What is the Early Notification Scheme or ENS?

The Leigh Day medical negligence team are birth injury specialist. We have the experience and expertise to support you every step of the way through the process.

What is the NHS Resolution’s Early Notification Scheme or ENS?

The ENS scheme requires all Hospital NHS Trusts to notify the National Health Service Resolution (also known as NHSR) of maternity incidents when a baby suffers a brain injury at birth.

The objectives of the scheme are:

• A thorough and early investigation of relevant incidents, conducted in accordance with the duty of candour, with the aim to provide families answers as soon as possible after such serious harm occurs.
• A rapid sharing of learning from mistakes made, with a view to safety improvements and the prevention of the same incidents happening to another family.
• Early investigation of negligence and if a family should receive compensation.

In what circumstances does the ENS apply?

The NHS Trust responsible for the hospital where you gave birth should report your case if your baby was born at term and has been diagnosed with a potentially severe brain injury within their first seven days of life. Specifically, if your baby has signs of being deprived of oxygen, for example:

• A diagnosis of Grade 3 hypoxic ischaemic encephalopathy “HIE”; or
• They had therapeutic cooling (this is when the doctors try to lower the temperature of your baby for a few days to prevent a brain injury) after birth; or
• They were floppy or had seizures after birth.

Even though the purpose of ENS is to identify whether avoidable mistakes or negligence has caused harm, the investigation is carried out internally by the NHS. This is not the same as having external experts look independently at the care to determine if there is negligence and a clinical negligence claim.

How does the ENS work in practise?

Once notified, NHSR refer the case for a preliminary investigation to the Health Service Investigation Branch often referred to as “HSIB”.

HSIB produce a report and the NHSR then decides whether the clinical criteria for a full investigation are met. Namely,

• Is there any evidence that your baby has starved of oxygen during birth and has brain damage that could potentially result in compensation; and
• Are there any concerns about the standard of care and treatment provided to you and your baby; and
• If so, is there any query as to whether, with appropriate care, injury to your baby might have been avoided?

If the answer to the above is “yes” then the NHSR should write to you to confirm that their investigation will commence, and give you a timescale for when you are likely to receive the results.

As a parent how will I be involved in the ENS?

You might be asked to sign consent forms for the release of yours and your baby’s medical records but, otherwise, the NHSR team will work with the hospital directly.

If the investigation concludes that your baby’s injury was because of negligent medical care, you should be provided with a written apology, an offer of compensation and practical advice on how to access support in caring for your child.

What if the outcome does not identify negligent care?

We understand that this will be extremely disappointing for you, particularly as you will be dealing with the aftermath of a difficult birth and potential harm to your baby.

Unfortunately, our experience as lawyers acting for parents and families who have been part of ENS, is that families are often disappointed by the process and findings. 

In our view, an investigation that does not identify negligent care will not prevent a family from investigating and bringing a clinical negligence claim.

This is because the ENS investigation is not as thorough as the investigation undertaken in a clinical negligence claim.  In ENS, the family is not central to the investigation, statements are not obtained and the family's concerns are not heard. The range of medical experts involved in ENS are limited and evidence from a crucial expert may be missing.  We sometimes find that not all the facts and issues have not been sufficiently considered and explored before a conclusion is reached.

If you consider you have received an unsupportive report, we strongly advise that you contact our specialist team at Leigh Day who will give you independent advice on whether there are areas of investigation which might give rise to a clinical negligence claim.

What if I am offered financial support?

Leigh Day welcomes the early acceptance of negligence in birth injury cases but advocates the need for specialist legal advice for families of babies who suffer an injury at birth.

An offer of early compensation may seem appealing as it could meet your baby’s immediate needs, and provide a great source of relief and support if you are struggling financially and emotionally as a result of your ordeal.  However, the nature and extent of your child’s disabilities may not be apparent until late childhood. If you accept compensation without fully investigating the extent of your baby’s injuries you may not have enough money to meet their needs into adulthood.

We strongly advise that you speak to one of our specialist birth injury lawyers at Leigh Day before accepting any sum in the settlement of a claim. 

We at Leigh Day have achieved some of the highest settlements for families who have suffered devastating injuries as a result of failings in the management of pregnancy and labour. We work as a team of highly specialised experts to ascertain what your child’s care, therapy, education, housing, and equipment needs are and will carefully calculate how that translates into compensation so that those needs will be met for the rest of their lives.

If you think that you or your baby may have been injured during birth or if you have received an ENS letter notifying you that your case is part of the scheme, please contact postbox@leighday.co.uk.