April 14, 2020

NHS Resolution’s Early Notification Scheme – is it working and what is happening regarding early financial resolutions of claims?

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The rapid resolution and redress scheme (RRR) aimed to “introduce a system of consistent and independent investigations for all instances where there may be severe avoidable birth injury, along with access to ongoing support and compensation for eligible babies through an administrative scheme.”

The main stated aims were:

  • reducing the number of severe avoidable birth injuries by encouraging a learning culture
  • improving the experience of families and clinicians when harm has occurred
  • making more effective use of NHS resources

This consultation sought views about the proposed scheme, including:

  • how the scheme was to be administered
  • the eligibility threshold for compensation
  • how learning would best be shared and acted on to reduce future harm

One of our clients summed up...

“Our basic view is that if proper investigations were done at an early stage then with the duty of candour and openness Trusts and doctors would be admitting their mistakes early and would take away the need to litigate the liability stage of the case and we can simply get on at a much earlier stage to value the claim and let the process go on as normal.

“Families will know that they are likely to get more money through the normal litigation process and will not want to accept a lesser amount of money to simply go through a scheme where there is insufficient support for them. Families whose child has suffered a brain injury want the best outcome for their child and the maximum amount of compensation possible because they are overwhelmingly concerned about what will happen to their child after they pass away. We need a huge amount of support and assistance and this scheme simply does not offer that in any meaningful way, nor is it in a way to us which appears independent. This is a vital factor for us. There must not be a conflict of interest in the parties involved in our daughter’s case.“

The consultation response was published by the DoH in November 2017 with a full response available here.

The Early Notification Scheme

No financial redress scheme for families has, as yet, been set up. Similarly, there has been no update from the DoH or NHS Resolution as regards plans for this.

However (at the same time as this redress scheme consultation taking place) on 1 April 2017 NHS Resolution launched “The Early Notification Scheme” (ENS). This required reporting within 30 days from all NHS Trusts of all maternity incidents where babies born at term (≥37 weeks gestation), following a labour, had a potential severe brain injury diagnosed within the first seven days of life. These babies were categorised as those who:

- were diagnosed with grade II hypoxic ischaemic encephalopathy (HIE); or
- were therapeutically cooled (active cooling only); or
- had decreased central tone AND were comatose AND had seizures of any kind.

The notification form can be found here.

The plan was that, with early notification, NHS Resolution could begin their own investigations at a much earlier stage.

NHS Resolution stated that: “…trusts are encouraged to be open about incidents, be candid with families and maximise opportunities to learn from them.” They went on to say: “The added benefit of seeking 100% notification is the potential to build a robust database, which would provide valuable insight on what drives these incidents. We aim to analyse the data to facilitate learning and interventions.”

The ENS was not however designed to specifically setup a method by which to financially compensate families early; this is far from the Rapid Redress Scheme’s aim.

NHS Resolution note in their review of the scheme in September 2019 that, as well as written apologies, some families were offered “financial support” and “practical advice” on how to access support in caring for their child – but how this was done is very unclear and is not set out in any detailed policy document.

It is presumed in such cases the family instructed their own medical negligence solicitors to enter judgment and quantify the claim as per the current standard practice. However no information is actually published or known about how NHS Resolution advised families to quantify the claim, if at all.

NHS Resolution review of the scheme

The review summary states that:

“A key ambition of the scheme has been to shorten the time taken to report an incident from years to days, to enable learning to be identified quickly and support to be provided to families when they need it most.”

The report identifies that some 24 families have been provided with a detailed explanation, an apology (an admission of liability), signposting to independent representation and, where the need for compensation has been identified, prompt financial support as well as psychological support. This occurred within 18 months of having the matter reported; better than a number of years, granted, but hardly a speedy response – particularly as the report states in many instances no formal reporting by experts is required and a conference with lawyers has sufficed.

What is not available?

  • the actual stand alone policy document as to how this scheme works in practice;
  • how the notification is investigated and decided upon;
  • how NHS legal panel firms are involved in terms of their appointment to investigate liability;
  • how experts are instructed; and
  • how families are updated and further advised.

Whether or not adjudications on notified cases are fairly, independently and appropriately decided upon is far from clear– the key requirement our client identified when she responded to the consultation on the Rapid Resolution Scheme.

Some of this information is provided at pages 13-15 of the September 2019 review document. It states;

“For the first time, cases are analysed by both legal and clinical experts at NHS Resolution, bridging the claims and safety and learning functions of the organisation. The EN team incorporates legal case managers working alongside a clinical panel of senior maternity advisors and obstetric and midwifery clinical fellows under the Safety and Learning directorate.”

It continues: “Cases are processed based on the liability risk assessment provided by the Trust at the point of notification.” Therefore NHS Resolution are basing this all upon accurate and open reporting of cases from trusts.

Whether or not that is happening remains unclear.

If a trust notifies NHS Resolution that there is a “likely” case of substandard care then NHS Resolution will be instructed to begin a liability investigation immediately; this constitutes only 9% of reported cases. All other cases are internally triaged by legal case managers and clinical advisors to determine the risk of liability. If it is considered that there is a likely case after internal review then the matter is referred out to a panel solicitor; 45% of cases marked as “unlikely” by trusts were escalated to “likely” cases by NHS Resolution.

But who are these clinical advisors? Are they truly independent? It is only once the matter is with the panel solicitors that they then commission independent expert opinion. Again the question is asked – who are these experts and what is their degree of independence?

It is concerning that, if the internal NHS Resolution team think a case “unlikely”, the matter is simply referred back to the trust for learning points. What information is given to the family about their right to have the case independently assessed by solicitors they instruct to investigate the claim? What exact information is given to families about how these conclusions have been reached?

Although NHS Resolution states that in cases where they conclude the care was reasonable they will signpost families to the charity Action Against Medical Accidents (AvMA). AvMA however confirm that only a handful of families have approached them and that there are some families within the scheme, who have approached AvMA, but were not signposted to them by NHS Resolution. Signposting to independent advice is therefore far from clear or transparent.

NHS Resolution noted that of the 197 cases referred to panel solicitors to investigate 24 families were provided with an admission of liability, which seems a very low figure. They comment: “Mediation is also an option”, but it is not explained what the purpose of any such mediation is?

It is also not clear as to whether, or how, families are actually advised to seek independent legal advice following an admission so that quantum can be independently assessed. The report is silent as to whether there is a proactive approach to advising families to then seek independent legal advice or to seek advice from AvMA, and as to how families are advised how to seek specialist clinical negligence legal advice.

As part of this scheme there was an aim to actively inform and involve families affected by a poor birth outcome. The data under this review report notes that only 77% of trusts (who notified NHS R under the scheme) actually advised families that an incident had occurred and in only 30% of cases were the family invited to be actively involved in the investigation. These are not encouraging figures to support the statutory requirements for Duty of Candour.

A further oddity is that there is a second scheme in place run by the Healthcare Safety Investigation Branch (HSIB) which can and does run concurrently with the early notification scheme. This was set up following the Secretary of State for Health announcing a new maternity safety strategy in 2017. The programme started in 2018 and investigates intrapartum stillbirths, neonatal deaths, maternal deaths and cooled babies or those diagnosed with brain injuries; the latter on this list clearly overlaps with investigation criteria under the ENS.

It would be quite confusing for parents to be notified that there will be an HSIB investigation and report prepared and then also notified of an investigation by the ENS; surely this amounts to a duplication of time and NHS resource and could intensify parental upset by repeating their experience with two different bodies? Completed HSIB reports are shared with Trusts and families but are not published openly and therefore their findings remain closed and confidential.

This is not to criticise the aims and work of the HSIB, which is pulling out themes for learning and sharing this generally with Trusts, but where is there public transparency as to their work?

The bigger picture

If the NHS’s primary goal is to reduce incidents of fetal harm then what are they actively doing to enable this? Reporting back and collating information on incidents of harm is of course to be commended, but who reads this information? There is a high turnover of junior staff and midwifery staff, particularly in large teaching hospitals; are they required to review this collated information regularly? I doubt it. In any event this is reporting information and is not the much-needed hands-on update training on the accurate interpretation of CTG traces and/or training on management of obstetric complications during labour.

NHS Resolution set up the Maternity incentive scheme in 2017 whereby trusts would receive a financial incentive if they met 10 safety actions; those who did not meet all 10 requirements would not recover their contribution to the CNST maternity incentive fund, but may be eligible for a small discretionary payment to help make progress against action points not achieved. A full list of the requirements can be found here.

Safety action point 8 requires that 90% of each maternity unit staff group have attended an ‘in-house’ multi-professional maternity emergencies training session in the last training year. This is an excellent requirement and the statistics as to those who have not would be interesting to review. But who is required to fund this training? - likely the trusts themselves. With limited budgets this isn’t always feasible and therefore if the NHS wishes to ensure the best possible patient safety then staff training should be of paramount importance and centrally funded to ensure high quality training is available to all staff.

Safety action point 10 requires 100% compliance in reporting to the ENS scheme – which is an excellent incentive to ensure proper reporting of serious incidents of harm to babies during birth.

Of concern however is a recent report that the Shrewsbury and Telford NHS Trust was paid £953,391 in 2019 as it has certified it met all the requirements under the Maternity Incentive Scheme, when within weeks in November 2019 the Trust’s maternity unit was rated “inadequate” by inspectors at the Care Quality Commission. This Trust has been subject to the largest inquiry into maternity care failures in the history of the NHS, focused on avoidable deaths of both mothers and babies.

In addition East Kent Hospitals NHS Trust also certified that it had met the standards under the scheme and was paid £1,475,313 in 2018. This is despite the fact that in early 2020 the BBC revealed that there had been 7 preventable baby deaths since 2016 and the CQC had rated the maternity unit as inadequate.

This must bring into serious question the ability of NHS Resolution to verify and give credence to the criteria of their own scheme.

So what does this all mean?

The key summary comments from this first review of the operation of the ENE scheme are:

- Put simply, this is not an independent process. It is internally reviewed by the Defendant (NHS Resolution) themselves and not an external body – how is that right?

- Where cases do not result in an admission of liability, are families clearly advised that they still have the right to seek a second opinion through their own legal advisers, and how are they sign-posted to find that specialist legal advice?

- Where cases are rejected, do families receive a copy of the medical opinion on which the rejection was based or will this be disclosable as part of a subsequent legal claim brought by the family?

- This scheme is very far from the initial Rapid Resolution Scheme which was mooted in April 2017 – what is happening in respect of those plans?

- The fact is, for some families an early admission of liability (without the need for stressful liability litigation) will be welcome and very beneficial in terms of procuring financial compensation to assist in caring for a disabled child.

- However for those cases rejected under the scheme, which then go on to be successfully litigated, this only goes to add up to 18 months onto the process. It is not clear exactly what information will be provided to them by the NHS Resolution by way of disclosure in any subsequent legal claim, but this should be made available to the families and not be considered legally privileged.

- This scheme is clearly productive in terms of pooling together clinical information as to the causes of poor outcomes for some babies at birth and hopefully, in conjunction with patient safety programmes, will lead to a reduction in injuries caused to babies due to avoidable clinical errors. However, that very much depends upon the action, and in particular the adequately funded training opportunities, which result from this important patient safety data.

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