Since 1 April 2017 all NHS Trusts have been required to report to NHS Resolution, the body which has responsibility for managing clinical negligence claims against Trusts, of any incidents of babies born at term (from 37 weeks) with a potentially severe brain injury diagnosed in the first 7 days of life following labour. These reports have to be made within 30 days under what is known as the Early Notification Scheme.
This relates to any baby who falls into the following categories:
- 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
It is up to the clinical teams to advise the Trust’s legal department within 14 days of any such cases and then for the legal department to file the report.
NHS Resolution reported on their findings of the first year of the Scheme and published them in September 2019. This confirmed that over 800 cases were reported of which 746 of which were eligible. This represented 0.12% of all births. In February 2020, Armstrong Foulkes LLP were told by a representative for NHS Resolution that there had been 50 admissions of liability to date. The report concluded that most of the injuries to these babies were caused by problems with fetal monitoring.
What has become apparent is that in many cases, families do not know that their case has been reported or that the treatment they received is being investigated despite each Trust being required to comply with the duty of candour and keep families updated and offer apologies. In fact, less than half of the 746 cases were reported to the families at the same time as they were to ENS. Armstrong Foulkes is aware of instances of families only learning of the Early Notification Scheme some two years after the birth of their child. This is particularly worrying and it is concerning to us that families are not being invited to be part of the investigation process.
The initial risk assessment on whether there is likely to be a finding of negligent care is done by the Trust. If the Trust assesses a case as ‘likely’ to have involved negligent treatment then NHS Resolution will pass the matter directly to Solicitors who work for the NHS to begin a liability investigation. Only 9% of cases were reported under ENS as likely in the first year.
For those cases assessed as ‘unlikely’ to have involved negligence or where it is ‘possible’ that there was negligent treatment, then NHS Resolution will do a review. If a case is re-categorised as ‘likely’ or ‘possible’ it will go to NHS solicitors. 45% of cases were re-categorised in the first year!
Once a decision is made whether to admit liability or not then the decision is communicated to the family by the Trust. Under the Scheme, families should be advised to get independent advice and should be signposted to Action against Medical Accidents, known as AvMA which is the UK charity for patient safety and justice. In February 2020 however, a spokesperson for AvMA said that they were not aware that AvMA had been contacted by anyone who had been signposted to them under the scheme.
The aim of the scheme is to identify cases involving negligent care as early as possible and provide answers and support, including financial support to families earlier as cases involving significant brain injuries at birth do take a notoriously long time to investigate and conclude. However, it is imperative that families are a) involved and b) have access to independent legal advice and representation to ensure that the scheme is transparent and fit for purpose. This remains to be seen.
As a specialist clinical negligence firm, our concerns are that this scheme does not go far enough and is not being adequately publicised. Also, we are concerned that families are made aware that they have the option of seeking legal advice irrespective of the scheme and regardless of what the scheme concludes.
You do not need to wait to be contacted by the Trust or someone on their behalf. If you are concerned about treatment that you or your child received at the time of their birth or any time then you are still entitled to take matters into your own hands and get independent advice from specialist solicitors. We are here to help.
Ashleigh Holt – May 2020