Child brain injury cases are some of the most complex, sensitive and contentious we deal with in the clinical negligence team at JMW. In over 20 years of handling such cases almost all I have dealt with have been hard-fought by the NHS, even where there is very strong medical evidence that mistakes were made resulting in brain damage. This results in the child and their family going without any financial help for several years whilst the case is fought. These cases often involve very young children where early intervention with therapies and provision of appropriate equipment can really help to improve their lifelong outlook, so delays in dealing with these cases can have a big impact.

However I recently received a full admission of liability from a hospital trust in a cerebral palsy case which I took on only last year. The admission came via the NHS Resolution Early Notification Scheme which is designed to improve maternity care and reduce the costs of dealing with claims arising from poor care during labour. The scheme involves trusts taking it upon themselves at a very early stage to:

• Undertake their own detailed investigation where there are certain problems with a baby’s birth
• Provide parents with detailed and candid answers about the care received
• Provide opportunities for learning from mistakes as well as recommending any changes of policy or procedure.

In the case I have mentioned, this was an extremely welcome development, especially to the parents of the child in question. In my experience receipt of a full admission following the Early Notification Scheme is unprecedented in terms of the cerebral palsy cases JMW has investigated.

The admission letter was unusual in that it provided significant detail about the investigations undertaken and the various changes to midwifery practice at the trust as a result of the investigation. It is also a letter unusual in the degree of sensitivity of its composition.

The child is under two years old so the legal case will need to be placed “on hold” until she is older and it is possible for doctors to assess her long-term outcome. However importantly, this early admission means that an interim compensation payment can be made to enable her parents to buy any specialist equipment that she might need as well as paying for therapy and any specialist care that she might need until the case can be settled.

If more cerebral palsy cases were dealt with via the Early Notification Scheme then cases potentially could be concluded far more quickly saving vast amounts of money in legal fees for the NHS and, more importantly, ensuring that children receive the care they require to ensure they have the best possible outlook and quality of life. Unfortunately, it appears that the Scheme is not being used as intended and in one case being dealt with currently by JMW, the family was told that the matter would be investigated under the Scheme but the Trust later reneged on this agreement, causing much distress and frustration for the family concerned.

NHS Resolution’s own website states:

“Seeking notification of incidents means not only that we can proactively investigate liability, but also that trusts are encouraged to be open about incidents, be candid with families and maximise opportunities to learn from them. Our ambition is that this will help to break down any perception of defensiveness on the part of the NHS and ultimately that litigation should not be seen as a barrier to safety.

By investigating these incidents early, we are able to identify those in which, sadly, babies have suffered injury as a result of care that does not meet the expected standard. In appropriate cases we have been able to provide families with a written apology, offer financial support and practical advice on how to access support in caring for their child and provide support for the staff involved.”

The apparent reluctance to refer cases to the Early Notification Scheme does however rather undermine this statement and it would appear to the team at JMW that the NHS is still far too defensive. It raises the question of whether the scheme is fit for purpose when it does not seem to be being used appropriately.

My hope is that the action taken on this recent case of mine is a sign of things to come and that we will see more cases dealt with in this way. Until it does we will continue to fight as strenuously as ever for the children we represent to achieve life-changing compensation awards for them.