Birth injury claims and the Early Notification Scheme

In April 2017, the NHS launched the Early Notification Scheme (ENS). This required NHS hospitals to report incidents where babies were born with evidence of severe brain injuries in specific circumstances. Those circumstances have been narrowed twice since the launch of the scheme with the effect of reducing the number of reportable incidents.

What is the intention of the Early Notification Scheme?

The ENS scheme was launched by the Healthcare Safety Investigation Branch (HSIB) to monitor maternity care within our healthcare system.

The stated goal was to contribute to the National Maternity Safety Ambition, which was to halve the number of stillbirths, neonatal and maternal deaths and brain injuries that occur during or soon after birth by 2025. NHS Resolution’s first stated aim was to take proactive action to reduce legal costs.

NHS Resolution anticipated that the Early Notification Scheme would also assist with the following goals:

• Investigate potential eligibility for compensation and action to reduce legal costs and improve the experience for the family and affected staff.
• To ensure learning measures are taken to prevent the same things from happening again and improve maternity care as part of good practice.
• Retain evidence in case a family chooses to bring a case forward at a later date.
• Build on empathy and responsibility to ensure the process of obtaining compensation is not a barrier to openness, honesty and learning.
• Improve the compensation process for families, meet needs in real time where possible, and reduce the risk of the number of claims increasing in value due to unmet needs and inflation.

Which incidents trigger a report to the Early Notification Scheme?

To qualify for the Early Notification Scheme, the injured baby must have suffered a specific type of brain injury (hypoxic ischaemic encephalopathy) which must be demonstrated on an MRI scan and be likely to have complex care needs requiring a high-value financial payment.

This criteria is much more narrow than it was seven years ago, which has led some commentators to consider that the true focus of the ENS lies in the reduction of legal costs as opposed to the improvement of maternity care.

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What happens once a matter is reported to the NHS Early Notification Scheme?

Once a case has been reported to the NHS Early Notification Scheme, there are various steps to go through: 

1. Maternity and Newborn Safety Investigations (MNSI) will conduct a safety investigation into the baby’s birth.
2. After the report is received, NHS Resolution will undertake a clinical triage to confirm if the clinical criteria are met under the Early Notification Scheme.
3. NHS Resolution will then write to the family directly confirming if an investigation will start and when to expect to receive an outcome. The family should be given information on accessing legal advice.
4. NHS Resolution’s in-house Legal team will view all records about the maternity care received during the antenatal period, delivery and period after birth. They should obtain expert evidence to consider the care received. After the information has been investigated, NHS Resolution will then decide if they consider that there is evidence that the baby has an intrapartum hypoxic brain injury that would meet investigation criteria and whether harm could have been avoided with appropriate care You can view the ENS legal investigation process here.
5. NHS Resolution will write to the family with the outcome of their investigation.

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What if I am not happy with the outcome of the ENS report?

Unfortunately, it has been our experience from working closely with families of brain-injured children, that the ENS process and findings can often be disappointing. In particular, we have found that the investigations undertaken appear to lack the depth and breadth that we are accustomed to undertaking ourselves in the investigation of a potential clinical negligence claim.

We do not believe that an ENS investigation which makes no criticism of the care received means that a potential clinical negligence will not be successful, and our lawyers are always willing to consider the outcome and advise families as to whether we think it is worth pursuing a clinical negligence claim.

What if the ENS report offers compensation?

In some cases, the outcome of the ENS report will offer compensation.  This will often come as a huge relief to families who are struggling to meet their disabled child’s significant needs.

However, it is important to understand that the long-term needs of children who suffer a brain injury are usually not apparent until they are older. The compensation received must be sufficient to meet the child’s needs for the rest of their life. These needs will usually include care, specialist equipment, adapted accommodation, therapies and education.

It is very important to have specialist legal representation to assist with the valuation of your child’s complex needs. Experienced birth injury lawyers will assemble a multi-disciplinary team of experts to independently assess your child’s needs, ensuring that the compensation package awarded is sufficient to guarantee their care and maximise their independence throughout their life.

Contact our birth injury solicitors

If you have received an Early Notification Scheme report or a letter notifying you that your case is under investigation and would like specialist advice, our experienced birth injury solicitors are here to help.

For an informal, no-obligation discussion about a potential birth injury claim, call our medical negligence solicitors on 0117 325 2929 or complete our online enquiry form.