Medical Protection has urged the Government to address the “widening gulf” between the law and the rapidly evolving use of AI in healthcare - amid increasing concerns that the NHS and clinicians may pay the price. 

In a new report - Closing the AI Liability Gap – Medical Protection warns that under the existing product liability framework, clinicians who use AI systems - particularly those suggesting diagnoses and treatment plans - are at risk of absorbing all legal responsibility if a patient comes to harm, even if harm arises due to a defective AI system.

This is because AI systems are not clearly defined as ‘products’ - meaning developers, manufacturers and suppliers of AI tools, are likely to be shielded from the liability rules that would usually apply if a defective product caused harm.

Medical Protection - which supports over 350,000 healthcare professionals around the world - described the current framework as “inequitable” and potentially leaving the NHS and clinicians “unfairly exposed” to costly clinical negligence claims.

It has called on the Government to introduce legislation which clearly classifies AI systems as products. Such a change would distribute responsibility for harm caused by defective systems more fairly - rather than solely to clinicians through clinical negligence claims.

Dr Sarah Townley, Deputy Medical Director at Medical Protection, said: “The law has always struggled to keep up with technological change. But with AI, the pace of change is so rapid that this gap feels less like a step and more like a widening gulf.

“AI cannot be governed with the tools of the past. The Consumer Protection Act 1987 was never designed with AI in mind, meaning AI systems will likely fall outside of its scope. As a result, those who develop, manufacture and supply AI systems are likely to be shielded from the liability rules that would usually apply if a defective product caused harm.

“This makes it difficult for patients to bring product liability claims against these parties if harm occurs. The default may therefore be to pursue the end users of the AI through a clinical negligence claim. Specifically, the NHS - where taxpayers would ultimately foot the bill for claims - and clinicians in private practice who indemnify or insure themselves against claims.

“This is inequitable and unfairly exposes the NHS and clinicians. If harm arises from a defective AI system, legal responsibility should be distributed fairly.

“Clear, shared liability would not only better protect the NHS and clinicians. It would also build trust and uptake in AI and incentivise developers to prioritise safety from the outset. If the Government is serious about the NHS being a world leader in AI, it must address this issue.”

Medical Protection Society (MPS) Foundation Chair, Professor Gozie Offiah, added: “AI in healthcare has moved from aspiration to reality. While this brings many exciting opportunities, there is a growing disconnect between the use of AI and the liability framework. This disconnect risks the NHS and clinicians becoming the obvious target for a clinical negligence claim. The Government must act now so the benefits of AI are unlocked, without leaving clinicians and the NHS exposed.”

Roger McMillan, Partner and Head of the Healthcare Team at law firm Carson McDowell LLP, added: “Legislative provisions unambiguously defining AI systems as products would provide much needed clarity for developers, software markets and end-users in relation to the legal risks of AI usage.  This is particularly important in the healthcare sector, where it is essential that both clinicians and patients can have confidence that there is a clear route to the equitable division of liability, should anything go wrong when AI is used in a healthcare setting.”

END

Notes to editors

View the Medical Protection Closing the AI Liability Gap report.

For further information contact: [email protected]

• The Law Commission is currently undertaking a project reviewing the product liability regime, including its application to digital products and emerging technologies such as AI. A formal public consultation is expected in the second half of 2026, with further recommendations to follow: Product liability – Law Commission
• In 2025, the MPS Foundation, in collaboration with York University’s Centre for Assuring Autonomy, and the Improvement Academy at the Bradford Institute for Health Research, launched a White Paper which highlights how clinicians could find themselves exposed when their decisions are influenced by AI recommender systems – AI systems which analyse patient data and suggest diagnoses and treatment plans based on algorithms: Avoiding the AI ‘off-switch’: Make AI work for clinicians, to unlock potential for patients
• In 2025, Medical Protection launched the AI Safer Practice Framework to help clinicians integrate AI safely and responsibly into practice: AI Safer in Practice