Is the Birth Injury Early Notification Scheme achieving its aim?

05 Nov 2019

NHS Resolution launched the Early Notification Scheme, a national programme for the early reporting of infants born with a potential severe brain injury, on 1 April 2017.

Its stated aim is to:-“Support the stated government priorities to halve the rate of stillbirth, neonatal death and brain injury and improve the safety of maternity care while also responding to the needs to families where clinical negligence is identified including through early admissions of liability where appropriate. The scheme also aims to improve the experience for NHS staff by speeding up the legal process and rapidly sharing learning from avoidable harm.”

NHS Resolution issued a report on 25 September 2019 entitled “The Early Notification Scheme progress report: collaboration and improved experience for families” which reviews the scheme’s progress during its first year between 1 April 2017 and 31 March 2018.

Trethowans LLP’s Laura Rowe, a solicitor in the Personal Injury department specialising in Clinical Negligence claims reviews the report and asks, one year on, is the Early Notification Scheme on its way to achieving its aim?

The Scheme

The scheme requires all births at NHS Trusts in England from 1 April 2017 meeting qualifying criteria to be reported by the relevant NHS Trust to the Early Notification team within 30 days for pro-active investigation.

Families are required to be referred to the scheme whenever a baby is born at more than 37 weeks gestation, is diagnosed with a brain injury in the first seven days of life and there is a suspicion that brain injury may have occurred during labour. Triggers for such a referral are if the baby:-

  1.  Is diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) which is a brain disorder that occurs due to lack of oxygen or blood flow; or
  2. Was actively therapeutically cooled which treatment to bring down the total body temperature of the baby by a few degrees to reduce the risk of / impact of permanent brain damage; or
  3.  Had decreased central tone (floppy muscle tone) and comatose and had seizures of any kind.

The Early Notification team is a panel of legal and clinical experts which, following a report being made, works together to investigate the circumstances of the child’s birth and identify any negligent care. The team then report back to the Trust involved in the hope that this will reduce the risk of a future similar incident and when appropriate refer the case on to the NHS Resolution panel firm of solicitors for the purposes of supporting the family to bring a compensation claim.

The NHS Resolution website states:-

“The added benefit of seeking 100% notification is the potential to build a robust database which should provide valuable insight on what drives these incidents. We aim to analyse the data to facilitate learning and interventions, allowing good ideas to be shared.”

Reported cases

There were 639,984 births in England during the first year of the Scheme between 1 Aril 2017 and 31 March 2018.

Of these, 808 cases were reported to the Scheme in the first year, with 746 of these births described as involving “qualifying incidents” as a result of which a child is likely to have suffered a brain injury at birth.

627 (80%) of those 746 cases involved new-born babies receiving active therapeutic cooling.

197 of the cases involving qualifying incidents were investigated by NHS Resolution panel solicitors, 549 were described as “ongoing internal investigations or closed” and 4 had no further information beyond initial notification.

Of the 96 high risk cases, 70% of these included complications with fetal monitoring. Many of these involved a delay in reacting to abnormalities on fetal heart traces, 9% of the cases involved impacted fetal head or difficult delivery of the baby’s head at caesarean section and immediate neonatal care and resuscitation affected 32% of the babies.

Achievements

The report confirms that the scheme has already reduced the time taken from incident to investigation in some cases involving brain injuries at birth and has led to swift admissions of liability.

As at April 2017, the average length of time between a negligent brain injury occurring and an award of compensation being made was 11.5 years. One of the main reasons for such an extended delay is likely to be that families were not told that their child had suffered a negligent brain injury.

By contrast, following the introduction of the scheme and as at the time of the publication of the report, 24 families had received an admission of liability, formal apology and in some cases had received interim payments giving financial assistance with their care and other needs within just 18 months of the birth.

Some of these families may never have known they had cause to bring a Clinical Negligence claim against the Trust at which their son or daughter were born or may not have known until many years later. That delay would undoubtedly have resulted in their child not receiving the early intervention with therapies and vital equipment they needed.

Furthermore, unless birth incidents are investigated within a short period of time of the incident occurring such investigations are unavoidably compromised because healthcare professionals involved in the baby’s care have to be asked to recall information from many years before and this reduces the chance of lessons being learned from those incidents for future similar births.

Areas for improvement

Unfortunately, the report advises that only 77% of families were notified by the Trust that an incident had occurred and only 35% of those families were offered an apology.

Furthermore, the report states that only 43% of the families were kept informed of the involvement of NHS Resolution and only 30% were actively involved in the investigation of their child’s birth.

This suggests that the Scheme is not yet wholly achieving its aim of responding to the needs of families where clinical negligence is identified.

Recommendations

The report concludes by making 6 recommendations to further improve maternity services as follows:-

  • All families whose baby meets the early notification criteria and requires treatment for a potentially severe brain injury should be offered a full and open conversation about their care. This should include an apology in accordance with the statutory duty of candour, a description of the intended investigation process and options for their involvement in investigations;
  • An independent package of support should be offered to all NHS staff to manage distress that can be associated with providing acute health services and in particular to those involved in incidents;
  • There is an urgent need for an evidence-based, standardised approach to fetal monitoring;
  • Increase awareness of impacted fetal head and difficult delivery of the head at caesarean section including the techniques required for care;
  • Work with existing national programmes to improve the detection of maternal deterioration in labour, including monitoring and the implementation of evidence-based guidance in all birth settings; and
  • Increase awareness of the importance of high quality resuscitation and immediate neonatal care on outcomes.
  • The progress report is due to be reviewed at an NHS Resolution national conference for all NHS Trusts on maternity safety, “Sharing Best Practice for Safer Births” in Birmingham on 5 December 2019.

Conclusions

The scheme has to be applauded in its aims and has clearly already made a welcome difference to a number of families. We hope that the scheme will in time make important further steps to improve the safety of maternity services and reduce the incidence of brain injuries at birth.

If you have received an apology or a duty of candour letter from an NHS Trust relating to the circumstances of your child’s birth, the specialist lawyers at Trethowans will be delighted to provide you with independent legal advice regarding your child’s compensation claim.