Medical negligence claims in Northern Ireland

Northern Ireland has its own courts, its own limitation law and its own health and social care system, so guidance written for England often does not fit. This guide explains who handles claims against HSC bodies, the time limits under the 1989 Order, how the complaints procedure and the Northern Ireland Public Services Ombudsman fit in, the clinical negligence protocol that applies before court, and how a claim can be funded. We are an independent information service, not a law firm. For the general legal test and examples of clinical negligence, see our UK medical negligence guide; for Scotland, see medical negligence claims in Scotland.

Who handles claims against the HSC

nidirect says you can contact the complaints manager at your local Health and Social Care Trust about services provided in a hospital or social care services in the community, and it lists complaints contacts for the Belfast, Northern, South Eastern, Southern and Western Health and Social Care Trusts. When a claim is made against an HSC body, its lawyers are normally the clinical negligence team of the Directorate of Legal Services at the Business Services Organisation, which describes itself as the sole provider of advice, representation and training to the public health and social care sector in Northern Ireland.

Family doctors, dentists, pharmacists and opticians are family practitioner services, and nidirect says a complaint about them should in the first instance go to the practice or practitioner for local resolution. Care you paid for yourself, such as treatment at a private clinic, is raised first with the provider.

On the standard of care, in Montgomery v Lanarkshire Health Board (2015), an appeal from Scotland, the UK Supreme Court referred to the test of whether treatment was accepted as proper by a responsible body of medical opinion, and held that a doctor must take reasonable care to ensure the patient is aware of any material risks involved in recommended treatment and of any reasonable alternatives.

Time limits under the 1989 Order

Article 7 of the Limitation (Northern Ireland) Order 1989 gives three years from the date on which the cause of action accrued or, if later, your date of knowledge. Your date of knowledge is when you first knew that the injury was significant, that it was attributable to the act or omission alleged to be negligent, and who the defendant is. It includes knowledge you might reasonably have been expected to acquire, including with medical or other expert advice it was reasonable to seek.

A person is under a disability while they are an infant or of unsound mind, as defined in article 47 by reference to the Mental Health (Northern Ireland) Order 1986, and article 48 extends the time for someone who was under a disability when the right to claim arose. Under article 50 the court can allow a claim to proceed out of time where it would be equitable, but that is discretionary and should not be relied on.

Use the checker as a first guide only. Do not wait for a complaint to finish before checking your date.

Complaints and the Ombudsman

You can raise a concern face to face, by phone, in a letter or by email. nidirect advises complaining as soon as possible, usually within six months of becoming aware that you have a cause for complaint and normally no longer than 12 months after the event. A complaint about a hospital or social care service should receive a full response within 20 working days, and one made directly to a family doctor, dentist, pharmacist or optician within 10 working days; you should be told if it will take longer.

If you are not satisfied with the final decision, you can refer the complaint to the Northern Ireland Public Services Ombudsman (NIPSO). When the complaints procedure ends, the organisation must give you a written notice that tells you about the Ombudsman and the time limit. Under section 26 of the Public Services Ombudsman Act (Northern Ireland) 2016 the complaint must then be made within 6 months of the day that notice is sent, although the Ombudsman can investigate a later complaint if there are special circumstances.

The Patient and Client Council offers a free, independent advocacy service and can support you with the HSC formal and informal complaints process and with submissions to the Ombudsman. Keep in mind what complaints are for: the clinical negligence protocol says they are designed to provide patients with an explanation of what happened and an apology, if appropriate, and are not designed to provide compensation for cases of negligence.

The clinical negligence protocol

Clinical negligence actions in the High Court in Northern Ireland are covered by a protocol for clinical negligence litigation, published with a practice direction on expert evidence that applies to all clinical negligence actions from 1 October 2021. The protocol describes a two-stage start and sets these expectations:

• Records first. Records can be requested directly from the record holder without a letter of claim. Copies should be supplied free of charge within 1 month or the other period set by the Data Protection Act 2018 or the Access to Health Records (Northern Ireland) Order 1993, and for living patients the provider can extend to up to 3 months in total where notes are complex or numerous.
• Then the letter of claim. Once records and independent expert evidence have been obtained, a letter of claim is sent. The healthcare defendant should acknowledge it within 14 days and, no later than 4 months from receiving it, write stating whether liability is admitted or denied.
• No early court claim. Unless there is a limitation problem or another reason to protect your position, proceedings should not generally be issued until after 4 months from receipt of the letter of claim.
• Standstill agreements. Where limitation is likely to arise, practitioners are encouraged to consider a standstill agreement, which has the practical effect of suspending or extending the limitation period.

Once a case is in court, the Master's guidance for practitioners says the aim should be, save in exceptional circumstances, for a clinical negligence case to be fully resolved within 48 months of the date the writ is issued.

Funding a claim

Legal aid can be available in Northern Ireland. nidirect says the legal advice and assistance scheme can cover advice on problems such as personal injury, and that legal aid for representation in the higher courts, such as the county court and the High Court, is decided by the Legal Services Agency Northern Ireland, which can ask you to pay contributions. A solicitor can tell you whether you might qualify.

Ask any solicitor at the start how your claim would be funded and what you would owe if it failed. Our guide to making a claim in Northern Ireland covers the wider differences in the legal system, and our guide to claiming for a child explains how claims are brought on a child's behalf.

Practical steps

• Write down what happened, with dates, names and the effect on you, while it is fresh.
• Ask for your records early; the protocol expects copies free of charge within 1 month.
• Make a complaint if you want an explanation or an apology, and keep copies of every letter and response.
• Check your time limit now, using the checker above as a first guide.
• Speak to a solicitor who handles clinical negligence claims in Northern Ireland before you sign anything.

Frequently asked questions

Related guides: medical negligence claims (UK), claiming in Northern Ireland, claims in Belfast, GP misdiagnosis, birth injury claims and claiming for a child.

Official sources used for this guide: Limitation (Northern Ireland) Order 1989, art. 7; nidirect: complaints about health services; Public Services Ombudsman Act (NI) 2016, s.26; Judiciary NI: Practice Direction 2/2021 and clinical negligence protocol; BSO Directorate of Legal Services; Montgomery v Lanarkshire Health Board [2015] UKSC 11. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.