Blog
Enhancing Public Accountability: Key Elements of the Public Office (Accountability) Bill 2025
Kirsty Cook
The Early Notification Scheme (ENS) is run by NHS Resolution, the organisation which deals with legal claims against the NHS. It was introduced in 2017 to provide a new approach to compensating those who have suffered an injury at birth due to negligence. Traditionally, where a child is injured at birth and the family wishes to pursue a claim they would instruct a solicitor and a legal claim would be started. Such claims can take a long time to resolve issues of liability and incur very large costs. Under the scheme, NHS Resolution is supposed to be informed when a baby suffers a brain injury during birth or shortly thereafter. An investigation is meant to follow swiftly and where it is found that there were shortcomings in care, there should be a clear and honest discussion with the family, an apology given and information disseminated to ensure lessons are learnt and improvements made. Where the legal test for negligence is met, this should be admitted and compensation paid to the injured child. NHS Resolution will instruct solicitors to investigate and advise them on how much a case is worth – i.e. how much compensation should be offered. These investigations are often triggered by NHS internal systems when a baby has been diagnosed with cerebral palsy, hypoxic-ischaemic encephalopathy (HIE) or has undergone therapeutic hypothermia (‘brain cooling’).
Earlier interim compensation payments
NHS Resolution has produced two progress reports on how the scheme is faring, the first report blog can be found here. The second of these, published last year, revealed an overall reduction to eighteen months from birth in the time taken to admit liability in cases that were part of the scheme. This compares to an average of almost seven years for legal cases not in the scheme. This is very positive for families and often means that an early interim payment of compensation is made, so that the injured child’s needs can be met while investigations continue, as to how large the full amount of compensation should be.
Ongoing concerns – why families still need independent legal advice
Once an admission of liability has finally been made, there is still a long and complex period of investigations needed to properly assess the level of compensation that a child will require. As a specialist in dealing with child birth injuries such as cerebral palsy, I know only too well how complicated these matters can be. It may be many years before the full extent of a child’s disability becomes apparent. Evidence is usually required from many experts to evaluate a child’s long-term needs. These include paediatric neurology, accommodation, physiotherapy, educational psychology and occupational therapy.
Unfortunately, the Association of Personal Injury Lawyers (APIL) has raised concerns that ‘there is no indication that families are being informed that they have a right to independent legal advice. The need to take advice from an independent and specialist solicitor cannot be emphasised enough, given the lifechanging tragedy caused where a baby suffers a brain injury.’
I would echo these concerns. Families should have their own legal representative to advise them about the level of settlement. Otherwise they are not on an equal playing field with the solicitors appointed by NHS Resolution. I have acted for clients where admissions have been made through the ENS and indeed am acting in such a case at the moment.
Importantly, where liability has not been admitted under the scheme, legal advice should nonetheless be sought to ascertain whether a legal claim can still be made.
Communication is vital
The Early Notification Scheme must ensure that families are made aware when their cases are being investigated. According to APIL, it has been reported that ‘families are either not told that an investigation is happening, or that they are not as involved as they should be’.
This is something that I have experienced with my own clients. Cost saving benefits can be undermined if families have instructed solicitors to investigate liability, unaware that the ENS is already involved. Although the ongoing need for transparency and communication is acknowledged by the ENS, from my own experience, I cannot stress this point strongly enough.
A larger evaluation of the EN scheme is to be conducted this year and I await the outcome with interest.
FURTHER INFORMATION
If you would like any further information or advice about the topic discussed in this blog, please contact our Medical Negligence and Personal Injury team.
Medical Negligence and Personal Injury Team
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
You may also be interested in:
Blog
HMRC Covid scheme amnesty: action by 31 December 2025
Waqar Shah
Blog
‘No win, no fee’ - are clients being hoodwinked?
Dale Gibbons
Share insightLinkedIn X Facebook Email to a friend Print