A guide to breast cancer screening claims linked to the NHS very high risk testing programme

A significant NHS service issue came to light at the beginning of 2024 relating to NHS England’s failure to make referrals into the very high risk breast cancer screening programme. If you have been affected by this serious breach in procedure, you may be eligible to make a medical negligence claim for compensation.

Circumstances leading to the breast screening failure

Research undertaken in 2000 indicated that women who had received radiotherapy treatment to their chest for Hodgkin lymphoma over the previous 40 years are subsequently at greater risk of developing breast cancer. As a result, in 2003, the Chief Medical Officer initiated a patient notification exercise with existing cancer networks assigned the role of identifying and monitoring this group of women. Since the heightened risk generally occurs about 10 years later, women begin MRI testing between 8 and 15 years after their course of treatment.

Mantle radiotherapy, a technique which was used for patients with Hodgkin’s lymphoma from the 1970s to the 1990s, is now selected much less frequently due to its potential side effects.

Although the NHS breast screening programme created a pathway for women who are at very high risk (VHR), offering annual testing, the system depends on patients being referred. A recent audit by the Breast Screening After Radiotherapy Dataset Group (BARD) identified that some women in this group had not been referred to the VHR screening programme for yearly appointments, prompting urgent action from NHS England.

NHS response to BARD audit

It is understood that NHS England has examined each case, concluding that 1,487 women in England need to be integrated into the VHR programme as soon as possible. There were varying reasons for their omission - some had been removed from the routine programme following a double mastectomy, some were less than 10 years of age when they received their radiotherapy and were therefore not entitled to be included on the VHR pathway at the time, and some could not be located or had left the country.

Tailored letters have been sent to each woman for whom VHR screening may be appropriate to outline the situation and to clarity the extent of their eligibility, which will be controlled by their individual circumstances. Those women who have been withdrawn from the programme after having a double mastectomy have also received correspondence to inform them what has happened, provide an apology and explain that their case will be reviewed by the appropriate NHS trust.  

Public reaction following announcement of the breach

Health secretary Victoria Atkins confirmed to the House of Commons on 5 March 2024 that all women impacted by the historic error would be offered a scan in the next three months. Addressing the issue with the Health and Social Care Committee later in March, she commented: “At the moment, our focus has been on trying to reach the women and to ensure that they’re given those scans as quickly as possible… I want to make sure that those 1,487 women have got the reassurances they need.”

She informed the committee that NHS England has been asked to undertake a national audit to check that there are no other groups of people who may be similarly affected.

There has also been a swift response from cancer charities who have encouraged women to take up their screening offer when invited. Baroness Delyth Morgan, chief executive of Breast Cancer Now, said: “We’re deeply concerned that certain women known to be at a very high risk of breast cancer, have not been offered the vital screening that they are entitled to and would give them the best opportunity of detecting the disease early, when survival rates are almost 100%... The government and NHS England must act urgently to identify and address the underlying issues that caused this error and provide firm reassurance that such a failure will not happen again.”

Useful points of contact for those affected

NHS England has established a dedicated helpline - 0345 8778962 - which will provide support and deal with any enquiries on the breast screening failure. It will initially operate seven days a week – Monday to Friday, 9.30am to 5pm and 10am to 4pm at weekends.

Breast Cancer Now’s expert nursing team is also offering assistance and information via its free and confidential helpline on 0808 800 6000.

Making a breast cancer screening claim

It has already been acknowledged that some people affected by the error may wish to seek compensation. NHS England suggests reviewing the advice for claimants on NHS Resolution’s website before obtaining legal advice.

You may feel that you have suffered a delayed diagnosis of your breast cancer as a result of the failure to provide annual MRI scanning or that a later diagnosis has denied you the prospect of a better course of treatment and the chance of an improved outcome. If you can show that the screening error has had a serious effect on your health, you may be able to bring a claim.

In order to succeed in a breast cancer screening claim, it will be necessary to prove both breach of duty and causation – that the failings have made a material difference to the extent of the treatment required or the long-term prognosis. In cases involving delay, the impact will be very fact-specific, depending on the length of delay and the size and stage of the tumour at the time a diagnosis should have been made.

A claim must be brought within three years of the date of negligence or the time it first came to light. Either the case must be settled or court proceedings must be issued by that three year deadline.

How Penningtons Manches Cooper can help

The clinical negligence team at Penningtons Manches Cooper frequently advises in situations where there has been a delay in diagnosis of breast cancer. The key message in the fight against this disease is that early detection through screening and recognising the symptoms saves lives. While we recognise that excellent systems have been put in place for breast cancer screening and breast cancer care, there is still more to be done to ensure those at risk are protected.

Our specialist lawyers provide an initial consultation free of charge and without any obligation to proceed. We will use our experience to assess the issues that need to be explored, provide guidance on the prospects of the claim succeeding and outline the practical steps to be taken. Funding options available to clients include no win no fee (conditional fee) agreements.

Anyone who is concerned about the impact of this worrying service issue involving the very high risk breast cancer screening programme can contact us on 0800 328 9545 or by using the links above.