One Year On – A Review Of The NHS Resolution’s Early Notification Scheme

In September, The Law Society Gazette published an article on the outcome of the progress report from the NHS Resolution which states that they have begun to make more early admissions of legal liability where there has been substandard care.

It is quoted that they did so in 24 cases of severe brain injuries sustained in 2017/18.

NHS Resolution progress report

These figures are derived from the first progress report which reflects upon the Trusts early notification scheme which was introduced in April 2017. This requires all term maternity incidents leading to a severe brain injury to be reported by the Trust within 30 days.

To put the report into context, previously average lapses in time between an incident occurring and an award for compensation was 11.5 years. Whereas, under the new early notification scheme, the 24 referred to admissions were made between 3 months to 2 years from the incident date.

One explanation provided for this is that, prior to the scheme, it was often the case that the NHS Resolution would have been unaware of the incident until a request for disclosure was made by the solicitor representing the child.

The early notification scheme is no doubt a welcome development for injured children, their families and the solicitors representing those parties, as it aims to provide answers sooner without the daunting prospect of litigation, as well as provide financial support for care and respite.

It is important however, to consider these 24 early admissions against the greater backdrop of:

1. The size of the NHS as an organisation; and
2. The number of term births between 2017/2018 (639,984).

Between inception of the scheme and 31 March 2018, 808 incidents occurred which were seen to meet the scheme’s criteria. However, 62 were latterly excluded as the reporting was over zealous due to a maternity incentive scheme and some did not actually meet the inclusion criteria.

In the first year of the early notification scheme panel firms were instructed to complete investigations in just 197 of the cases reported. Only cases assessed as being at a ‘likely’ risk of involving substandard care were referred to panel solicitors, the remaining cases were investigated internally or closed. It is from these 197 cases that there have been the early admissions of liability for the 24 families.

Therefore, despite the welcomed improvements in the headlines, statistically it would appear improvements in the early notification scheme are still needed when you consider only around 12% of the externally investigated cases result in an early admission. The Resolutions’ report has reflected on this and acknowledged that the Trusts have been under-reporting incidents to panel solicitors which were deemed to be ‘unlikely’ to involve substandard care following their own risk assessment. The review concluded that more training was needed for Trusts on recognising that risk assessments required the reasonable, Bolam standard applying (the test which ascertains whether a medical professional has breached their duty of care), rather than the ‘best practice’ clinical approach.

Another continued area for development identified was the sharing of information and data, and the report recognised that some Trusts were hesitant in disclosing personal patient data to the NHS Resolution Authority because of uncertainty in this area. It is compounded in the report that despite the delicate situation, it is important that families are made aware of the NHS Resolution’s involvement, what data is being shared and what investigations are being completed.

If these improvements can continue and the process can become more transparent, then answers can be provided sooner for families at a very difficult time and effective, much-needed support made accessible.