In 2017 NHS Resolution introduced the Early Notification Scheme (ENS) which sought to identify incidents where a baby suffered a neurological (brain) injury during delivery. The scheme has undergone changes since then, which means that there has been a narrowing of the cases that are now investigated.
In this guide, you will understand how ENS works, as well as its potential flaws, your legal rights and how our experts can support you if you are affected:
- The aim of NHS Resolution's Early Notification Scheme
- Changes to the Early Notification Scheme
- Concerns regarding the NHSR Early Notification Scheme process
- The risk of under compensation due to the Early Notification Scheme
- What are your rights?
- Our experience
The aim of NHS Resolution's Early Notification Scheme
The aim of the ENS is to identify instances where there may have been substandard care and address the issue of liability at an early stage. When the scheme was first set up, it required the trust involved to report all maternity incidents where a baby had suffered a potential brain injury to their insurer (NHS Resolution) within 30 days.
This applied to all babies who were born at term and identified as suffering a possible brain injury within seven days of birth. It also covered infants who were diagnosed with grade III hypoxic ischaemic encephalopathy (HIE), were therapeutically cooled, or had decreased central tone and were comatose and demonstrated any seizure activity.
Changes to the Early Notification Scheme
On 1 April 2021, the reporting requirements changed. Instead of reporting incidents to NHS Resolution, trusts began to work with the Healthcare Safety Investigation Body (HSIB) which identified cases that ought to be reported to NHS Resolution.
However, as a result of these changes the HSIB no longer automatically investigates babies who have received hypothermic cooling (a process where the baby's temperature is carefully lowered to protect the brain by attempting to minimise the production of toxic substances that can cause brain injury) where there is no immediate evidence of a neurological injury.
There were further changes in April 2022. The investigation criteria became:
- Any baby born at term (at least 37 weeks of gestation), following labour, that had a potentially severe brain injury diagnosed in the first seven days of life, and:
- was diagnosed with grade III hypoxic ischaemic encephalopathy (HIE); or
- was therapeutically cooled (active cooling only); or
- had decreased central tone and was comatose and had seizures of any kind.
- Babies who have an abnormal MRI scan where there is evidence of changes in relation to intrapartum HIE.
From October 2023, the HSIB was transformed into two bodies: Maternity and Newborn Safety Investigations special Health Authority (MNSI) and the Health Services Safety Investigations Body (HSSIB). The MNSI have now taken over the role of the HSIB.
If your birth experience is referred to the MNSI you should be contacted directly and told an investigation is taking place. The trust is under a duty to be open and transparent about its services and the care provided to you and your child, even if something has gone wrong.
The MNSI will prepare a report and this should be shared with you. If that report identifies any areas of negligence, then NHS Resolution will undertake a full investigation and will instruct solicitors to consider possible compensation.
Concerns regarding the NHSR Early Notification Scheme process
The current system means there is no automatic referral to MNSI (previously HSIB). If the trust fails to report a case or you do not consent to the investigation, no further action is taken.
The narrowing of the criteria for reporting incidents also means that potential claims may be overlooked. Incidents scrutinised by MNSI and NHS Resolution will now be restricted to those which fall within their limited scope.
Whilst a consideration of medical records is essential, they do not always provide a full, accurate and complete account of the events surrounding labour. When medical negligence experts at Shoosmiths investigate a claim, as well as considering the medical records, we will take factual witness statements from you and your family, to show the whole picture.
When we act for the family of an injured child, we instruct a number of independent medical experts (many of whom we have worked with for several years) to advise and assist on the claim. This ensures that we fully understand the mother’s experience and the child’s injury.
However, generally the experts appointed to provide reports on behalf of the ENS are selected by the MSNI and it is unlikely that their opinion will be shared with the family. It is also unlikely that you will be allowed to read the accounts of the medical staff who were involved in your care.
The risk of under compensation due to the Early Notification Scheme
We believe that there is a significant risk of injured children being undercompensated if relying on the proposed settlement based solely on these “in-house” expert reports. It is important that you obtain independent advice and representation before considering accepting any offer of compensation.
It can be difficult to assess the true nature of the injury at an early age. Therefore, accepting an early offer from the trust, whilst it may seem to be useful in the short term, could result in your child missing out on funds necessary for treatment, therapies, aids, technology, education or accommodation in the future, which they might otherwise have been entitled to recover.
Brain injuries, unfortunately, evolve over time. It can be several years before the extent and impact of an injury on a child is truly understood. Some injuries occurring during delivery may not be diagnosed for many months or years, which means that they may actually fall out of this scheme completely.
What are your rights?
You should feel empowered during this process. If a claim is identified, you have the right to expect the very best for your child, and for the trust to be held accountable for an avoidable injury. You are entitled to your own legal representation from the outset.
We will work with you to ensure that any compensation which may be offered by the trust will be sufficient to meet your child’s needs now and for the rest of their life.
As explained above, not all cases where a child sustains a birth injury will be subject to an investigation by the MNSI. Even if referred, not every investigation will result in an apology - but this does not mean you do not have a claim.
If you feel uneasy or unsure about the standard of care which you or your child received during their birth, it is your right to investigate a possible claim.
Our experience
We have a team of specialist lawyers who have extensive experience in representing children and families who have suffered complications following delivery. They can guide you through the claims process. You do not need to rely on the trust, MNSI or NHS Resolution to identify your experience as being negligent.
We work with families from the beginning of a clinical negligence claim through to conclusion. Where negligence is identified, we consider the needs of each child as an individual and work with the family to ensure their child is afforded every opportunity to reach their full potential and that they receive a sufficient settlement to enable this.
If you believe you have been affected by the issues in this article including the pitfalls of the NHS Resolution Early Notification Scheme, reach out to our team. You can call us free on 03700 868687 or send us a message and our medical negligence experts will be able to advise on where you stand.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
