NHS Resolution's Early Notification Scheme after brain injury at birth - who is it helping?

The NHS defence organisation, NHS Resolution, claims that its Early Notification Scheme offers support for families of babies who were born at full term but suffered hypoxic (lack of oxygen) brain injury from mistakes in maternity care.

Promoted by NHS Resolution as a ‘flagship’ for the NHS defence team’s strategic approach, early notification is designed to simultaneously cut costs, speed up the investigation of avoidable maternity safety incidents, and breakdown perceptions of a defensive NHS by encouraging trusts to be open and candid with families whilst ‘maximising the opportunities to learn from them’. Early intervention also claims to offer devastated families financial support and practical advice on how to get help in caring for their permanently brain damaged child.

How much support does NHS Resolution’s early intervention really provide for families of brain-injured babies?

However, for many families who are struggling to come to terms with a traumatic childbirth experience and the prospect of lifelong neurological injury to their child, the reality of NHS Resolution’s early intervention has fallen short of the scheme’s promises. Countless families have been added to the NHS’s databank of knowledge about avoiding potentially expensive cases of harm, but surprisingly few have received the substantial financial or practical support that they would have received by seeking help immediately from experienced, specialist claimant birth-injury solicitors.

Nearly three years on from the launch of the Early Notification Scheme, now is perhaps a good time to ask just how supported are the families whose cases are being investigated under the scheme?

Year 1: only 24 out of 746 families received an admission of liability, apology and financial help

The Early Notification Scheme’s progress report, published in September 2019, reported that in the first year of the scheme, from April 2017 to March 2018, 746 qualifying cases had been reported to the scheme. This means that NHS trusts across the country had identified 746 babies whose condition immediately after birth fulfilled NHS Resolution’s criteria for early notification and investigation of their care. Yet, only 24 of those families (3%) had received an admission of liability, formal apology and, in some cases, financial assistance.

When we compare this with the 2018 progress report of RCOG’s own excellent maternity improvement programme, Each Baby Counts, which revealed that in one year, 2016, 71% of NHS birth-injured babies (674 babies) might have had a different outcome with better care, it is hard to accept that NHS Resolution are delivering on their promise to families whose baby has been injured.

In fact, NHS Resolution’s Early Notification Scheme progress report found that only 77% of parents were even told by their NHS trust that there had been an “incident”, and only 43% of parents were informed of NHS Resolution’s involvement in their case. That means that nearly a quarter of parents of babies who had been identified as suffering from birth-related brain injury were left unaware that the injury could have been caused by negligent maternity care and more than half  had no idea that the NHS’s defence organisation was investigating what had happened.

The report goes on to recommend that all families whose baby meets the Early Notification criteria and needs treatment and separation from them for a potentially severe brain injury, should be offered a full and open conversation about their care. This should include an apology in accordance with the duty of candour, options for their involvement and a description of the national agencies (e.g. NHS Resolution) which are involved in investigating their care.

Does NHS Resolution tell parents of brain-injured babies to seek early, independent, specialist legal advice?

Where a baby’s care is investigated, it isn’t clear what advice the NHS trust or NHS Resolution is giving to parents about seeking independent legal advice. In these circumstances it is essential that families seek legal advice from claimant specialist cerebral palsy and birth injury lawyers, whether NHS Resolution believes the care provided was lacking or apparently adequate.

The low number of admissions of liability (compared with high number of reported cases) to date suggests that families have only received an admission where the care was obviously indefensible. Even then, it is not clear that all of those families have received their legal entitlement to immediate, substantial interim payments for financial support.

Boyes Turner’s cerebral palsy lawyers have an excellent track record of success in obtaining full liability admissions, judgments and full compensation in cases where NHS Resolution initially disputed our clients’ claims. The legal framework for securing financial compensation can be complex and it is important that parents know that sometimes a child can be entitled to be compensated for their injury even if the substandard care only contributed to that injury. These sorts of cases are unlikely to receive early admissions of liability under the scheme.

Where liability is admitted or we prove liability and obtain judgment, Boyes Turner routinely secure substantial immediate interim payments of around £250,000, depending on the client’s own needs and circumstances. Our focussed approach to cerebral palsy and birth injury claims means that our client families usually receive substantial interim payments which provide real support by helping pay for care, adapted accommodation, therapies and specialist equipment long before the case is finally settled. 

The Early Notification Report’s recommendations acknowledge that there is work to be done to support these families. Given their baby’s devastating injury and the hardship which often follows brain injury caused by maternity mistakes, no family should be left without support.  It is vitally important that these families do seek independent legal advice from specialist lawyers so that their child receives the compensation to which they are entitled and which they will need to support them throughout their lives.

If your child has been seriously injured by mistakes in maternity or neonatal care and you would like to find out more about how Boyes Turner can help, contact the team by email at cerebralpalsy@boyesturner.com and find out if you have a claim.