Private Medical Treatment After an Injury: Your Legal Rights (and What Insurers Won’t Tell You!)
When you’ve suffered injury because of someone else’s negligence, whether in a road traffic collision, a workplace accident, or clinical negligence, the law is clear: you are entitled to pursue reasonable steps to recover from your injuries. That often includes obtaining medical treatment and rehabilitation that helps you get better. But what happens if you choose to self-fund private treatment instead of waiting for NHS care? Should that choice be judged as a “failure to mitigate losses”?
The short answer: No. Claimants are entitled to self-fund private treatment without being penalised in their compensation claim, provided the costs are reasonable and connected to the injury. In this article, we explain the key legal authorities, common pitfalls to avoid and how expert legal support can help maximise your claim.
What Is “Mitigation of Loss” in Personal Injury Claims?
Under the law of England and Wales, if someone’s negligence causes you loss, you have a duty to mitigate your losses in other words, to take reasonable steps to reduce your losses where possible. In personal injury claims this typically covers:
- Seeking appropriate medical treatment
- Following professional medical advice in rehabilitation
- Making reasonable efforts to return to work when medically fit
But the duty to mitigate does not require you to take the least expensive route possible if a more effective or timely treatment is available elsewhere.
The Right to Self-Fund Private Medical Treatment
Legislative Backing: Law Reform (Personal Injuries) Act 1948, s2(4)
The key statutory protection in personal injury claims is Section 2(4) of the Law Reform (Personal Injuries) Act 1948, which states that when assessing damages for personal injuries, the court must disregard the possibility of avoiding expenses by using NHS facilities. This means that you can recover reasonable costs of private medical treatment even if similar services could have been obtained free on the NHS, as long as they are necessary and causally linked to your injury.
This provision is vital: it ensures you aren’t forced to endure prolonged NHS waiting lists or sub-optimal care solely to reduce costs for the defendant insurer.
Case Law Supporting Your Choice
Although direct decisions on private treatment in isolation are less common than broader injury cases, the principles of claimant choice have emerged in case law:
Peters v East Midlands Strategic Health Authority [2009]
In disputes over care funding, the courts have recognised that a claimant can choose to self-fund rather than rely entirely on state provision, so long as there is no real risk of double recovery (i.e., being compensated twice for the same service), and the choice is reasonable.
Judges have emphasised that there is no principle in law or policy requiring a claimant to relinquish the right to damages simply because public funding is available. The claimant’s loss should be made good as far as possible, and choosing self-funded care is part of that right where it is justified.
Private Costs vs. State Provision
Expert commentary on recovery of private healthcare costs clearly states that the Law Reform Act provision prevents defendants from arguing that because the NHS could provide the same treatment, the private cost is not recoverable. This ensures access to the best possible care for an injured claimant.
So, Why Do Some Insurers Argue Otherwise?
Defendant insurers sometimes claim that a claimant has failed to mitigate losses if they have chosen private treatment, often as a tactic to reduce their payout. The typical arguments include:
- “You could have used the NHS for free.”
Wrong in law. Section 2(4) says the availability of NHS treatment must be disregarded when assessing reasonableness. - “Private treatment was unnecessary.”
If appropriately qualified medical experts recommend treatment, a court is likely to accept its reasonableness, even if it is available on the NHS. - “You waited too long before getting treatment.”
Delay in pursuing treatment, private or otherwise, may be relevant to mitigation but that’s very fact-sensitive and not automatic.
Getting Your Evidence Right Critical to Success
Choosing to self-fund private treatment is well-protected under the law but to ensure full recovery of costs:
Get medical recommendations in writing
Your treating clinicians or independent experts should clearly explain:
- Why the treatment is necessary for your injury
- Why private treatment is appropriate
- How it supports your rehabilitation
This evidence will be critical to defending your claim if the defendant challenges it.
Show intention to incur the cost
For future treatment costs, you must demonstrate on the balance of probabilities that you will incur those expenses. For example, a recent case summary on damages highlighted that claimants must show likelihood of incurring private treatment in future claims, or insurers can argue against recoverability on that basis.
Risks You Should Understand
Self-funding private treatment is a powerful right, but there are risks if your claim does not succeed:
If your claim succeeds
- Reasonable treatment costs connected to your injury can be recovered
- You may receive interim payments to cover treatment before conclusion of your claim
If your claim fails
- You will still be responsible for paying the treatment costs: judges do not typically order repayment by the defendant if liability is not established
- Any upfront private treatment bills remain your liability
This is why many claimants choose to fund treatment through conditional fee agreements (CFAs) or interim payment applications mechanisms your specialist solicitor will advise you on.
How a Specialist Law Firm Supports You
At Step Legal, we understand how critical timely treatment can be to your recovery and to your claim’s success. Here’s how we help:
- Early medical evidence: we instruct trusted medical experts quickly
- Clarity on recoverable costs: we ensure treatment plans are medically justified and well-documented
- Mitigation strategy: we advise you on meeting your duty to mitigate loss without prejudicing your rights
- Funding strategies: we explore interim payments, CFAs, and other options to support your treatment while your claim progresses
You shouldn’t be penalised for seeking the best care available and with specialist legal support, you won’t be.
Final Thoughts
Choosing private treatment in a personal injury or clinical negligence claim is not a failure to mitigate your losses. The law protects your choice to seek the best care available, even if similar services are available through the NHS. Your claim can include reasonable treatment costs as part of your compensation, so long as you can demonstrate that the treatment is medically necessary and connected to your injury.
However, you must be mindful of the risks especially if your claim does not succeed. That’s why expert legal representation matters: to structure your claim, advise on funding, and defend your position if challenged.
If you’re considering self-funded private treatment as part of your injury claim, don’t leave it to chance. Contact a experienced personal injury or clinical negligence solicitor at Step Legal today for tailored advice and compassionate support.
Contact Step Legal today on 01270254064, visit our website and make an enquiry, or email us via enquiries@steplegal.co.uk. We’d love to help you.
