The early notification scheme progress report for brain injured babies

The NHS Resolution report on early notification scheme for brain injured babies was issued last week and can be found here.

This report gave an update on how well NHS Resolution’s (NHSR) new scheme to quickly intervene in cases of brain injured babies.

This report gives an overview of the cases reported in the first year of the scheme from 1 April 2017 to 31 March 2018.

The data

The data for the first year of operation – April 2017 to March 2018 is as follows;-

• 808 cases were reported to NHSR under the early notification scheme
• 746 cases were accepted as ‘qualifying incidents’
• 197 cases went on to be investigated by NHSR specialist panel solicitors
• 549 cases are categorised as ‘ongoing internal investigations or closed’
• There were 4 cases classified as ‘no further information beyond notification’

The criteria to be met for entering the scheme is a requirement that the child has likely to have suffered a brain injury at birth. Interestingly more than 80% (627/746) of incidents reported to the scheme were new-born babies receiving active therapeutic cooling (a treatment whereby the total body temperature of a baby is lowered by a few degrees shortly after birth to reduce the impact of perinatal hypoxia and brain injury. Therapeutic cooling is performed in specialist neonatal units, most commonly for 72 hours.)

To date, 24 families have ‘received an admission of liability, formal apology and in some cases, financial assistance with their care and other needs within 18 months of the incident.’

We are told that there are a further number of cases still being reviewed.

An analysis of a sample of 96 of the total 197 cases where NHS Resolution solicitors were instructed to investigate identified the following clinical issues:

• Issues with fetal monitoring were a leading contributory factor in 70% of cases.
• In 63%, at least two or more factors were identified; a delay in acting on a pathological CTG was the most common factor.
• Impacted fetal head and/or difficult delivery of the head at caesarean section was a contributory factor in 9% of cases in this cohort.
• Concurrent maternal medical emergencies in labour occurred in 6% including significant maternal hyponatraemia and were important contributors to neonatal seizures and encephalopathy.
• Immediate neonatal care and resuscitation remains an important but an under recognised factor affecting 32% of the babies in the cohort.

The issues with fetal monitoring are quite rightly the subject of ongoing improvement measures in the NHS.

Reasons for the scheme

As at April 2017, the average length of time between a negligent brain injury occurring and an award for compensation being made was 11.5 years. The likely cause of this is likely to be that traditionally families were not told if their child had suffered a negligently caused brain injury or not – the duty of candour was only introduced into the NHS in November 2014, following the passing of Health and Social Care Act 2008 (Regulated Activities) Regulations 2014,: Regulation 20.

The purpose of the scheme was to accelerate settlement for the families of brain injured children and reduce the stress, time and costs of litigation.

Whilst I welcome the news that 24 families have been helped by virtue of the Early Notification Scheme, I would have hoped that the numbers would have been higher and that all of the 24 would have been given financial assistance rather than ‘some’ of them.

The report also is not clear as to what steps are being taken to ensure that the families who are accepted under the scheme are being signposted to instruct accredited and experienced Claimant solicitors who can progress these cases quickly for the families. I would want to know more about their signposting process.

As we can see, settlement of these cases can take many years but it is not usually the liability issues that take time to agree but rather more usually the length of the case (up to 11 years or so) is due to the fact that the full effects of the injury are not apparent until the child is much older.

This is especially the case when the injury is mild to moderate and it is not clear until much later on whether the child will have capacity to walk independently, work or manage their finances.

Until those prognosis issues are crystallised with final reports from neurologists, neuropsychologists (and other expert disciplines as required) it is impossible for the court to approve a settlement in these cases.

Whilst an early admission of liability from the NHS is always very welcome for families, given that this unlocks the opportunity to ask for interim payments, the suggestion that this could reduce the overall average timescale for a case to conclude (11.5 years) is not yet proven.

However, we have to recognise that this a very positive step in the right direction and that many families and children will benefit from this scheme. I hope that the scheme is allocated all the resources it needs as some of the families who are receiving help now would probably be families who might have been completely left in the dark 5 or 10 years ago.

They may never have brought a claim at all or may not have done so until their child was in their teens and the valuable support and assistance required in the early years may not therefore been made available to them.

One family whose case I recently concluded only discovered that their child might have a negligently caused brain injury 9 years after the birth.

Another family I am acting for were aware within days that there had been negligent errors in the birth that had caused a severe brain injury. I hope that these examples of disparity of information sharing are at an end now. And all families are made aware of avoidable injuries as soon as possible – as required by the statutory duty of candour. The families should also be signposted to competent claimant solicitors who will investigate the cases appropriately.