NHS Resolution prioritises maternity in latest strategy - is compensating patients part of the plan?

The NHS’s defence organisation, NHS Resolution, has published its strategic plan for the next three years, ‘Advise, Resolve and Learn’.  For the first time, maternity is at the top of the to do list as a stand-alone strategic priority, but the Early Notification Scheme’s initial commitment to providing early financial help for families of brain injured babies seems to no longer be part of the plan.

Instead, in dealing with injured families, it seems the primary purpose of earlier intervention is now to ‘understand’ what other non-financial or cheaper means might be used to ‘fairly resolve’ injured families’ concerns whilst collecting and finding better ways to use their experiences and data for the purposes of learning.

Learning is, of course, critical if harm from NHS maternity negligence is to stop. Timely apologies and open explanations of what went wrong are the doctor’s duty and the patient’s right, and a pre-requisite along the way to resolution. However, given the lifetime of hardship and loss which awaits the brain-injured child which at this early stage cannot be contemplated by their family, it is disingenuous for NHS Resolution to assume that they are enabling ‘fair resolution’ to take place unless injured families are independently represented and fully advised about their right to compensation.

What does NHS Resolution’s latest strategy and business plan say about maternity?

NHS Resolution has named improving maternity outcomes as a key strategic priority in its strategy. The defence organisation says that avoidable intrapartum (during birth) brain injuries ‘are devastating for the child, their family and those who care for them, involve lifelong care needs and can result in multi-million pound compensation payments from NHS funds. Preventing just one of these cases would save untold anguish to families and the healthcare staff involved, some of whom go on to leave the profession. It would also result in millions of pounds in savings to public funds.’

Some of NHS Resolution’s objectives which relate to patients include:

• Supporting the work to establish a new Special Health Authority to deliver independent, standardised and family-focused maternity incident investigations.
• Developing and evaluating the effectiveness of the Early Notification Scheme (ENS), including ‘considering the financial aspects’ as well as seeking to better understand the scheme’s impact on families and healthcare staff.
• Improving ‘the process and pathway for families who are entitled to access compensation for serious maternity harm, through a better understanding of the outcomes they would like to achieve’.
• Increasing the involvement of families and their legal advisors to co-develop approaches to compensation that ensure the child’s needs remain central as well as providing security for life, while reducing any unnecessary costs associated with the current claims process.  
• Working with all parties including claimant lawyers ‘to explore novel and innovative approaches’ within the existing legal framework, including early engagement across the health, social care and education systems.
• Working to reduce the human, workforce and financial costs of preventable harm in maternity care, and support the national maternity safety ambition (to halve the number of stillbirths, neonatal deaths and brain-injured babies by 2025) by:
  • Working with NHS trusts to improve the response to harm so that families and healthcare staff are appropriately supported and a just and learning culture is promoted;
  • Contributing ENS data and intelligence to the National Maternity Safety and Concerns Group;
  • Exploring options for developing ‘a neutral and early restorative intervention, based on the principles of Being Fair, to help preserve trust and open communication between families and their healthcare providers following an incident of serious maternity harm’.  

NHS Resolution say that this will give them a better understanding of:  

• The impact that making a claim following a serious maternity incident has on families and the healthcare staff involved, so that they can deliver support that helps preserve a relationship of trust and open communication;
• A better understanding of why families pursue compensation, enabling them to respond more effectively, ‘deliver compensation in real-time’, meeting lifelong care needs in a way that reduces distress to the family, the costs of inflation and associated legal costs.

In assessing their own performance in handling medical negligence claims, NHS Resolution’s plan fails to report on how many families have benefited to date from admissions of liability and interim payments under the Early Notification Scheme. It also withholds as confidential details of how they performed against their own targets relating to :  

• The time it took to resolve claims;  
• The number of medical negligence claims in which they initially denied responsibility but later agreed to pay compensation.  
• The reduction in the time it took them to make a decision on liability (fault) on an Early Notification (ENS) case compared to similar cerebral palsy cases handled via the traditional claims route.
• The number of court applications that were made for interim payments in ENS cases in which NHS Resolution had refused to make a voluntary interim payment to the patient.

What is ENS?

The Early Notification Scheme (ENS) was launched in 2017 and required NHS trusts to report all maternity safety incidents which led to babies suffering brain injuries from lack of oxygen (hypoxia) around the time of birth. At the time, NHS Resolution promoted the scheme as a ‘flagship’ for the NHS defence team’s strategic approach to speed up the investigation of birth injuries, appear less defensive and more open and honest with injured families whilst learning from their experiences and, by getting involved early and acting quickly, cut costs.  

During early intervention, NHS Resolution would advise parents of any failings in care and tell them to seek independent, specialist advice about claiming compensation for their child. A key promise of the ENS scheme was that families of children who had suffered brain injury as a result of negligent care would be offered early financial support. However, despite NHS Resolution’s claims about the success of the ENS scheme, there is little evidence to suggest that the promises which would benefit families of brain injured babies are being met. 

As early as January 2020 we raised our concerns about the disproportionately small number of injured families who had received a full admission of liability and substantial early financial support. Then, in February 2020, the Association of Personal Injury Lawyers (APIL) also questioned whether NHS Resolution (the NHS’s legal defence team) were telling families of injured children to seek their own independent advice from lawyers who specialise in representing patients, or was using their ENS access to patients to discourage them from finding out about their right to compensation by seeking legal advice.  

Helping families with brain-injured babies recover compensation

It is important that families who are approached by NHS Resolution after the birth of their baby are aware that NHS Resolution’s role is to defend the NHS. They are not independent and their assessment of what went wrong, any failings in care and the cause of the child’s brain injury will be given from the NHS’s point of view.

Approximately 50% of our successfully settled claims for brain-injured babies begin with NHS Resolution denying the family’s right to claim, based on their view that the care was not negligent or that it did not cause the child’s injury. We make our own assessments, based on medical experts’ opinions, and pursue claims based on our experience and this advice. As soon as liability is established, we obtain substantial interim (advance) payments for our clients.

You can read about some of these cases here:

• £13m+ settlement after negligent treatment of neonatal necrotising enterocolitis and hypocarbia cause cerebral palsy
• Settlement of £9 million plus care payments of up to £273,000pa after maternity mistakes cause cerebral palsy
• Compensation after negligent water birth
• Case settled at $23 million for kernicterus brain damage
• £2,225,000 compensation for brain-injured boy after twin to twin transfusion caused cerebral palsy
• Liability judgment for brain-damaged baby after hospital sent home high risk mother
• Liability judgment for girl with severe cerebral palsy after her mother was sent home in labour
• Multi million dollar settlement for claimant residing abroad with cerebral palsy from birth injury at London hospital

In cases involving a child’s brain injury and lifelong disability as a result of medical negligence,  ‘fair resolution’ must involve families having access to specialist independent advice and their child’s lifelong needs being adequately met by financial compensation.

The NHS healthcare and social care systems cannot and do not meet their extensive needs for suitably adapted housing, specialist equipment, vehicles and assistive technology, timely regular therapies and round-the-clock care. Neither does the system provide those with retained cognitive function with the means to participate meaningfully in education or achieve supported accessible employment, or provide a means to replace the lifetime of earning capacity that they have lost.

NHS Resolution has rightly placed maternity at the top of its strategic agenda but the focus should include fully informing and compensating those who have already suffered avoidable harm.

If you are caring for a child who has suffered a brain injury or neurological disability as a result of medical negligence and you would like to find out more about your child’s right to compensation, you can talk to one of our specialist solicitors, free and confidentially, by contacting us here.