Rejected by the Early Notification (EN) scheme? Your child may still be able to claim compensation.

If your child was born with hypoxic ischaemic encephalopathy (HIE) or needed cooling or neonatal intensive care after birth, your maternity hospital may have reported your child’s birth injury to MNSI and to NHS Resolution for investigation under their Early Notification (EN) scheme.

Parents of brain-injured babies are routinely being encouraged to wait for an assessment of their child’s ‘eligibility’ for compensation through the Early Notification (EN) scheme, however, new data from NHS Resolution has confirmed our birth injury specialists’ fears about how few families of injured children are actually receiving financial help under the EN scheme.

Are you relying on the NHS’s defence team to offer your child compensation?

If you are a parent of a baby born with HIE, you may have been led to believe that the EN scheme’s investigation would provide a quicker and easier route to financial help than you would receive by seeking independent, specialist legal advice and representation for your child.

You may also have been encouraged to wait for NHS Resolution to investigate and assess the maternity care you received and your child’s eligibility for compensation before seeking your own advice from a claimant (acting for the patient) specialist birth injury solicitor about whether, on an independent legal and medical expert assessment,  your child can claim compensation for their life-changing injury and disability.

You may have been advised that your child’s injury was not caused by any failings in the NHS care that they and their mother received. Or you may be one of the few families who have been told that NHS Resolution admits liability for your child’s injury, but still be awaiting a substantial and meaningful interim payment or compensation settlement.

If any of these circumstances apply to you, it is really important that you understand that NHS Resolution cannot impartially advise you about your child’s eligibility to make a claim. As experienced birth injury solicitors with a long track record of successful claims against NHS Resolution, we urge you to contact us (free and confidentially) for independent advice about your child’s own circumstances and birth injury, to ensure that you protect their full entitlement to compensation.

NHS Resolution use the Early Notification (EN) scheme to defend NHS birth injury claims

We have long warned parents of babies with HIE birth injury that NHS Resolution’s primary role is to reduce both the number of claims arising from negligent NHS care and the amount of compensation paid to injured patients.

Through the Early Notification (EN) scheme, NHS Resolution and their clinical and legal advisors gather and use information from unrepresented families of HIE brain-injured babies, at their most vulnerable time, to get a head start on their defence of the NHS trust in any subsequent claim. NHS Resolution denies liability in the majority of cases, leaving many families unaware that their child is, in fact, entitled to life-changing compensation. In our experience, NHS Resolution’s initial valuation of proven claims usually also underestimates the injured child’s entitlement to compensation and their need for interim payments. If relied upon, this risks the child only receiving a fraction of the compensation that they deserve.

Facts and figures from the Early Notification (EN) scheme

In response to a recent Freedom of Information (FOI) request about outcomes from the EN scheme, the Association of Personal Injury Lawyers (APIL) received the following data from NHS Resolution. The figures are stark and frankly shocking to those of us who specialise in birth injury claims for injured children and routinely overcome denials of liability from NHS Resolution to achieve life-changing settlements for our clients. They confirm that, between April 2017 and March 2024, many hundreds if not thousands of families have gone through NHS Resolution’s EN scheme with no resulting compensation, and that the only families who have received final compensation settlements for their children were those with their own legal representation.  

NHS Resolution’s responses to FOI requests confirm that between 1st April 2017 and 31 March 2024:

•    3557 HIE birth injury maternity incidents were reported to the EN scheme by NHS Trusts, of which 3247 met the RCOG’s Each Baby Counts initial reporting criteria. NHS Resolution points out that the reporting criteria have changed since 2017, not all incidents would have been investigated, and that these figures refer to notifications by NHS trusts rather than claims. 

•    2667 EN scheme ‘investigations’ have been completed by NHS Resolution, with outcomes including:
o    being closed as not meeting the EN criteria on further review; 
o    liability repudiated (denied) as NHS Resolution or their advisors found no negligence or causation of the child’s injury;  
o    negligent care admitted but ongoing investigations into causation or the value of the claim;  
o    an admission of liability made but (unspecified) ‘discussions’ ongoing. 

•    580 EN scheme ‘investigations’ are not yet completed, including: 
o    incidents still being assessed by NHS Resolution’s clinical team;  
o    incidents awaiting (they say HSIB but we assume) MNSI reports or medical records;  
o    incidents being investigated by NHS Resolution’s defence solicitors.

NHS Resolution found negligent care in only 483 of these reported birth injury incidents, but they say that some of these are still being investigated and not all will result in admissions that the negligence has caused injury to the child (which is necessary along with negligence to prove entitlement to claim compensation). In 1998 reported birth injury incidents, NHS Resolution assessed that there had been acceptable care.

Since April 2017 NHS Resolution has only made full admissions of liability (accepted that negligent care has caused injury) in 186 incidents:

• Only 108 EN scheme investigations have led to compensation (such as interim payments) being paid;
• Only 22 families have received a final settlement in the form of a lump sum;
• None of these cases included PPOs (which provide lifelong guaranteed provision for the costs of care).

In total, just over £64.4 million compensation has been paid out under the EN scheme since 2017, of which nearly £45.5 million was in interim payments. The remaining £18.93 million represents the total amount of compensation paid across the 22 cases which received final settlements.  This overall figure suggests that the 22 settlements involved very low sums of compensation, compared with the size of settlements that are often achieved by claimant specialist solicitors in birth injury medical negligence cases.

Out of the total 3247 birth injury incidents which met the EN scheme criteria, only 571 families had legal representation, including all of the 108 claimants who received any form of financial compensation through the Early Notification (EN) scheme.  

For the few who received settlements, it took an average of just under 3.5 years from the notification of the incident to the final settlement. The average timescale for any type of payments (including interim payments) made to the few who received compensation under the Early Notification (EN) scheme was an average of 3.04 years from the date of the notification of the incident to the first payment.

If your child has cerebral palsy or neurological disability as a result of medical negligence, or you have been contacted by HSSIB/MNSI or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.