In April 2017 the NHS launched their Early Notification Scheme (ENS) to deal with investigations in relation to serious brain injuries suffered by babies at birth. The scheme is designed to speed up investigations to determine whether or not a baby is entitled to receive compensation. It was also set up to ensure that lessons are learned to improve maternity care and avoid future avoidable cases of babies with brain injury. The scheme aims to make maternity and neonatal services safer and to encourage openness and honesty on the part of Hospital Trusts.
HOW IT WORKS
All Hospital Trusts across England and Wales are obliged to notify NHS Resolution (a central part of the NHS dealing with compensation claims) within 30 days of a maternity incident leading to a baby suffering a potentially severe brain injury. The scheme applies to babies who are born from 37 weeks onwards. A potentially severe brain injury is described as:-
• The baby diagnosed with Grade 3 hypoxic ischaemic encephalopathy (oxygen deprivation and limited blood flow); or
• The baby required therapeutic cooling; or
• The baby had decreased central tone (floppy), was comatose or suffered seizures of any kind.
Once the Trust has reported the incident to NHSR, arrangements are made for the Health Service Investigation Branch (HSIB) to investigate events and prepare a report. Following receipt of the report NHSR will decide whether or not a legal investigation will start. If so, it is reviewed by the NHS internal legal team which comprises NHS lawyers and external medical experts. If their team decide that the Trust is liable, admissions will be made, and the family signposted to specialist clinical negligence solicitors, like Barratts. We can then organise an urgent interim payment of compensation to assist the baby and family.
ENS & COVID
Hospital Trusts’ obligations to report incidents to the NHSR under the scheme was paused from 1 April 2020 due to pressures on the Trusts caused by Covid. However the Trusts still had an obligation to refer matters to the HSIB, who in turn provide their report to NHSR.
HOW CAN BARRATTS HELP?
We have already been referred cases through this scheme. The NHSR are keen to ensure that only solicitors, used to acting for clients with cerebral palsy and other neurological conditions, are involved. All too often we are contacted by clients who have spent years with a solicitor who has not handled a medical claim for a birth injury. Sadly, we continue to see the same negligent cause for brain injury birth claims, so we hope this scheme will succeed in reducing these injuries.
Our clinical negligence solicitors are all highly experienced and have acted in birth injury claims over many decades. Do you have concerns that your baby may have suffered a brain injury during birth? If so, we strongly recommend that you seek legal advice, regardless of whether the matter is being investigated through the Early Notification Scheme.
If the scheme identifies that the Trust has legal liability for your child’s injury, then you will already have been told to seek help from Barratts or other specialist clinical negligence firms. Our expert solicitors can represent you in the compensation claim and ensure that your child recovers the compensation they need. This will ensure that your child can have the support and therapy required throughout their life. Even if NHSR conclude that you are not covered by the scheme, you may still have grounds for a clinical negligence claim. We can investigate this and advise you appropriately.
HOW DOES THE ENS WORK IN PRACTICE?
In January 2018 we were contacted by a family whose baby was 4 months old and had suffered a brain injury at birth. The Hospital Trust, where he was born, had promptly reported the matter to NHSR under the ENS. Their investigation identified that his injury had occurred due to negligence. They were signposted to an independent specialist solicitor and contacted Julie Hardy. Julie is one of three solicitors in our medical negligence department who are recognised as specialist clinical negligence lawyers on the Law Society’s panel. Julie is also a member of the panel of specialist lawyers administered by the charity Action Against Medical Accidents, https://www.avma.org.uk/
Within a few months of being instructed, Julie had arranged for Court Judgment to be entered in favour of the child and had obtained an interim payment of compensation; this allowed for a team of private therapists and carers to be recruited to assist with rehabilitation and support. The client has since been diagnosed with cerebral palsy and Julie has recently secured a further large interim payment. This will allow the client and his family to purchase a property, which can be adapted for his disability.
We can also act on your behalf if the ENS rejects your case. The ENS uses NHS lawyers to screen the cases. Barratts only deal with claims on behalf of patients, so we will be looking at the events from a different perspective. We recommend that you seek advice from us, even if your child’s claim has been rejected by ENS. A free screening service is available to help you.
Barratts can also advise you as to whether your child’s injury should have been reported to ENS. Julie is currently working with a family whose child suffered injuries in circumstances which fall within the ENS criteria. She is advocating for the family to establish that the Trust have an obligation to report the matter. This would mean the NHSR will then investigate and determine if there has been negligence. If the medical care was substandard it will ensure that the family receive a payment at the earliest opportunity. This is important because it can otherwise take many years to recover compensation for a client with cerebral palsy.
If you think your baby suffered brain injury many years ago, before the ENS was established, they may still be able to bring a compensation claim. It is always worth calling our clinical negligence team. We would always encourage clients to contact us as soon as possible if they think the medical care was negligent. An injury claim can usually be brought up to 3 years after the client’s 18th birthday (there are some exceptions to this rule). If the client lacks capacity to manage their affairs then they can even bring a claim after this period.
We are proud to be a small, niche firm with only specialist experienced solicitors, independently recognised on medical negligence panels and by legal guides. This means that you can be assured we have the right experience to advise you. Please contact us for a free initial consultation in relation to all clinical negligence claims and if you have any concerns in relation to injuries suffered by your child at birth. Our clinical negligence team will be able to talk with you confidentially and sympathetically about a possible negligence claim.
For more information about the Early Notification Scheme please read https://resolution.nhs.uk/services/claims-management/clinical-schemes/clinical-negligence-scheme-for-trusts/early-notification-scheme/support-for-patients-families-or-carers/