NHS Resolution’s early notification scheme: where are we one year on?

Kennedys recently had the pleasure of being joined by two leading experts on the early notification scheme (ENS), introduced by NHS Resolution on 1 April 2017.

Guest speakers Kamal Bedi, ENS Team Leader and Rebecca Wilson-Crellin, Senior Maternity Clinical Advisor, spoke eloquently about the early findings of the scheme.

The ENS requires NHS Trusts to report to NHS Resolution within 30 days all maternity incidents for babies born at term, following labour, with a severe brain injury diagnosed in the first seven days of life. These are babies who have had one or more of the following:

• A diagnosis of Grade III hypoxic ischaemic encephalopathy
• Therapeutic cooling
• Decreased central tone and comatose, with seizures.

The aim of the scheme is to enable early investigation of incidents, with a view to:

• Providing support for staff involved in incidents, including peer support for those affected by traumatic circumstances and practical help with delivering candour.
• Offering answers, information and (where appropriate) an apology to families.
• Enabling learning in the NHS locally, regionally and nationally, by using anonymised data and real (but anonymised) examples of good and substandard practice.
• Providing a fair but quicker, less expensive alternative to litigation for investigating and resolving cases where legal liability is likely; ensuring preservation of evidence, encouraging early admissions (where appropriate) and providing interim payments of damages.

The first 12 months

Our speakers confirmed that about 500 incidents have been notified to NHS Resolution, with Trusts forwarding preliminary assessments while continuing their own internal investigations. The ENS team (comprising four lawyers and four clinicians with obstetric and midwifery expertise) has reviewed each case, capturing information on:

• Clinical outcomes
• Root cause of the incident (such as system failure or human factors)
• How the Trust investigated the incident, including how it liaised with the family and whether independent peer review was undertaken
• Evidence of candour, in contacts with the family
• Whether there has been learning from the incident which has been shared; and
• Whether steps have been taken to prevent a recurrence.

In around 100 cases, the team has identified likely substandard care and instructed lawyers from NHS Resolution’s Panel to investigate further, by taking witness statements from staff and instructing independent medical experts to advise on breach of duty and causation. Where the experts advised care fell below a reasonable standard, a full explanation and apology were given to the family, and in six cases, admissions were made relating to substandard care. In some of these, interim payments have been provided to help meet the needs of children with significant disabilities and families have been signposted to the Law Society or Action against Medical Accident, so they can obtain independent legal advice on pursuing a claim.

Preliminary findings

• Although all Trusts are required to report all relevant incidents to help advance the aims of ENS, some Trusts have not notified any incidents to date.
• The ENS Team has already identified significant or recurring issues indicating a need for learning. These include the need to provide appropriate information to mothers during labour (to enable informed consent if a caesarean section is advised) and loss of contact during foetal monitoring while an epidural is being sited (resulting in vital information on foetal wellbeing being temporarily unavailable).
• There are clear advantages to early investigation of cases where legal liability is likely. If medical experts advise care was substandard and resulted in harm, early admissions of liability and apologies are made which should avoid protracted, contentious and potentially costly legal investigations several years after the event when relevant evidence may no longer be available.
• Anonymised data on incidents is being captured, which will be useful in improving clinical practice and avoiding claims.
• The ENS team is keen to share learning and is actively considering how best to feed back its findings to Trusts – for example by providing anonymised case studies to assist with staff training.

What next?

ENS is a continuing project and Trusts are encouraged to keep reporting all relevant incidents. However, there is overlap with the reporting required under the Royal College of Obstetricians and Gynaecologists (RCOG) “Each Baby Counts” programme. NHS Resolution is therefore working with the RCOG to develop an approach whereby Trusts do not need to submit the same information twice.

The ENS team will continue supporting Trusts to deliver a compassionate response to families involved in these incidents and a current project is to produce information leaflets for families, so they can understand their role in investigations and what ENS can do for them.

The team wants to start providing constructive feedback to individual Trusts on their incidents, to help them improve their practice and reduce harm. It is also seeking ways to improve maternity services by sharing its learning throughout the NHS via its faculty of learning.

Finally, where liability is identified, the team aims to achieve more early resolutions of claims, thus avoiding litigation where possible and controlling costs.

Read other items in the Healthcare Brief - May 2018