When errors occur during labour, there can be devastating consequences for the baby, mother and wider family involved. In 2017 the NHS introduced the Early Notification Scheme (ENS) which sought to identify incidents where a baby suffered a neurological (brain) injury during delivery. From 1 April 2021, the reporting requirements of this scheme will change, which could affect clinical negligence claims.
The aim of 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 as well as infants diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) or were therapeutically cooled or had decreased central tone and were comatose and demonstrated any seizure activity.
Changes to the scheme
From 1 April 2021, the reporting requirements will change. Instead of reporting incidents to the NHS Resolution, the Trusts will work with the Healthcare Safety Investigation Branch (HSIB) which will identify cases that ought to be reported to NHS Resolution.
However, as a result of these changes the HSIB will no longer automatically investigate 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.
If your birth experience is referred to the HSIB you should be contacted directly and told an investigation is taking place. The Trust is under a duty to be open and transparent about their services and the care provided to you and your child, even if something has gone wrong.
The HSIB will prepare a report and this should be shared with you. If that report identifies areas of negligence, then the NHS Resolution will undertake a full investigation and will instruct solicitors to consider possible compensation.
Concerns regarding the ENS Process and changes
The changes mean that there is no automatic referral to HSIB and 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 will be overlooked and those scrutinised by HSIB and NHS Resolution will be restricted to those which fall within their limited scope.
Although medical records are useful, they do not always provide an accurate and complete account of the events surrounding labour. When medical negligence experts at Shoosmiths Serious Injury investigate a claim, we will rely on the medical records and take factual witness statements from you and your family, to show the whole picture.
When we are instructed by a family of an injured child, we instruct a number of independent medical experts (many of whom we’ve worked with for several years) to advise and assist on the claim to truly understand the child’s injury.
However, generally the experts appointed to provide reports on behalf of the ENS are selected by the HSIB and it is unlikely that their opinion will be shared with the family. It is also unlikely that you will be able to read the accounts of the medical staff who were involved in your care.
The risk of undercompensating
There is a significant risk that injured children are going to be undercompensated if relying on the proposed settlement based solely on these “in-house” expert reports. You should obtain independent advice and representation before considering accepting any monetary offer.
It can be difficult to assess the true nature of the injury at an early age and therefore, accepting an offer from the Trust can result in your child missing out on treatment, therapies, aids, technology, education or accommodation 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 which occur during delivery are not even diagnosed for many months or years.
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 to for the Trust to be held accountable for an avoidable injury. You are entitled to have 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.
What if my child’s claim has not been reported or investigated?
Not all cases where a child sustains a birth injury will be subject to an investigation by the HSIB and, even if referred, not every investigation will result in an apology - 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.
We have a team of specialist lawyers who have extensive experience in representing children and families who have suffered complications following delivery who can guide you through the claims process. You do not need to rely on the Trust, HSIB 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 wrongdoing 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.
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 2022