The remit of the NHS in England is wider than many people realise. Launched in 1948 and based on the ideal that good healthcare should be available to all, regardless of wealth, with some specific exceptions, the NHS remains free at the point of use for anyone who is a UK resident.

When bringing a clinical negligence claim, knowing which individual or body is responsible for the provision of the care in question is vital in determining the appropriate defendant and also their ability to meet any claim against them. 

Some of the main providers of NHS health services are as follows: 

  • NHS England -  its main role is to improve health outcomes for people in England and:
    • provide national leadership for driving up the quality of care
    • oversee the operation of clinical commissioning groups (CCGs)
    • allocate resources to CCGs
    • commission primary care and specialist services.
  • Acute trusts - hospitals in England are managed by acute trusts, some of which have already gained foundation trust status. Acute trusts ensure hospitals provide high quality healthcare and check that they spend their money efficiently. They also decide how a hospital will develop, so that services improve. Some acute trusts are regional or national centres for more specialised care, while others are attached to universities and help to train health professionals. Acute trusts can also provide services in the community – for example, through health centres, clinics or in people's homes.
  • Foundation trusts - first introduced in April 2004, NHS foundation trusts differ from other existing NHS trusts. They are independent legal entities and have unique governance arrangements. They are accountable to local people, who can become members and governors. Each NHS foundation trust has a duty to consult and involve a board of governors (including patients, staff, members of the public and partner organisations) in the strategic planning of the organisation. They are set free from central government control and are no longer performance managed by health authorities. As self-standing, self-governing organisations, NHS foundation trusts can determine their own future. They have financial freedoms and can raise capital from both the public and private sectors within borrowing limits determined by projected cash flows, and which are therefore based on affordability.
  • Clinical commissioning groups – clinically led statutory NHS bodies responsible for the planning and commissioning of healthcare services for their local area.  They commission most secondary care services such as:
  • Public Health England – which replaced the Health Protection Agency as the organisation responsible for public health services such as the prevention of infectious diseases.
  • The NHS Trust Development Authority (TDA) is responsible for overseeing the performance, management and governance of NHS trusts, including clinical quality, and managing their progress towards foundation trust status. The TDA plays its part in safeguarding the core values of the NHS, ensuring a fair and comprehensive service across the country and promoting the NHS constitution. It is accountable nationally for the outcomes achieved by NHS trusts and for financial stewardship within the NHS trust system, as it is winding down.

While therefore it is often apparent that a service is provided by the NHS and who the provider is, eg an NHS trust, provision of services in the community is also frequently NHS based. Ultimately where the NHS has responsibility for the provision of healthcare to an individual and control over how it is provided, it may well end up being the defendant in a case, rather than the individual who provided the care. The main exception to this are GPs who practise in their own right and are usually pursued in their own right (albeit indemnified by a defence organisation). Most claims against the NHS are managed by the NHS Litigation Authority centrally. 

Philippa Luscombe, partner in the clinical negligence team, comments: “The structure and breadth of the NHS, as well as the scope of its responsibilities, are often not understood. A number of individuals and entities can be involved in provision of care to a patient and, in bringing a claim, it is key not just to identify where failings have occurred but also who bears responsibility for those failings. Sometimes the NHS can become the ‘backstop’ if those entities providing services do not meet an appropriate standard of care and cannot meet any claim themselves. The most frequent scenario where this applies in clinical negligence claims is where an NHS trust contracts out services to a private provider – which then fails to provide appropriate care. A claimant may pursue that private provider but ultimately the NHS trust will be responsible if the provider cannot or will not meet a valid claim.”