Brain injuries at birth: Early Notification Scheme report

Coodes’ Head of Clinical Negligence Rachel Pearce welcomes the recommendations made in a new report on the Early Notification Scheme for brain injuries suffered at birth…

The second report to be published by NHS Resolution (NHSR) on its Early Notification Scheme for some brain injuries suffered at birth is long overdue. The overall aim of this report is to help to improve the safety of maternity services and for that reason alone, it must be broadly welcomed.

NHS Resolution says that its innovative scheme “aims to remould traditional litigation processes to deliver better outcomes for families and faster learning for the health service, plays an important part in this.”

And that is the crux of the matter – where there is litigation surrounding birth injuries, it can take years to reach an appropriate resolution for the families affected by such tragic events. Any move to speed up the process and help our clients to move forward with their lives can only be a good thing.

Birth injuries are devastating and heart-breaking enough, so it would be fair to say that the process of pursuing a claim arising from clinical negligence can cause further pain and stress. We welcome any step forward that is taken to lessen the time it takes to help our clients through their ordeal and ease their suffering in some way.

One of the biggest challenges when it comes to clinical negligence claims around birth injuries is securing early interim payments for families affected. Often this is delayed due to years of legal wrangling over liability and establishing causation – the parents and babies affected by birth injuries should be our number one priority in all of this.

Helping them to access payments to assist with a care, treatment and rehabilitation package should happen much earlier and be easier to achieve.

Early Notification Scheme

With the development of the Early Notification Scheme, NHS Resolution says it “is trying to address these issues and aiming to meet the needs of the families more adequately and quickly at this most difficult time.”

It goes on to say that “this timely support means that families can better provide for the child (care needs, therapies, equipment, housing adaptations and so on) and is reassuring for the family.”

The EN scheme was established in 2017 and is hailed as the ‘cornerstone of NHS Resolution’s strategy to improve claims resolution and support learning after harm.’ It required early reporting of babies born with evidence of a term intrapartum hypoxic brain injury to support families where clinical negligence is identified.

From the findings of this latest report, three key recommendations have been made:

1. NHS Resolution to support the work of royal colleges and wider stakeholders to improve antenatal counselling before trial of vaginal birth after caesarean
2. NHS Resolution to support the work of royal colleges and wider stakeholders to improve awareness in relation to response to harm for families and staff
3. NHS Resolution to support the working relationships with NHS providers and wider stakeholders, encouraging a joined-up approach between trust legal services and maternity and risk teams

Clearly these recommendations have only just been published, so it remains to be seen whether the report’s findings will have any real impact on improving the scheme further and helping to fast-track the process of early interim payments for families.

The Association of Personal Injury Lawyers commends the aims of the scheme but remains concerned about how it operates. It says, “there is no indication that families are being informed that they have a right to independent legal advice” and that it is “not the full evaluation we were expecting.”

A cautious welcome

While we fully acknowledge the strides forward that the Early Notification Scheme has achieved to date, there is more to be done. There are still many issues to be resolved but keeping birth injuries caused by clinical negligence in the spotlight can only be a good thing when it comes to the ongoing improvement of processes and procedures within the NHS. Sadly, we are continuing to see a steady number of maternity and birth injury cases.

Of course, improving patient safety should come first. We need to better understand why and when families are failed by the system and learn the lessons where standards of care have not been met.

We need to speed up investigations, reach settlements much earlier and secure faster resolutions – that should be our focus to spare families years of stress and uncertainty and provide the much-needed support and care they deserve.

If you have been affected by any of the issues within this article, please contact our Clinical Negligence team by calling 0800 328 3282 or via our online form.