How the EN scheme works
When a baby is born at 37 weeks or more (i.e. not premature) and is diagnosed with a potentially severe brain injury during the first week of life, the hospital trust involved must notify its legal team, which in turn notifies NHS Resolution, the legal arm of the NHS, within 30 days.
Potential severe brain injury includes a baby who:
- had active cooling (therapeutic cooling)
- had decreased central tone, was also comatose and also had seizures of any description
- is diagnosed with grade III hypoxic ischaemic encephalopathy (HIE)
The scheme does not include stillbirth or cases involving maternal death.
Following these criteria, NHS Resolution must investigate the circumstances of the birth using a panel of appointed legal and medical assessors who review medical records and the trust's internal investigation reports and statements.
If the investigation suggests that substandard care caused the baby's injuries, the trust should contact the parents to discuss the outcome of the investigation.
Advantages of the Scheme
If parents receive a letter advising that their child's care is being investigated under the Scheme, they know a) there is cause for concern about the care received and b) investigations may be underway by the trust.
The intention behind the scheme is to shorten the investigation process so as to generate a rapid settlement offer where appropriate. Also, by reducing the time between incident and resolution, costs, including legal feels, should be less, saving the NHS money.
The NHS also believes it will encourage trusts to be more open about incidents, be more candid with families affected, break down any perception of defensiveness, and to encourage learning from any recommendations to improve safety.
Because an injured baby needs to be comprehensively assessed by experts over time to work out what life-long care will entail, we strongly recommend that anyone concerned that maternity care was substandard to instruct a specialist clinical negligence solicitor to ensure a thorough investigation and to best protect their child's interests. This advice also applies to anyone who has received notification from a hospital trust via the Scheme.
For further advice, please contact Jane Weakley or Iona Meeres-Young.
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