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    On 1 April 2017 the NHS launched the “Early Notification Scheme” (ENS). This required NHS Hospitals to report to the ENS legal team (part of NHS Resolution) within 30 days all incidents where babies (who were born at term and following a labour) had a potential severe brain injury diagnosed within the first week of life.

    These babies were categorised as those who:

    • were diagnosed with grade II hypoxic ischaemic encephalopathy (HIE); or
    • were therapeutically cooled (active cooling only); or
    • had decreased central tone AND were comatose AND had seizures of any kind.

    The intention was that, with early notification, the NHS could begin their own investigations as to what may have gone wrong at a much earlier stage.

    It is important to note that this scheme is not designed to award families directly with monetary compensation, it is designed to try to ascertain whether an early admission of liability and an apology should be made for having caused the baby a brain injury.

    In the event that an apology is made to a family it is not clear what further advice is then given to parents. It is hoped that families will be suitably directed to an independent organisation such as AvMA (Action against Medical Accidents), who could give further information and advice about seeking monetary compensation.

    Following the outbreak of COVID-19 from 1 April 2020, NHS Resolution have stated it is no longer a requirement to report these cases to the ENS. It had been expected that the scheme would resume in October 2020, however the current non-reporting requirements have now been extended indefinitely. All births which are categorised for reporting as above do however still require reporting to the Healthcare Safety Investigation Branch (HSIB). The HSIB investigation will now form a “triage” system for ENS in investigating adverse outcomes. From April 2021 this process was further streamlined by NHS Resolution so that:

    • No steps will be taken by the ENS scheme to investigate a eligibility for compensation until HSIB have complete their report. Where the family have refused to allow an HSIB investigation to take place there will be no ENS investigation undertaken.
    • The criteria for an investigation by the ENS scheme as run by NHS Resolution will be narrowed to only those cases where there is evidence of or the potential for a brain injury; namely those cases which may attract a high value compensation award.

    How do the ENS investigate the maternity incident?

    Put simply the ENS have their own legal team who will review each case individually. In doing so they will commission the opinion of obstetric and midwifery experts (we presume on their panel of experts) to review the medical records and the “liability risk assessment report” provided by the hospital themselves. The ENS team will instruct a firm of solicitors (who act only for Hospital Trusts) to review the evidence and provide them with a report. In theory the family should be provided with a copy of this report.

    Is this investigation properly independent?

    It is not the view of this firm that the investigation is properly independent because:

    • The parents cannot directly participate in the investigation.
    • There is a lack of transparency as to how the investigation is actually undertaken and the nature and level of detail involved. For example the quality of interviews of the medical staff involved, the potential lack of a full set of medical records being made available to the expert as examples.
    • The solicitors instructed by the ENS only work for hospitals and never act on behalf of families.
    • The experts instructed are selected by the ENS or the instructed solicitors and are not part of any independently assessed or approved panel. It is unlikely the medical opinions would be disclosed to the families.
    • If an apology is made, it is not at all clear what advise parents are given regarding their legal options to seek full financial recompense on behalf of their child for their injuries.

    What if you are told there was no fault by medical staff?

    Not all reviews will result in an apology; just because there is no apology does not mean that there is no claim for negligent care.

    The ENS scheme is very unlikely to investigate a case in the same way Claimant lawyers would and in particular, if there is any issue regarding the potential cause of the brain injury then they are likely to come to a negative conclusion.

    We would strongly recommend in the event that a conclusion of no fault is returned by the ENS that you seek a second opinion by instructing a specialist clinical negligence solicitor to review the evidence. It may well be that alternative medical experts will form a very different conclusion.

    What are the key themes which have come out of ENS investigations?

    There have been some common threads in terms of failures identified by the ENS Scheme, these include:

    • Failures to adequately respond to warning signs from the fetal monitors (the CTG belt around the mother’s stomach during labour). There were failures to realise the trace of the baby’s heart rate was pathological, that is demonstrated that the baby was in extreme distress (due to lack of oxygen) and required urgent delivery.
    • Difficulties in caesarean sections with delivery of the baby’s head because it has become impacted against the mother’s pubic bone during labour.
    • Failure to respond to a mother who is critically unwell in labour.
    •  Failures to promptly and properly undertake resuscitation of a new born who is delivered in a critical condition.

    What is the Health Safety Investigation Branch?

    Find out more about the Healthcare Safety Investigation Branch, and how it works with the ENS, in our comprehensive guide here >>

    There is a second scheme in place run by the Healthcare Safety Investigation Branch (HSIB) which can, and does, run concurrently with the Early Notification Scheme (however since April 2020 the HSIB scheme operates as a triage system for the ENS scheme, so the ENS will only investigate brain injury cases once HSIB have completed their own report). HSIB was set up following the Secretary of State for Health announcing a new maternity safety strategy in 2017 and putting in place new directives under his delegated powers. The programme started in 2018 and investigates intrapartum stillbirths, neonatal deaths, maternal deaths and cooled babies or those diagnosed with brain injuries; the latter on this list clearly overlaps with now later investigation criteria under the ENS.

    The reports on individual investigations are not published and are therefore not available for public scrutiny. The reports are however given to the family affected, The Trust involved and are sent to the ENS branch of NHS Resolution. It now forms a triage system in the pre-litigation stage of legal claims. Parents may therefore want to think carefully before statements are given to HSIB and may wish to consult their own solicitors before taking part in the scheme.

    How does the HSIB investigate a critical maternal incident?

    Full details of how the HSIB undertake their investigation can be found in our guide here >>.

    The HSIB is not designed to apportion blame, it is more a fact finding exercise in order to ascertain whether there are key types of failures in maternity care that would enable general learning and teaching of maternity staff to improve.

    The views of the family are very much taken into account as are the accounts from the staff involved in the critical incident. The clear premise of these maternity investigations is to enable lessons to be learnt and allow for sharing of knowledge so that hopefully systems in place can change to prevent similar incidents recurring.

    Families may wish to seek legal advice and general support from a specialist clinical negligence solicitor as part of this process, albeit that lawyers cannot be directly involved or contribute to the report.

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