What is the Early Notification Scheme (ENS)?

For Every Birth. For Every Baby. For Every Family.

When errors occur during labour, the consequences can be devastating for mother and baby and can affect the whole family. If you have been informed that your medical negligence case has been referred to the NHS Resolution’s Early Notification Scheme, we can help you understand the objectives of the scheme, how it impacts your birth injury claim, and how we can support you.

What is the NHS Resolution’s Early Notification Scheme?

Introduced in 2017 by NHS Resolution, the Early Notification Scheme (ENS) aims to speed up the NHSR’s investigations of birth injuries, resolving birth injury compensation claims, and providing families with answers by identifying incidents where a baby suffered a brain injury at birth. The NHSR’s aim being to begin early investigations of negligence with a view to make health service improvements.

With this guide, we will help you understand how ENS works, how changes to the ENS have significantly narrowed the cases now investigated, as well as its potential flaws, your legal rights and how our medical negligence experts can support you if you are affected:

• Who are NHS Resolution?
• Circumstances when the ENS applies
• The aim of NHS Resolution’s Early Notification Scheme
• Changes to the Early Notification Scheme
• How the ENS works in practice
• Concerns regarding the Early Notification Scheme process
• The risk of under compensation
• Understanding your rights as a parent
• Medical negligence claims with Fletchers

Who are NHS Resolution?

NHS Resolution is a body of the Department of Health and Social Care (DHSC) and the legal arm of the NHS, tasked with managing negligence and other claims against the NHS, overseeing the resolution of disputes, with the objectives of driving the improvement of safety, care and learning from incidents of negligence.

In what circumstances does the Early Notification Scheme apply?

• The ENS investigation criteria applies if:
• Your baby has been born at term (at least 37 weeks gestation) and has been diagnosed with a potentially severe brain injury within the first seven days of their 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.
• Your baby had an abnormal MRI scan where there is evidence of changes in relation to intrapartum HIE (hypoxic ischemic encephalopathy).

If these circumstances apply, the NHS Trust responsible for the hospital where you gave birth should report your case to the Maternity and Newborn Safety Investigations Special Health Authority (MNSI) who in turn report to the NHS Resolution body of the Department of Health and Social Care (as of October 2023).

If you baby meets the above criteria, NHS Resolution will investigate the circumstances surrounding the birth using a panel of internally appointed legal and medical assessors, to determine whether negligence has occurred and if so, how much compensation is owed.

What is the aim of NHS Resolution’s Early Notification Scheme?

By identifying instances where there may have been a brain injury suffered as a result of substandard maternity care and address the issue of liability at an early stage, with the ENS the NHS aims to achieve:

• Early Identification: To quickly identify cases of severe brain injury in newborns that may be linked to medical errors during childbirth.
• Prompt Investigation: To conduct thorough and timely investigations to determine whether medical negligence occurred.
• Support for Families: To provide early support, information, and assistance to affected families, ensuring they receive the care and guidance they need.
• Faster Compensation: To facilitate quicker access to compensation for families if medical negligence is confirmed, reducing the stress and uncertainty often associated with lengthy legal processes.
• Improvement in Care: To use the findings from these cases to improve clinical practices and reduce the likelihood of similar incidents in the future, enhancing overall patient safety and care quality in maternity services.

When the scheme was first set up, it required the trust involved to report all maternity incidents where a baby had suffered a potential brain injury to their insurer (NHS Resolution) within 30 days. This is no longer the case.

This applied to all babies who were born at term and identified as suffering a possible brain injury within seven days of birth. It also covered infants who were diagnosed with grade III hypoxic ischaemic encephalopathy (HIE), were therapeutically cooled, or had decreased central tone and were comatose and demonstrated any seizure activity.

How has the Early Notification Scheme changed?

On 1 April 2021, the reporting requirements changed:

• Instead of reporting incidents to NHS Resolution, trusts began to work with the Healthcare Safety Investigation Body (HSIB) which identified cases that ought to be reported to NHS Resolution.
• As a result of these changes the HSIB no longer automatically investigates babies who have received hypothermic cooling (a process where the baby’s temperature is carefully lowered to protect the brain by attempting to minimise the production of toxic substances that can cause brain injury) where there is no immediate evidence of a neurological injury.

There were further changes in April 2022. The investigation criteria became:

• Any baby born at term (at least 37 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.
• Babies who have an abnormal MRI scan where there is evidence of changes in relation to intrapartum HIE.

From October 2023, the HSIB was transformed into two bodies: Maternity and Newborn Safety Investigations special Health Authority (MNSI) and the Health Services Safety Investigations Body (HSSIB). The MNSI have now taken over the role of the HSIB.

How does the Early Notification Scheme now work in practice?

If your birth experience is referred to the Maternity and Newborn Safety Investigations Special Health Authority (MNSI), you should be contacted directly and told an investigation is taking place. The trust is under a duty to be open and transparent about its services and the care provided to you and your child, even if something has gone wrong.

The MNSI will prepare a report, and this should be shared with you. If that report identifies any areas of negligence, then NHS Resolution will undertake a full investigation and will instruct solicitors to consider possible compensation.

If NHS Resolution conclude that your baby’s injury was caused by negligent medical care, a written apology will be provided, along with an offer of compensation.

If the NHSR conclude that medical negligence was not the cause of your baby’s injury, then no compensation will be offered.

However, just because the ENS investigation has not identified medical negligence, that doesn’t mean that you are not able bring to a birth injury claim and this is something that we can discuss with you.

Our concerns regarding the NHSR Early Notification Scheme process

The current system means there is no automatic referral to MNSI (previously HSIB). If the trust fails to report a case or you do not consent to the investigation, no further action is taken.

The narrowing of the criteria for reporting incidents also means that:

• Potential claims may be overlooked: Incidents scrutinised by MNSI and NHS Resolution will now be restricted to those which fall within their limited scope.
• While a consideration of medical records is essential, they do not always provide a full, accurate and complete account of the events surrounding labour.
• There is a risk of under compensation for children affected due to the proposed settlement being based on “in-house” expert reports alone; it is important to ensure that any settlement properly reflects the long term financial and emotional impact on families. Early settlement may seem attractive but may result in not being able to meet your child’s needs in the future.

When medical negligence experts at Fletchers investigate your child’s claim, as well as considering the medical records, we will take factual witness statements from you and your family, to show the whole picture.

When we act for the family of an injured child, we instruct a number of independent medical experts (many of whom we have worked with for several years) to advise and assist on the claim. This ensures that we fully understand the mother’s experience and the child’s injury.

However, generally the experts appointed to provide reports on behalf of the ENS are selected by the MSNI and it is unlikely that their opinion will be shared with the family. It is also unlikely that you will be allowed to read the accounts of the medical staff who were involved in your care.

The risk of under compensation due to the Early Notification Scheme

We believe that there is a significant risk of injured children being undercompensated if relying on a proposed settlement which is based solely on these “in-house” expert reports. It is important that you obtain independent advice and representation before considering accepting any offer of birth injury compensation.

It can be difficult to assess the true nature of your child’s birth injury at an early age. Therefore, accepting an early offer from the trust, whilst it may seem to be useful in the short term, could result in your child missing out on funds necessary for treatment, therapies, aids, technology, education or accommodation in the future, which they might otherwise have been entitled to recover.

Brain injuries, unfortunately, evolve over time; it can be several years before the extent and impact of an injury on a child is truly understood. Some injuries occurring during delivery may not be diagnosed for many months or years, which means that they may actually fall out of this scheme completely.

Understanding your rights as a parent with the ENS

You should feel empowered during this process. If a birth injury claim is identified, you have the right:

• to expect the very best for your child
• for the trust to be held accountable for an avoidable injury
• to your own legal representation from the outset

We will work with you to ensure that any compensation which may be offered by the trust will be sufficient to meet your child’s needs now and for the rest of their life.

As explained above, not all cases where a child sustains a birth injury will be subject to an investigation by the MNSI. Even if referred, not every investigation will result in an apology – but this does not mean you do not have a claim.

If you feel uneasy or unsure about the standard of care which you or your child received during their birth, contact us. It is your right to investigate a possible claim.

How Fletchers can help you with your birth injury claim

We are a top ranked law firm and have a team of specialist lawyers who have extensive experience in representing children and families who have suffered complications following delivery. They can guide you through the claims process. You do not need to rely on the trust, MNSI or NHS Resolution to identify your experience as being negligent.

We work with families from the beginning of a birth injury compensation claim through to its conclusion. Where negligence is identified, we consider the needs of each child as an individual and work with the family to ensure their child is afforded every opportunity to reach their full potential and that they receive a sufficient settlement to enable this.

If you believe you have been affected by the issues in this article including the pitfalls of the NHS Resolution Early Notification Scheme, reach out to our team.