As specialist child brain injury solicitors, we see firsthand when babies suffer avoidable catastrophic brain injuries caused by negligent care during childbirth. Despite advancements in medical care and technology, an overstretched, and underfunded NHS struggles to cope and birth injury claims for babies suffering a brain injury are sadly common and make up a large percentage of all NHS compensation claims.

The Early Notification Scheme (ENS) was introduced by NHS Resolution, the body responsible for dealing with compensation claims against the NHS, to identify babies who suffered brain injuries at birth to determine early on whether there have been any shortcomings in maternity care and if so, whether the brain injury could have been avoided.

Where negligence on the part of the hospital is identified, the scheme aims to provide an early admission of liability and offers of compensation, the intention being to reduce the time and legal costs of litigation.

Investigating child brain injury claims takes time and expertise. While we welcome the ENS’s goal to resolve cases more swiftly than the traditional court process and at reduced cost, we think it is important to educate parents about key elements of the scheme and the importance of seeking independent legal advice when they are going through this process.

That’s why Bolt Burdon Kemp set up a free ENS clinic for parents and regularly provides information to support parents.

How the scheme works

The scheme requires NHS Trusts to report incidents in maternity care where a baby is born at term (37 weeks onwards) and is diagnosed with a severe brain injury either at birth or within the first seven days of life.

Under the scheme babies must be reported if they’ve been:

• Diagnosed with hypoxic ischaemic encephalopathy (Grade III);
• Therapeutically cooled;
• Or had decreased central tone, been comatose or had any kind of seizures.

The Trust must report the maternity incident to NHS Resolution within 30 days, and they must risk assess the incident, evaluating the standard of care provided to the mother and baby.

Where the Trust advises that the care was likely to have fallen below a reasonable standard, panel solicitors are appointed on behalf of NHS Resolution to investigate whether there was poor care and if so, if this caused the baby’s injury.

To assist with their investigations, independent medical experts in midwifery, obstetrics and neonatology are instructed to review the records and report on the care given to the mother and baby.

A barrister is then instructed on behalf of NHS Resolution, and a meeting is held with the barrister and the medical experts to discuss the expert evidence obtained.

Often, multiple cases are discussed at these meetings and case specific discussions usually only last between 60 and 90 minutes. Families are not typically invited to contribute. After the conference, NHS Resolution is updated on the experts’ conclusions.

If the medical expert evidence advises the care provided fell below a reasonable standard, a formal admission of liability is made to the family. If the evidence suggests the care was reasonable, this is communicated to the family and NHS Resolution closes the case.

In cases where NHS Resolution makes an admission of liability, its own panel solicitors are then instructed to calculate an amount of compensation that should be paid.

The aim of the ENS is to resolve cases quickly, is this happening?

Many of the families of children we represent whose claims had been referred to the ENS report significant delays in finding out whether the Trust accepts responsibility for their child’s injury.

In September 2022 the NHS Resolution produced a report documenting the scheme’s progress. The report notes that they generally settle cases within 18 months, which is much quicker than is typical in these types of complex cases. But in October 2022, a Freedom of Information Act request was made by patient advocacy charity, Action Against Medical Accidents (AvMA). It showed that from 1 April 2017 to 31 March 2022, of the 2,711 cases that were referred to NHS Resolution, only 100 cases (2.7%) received a full admission of liability. Of those 100 cases, only 49 families had, at the time of the request, received any money to meet their child’s immediate needs, pending a full conclusion of the case. This data suggests the objectives of resolving birth injury cases quickly are not being met.

Why you should seek independent legal advice  

It is vitally important all families who are undergoing an ENS investigation are aware they have the right to seek independent legal advice from specialist clinical negligence solicitors and that they do seek this advice. Parents can begin their own investigations with independent solicitors and experts while the ENS process is ongoing – the two investigations can run at the same time. This approach offers peace of mind to parents that their child’s interests are being represented by experienced, independent professionals who are on their side.

In cases where families receive admissions of liability through the ENS, it’s always advisable to speak to an independent solicitor to get advice on any offers of compensation made under the scheme.

It’s also important to seek a second opinion from a specialist brain injury solicitor if your child’s case is referred to the ENS and no fault is found. A refusal to admit mistakes or poor care caused the child’s injuries does not necessarily mean there is no claim, and seeking a second opinion is always recommended.

As specialist child brain injury solicitors, we can work with families before, during and after an ENS investigation, to ensure they have access to independent legal advice and can feel reassured that they understand all the options available to them to secure compensation to meet their child’s lifelong needs.

Further reasons to access specialist independent legal advice are:

• Families have limited input in the ENS process and reports produced by the ENS are not shared with families.
• The ENS will only pay compensation where the NHS trust is 100% responsible for the injuries suffered. Birth injury cases are often complex, with negligent and non-negligent factors in play. In cases outside the ENS, liability compromises can often be negotiated which means the injured child is awarded a proportion of the full value of their claim. Within the ENS this is not possible, the claim is rejected.
• In some cases, the Trust may accept mistakes have been made, but delay admitting the poor care caused the child’s injury. The case is then paused until the child is older and their development is reviewed. When this happens, the Trust does not usually provide money to meet the child’s immediate needs and so the family must wait for financial support.
• Even when the Trust accepts full responsibility for the injuries, there is a risk young babies and children, whose lifelong needs are not yet known, may be undercompensated for their injuries. Brain injuries are incredibly complex and they evolve over time. For some children the extent of this injury and the full impact on their development cannot be fully understood until they reach adolescence. In many cases, settling a claim when a child is still very young runs the risk of significantly undercompensating the child which means they may not have the money required to fund their lifelong needs.

Our approach

As specialist child brain injury solicitors, we work with experienced, independent medical experts to investigate the standard of care given to mothers and babies and the cause of any injury the baby has suffered.

To make sure our clients receive a compensation award that is enough to meet their needs for the whole of their life, we work with a team of experts including occupational therapy, speech and language therapy, physiotherapy, neurology, assistive technology, care, accommodation, educational psychology, neuro psychology, psychiatry, who carefully analyse the child’s lifelong needs.

We are committed to securing interim payments of compensation as quickly as possible so that families can involve a specialist brain injury case manager to set up a care and rehabilitation package to support their child while evidence is being gathered about the child’s immediate and future needs so that we can be sure the compensation award will be enough to meet their needs for life. This is hugely important for the child’s wellbeing, but it also supports parents, who want to know their child will always be cared for.

Child brain injury cases are unique and complicated. Every child and parent should have the benefit of independent legal advice, and every parent should engage in the process knowing a full and robust investigation has been carried out, all the necessary experts and professionals have been involved, and no stone has been left unturned.

Free ENS clinic

We feel strongly that parents should be on an equal footing with NHS Resolution and have access to independent legal advice. That’s why we set up a free, dedicated ENS clinic for parents. Any parent who wishes to book a place to seek advice or information about the ENS can do so by emailing us on [email protected].

Authors

• Claudia Hillemand, Head of the child brain injury team at BBK
• Laura Robertson-Hayes, Associate in the child brain injury team at BBK

Please note: Any views expressed are those of the individual and do not necessarily reflect the views of Cerebra.

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