The Early Notification (EN) scheme started in April 2017 and changed the landscape for the investigation of potential claims arising from injuries sustained by babies at birth. In this article we look at the findings of the scheme’s second report, which is published at a time where the EN scheme has now been running for five years.

What is NHS Resolution’s Early Notification Scheme?

The EN scheme is a key initiative towards achieving the delivery of safer maternity care, providing a quicker, caring response to families in cases of severe harm, and supporting a learning culture. It is a fundamental contributor to NHS Resolution’s three year strategy to maximise learning from data  and work collaboratively to improve maternity outcomes. It also supports the National Maternity Safety Ambition to achieve a 50% reduction in stillbirth, maternal mortality and neonatal mortality and serious brain injury from the 2010 rate by 2025.

In line with the criteria used by the Each Baby Counts programme of the Royal College of Obstetricians and Gynaecologists, the EN scheme applies to all babies born at term (≥37 completed weeks of gestation), following labour, who had a potentially severe brain injury diagnosed in the first seven days of life and:

1. Were diagnosed with grade III hypoxic ischaemic encephalopathy (HIE); or
2. Were therapeutically cooled (active cooling only); or
3. Had decreased central tone and were comatose and had seizures of any kind.

On notification of qualifying incidents, the EN team perform a clinical triage and, if appropriate, instruct one of their panel firms to investigate the standard of care provided, with a focus on collaborative and constructive communication and a departure from the more traditional adversarial approach. The aim of this is to offer the benefit of earlier support to families, shared learning closer to the event to improve maternity safety, timely support and development opportunities for clinicians, as well as a reduction in the costs associated with these complex claims.

Progress with recommendations from the first report

The EN scheme’s second report revisits the findings of the first report and measures progress against these. Highlights of success since the first report include:

1. A focus on ensuring that honest and open communication takes place with families from the outset of an investigation, with early parental involvement and adherence to the duty of candour;
2. Improved resources and services available for NHS staff and an encouragement to NHS Trusts to ensure staff have access to a dedicated package of support including psychological support;
3. Contribution to the Avoiding Brain Injury in Childbirth (ABC) programme and iDecide tool development, to support an improvement in fetal monitoring and decision making with women and families during intrapartum care;
4. A focus on the prevalence, causes and management of impacted fetal heads at caesarean section, with ongoing contribution to a scientific impact paper on these incidences (with a specific chapter within the second report on this subject);
5. Quarterly case stories on specific learning findings from EN investigations for maternity units and professionals; and
6. A focus on raising awareness of the importance of high quality and immediate neonatal care, including the recruitment of a neonatal clinical fellow to support the team with ongoing work.

Studies within the second report

The second report analyses 20 EN cases where legal liability was admitted in full to families, enabling early access to financial compensation, support and a written apology. 70% of these cases involved Cat 1 emergency caesarean sections. The report finds that 90% of these incidents involved problems with fetal monitoring. 90% of the babies involved in the study were sadly classified as having grade 3 hypoxic ischaemic encephalopathy (HIE III) with 85% of them having a diagnosis of cerebral palsy. The report looks in detail at the commonalities between these cases, including the extent of family involvement (90% of cases) and offers a comparative analysis of the EN scheme as against a traditional claims investigation process.  The most prevalent finding is a reduction in the duration from incident to admission of liability, from more than 80 months to less than 18 months with an associated saving in costs. These findings are preliminary, based on the dataset size, and a further more extensive evaluation is being undertaken for publication.

Clinical themes are also identified using data from 93 cases within the EN scheme, highlighting a series of well-recognised issues including a delay in birth due to loss of situational awareness or issues around escalation, fetal monitoring, suspected intrapartum infection, uterine rupture during birth following caesarean section and vaginal breech births. NHS Resolution recognises that these are well established themes and their commonality within the EN findings raises concern that there has not yet been sufficient progress in these areas. NHS Resolution issue a commitment to work with the Royal Colleges and other stakeholders who continue to address these issues.

Progress and Evolution of the Scheme

NHS Resolution has been responsive to adapting the EN scheme over the past five years, using learning gathered over that period. The second report outlines the key developments of the scheme over this period, including procedural refinements to the scheme and streamlining with other organisations such as HSIB, development of the EN clinical definition, introduction of an expert ‘summit’ process for evaluating cases and using a baby’s outcome as a means for prioritising investigations.

Engagement with families stands out as an area where significant progress has been made, helped by the newly established Maternity Voices Advisory Group for families and patient safety representatives.

Recommendations

The second report recognises that there is a plethora of recommendations that apply to maternity services, and therefore makes just a limited number of recommendations, designed to complement the existing work driving improvements to quality and safety in maternity services.

The findings are commitments by NHS Resolution to:

1. Support the work of Royal Colleges and wider stakeholders to improve antenatal counselling before the trial of vaginal birth after caesarean section (VBAC);
2. Support the work of Royal Colleges and wider stakeholders to improve awareness in relation to response to harm for families and staff, which includes initiatives such as the availability of the leaflets and videos regarding Saying Sorry and Duty of Candour and the guidance on Being Fair, which are all available on NHS Resolution’s website;
3. Support the working relationships with NHS providers and wider stakeholders, encouraging a joined-up approach between Trust legal services and maternity & risk teams.

Discussion

As the second report recognises, there is a widely shared commitment to the improvement of maternity safety, recognising the devastating impact that adverse birth incidents have for the families involved. The EN scheme contributes to this and continues to promote and explore innovative approaches to provide timely, empathic and responsive resolution for some of the highest value and most complex incidents reported to NHS Resolution. The EN scheme seeks to put families at the heart of the legal investigation and offers those families, and clinical teams, an opportunity to understand where care has fallen short of what should have been provided at an earlier stage and, where appropriate, to offer early compensation and support packages to families who are entitled to it. The second report outlines the progress that has been made to date in developing the process to achieve this and acknowledges that there is further work to do.

Early findings of the second report support that, through the EN scheme, there is a reduction in the time taken to admit liability to enable earlier family and staff support post incident when compared to the traditional claims process. The findings and studies made possible by the early capture of information relevant to birth injury claims can be used to inform further developments in clinical care, in collaboration with the other main stakeholders in the maternity safety landscape.

Having reflected on progress since the first report, the second report makes the three new recommendations above with a commitment from NHS Resolution for a further evaluation of the EN scheme to be conducted in 2023 to assess the impact of EN on families, staff and the service.

The EN scheme has come a long way in its first five years and continues to evolve, with a commitment that earlier notification of claims offers opportunities for timely investigations and, where legal liability arises, families receive earlier support and compensation, and NHS organisations have greater opportunity to facilitate improvements in the safety of maternity care through shared learning closer to the event. Looking to the future, NHS Resolution intend to continue moving away from an adversarial approach to improve the experience of families and ensure learning is shared to improve maternity safety.