About the Early Notification (EN) scheme
The NHS remains one of the safest healthcare systems in the world to give birth. However, avoidable errors within maternity still occur and can have devastating consequences for the child, their mother and their wider family, as well as the NHS staff involved.
Maternity, and how we can contribute to the delivery of safer maternity care, is therefore a key focus area for NHS Resolution. We are committed to supporting the National Maternity Safety Ambition to halve maternal and neonatal deaths and reduce significant harm. The Early Notification (EN) scheme is a key initiative to achieve this and is providing a more rapid, caring response to families in cases of severe harm, supporting a learning culture, and providing support for staff involved in traumatic births.
The EN scheme aims to have the following impacts:
- Investigate potential eligibility for compensation and take proactive action to reduce legal costs and improve the experience for the family and affected staff;
- Share learning rapidly with the individual trust and the wider system in order to support safety improvement and prevent the same things happening again;
- Build on our Saying Sorry and Being Fair work to ensure the process to obtain compensation is not a barrier to openness, candour and learning;
- Preserve evidence to ensure we are able to respond to cases that a family may choose to bring at a later date; and
- Improve the process for obtaining compensation for families, meeting needs in real time where possible to reduce the risk of claims increasing in value due to inflation or unmet needs (such as psychological support) translating into larger losses.
Reporting EN incidents to NHS Resolution
Previous reporting requirements
Since 1 April 2017, our Clinical Negligence Scheme for Trusts (CNST) members were required to report all maternity incidents of potentially severe brain injury to NHS Resolution within 30 days.
In line with the criteria used by the Each Baby Counts programme of the Royal College of Obstetricians and Gynaecologists, this applied to all babies born at term (≥37 completed weeks of gestation), following labour, that had a potentially severe brain injury diagnosed in the first seven days of life and:
- Was diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) or
- Was therapeutically cooled (active cooling only) or
- Had decreased central tone AND was comatose AND had seizures of any kind.
In order to reflect the impact of the pandemic on trusts, reporting to NHS Resolution was paused from 1 April 2020. Trusts have continued to be required to report all cases that meet the criteria to the Healthcare Safety Investigation Branch (HSIB) for learning investigations to take place (please see HSIB’s dedicated investigation process page for more information).
HSIB has then reported potential eligible EN cases to NHS Resolution for further consideration from a legal perspective.
Reporting requirements from 1 April 2021
Due to the pause, we have received positive feedback from trusts on the revised process, which has reduced the burden of reporting on trusts and enabled a collaborative approach with HSIB in sharing learning from maternity investigations. We have therefore reviewed the operation of the scheme and will be moving the current reporting process onto a permanent footing. This means that trusts will not need to report EN incidents separately to NHS Resolution. Reports should continue to be made to HSIB which will in turn continue to inform NHS Resolution of relevant incidents.
Improvements to the investigation process
From 1 April 2021, NHS Resolution will also be making two key improvements to streamline the investigation process:
No steps will be taken to investigate eligibility for compensation until HSIB has completed a safety investigation. This will reduce duplication and enable trusts to focus on liaison with HSIB and the family. Instead, on receipt of the HSIB report on relevant cases, NHS Resolution will overlay an investigation into legal liability. Where families have declined an HSIB investigation, no EN investigation will take place, unless the family requests this.
The criteria for an investigation by NHS Resolution will be narrowed to those cases where there is evidence of or the potential for a hypoxic brain injury. This will ensure that the scheme is focused on those cases where there is potential for a high value compensation payment.
Clinical definition of brain injury
We will be applying the following definition to cases: “Babies who have an abnormal MRI scan where there is evidence of changes in relation to intrapartum hypoxic ischaemic encephalopathy (HIE)”.
Babies whose MRI findings fall outside of the clinical definition of a brain injury could still be accepted by the EN scheme. For these babies, a multidisciplinary clinical review will take place to understand the extent of the MRI changes. If necessary, further information may be sought from the trust to help us decide whether an investigation into compensation entitlement should proceed.
Communication with families
The statutory duty of candour requires trusts to inform families of all investigations into their care and it is vital that families involved in HSIB and EN investigations are fully informed by NHS trusts of all processes underway and of the outcome reached.
Please note that trusts are encouraged to continue with their initial 72 hour reviews to ensure that any learning is identified and actioned in a timely manner. 72 hour reports and investigations can be shared with NHS Resolution should a liability investigation take place.
To support the EN process we have created a dedicated web pages to provide Support for patients, families or carers.
What happens once a case proceeds to an EN investigation?
We will instruct our specialist medical lawyers to start early investigation into the potential for a compensation payment on of behalf of the NHS trust. They will work alongside trust legal and clinical teams to review relevant evidence. If needed, they will instruct expert witnesses to give their views on the standard of care provided by the organisation and apply the appropriate legal tests to determine potential eligibility for compensation. This may require a conference with counsel to take place to consider the issues.
Once the investigations have concluded, we will work with trusts to inform the family of the outcome and any next steps. This will likely include an apology (if one hasn’t already been made), signposting the family to legal support and advice and, where appropriate, making any legal admissions and offers of compensation.
Please note that investigation notes and documents will be confidential and covered by legal privilege.
If you would like to get in touch with the EN team, please contact NHS Resolution directly on ENTeam@resolution.nhs.uk call us on 0207 811 6263.
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