Agencies that may be Involved in your NHS Claim
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Health Services Safety Investigation Body (HSSIB)
Maternity and Newborn Safety Investigations program (MNSI)
NHS Resolution (NHSR)
NHSR Early Notification Scheme (ENS)
Specialist Birth Injury Solicitors
Legal Aid Agency (LAA)
Conditional Fee Arrangement (CFA) (no win no fee) and After the Event Insurance (ATE)
Alternative Insurance
Court of Protection (COP)
Office of the Public Guardian (OPG)
Professional Deputy
Case Managers
High Court
In 2017 the Government set up the Health Safety Investigation Branch (HSIB) to investigate (amongst other things) adverse birth outcomes for newborns, as one of its main areas of investigation. If your child needed SCBU or resuscitation, ventilating or cooling or was born in poor condition, the birth hospital Trust would refer rapidly to the HSIB. As of October 2023 this criteria has changed. However you may hear references to the old HSIB scheme.
The Health Services Safety Investigations Body
(HSSIB)
In October 2023 the Health Safety Investigation Branch was split into two branches. The HSSIB came into being as part of the Health and Care Act 2022 and has enhanced statutory powers. HSIB’s former maternity investigation program has become:
MATERNITY AND NEWBORN SAFETY INVESTIGATIONS program (MNSI)
Some cases will have been started under the old HSIB scheme, but this has now changed as outlined and I have therefore updated following the changes made in October 2023. This changeover has been subject to multiple delays and new regulations and regulatory bodies so it has taken some time to clarify using NHS websites.
Unlike HSSIB, MNSI does not have statutory independent status but is now hosted by England’s health and social care regulator, the Care Quality Commission (CQC), which is sponsored by the Department of Health and Social Care (DHSC) and works closely with the NHS.
All NHS trusts which provide maternity care are required to report maternity safety incidents to MNSI if they involve babies who have the following clinical definition:
“Babies who have an abnormal MRI scan where there is evidence of changes in relation to intrapartum hypoxic ischaemic encephalopathy (HIE)”.
Indicators of HIE such as reduced level of consciousness, seizures, abnormal reflexes and being cooled are taken into account but not criteria as such if the MRI shows no brain injury. More information here on the MNSI website
NHS Resolution changed the former criteria as they were getting too many referrals that actually had no adverse outcome for the baby, so there will be a clear reduction in the number of referrals.
Babies whose MRI findings fall outside of the clinical definition of a brain injury could still be accepted by the EN Scheme. For these babies, a multidisciplinary clinical review will take place to understand the extent of the MRI changes. If necessary, further information may be sought from the trust to help decide whether an investigation into compensation entitlement should proceed.
These various bodies have changed and evolved since their inception in 2017, with the ENS aiming to investigate claims soon after birth, to bring claims to closure in approximately 2 years, to reduce legal fees, to ensure payment of compensation far earlier, to support families and staff and to learn and implement safety changes. The timescales however are very variable.
Trusts must self refer if a baby has a diagnosed HIE. Parents are notified an investigation would be undertaken and they must give their consent. When the MNSI has completed its investigations it reports to NHS Resolution (the NHS’s legal arm), who will give it to their ENS team.
(source NHS Resolution website)
If your baby is not automatically referred it simply means they do not fit the criteria listed below. It does NOT mean there hasn’t been negligence. If you have concerns see a birth injury solicitor or ask for a review.
A diagram showing MNSI and ENS process.
Copyright protected.
NHS Resolution (NHSR)
NHS Resolution (NHSR) is an arm’s length body of the Department of Health and Social Care. It operates in a similar way to an insurer by providing protection for clinical negligence to NHS hospitals. NHSR work to ensure that patients who are eligible to receive financial compensation do so as quickly as possible. They use a chosen group of solicitors to investigate claims on their behalf with the aim of providing a neutral investigation and outcome. Their work is very wide ranging but includes birth injury claims.
NHSR Early Notification Scheme (ENS)
Once they receive the Maternity and Newborn Safety Investigations report, NHS Resolution will undertake a clinical triage to confirm whether the clinical criteria for an investigation under the Early Notification Scheme are met.
They will instruct specialist medical lawyers to start early investigation into the potential for a compensation payment on of behalf of the NHS trust. They will work alongside trust legal and clinical teams to review relevant evidence. If needed, they will instruct expert witnesses to give their views on the standard of care provided by the organisation and apply the appropriate legal tests to determine potential eligibility for compensation. This may require a conference with counsel to take place to consider the issues.
Once the investigations have concluded, they work with trusts to inform the family of the outcome and any next steps. This will likely include an apology (if one hasn’t already been made), signposting the family to legal support and advice and, where appropriate, making any legal admissions and offers of compensation.
Please note that investigation notes and documents will be confidential and covered by legal privilege.
(source NHS Resolution website)
Even though you are going through either the MNSI and/or ENS process you can seek independent information, advice and assistance and legal representation at any stage if you want to. If NHSR find there has been negligence and the negligence caused injury they will look at compensation. It is strongly advised to discuss any offers of compensation with an independent birth injury solicitor of your choice. If they find there has been no negligence, you should be advised you can seek alternative legal advice. Currently they advise contacting Action against Medical Accidents website: https://www.avma.org.uk/ for more information on the process, or click on the links below.
An ENS investigation should be far quicker than a traditional Legal Negligence claim via a specialist solicitor.
Birth Negligence Specialist Solicitors
These are legal firms with a specialism in avoidable birth injuries. They will guide you through the process of a case. These cases can take many years to reach a conclusion so it is advisable to emotionally distance yourself through much of it. Expert reports can take a year just to complete, and the Defendants (hospital Trust) will ask for frequent delays. The average is 7-11 years, so starting as soon as you think something may be wrong is advisable. They will speak to you for free if you think you may have a case, and discuss with you the avenues to take. You are not pressurised to use them so it is a good idea to get some more information and to look at several firms.
Legal Aid Agency
You will not pay anything for your legal fees if you’ve received legal aid to help fund a claim for compensation and your case is unsuccessful.
Legal aid is funding for legal claims, which is provided by the government through the Legal Aid Agency. This is the best option for clients that are eligible and though it can take some time to secure funding, usually the financial benefit of Legal Aid outweighs the downside of any delay.
There are claim forms that need to be filled in declaring your income, savings etc. The solicitor will help you fill these in so it is important to choose a solicitor who is licensed to apply for Legal Aid. Currently savings are capped at £8,000
Legal Aid is granted in tranches when applied for at each stage of the case. The merits test (for civil legal aid) assess the merits of the case, including the likelihood of success, the reasonableness of costs and the benefit to the client. It can be withdrawn if the chances of success fall significantly.
(Source Gov.UK Legal Aid)
Conditional Fee Arrangement (CFA) and After the Event Insurance (ATE)
CFA involves a fee which varies according to each legal firm and will be explained to you by the solicitor. When funding your case through a No Win No Fee agreement, an insurance policy known as After the Event Insurance (ATE) is taken out by the solicitor on your behalf to cover any additional costs, such as court fees, alongside covering the legal costs if your claim isn’t successful. ATE and the CFA take out the financial risk of making a claim meaning you wouldn’t have to pay anything unless you had acted dishonestly, in which case the court may decide to penalise you. I would advise taking Legal Aid first as, if the case fails, you can then ask a CFA solicitor to take the case on.
(Source House of Commons Library)
Before the Event Insurance
You may consider claiming for compensation using Before the Event Insurance. You may not have to pay any legal fees or expenses as part of your claim for compensation if you claim using it, but discuss this with the insurer in case there is an excess. This may already come with your home insurance, so it is worth checking to see if you’re covered as a policyholder. There may be limitations however to the policity in terms of the maximum amount covered. The Provider will be able to clarify this.
Court of Protection (COP)
The Mental Capacity Act 2005 permits the Court of Protection to make an order about any matter where they believe a person lacks the capacity to decide important things for themselves. The court is a legal body which should ensure the money awarded to the injured person is used appropriately. A Deputy has to have costs approved by COP, especially for larger purchases such as accommodation.
The Court often makes a single order appointing someone to act as a Deputy for the incapacitated person, and it will be involved from the very start of that process. This type of order often allows the Deputy to make decisions without having to return to the Court on each occasion.
The application for the appointment of a Deputy is submitted to the Court for consideration. If the Court is happy with the contents of the application and the person being suggested to take on the role of Deputy, it will issue an Order appointing them to help manage the child’s affairs in their best interests.
The order sets out the scope of the Deputy’s authority. This is often quite wide, but it may grant their authority to buy a property on the child’s behalf.
(Source Gov.UK Court of Protection)
For more information click on the link below
Office of the Public Guardian
The Office of the Public Guardian (OPG) supervises Deputies appointed by the Court to ensure they carry out their legal duties properly. It also investigates any reports of abuse of power by Deputies and, where necessary, act against them.
The Court requires most Deputies to obtain a ‘surety bond’, or a ‘security bond’, which acts as a form of insurance protecting the assets of the person whose affairs and property the Deputy is managing.
The OPG has a scheme for surety bonds that endorses a particular bond provider. The OPG will monitor the bond provider’s quality of service, ensuring cost-effectiveness and reliability.
Once appointed, the Deputy must submit annual accounts to the OPG and explain any decisions made for the child during the previous 12 months.
The OPG has specific teams to support professional Deputies and lay Deputies in their roles. Professional deputies also receive a regular assurance visit from an OPG visitor to ensure they perform their legal duties properly.
(Source Gov.UK Office of the Public Guardian)
For more information click on the link below
Professional Deputy
A professional Court of Protection deputy is a solicitor with additional qualifications and knowledge of the MCA (Mental Capacity Act) and COP, who is instructed to manage the affairs of someone who lacks the mental capacity to make some or all decisions themselves. Deputies can have control of a person’s finances and property, and their health and welfare. They are two distinct areas. It is unusual for a Deputy to be appointed for Health and Welfare in the case of a child injured by negligence, as parents will usually advocate for their child in this area, even after the age 18. However a Deputy will continue to manage finances if appointed. In the case of birth injured children it is usual to appoint a Deputy for sums of money over a certain threshold. Professional Deputies also have paralegals working with them. They are at a lower pay rate and should be the first point of contact to prevent high bills to the child’s funds.
More about Deputies in the Interim Section
Case Managers
At present there is no formal educational route allowing practitioners to become a qualified case manager. There is also no accreditation process which means that effectively anyone can call themselves a case manager and set themselves up in practice. It should also be recognised that there is no legal requirement for a case manager. However, during Interim when the claim is being quantified, it is very useful to have a case manager to signpost where funds need to be allocated and to prove the necessity for a case manager, should one be needed in the future.
However, Case management organisations such as CMSUK and BABICM have been working together for a number of years and things are now moving forward with the formation of the Institute of Registered Case Managers (IRCM)
It is generally recognised amongst those instructing case managers that it is a requirement for the case manager to have some formal qualification as a healthcare practitioner, such as an occupational therapist or nurse, and that they need to be registered with their own professional body.
The role of the case manager is to liaise with, and instruct, a wide range of professionals and disciplines. Most importantly the case manager will need to be able to coordinate these services, monitor them, and make sure they are being effective. That may mean arranging and directing a wide range of therapies in a multidisciplinary rehabilitation team. They will also liaise with architects and builders on adaptation works, and supervising and managing a team of carers, amongst many other things. Alongside this, the case manager needs to be proactive in managing and coordinating all these services.
(Source CMSUK & BABICM)
More about Case Managers in the Interim Section
High Court
Birth injury cases are heard in the High Court if (on the rare occasion) they go to court. Both parties must show their evidence to the other side (Disclosure). Witness evidence is disclosed pre trial on both sides. Expert witness reports are shared at the same time to prevent any alteration of the reports.
In the courtroom, the barrister representing your child will present the claim to the judge on their behalf. You then give evidence. The barrister guides you through giving your evidence and then the Defendant’s barrister may ask questions. The health care professionals who dealt with the birth will give evidence and then the expert witnesses give evidence. Once all the evidence has been presented to the judge they will adjourn. They will take 2-8 weeks generally to give their judgement.
These cases are not held before a jury and the press cannot report on the case unless you decide that is what you want. Your child (and therefore you) have anonymity.
It is very rare for these cases to go to court because of the huge expense, the all or nothing outcome and the risk the loser will be made to pay the costs of the other side. Most cases are decided before this point is reached, although it is quite common for a court date to be requested by your legal team as a way of encouraging the other side to reach a settlement.
It is normal however, for these cases to be rubber stamped by the High Court once they have concluded in an informal setting, such as a JSM
(Source Judiciary UK (High Court))
