The Second Report into the Early Notification Scheme
The Early Notification Scheme requires NHS Trusts to notify NHS Resolution, the public body which assists the NHS to resolve legal disputes, of all maternity care incidents in which a baby is born at term and is diagnosed with a potentially severe brain injury either at birth or within the first seven days of life.
Where maternity care is found to have been negligent, the NHS Trust concerned will be advised to issue an apology and implement preventative measures to ensure that the identified failings are not repeated. The solicitors acting for NHS Resolution will also offer compensation to the injured child.
NHS Resolution has today published a second report into its Early Notification Scheme, claiming it has resulted in quicker resolution for families of babies with avoidable brain injury.
It’s important to interrogate this claim a little further and to understand what is meant by the term “resolution”.
If resolution means an admission of liability i.e. that the care provided fell below a reasonable standard and that that substandard care caused brain injury, then yes, a quicker resolution of liability is to be welcomed. Apparently, since the introduction of the Scheme, there has been a reduction in the time it has taken NHS Resolution to admit legal liability from the average time of seven years (!) to 18 months. Given that interim payments of compensation to meet a child’s complex needs, such as specialist care, therapy, education, equipment and accommodation can only be accessed once liability is admitted, seven years is a very long time to wait, especially in the context of the early years and childhood when the brain is developing and there is huge potential for rehabilitation. Also, as a matter of principle, the sooner mistakes can be investigated and lessons learned, the better as this should contribute to an improvement in safety in maternity care. At first glance, this is therefore positive news.
However, if “resolution” is also to mean a full and final financial settlement of a child’s claim, then a quicker resolution is something to be viewed with caution as in the context of a child brain injury claim, it is fraught with risk.
Brain injuries are incredibly complex. They evolve over time; they develop and they manifest in a variety of ways. Some children with the most severe of injuries will have clear and significant care needs from the outset. For other children, the true and lasting impact of some injuries caused at or after birth may not be apparent until months or even years later, often when a child starts to lag behind their peers at school and/or present challenging behaviours that are no longer age appropriate. Subsequently, it can be very difficult to accurately assess the true nature and extent of a child’s injury, how it will impact their life and consequently, what the child’s care, therapy, education, housing and equipment needs will be. Working out whether they will be able to engage in any kind of gainful paid employment may well not be possible until the child reaches adolescence or in some cases early adulthood. Until the child reaches these stages, it is impossible to properly quantify how much compensation will be required to meet the child’s needs for life. Further, the quantification of a child’s complex needs is a complicated and involved process, involving a number of experts and input from specialist solicitors and barristers. Whilst it is encouraging that the Scheme aims to offer compensation at an early stage, it is really important to seek independent legal advice from specialist child brain injury solicitors to ensure the right level of compensation is ultimately achieved and the claim is not under-settled and the child left with insufficient compensation to meet their lifelong needs.
Once liability has been admitted under the Scheme, parents acting without independent legal advice might fear that they have no option but to accept a final financial settlement, especially if in desperate need of funds to meet their child’s complex needs. However, if it is the case that the claim cannot be quantified for some years, then interim payments of compensation can be sought to meet the child’s complex needs pending final settlement.
Another concerning point is that under the Scheme, where the NHS Trust advises that the care in question was likely to have fallen below a reasonable standard, panel solicitors are appointed on behalf of NHS who will then quantify the claim and offer compensation. At this point, there is clear inequality of arms. The NHS Trust, the wrongdoer in the case has its own panel solicitors representing them and valuing the claim on their instruction and therefore, representing their own interests. It is therefore vital that the child also have their own independent representative, instructed by their parents or carers to ensure their best interests are protected and that both parties are on an equal footing. If this doesn’t happen, the child is at a very clear disadvantage.
The fact a case has been referred to and is then being investigated under the Scheme does not prevent parents from seeking independent legal advice from specialist child brain injury solicitors on the possibility of making a compensation claim for their child. Neither does it prevent parents from making such a claim on their child’s behalf. Also, a refusal to admit fault through the ENS does not necessarily mean there is no claim. I would therefore strongly recommend that parents seek independent legal advice on the merits of any potential claim.