Claire Horton comments on recent report into NHS Resolution's Early Notification Scheme | Fieldfisher
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Claire Horton comments on recent report into NHS Resolution's Early Notification Scheme

Established in April 2017, the original aim of the scheme was to redefine the traditional litigation processes by significantly reducing the time taken for defendants (NHS Trusts) to admit liability on birth injury cases, which should mean earlier interim compensation payments and reduced legal costs.

In the 2019 report, The NHS Resolution Early Notification Scheme claimed that the scheme was generating a faster and more caring legal response to families whose babies suffered brain injuries at birth.

NHS Resolution designed the scheme for the early reporting of babies born with evidence of a potentially severe hypoxic brain injury following term labour. It was launched to improve the management of complex maternity incidents and reported that it "helps NHS Resolution proactively investigate liability sooner, encourage trusts to be open about incidents, improve candour with families and maximise opportunities for early learning".

The NHS Resolution's second report highlighted:

  • In 85% of 20 early notification cases between 2017 and 2020, liability was admitted in full for infants who had a diagnosis of cerebral palsy
  • The average number of days from the date of the incident to admission of liability for brain injury cases was 1,916 days more for non-early notification cases
  • Families involved with the scheme felt it is really beneficial to be able to put in place care, therapy, aids and equipment, and accommodation at an early stage
  • Three recommendations to improve the scheme focused on improving antenatal counselling  for vaginal birth after caesarean section, improving the communication with and support for patients, families and carers and encouraging a joined-up approach between trust legal services and maternity & risk teams

As someone who comes into daily contact with families suffering the devastating consequences of a birth injury and the complexities of running a birth injury claim, I understand how important candour, early admissions of liability and transparency are to parents of severely disabled children, so appreciate the sentiment of the NHS Resolution initiative.

My reservations, however, include that while quicker admissions of liability are clearly beneficial, reporting here may reflect the choice of case brought into the scheme, i.e. those that always warranted early settlement, leaving the more nuanced cases to the painfully slow process of a protracted NHS defence. It would be better to have systems across the board to investigate such catastrophic cases quickly, rather than defensively, thereby saving the NHS the high costs of unnecessarily protracted investigation.

The Association of Personal Injury lawyers (APIL) has also criticised the scheme, even while supporting its aims.  APIL members have reported that families are either not told that an investigation is underway, or are not as involved as they should be, with particular concern as to whether families are being informed that they have a right to independent legal advice meanwhile.

As a claimant lawyer, I am happy to pursue every means possible to achieve an early admission of liability, but am also able to support families through often complex inquiries.

Lack of support from a solicitor can leave families vulnerable to being unaware of the extent of their rights in terms of providing evidence about the case and understanding who can be compensated and how it should be properly calculated.

Ensuring that parents whose cases are brought into the scheme also receive specialist legal advice would ultimately save costs and time. It is also in line with every hospital trusts' duty of candour to advise parents of their legal rights, where the scheme has been invoked on their behalf.

Read more about claims involving brain injuries sustained at birth and case studies from our award-winning team of medical negligence solicitors in Manchester, including:

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