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, HSIB’s work was divided between two organisations. The Health Services Safety Investigations Body (HSSIB) took on the former national investigation function, while the maternity investigation programme became the Maternity and Newborn Safety Investigations (MNSI) programme, hosted by the Care Quality Commission (CQC)
MATERNITY AND NEWBORN SAFETY INVESTIGATIONS program (MNSI)
MNSI is hosted by the Care Quality Commission (CQC), but carries out its maternity safety investigations independently. Its purpose is to investigate serious maternity and newborn safety events, identify contributing factors and share learning to help prevent future harm.
All NHS trusts which provide maternity care are required to report maternity safety incidents to MNSI. The way NHS Trusts notify serious perinatal events has also changed. The Submit a Perinatal Event Notification (SPEN) portal was introduced during 2025 to provide a single reporting route for qualifying events across MNSI, NHS Resolution’s Early Notification Scheme and other national programmes. This is an administrative change for NHS Trusts and does not alter a family’s right to seek independent legal advice.
MNSI investigates certain serious maternity and newborn safety events in England. For babies, this includes term babies (at least 37 completed weeks) born following labour where there has been an intrapartum stillbirth, an early neonatal death, or a potential severe brain injury.
The potential severe brain injury criteria include babies who have been therapeutically cooled, or who have been diagnosed with moderate to severe encephalopathy together with specified neurological signs. MNSI’s full criteria are available on its website and can change, so it is sensible to check the current criteria rather than relying on older descriptions.
Babies who 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 takes place to review the evidence.
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. Once the MNSI investigation is complete, the Trust shares the final MNSI report with NHS Resolution. NHS Resolution then reviews the available information, including the MRI findings, to determine whether the case meets the criteria for investigation under the Early Notification Scheme.
(source NHS Resolution website = MNSI.org.uk))
If your baby is not referred to MNSI, this does not mean that there has been no negligence. MNSI has specific criteria for the safety investigations it undertakes. A clinical negligence claim is a separate legal process and can be pursued independently
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. NHS Resolution uses specialist legal and clinical expertise to investigate potential clinical negligence and determine whether compensation is appropriate.
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.
The legal and clinical teams investigate whether the legal test for clinical negligence is met and, where appropriate, whether compensation should be offered.
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.
Documents created as part of the legal investigation, such as expert reports obtained for the purpose of giving legal advice, may be protected by legal privilege. This is different from the MNSI safety investigation report.
(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. In our, and other parent’s experience, 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
Legal Aid can provide government-funded legal representation for people who meet the eligibility requirements. Clinical negligence is within the scope of civil legal aid in certain circumstances, including some cases involving neurological injury occurring within the first eight weeks of life.
Whether you qualify depends on both the circumstances and merits of your case and your financial circumstances. Your solicitor can advise you about eligibility and make the application on your behalf.
This is a good option for clients that are eligible although it can take some time to secure funding. However other types of funding may best suit your circumstances. Legal Aid is relatively simple from a consumer point of view in our experience.
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)
A Conditional Fee Agreement (CFA), often known as a “No Win No Fee” agreement, is a way of funding a legal claim where the solicitor’s fees depend on the outcome of the case. The precise terms vary between firms and should be explained to you before you agree to them.
An After the Event (ATE) insurance policy may also be taken out to help protect you against certain costs if the claim is unsuccessful. What the policy covers will depend on its terms.
Your solicitor should explain all of the financial risks and funding arrangements before you proceed.
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 policy 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. The Deputy must act within the authority given by the Court of Protection order. Some decisions or transactions may require further permission from the Court, particularly where they are outside the authority already granted.
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, acts 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 someone appointed by the Court to manage the affairs of a person who lacks capacity to make certain decisions themselves. Professional Deputies may be solicitors or other suitably qualified professionals with specialist knowledge of Court of Protection work.
Deputies can be appointed to manage property and financial affairs and, in some circumstances, health and welfare decisions. These are separate areas of authority and the Deputy’s powers depend on the Court order.
In birth injury cases involving substantial compensation awards, a professional Deputy may be appointed to manage the child’s financial affairs. A family member can also be appointed where the Court considers this appropriate.
Professional Deputies may have paralegals or other staff assisting them. Using appropriate staff for routine work can help keep costs proportionate.
More about Deputies in the Interim Section
Case Managers
Case management is not currently a profession regulated by law, and “Case Manager” is not a protected title. However, the Institute of Registered Case Managers (IRCM) has now established a Register of Case Managers to improve standards and public protection.
IRCM maintains a public register of case managers who have met its registration requirements and agreed to practise in accordance with its Standards of Proficiency.
For parents choosing a Case Manager, checking whether they are registered with IRCM can provide an additional level of reassurance. However, registration does not replace the need to consider the individual’s experience, qualifications, specialist knowledge and whether they are a good fit for your child.
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 claims can be dealt with in the County Court or the High Court, depending on factors such as the value and complexity of the claim. The High Court’s King’s Bench Division deals with many of the larger and more complex clinical negligence cases.
If a case goes to trial, both sides will present evidence to the Court. This can include witness statements, medical records and expert evidence. The parties will normally have to disclose relevant evidence to each other as part of the litigation process.
Your child’s barrister will present the case on their behalf. You may also be required to give evidence, and the Defendant’s legal team may ask you questions. Healthcare professionals and expert witnesses may also give evidence.
Once the evidence and legal arguments have been heard, the Judge will consider the case and give judgement. The timing of judgement varies from case to case.
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 heard before a jury. In cases involving children, the Court will often consider anonymity and reporting restrictions, but these are matters for the Court to determine. It’s something I’d certainly request.
It is very rare for these cases to go to court because of the huge expense, the risk of losing makes it undesirable. 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.
Many cases settle before a full trial. Where a settlement is reached on behalf of a child, the proposed settlement must be approved by the Court. The Judge considers the settlement and the evidence before deciding whether it is in the child’s best interests to approve it.
Sources: NHS Resolution, MNSI / CQC. HSSIB, GOV.UK, Court of Protection, OPG, AvMA, IRCM, Judiciary UK (High Court))
Reviewed September 2026
