Introduction

2026 promises to be a year when technology in healthcare will continue to progress forward at pace and calls for greater regulation and control on this and new and innovative treatments continue to rise. Our annual Forward View considers these as well as other issues relevant to health providers as well as those who insure them.

For further information on any of the topics in this please contact Majid Hassan or Cheryl Blundell.

Stricter regulation and clarity on liability likely for use of AI in healthcare

The National Commission on the Regulation of AI in Healthcare has published a call for evidence about regulatory standards and liability issues relating to the use of AI in healthcare.  Current uses of AI in UK healthcare include: chatbots and apps; admin support; voice technology; screening and diagnosis. The call for evidence is timely as the government’s 10 year health plan for England made it clear than AI would be integral to delivering the solutions envisaged.  The Commission’s recommendations will be published in 2026 and the scope of its work will include:

• Reforming the existing regulatory framework to ensure that healthcare AI is “safe, fast and trusted.”
• How legal liability for adverse outcomes should be managed and distributed.

Comment: Legal and insurance practitioners and their clients will welcome clarity on legal liability as there is no ‘AI law’ at the moment. From a liability perspective various issues arise, including who is responsible for any harm caused when a clinician is using an AI-enabled application. Who is liable if a product behaved in a way that wasn’t anticipated?  Might a healthcare organisation face an argument that it has a non-delegable duty of care? What is the contractual liability and indemnity position? Read our insight to learn more about the potential liability issues around AI in healthcare. Insight on the use of ambient voice technology can be found in our Medical malpractice insurance mid-year review 2025. The call for evidence closes on 2 February 2026.

UK likely to follow US trend of personal injury claims from weight loss drugs

As more people in the UK use the weight loss drugs Ozempic, Wegovy and Mounjaro, reports of side effects are increasing. The injections are prescription-only medicines and the NHS prescribes them only when patients meet strict criteria.  Side effects include nausea, abdominal pain, vomiting, diarrhoea (the latter two potentially reducing the effectiveness of the contraceptive pill), thyroid cancer and a rare form of an eye condition which can cause sudden vision loss. Rapid weight loss triggered by the drugs can also cause muscle and/ or hair loss. If patients have not made changes to their diet and exercise regimes, they are likely to regain a significant amount of weight once they stop the treatment. Such is the desire for weight loss (not only in the obese), both private (regulated) prescribing and a thriving black market have developed.

Comment: Already the US courts are seeing claims against manufacturers for failure to warn of severe side effects. Given the sheer number of people using weight loss drugs in the UK (estimated to be 1.6 million), we are likely to see product liability and clinical negligence actions here. Anyone involved in selling or prescribing weight loss drugs needs to ensure that the product is genuine. Robust procedures should be put in place to ensure that the drug is prescribed only by appropriate prescribers after a full assessment of whether the patient meets the prescribing criteria and that the drug is safe for them to use. Prescribers will need to be satisfied that the patient has given fully informed consent. This will need to encompass not only a discussion of potential side effects, but also the requisite wraparound care, plus guidance on diet and exercise if the dose is reduced or the drug stopped. All discussions with the patient should be fully documented.

Opportunity brings risk for independent sector providers working with the NHS under 10 year plan.

It has been reported that NHS England (NHSE) plans to increase the number of Community Diagnostic Centres (CDCs) by a third (60 new CDCs) with a third of these being run by the private sector. No announcement has been made yet by NHSE, but the government expressed a clear intention in its 10 Year Plan“to continue to make use of private sector capacity to treat NHS patients...and enter discussions with private providers to expand NHS provision…”

Comment: Independent sector clinicians working in the NHS will need to ensure that they have appropriate indemnity in place for NHS work.  The independent provider they work for may be covered by NHS Resolution’s Clinical Negligence Scheme for Trusts. If not clinicians will need to ensure that their own indemnity cover extends to NHS work. Independent healthcare organisations should also check contract documentation to fully understand their rights and responsibilities and the indemnity position before entering into a business relationship with the NHS.

The impact of ‘Hillsborough Law’ is likely to be felt in the independent sector

The Public Office (Accountability) Bill (also known as Hillsborough Law) continues its progress through Parliament. It extends the current duty of candour enshrined in Regulation 20 Health & Social Care Act 2008 (Regulated Activities) Regulations 2014 which applies to all “registered persons” (health and care providers) whether NHS or independent sector. The new statutory duty will apply to public authorities (PAs) and public officials (POs) and introduces a new concept of “frankness” alongside candour and transparency. A duty is imposed on PAs and POs to act at all time with “candour, transparency and frankness” and in the public interest, in their dealings with inquiries and investigations (including inquests). The Bill also imposes criminal liability for breach of that duty. Significantly, the duty extends to other persons with a “relevant public responsibility”. The latter is defined as a “a health and safety responsibility” or where “activities were carried out as a service provider to a PA and had a significant impact on members of the public.”

Comment: The duty imposed on persons with “relevant public responsibility” is likely to capture independent sector providers working for the NHS (as a service provider) or in a private capacity (as an organisation/ persons with a health and safety responsibility). With more partnerships between the NHS and private healthcare providers under the 10 year health plan, the independent sector should be ready for this change in the legal landscape. Even those who only do truly ‘private’ work are likely to be impacted as the importance of transparency and candour in healthcare is further reinforced.

The use of innovative forms of dispute resolution is likely to continue

Mediation has been a successful and cost-effective form of dispute resolution for many years, sitting alongside settlement meetings and without prejudice negotiations as a tool for resolving claims out of court. The trend for ‘alternative’ dispute resolution is likely to continue with the introduction of Early Neutral Evaluation (ENE) where an independent specialist evaluator will provide a confidential, without prejudice, non-binding opinion on the respective merits of the parties’ claims.

Comment: ENE can serve several useful purposes. At the very least it is likely to reveal to a party the strengths and weaknesses of its case – a de facto reality check. This can lead to a narrowing of the issues and potentially to earlier settlement.

The cost of clinical negligence claims will be under close scrutiny

The 10 Year Health Plan for the NHS in England revealed the government’s intention to instruct David Lock KC to provide expert advice on the rising costs of clinical negligence claims and on how patients’ experience of such claims could be improved. Subsequently, the National Audit Office (NAO) published its report on the costs of clinical negligence claims which revealed that liability for the claims has quadrupled since 2006-07 and now stands at £60 billion. In a stark reminder of the sheer size of this liability, the report reveals that this is “the second largest provision on the government balance sheet after nuclear decommissioning,” Furthermore, the annual cost to settle claims has more than tripled over the last two decades from £1.1 billion in 2006-07 (in real terms) to £3.6 billion in 2024-25, alongside an increase in claimants legal costs from £148 million (2006-07) to £538 million (2024-25), the latter representing 15% of the total cost of settled claims. Other concerns include:

• Legal costs for low-value claims vastly exceed the damages payable to claimants.
• The government may be paying twice in some instances through payment of private medical and care costs as part of the damages and again through providing NHS treatment and/or social care to claimants.
• The reported cost of clinical negligence to the taxpayer is higher than most other countries, in part because the UK offers universal healthcare, does not cap compensation, and has more comprehensive coverage of costs.
• Plans to control claimant legal costs by limiting the recoverable amount in lower value damages cases have not been implemented following the change in government in 2024. (The ratio of legal costs to compensation in cases valued at £25,000 or less in 2024-25 was 3.7 to 1).
• Legal costs also exceeded total damages for medium value claims (Between 325,001 and £250,000)

Comment: Interestingly, the NAO report considers the annual numbers and costs of clinical negligence claims per capita in a number of jurisdictions where recovery of damages is either based on Tort or avoidable harm.  While  the difficultly in drawing comparisons is acknowledged based on differences in factors such as healthcare and data, of the Tort based systems Australia has the lowest cost per capita. If a system more akin to that in Australia were introduced here, recovery of care costs and loss of earnings would likely be measured by the “average” and be subject to a cap.

A ’head of steam’ certainly seems to be building around clinical negligence costs reform. On 20 November, the Public Accounts Committee took oral evidence on the costs of clinical negligence. The Civil Procedure Rules Committee has announced a stocktake on the effectiveness of the extension of Fixed Recoverable Costs in 2023 (for personal injury claims valued at over £25,000 up to £100,000, which does not exclude clinical negligence claims in certain limited circumstances) and in 2026 the Ministry of Justice will carry out a post-implementation review.

We understand that David Lock KC’s report has been completed and is with ministers for consideration. No date for publication had been announced.

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If you have any queries around what's discussed in the insights, and the impact on your organisation, please contact Majid Hassan.