NHS never events: what they are and how to claim compensation

Discovering that you have suffered a serious and potentially preventable complication can leave you feeling deeply betrayed and confused. When medical professionals make serious mistakes, it is vital to know your rights. In England, certain serious patient safety incidents are classified by NHS England as “never events”. They are considered largely preventable when established national guidance and safety barriers have been implemented. If you have been affected, understanding how to navigate a clinical negligence compensation guide is an essential step towards healing. This guide focuses on the NHS England framework and the law applicable in England. Wales, Scotland and Northern Ireland have separate patient safety, reporting and redress arrangements. Engaging a qualified legal expert through a specialist search network will help you seek justice.

Key takeaways: What is an NHS never event?

An NHS England never event is a serious, largely preventable patient safety incident that should not occur when healthcare providers have implemented established national guidance and safety barriers.

Read on to discover how these surgical or medical errors impact your legal rights.

How does the NHS define them?

Under the NHS England framework, a never event is a serious, largely preventable patient safety incident that should not occur when existing national guidance or safety recommendations have been implemented.

• Systemic and preventable: These errors happen because established national safety barriers were ignored or bypassed, rather than due to unavoidable clinical complications.
• Clear definitions: NHS England uses specific criteria and an official incident list to identify qualifying events in NHS-funded care in England.
• Reporting requirements: Providers of NHS-funded care in England are expected to identify, report, investigate and respond to incidents that meet the NHS England never event criteria.

Ultimately, these failures break down the safety barriers put in place to protect people. They cause physical injury and immense psychological trauma to patients who trusted the medical system.

The official NHS England never events list and categories

NHS England maintains an official list of incidents that meet the Never Events criteria.

The official NHS england never events framework categorises these failures into distinct areas. The never events list is updated periodically. For example, wrong teeth removal was excluded from the never event list in February 2021 as the systemic barriers were deemed insufficiently robust. Undetected oesophageal intubation remains temporarily suspended.

Selected examples from the official list include:

Consider two real-world scenarios from official NHS guidance:

• Surgical Implant Mismatch: A surgeon specified a +20.5 dioptre lens, but a +20.0 dioptre lens was presented by the team and implanted. This surgical implant error constitutes a never event.
• Retained Swab Error: Three swabs were inserted during episiotomy suturing, but only two were removed. The third swab was retained and fell out after discharge. This is also a never event as the swab should have been formally counted.

Why a never event may provide strong evidence of negligence

Understanding the relationship between a systemic failure and medical negligence is essential if you are considering a claim.

Does a never event automatically prove negligence?

In English law, a never event is not technically an automatic admission of liability by the healthcare provider. However, it does change the dynamics of a legal claim significantly:

• Strong evidence of a breach: Because never events are associated with failures in established safety barriers, the circumstances may provide strong evidence that the standard of care fell below an acceptable level.
• The legal requirements: To succeed in any clinical negligence claim, you must establish two distinct elements: a breach of duty and causation.
• Assessing breach of duty: The failure of an established safety barrier may make breach of duty easier to establish, but liability must still be assessed using the evidence and circumstances of the individual case.

Proving Causation and Harm

While establishing a breach of duty is generally clearer in these circumstances, the legal process does not stop there:

• The burden of proof: You must still demonstrate causation. This means proving that the specific error directly caused you physical or psychological harm.
• Securing compensation: Legal compensation is calculated based on the specific impact the error had on your health and well-being. Therefore, documenting the exact consequences of the event remains a vital step in the process.

The duty of candour and your right to an explanation

In England, healthcare providers regulated by the Care Quality Commission must act openly and transparently with patients. A specific statutory duty of candour procedure applies when an incident meets the legal definition of a “notifiable safety incident”.

When Does the Duty of Candour Apply?

The statutory procedure applies when an unintended or unexpected incident occurs during regulated care and results in, or may result in, the level of harm specified in the regulations. The exact threshold depends partly on the type of healthcare provider involved and may include prolonged psychological harm, moderate harm, severe harm or death.

What the NHS Trust Must Provide

When such an incident takes place, the NHS trust is legally obligated to take specific, structured steps:

• Notification: The trust must formally notify the patient or their family that an incident has occurred.
• Full disclosure: Healthcare providers must deliver a complete and truthful account of all the facts surrounding the event.
• Official apology: The trust must offer an official apology that expresses genuine regret for the incident and its impact.
• Written confirmation: All of these details, including the explanation and the apology, must be provided to the patient in writing.

If the incident meets the legal definition of a notifiable safety incident, failing to follow the statutory duty of candour procedure may place the provider in breach of Regulation 20.

FAQs

Can I claim compensation if the NHS corrected the never event and I made a full recovery?

You may still be able to claim if the incident caused a compensable injury or financial loss, even if you later made a full recovery. Compensation may cover unnecessary pain, psychological harm, corrective treatment, additional hospital stays or loss of earnings, but a never event alone does not automatically create an entitlement to damages.

What are some examples of never events?

Common examples from the never event list include wrong site surgery, retaining a foreign object post-procedure (such as leaving a swab inside a patient), and administering medication by the wrong route.

Are never events automatic negligence?

No. A never event does not automatically prove negligence or amount to an admission of liability. However, failures in established safety barriers may provide strong evidence of a breach of duty. You must still prove that the breach caused compensable physical, psychological or financial harm.

In summary, NHS never events are serious but preventable patient safety failures that can have life-changing consequences. Understanding your rights and seeking legal advice can help you obtain the support and compensation you may be entitled to while holding healthcare providers accountable.

This guide is for general information only and does not constitute legal advice.

If you have been affected by a never event, Qredible’s network of specialist clinical negligence solicitors can help you protect your rights and pursue the compensation you may be owed.

KEY TAKEAWAYS:

• Never event definitions and barriers: Under the NHS England framework, never events are serious, largely preventable patient safety incidents associated with failures in established national safety barriers.
• The duty of candour rules: In England, the statutory procedure requires regulated providers to notify the patient, provide an explanation and offer an apology when an incident meets the legal definition of a notifiable safety incident.
• Securing clinical negligence compensation: While never events may provide strong evidence of a breach of duty, claimants must still demonstrate that the error caused compensable physical, psychological or financial harm.