Advertising in NHS: a cautionary tale

A number of companies in the UK offer publishing and information services to NHS bodies, sometimes for ‘free’. However, these contracts permit the companies to generate revenue over many years by selling advertising space to third parties. The content of the advertising – often for personal injury legal services – has caused the NHS difficulties, and has resulted in many NHS organisations wrongfully terminating without legal advice, and giving rise to substantial financial liabilities.Department of Health guidance

A number of NHS bodies have arrangements in place which allow personal injury lawyers to advertise through “patient advice cards” or leaflets which are distributed on NHS premises (often in A & E departments or fracture clinics) by companies who describe themselves as ‘publishers’ or providers of ‘communication products’. Often these advice cards are branded with the relevant NHS body’s logo and contain useful appointment cards, patient information cards or general information about the hospital alongside adverts for personal injury lawyers. The concerns repeatedly expressed are that these advertisements can lead patients to believe that the NHS body is endorsing or promoting the law firm, or that one part of the NHS is promoting litigation against another part.

In 2012 the Department of Health issued guidance to NHS Trusts which stated that “such activity… [promotion of personal injury lawyers and claims management companies in NHS premises]… should not be supported” . The guidance is not mandatory and individual NHS Trusts are free to determine their own advertising policy, however many NHS Trusts would like to and do follow the guidance.

A recent campaign by Andrew Bridgen (MP for North West Leicestershire) has again highlighted the practice of personal injury lawyers advertising legal services on NHS premises.  This has resulted in increased media attention .  In addition, Simon Stevens recently condemned personal injury law firms for “sucking”  £440 million a year out of the NHS, stating that, “Wherever possible let’s keep lawyers out of hospital and doctors out of court”.

With legal claims against NHS clinical services in 2015 increasing by 27% to £1.48bn  it is likely that this pressure on NHS bodies to conform to the Department of Health guidance will continue to mount.

Terminating the contract

In light of the guidance, many NHS bodies have wrongfully terminated these contracts in the mistaken belief that they are not binding. This has given rise to substantial compensation claims by the companies providing the advertising, some of which have been litigated in the courts.

How Capsticks can help

We have significant experience in advising NHS Trusts on these arrangements.  We can:

  • provide advice on the terms of the contract so that you can make an informed decision on your options, including terminating or varying the contract to remove the advertising;
  • seek to negotiate an early termination of the agreement.  We have previously negotiated substantial discounts to the value of claims brought by these companies.

Please contact, Jane Barker, Dylan Young or Hugh Wooster for help.


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