Scenarios · Clinical practice

Clinical Negligence Claims and Fitness to Practise: Two Different Tests Explained

When something goes wrong in patient care, a clinician can face a clinical negligence claim, a regulator investigation, an inquest and an employer review, sometimes all at once. They ask different questions, use different tests and lead to different outcomes. This guide explains the legal test for negligence, the much higher threshold for misconduct, whether a claim will be passed to the GMC or NMC, how the four processes fit together, the latest NHS Resolution figures, why an apology is not an admission, time limits, who pays for your defence and what to do when a claim arrives.

Reviewed October 2026 against the NHS Resolution Annual Report and Accounts 2025/26, NHS Resolution guidance, GMC and NMC guidance, the Compensation Act 2006, Limitation Act 1980, Coroners and Justice Act 2009 and judgments of the Supreme Court and High Court

Negligence is not misconduct No automatic referral 15,236 claims in 2025/26

Short answer: A clinical negligence claim and a fitness to practise case are separate. A claim asks whether care fell below the standard of a responsible body of practitioners and caused harm, and leads to compensation paid by the NHS body. Fitness to practise asks whether a professional's fitness to practise is impaired now, and needs misconduct that is serious; the High Court has said mere negligence does not amount to misconduct. NHS Resolution says a settled claim does not mean you will be referred to the GMC: a patient or another party would need to raise a separate concern. Only particularly grave or repeated failings tend to cross from one process into the other.

Key takeaways

Losing or settling a claim does not mean your fitness to practise is impaired.
A single negligent act is less likely to be misconduct than multiple failings, but a grave one can be.
Regulators cannot award compensation, and claims cannot remove you from the register.
An apology is not, by itself, an admission of negligence.
NHS indemnity covers the claim against your employer, not your own regulatory defence.

Two tests, two different questions

Negligence

Was the past care below standard?

Under the Bolam test, as summarised by the Supreme Court in Montgomery (2015), a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that field. Bolitho (1997) added that the body of opinion must have a logical basis and be capable of withstanding logical analysis. The claimant must also prove the breach caused the harm.

Fitness to practise

Is the professional impaired now?

Misconduct requires a falling short of expected standards that is serious, described in Nandi v GMC (2004) as conduct that would be regarded as deplorable by fellow practitioners. The panel then asks whether fitness to practise is currently impaired, looking at risk to patients, public confidence and professional standards, the test set out in the Grant case in 2011.

Consent works differently. Montgomery v Lanarkshire Health Board [2015] UKSC 11 held that whether a risk or alternative should be discussed with a patient is not a matter of purely professional judgment, and that there is no reason to apply the Bolam test to it any longer. Doctors must take reasonable care that patients know of material risks and reasonable alternatives.

Figure 1. The two tests compared. Both use the civil standard of proof, but ask very different questions.

Why negligence is not usually misconduct

Real case · High Court · October 2007

R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin)

What happened. A consultant anaesthetist's patient reacted to a drug during a nasal operation. He removed the breathing tube early, left to anaesthetise another patient and declined a colleague's help. A GMC panel found misconduct and deficient professional performance and suspended him for three months.

The outcome. The court quashed the deficient performance finding and the suspension, while upholding misconduct. Mr Justice Jackson set out principles still used today: "Mere negligence does not constitute "misconduct"", although negligent acts that are particularly serious may do so, and a single negligent act "is less likely to cross the threshold of "misconduct" than multiple acts or omissions". Deficient professional performance is judged on "a fair sample of the doctor's work".

The lesson: the regulatory question is not whether you made a mistake, but whether it was so serious, or so repeated, that it amounts to misconduct or shows a pattern of poor performance.

A single error can still cross the line. In Ashton v GMC (2013), a GP with more than 30 years' clean record sent an urgent cancer referral as routine. Causation was not alleged, but the panel found the omission "sufficiently grave as to amount to serious misconduct" and imposed a six-month suspension, which the High Court upheld. In Nandi v GMC (2004), by contrast, a finding of serious professional misconduct against a GP was quashed because the failings, though below standard, were not serious enough.

Will a claim be passed to the GMC or NMC?

Not automatically. NHS Resolution's guidance for GPs says that for the GMC to be notified, the patient or another interested party would need to make a separate complaint, and that this is separate from the claim, where liability depends on whether you acted in line with a responsible and logical body of expert opinion.

The exception

NHS Resolution significant concerns

Under its significant concerns guidance, NHS Resolution may share information with regulators such as the GMC, and with the Care Quality Commission, where it identifies the potential for significant harm. Warning signs include multiple claims against the same clinician. Each case is considered individually.

Other routes

Employers, coroners and patients

Employers refer when it is no longer appropriate to manage a matter locally, according to GMC guidance. Patients can complain directly. The GMC and NMC both say they usually investigate serious or repeated mistakes in care, and neither can award compensation, fine anyone or force an apology.

NMC screening guidance adds that it is not the NMC's role to punish people for past events, and that a single clinical incident is one the employer is generally best placed to manage. For doctors, the GMC's first-stage assessment is explained in our guide to provisional enquiries.

One incident, four processes

Process	Question, who is involved and outcome
Clinical negligence claim	Was there a breach of duty that caused loss? Brought against the NHS body. Proved on the balance of probabilities. Ends in compensation or no liability. Usually a 3-year time limit.
Fitness to practise	Is the individual's fitness to practise impaired now? Brought against the professional. Civil standard of proof, set by statute. Ends in no action, advice, a warning, undertakings, conditions, suspension or removal.
Coroner's inquest	Who died, and how, when and where? A fact-finding inquiry with no parties. The conclusion may not appear to decide criminal or civil liability.
Employer process	A local review of conduct, capability or learning, such as a patient safety investigation. Ends in local action, support or no further action.

Sources: Health Act 1999 section 60A, Coroners and Justice Act 2009 sections 5 and 10, NHS Resolution guidance and GMC and NMC guidance.

NHS Resolution's guidance for GPs notes that the claims process is separate from complaints or other investigations, and that where GMC proceedings also arise it works with the clinician's defence organisation.

NHS clinical negligence in numbers

NHS Resolution's Annual Report and Accounts 2025/26, published in July 2026, recorded 15,236 new clinical negligence claims and reported incidents, up from 14,428 the year before. Total clinical scheme payments were £3,238.5 million, of which £2,427.9 million was damages. A record 84% of clinical claims were resolved without formal court proceedings.

Figure 2. Breakdown of £3,238.5m total clinical scheme payments in 2025/26. New claims and reported incidents rose from 14,428 to 15,236. Source: NHS Resolution Annual Report and Accounts 2025/26.

An apology is not an admission

In England and Wales, section 2 of the Compensation Act 2006 says an apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence. NHS Resolution's "Saying sorry" leaflet says an apology is not an admission of liability, and Helen Vernon of NHS Resolution stated: "We have never, and will never, refuse cover on a claim because an apology has been given." Being open with patients is also a professional duty, explained in our guide to the duty of candour.

Time limits for claims

Under the Limitation Act 1980, a personal injury claim must usually be brought within three years of the date of the injury or, if later, the date of knowledge: when the person knew the injury was significant, that it was caused by the act or omission and who was responsible. If the patient dies, a new three-year period runs from the death or the personal representative's knowledge. The court can extend the limit where it would be equitable. These rules apply in England and Wales; Scotland has its own rules. Regulators do not apply the same limitation periods.

Who pays for your defence

NHS bodies are covered for clinical negligence claims through NHS Resolution's schemes: the Clinical Negligence Scheme for Trusts and, for general practice since April 2019, the Clinical Negligence Scheme for General Practice. The GMC points out that these schemes only provide indemnity to NHS or HSC bodies for claims. They do not fund your defence in a fitness to practise investigation. For that you need a defence organisation, union or your own representation, as explained in our guide to representation at GMC and NMC hearings.

What to do when a claim lands

1
Tell your employer and defence organisation
Even where NHS indemnity applies, your defence body can advise on any regulatory risk.
2
Do not alter records
Add a dated note if needed, never change an existing entry. Altered records turn a claim into a probity case.
3
Write your account early
A factual, private record of what happened while memory is fresh, shared only on advice.
4
Engage with learning reviews
Taking part openly in the employer's review is good practice and good evidence of insight.
5
Reflect on the clinical issue
Targeted learning and reflection are useful whether or not a regulator ever gets involved. Our guide to reflective accounts explains how.
6
Answer declarations accurately
Some registration and appraisal forms ask about claims. Read the question carefully and answer it truthfully.

Frequently asked questions

Is clinical negligence the same as misconduct?

No. The High Court in Calhaem held that mere negligence does not constitute misconduct, although particularly serious negligence can.

Will a negligence claim get a doctor struck off?

Not by itself. A claim leads to compensation, not sanctions. Removal from the register can only follow a separate regulatory process that finds serious misconduct or impairment.

Does NHS Resolution report doctors to the GMC?

Not routinely. It may share information with regulators under its significant concerns guidance where there is the potential for significant harm, such as multiple claims against one clinician.

If my trust settles a claim, does that mean I was negligent?

Not necessarily. Claims are settled for many reasons, and a settlement against the NHS body is not a regulatory finding against you.

Can the GMC or NMC award compensation?

No. Both say they cannot award compensation, fine a professional or make them apologise. Patients seeking compensation must bring a legal claim.

What is the Bolam test?

The test for clinical negligence: a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical practitioners, provided that opinion has a logical basis.

Does Bolam apply to consent?

No. Since Montgomery (2015), the question is whether the patient was told about material risks and reasonable alternatives, judged from the patient's perspective.

Can one mistake lead to a GMC suspension?

It can, if grave. In Ashton v GMC (2013) a six-month suspension was upheld for a single routine referral that should have been urgent.

Will saying sorry be used against me in a claim?

In England and Wales, an apology does not of itself amount to an admission of negligence, and NHS Resolution says it will not refuse cover because an apology was given.

How long does a patient have to bring a claim?

Usually three years from the injury or from the date of knowledge, if later, in England and Wales. The court can extend this in some cases.

Does NHS indemnity cover my GMC or NMC case?

No. NHS schemes cover claims against NHS bodies. You need a defence organisation, union or your own lawyer for regulatory proceedings.

Can an inquest decide I was negligent?

No. An inquest establishes who died and how, when and where. Its conclusion may not appear to decide civil or criminal liability.

Primary sources

16 official documents and judgments