Maternity claims and the Early Notification Scheme

As you may have seen in the news recently, NHS Trusts are being investigated over the number of children born on their maternity wards with severe brain damage, were stillborn or died within the first week of life. The investigation also includes cases where the mother died during or immediately after childbirth.

What is the Early Notification Scheme?

In April 2017, the NHS launched the Early Notification Scheme (ENS) which required its hospitals to report all incidents where babies were born with severe brain injuries.

The scheme was launched by the Healthcare Safety Investigation Branch (HSIB) in an effort to monitor maternity care within our healthcare system. The primary goal was to halve the number of stillbirths, neonatal and maternal deaths and brain injuries that occur during or soon after birth.

What is the Healthcare Safety Investigation Branch investigating?

The focus of the HSIB’s investigation has changed slightly over time and, as of April 2020 (after the Covid-19 outbreak), they investigate:

• Babies that are at least 37 weeks gestation and are thought to be alive at the start of labour but are stillborn
• Where a baby dies within the first six days of life
• Where there is a potential severe brain injury diagnosed within the first seven days of life
• The death of a mother while pregnant or within 42 days from the end of pregnancy if the cause is related to or aggravated by pregnancy or management thereof

How does the Early Notification Scheme affect claims for medical negligence?

Where an incident at a hospital falls within any of the groups above, the Trust, through their representatives, NHS Resolution, notify the HSIB through the Early Notification Scheme (ENS). This notification should take place within 30 days of the ‘incident’. The family is contacted and asked to consent for the ENS investigation.

If consent is given, an investigation is started and the family and healthcare professionals are all asked about what happened. The medical notes are reviewed and typically, an opinion on the treatment is sought from an obstetric and/or midwifery expert and a report is produced. The intention is that any investigation should not take longer than six months, but if it does, the family are contacted and this is explained to them.

Once the report is prepared, the ENS team will instruct a solicitor specialising in medical negligence and defending claims against the NHS who will review the report and advise on next steps.

What are the benefits of the Early Notification Scheme?

The purpose behind the ENS scheme is to identify early on whether an admission of liability and an apology should be made. It is not intended to directly offer monetary compensation, but of course, if the report suggests that something went wrong which was preventable and this resulted in either a brain injury or death, then this will likely lead to a clinical negligence claim.

If the Early Notification Scheme report suggests that there was negligence and the hospital has admitted this in full, a specialist medical malpractice solicitor can start the claims process without needing to investigate liability.

Further information

If you have received an Early Notification Scheme report and would like to discuss the findings, whether positive or negative, our specialist 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.