undone. Take advice on your own case.