As of March 2022, 439 birth incidents over the past five years were identified as having met the criteria.


The philosophy underpinning the EN scheme is based on early notification, facilitating early investigation with admission of liability where appropriate, followed by early support to the family including provision of financial compensation. Importantly, EN is designed to enable shared learning closer to the event as a driver of improvements in the safety of maternity care.

The report provides an overview of progress made since the 2019 report into the first year of the scheme and provides an update on the progress of its key recommendations. Further information on the latter can be found in our insight on the 2019 report.

Incident analysis

The report analyses 20 Early Notification (‘EN’) matters reported between 2017 and 2020, where liability was admitted in full.  These ‘pilot data are intended to inform the design of a more detailed future evaluation.’

  • 50% of infants in the cohort have either a diagnosis of cerebral palsy or evidence of the condition emerging.
  • 40% of infants sadly died within the first two years from injuries related to severe hypoxic brain injury.
  • 70% of babies were born by Category 1 caesarean section.
    • 14% involved impacted fetal head (‘IFH’). A need is identified for evidence-based guidelines on the management of IFH to prevent avoidable harm.
  • 90% of incidents involved problems with fetal heart rate (’FHR’) monitoring.
    • The most common findings were incorrect CTG interpretation, delays in escalation and delays in acting on the finding of an abnormal FHR as well as problems with risk recognition.
  • In 90% of cases families were involved in the investigation process.


A comparative analysis of the time taken from birth to admission in ten non-EN claims as compared with ten EN cases was over 80 months, compared with about 18 months in EN matters. Average defence legal costs for the EN cohort was approximately one third of the costs for the non-EN claims.

Clinical themes

The report identifies 11 factors affecting neonatal outcome, the most frequent being problems with fetal monitoring (62 cases), delay in birth (60), infection in labour (13) and reduced fetal movements (11). 

Two themes are analysed in detail.

Delayed delivery

The problem was found to be multi-factorial involving the delivery unit’s acuity, availability of key staff, equipment or theatre and the assessment of the clinical situation.

Uterine rupture in women opting for vaginal birth after caesarean section (‘VBAC’) 

Although there were only six cases in the cohort, this represented an increase from 8% to 13% of cases, warranting more detailed consideration. Key issues included the quality of ante-natal counselling, recognition of and delayed action following rupture.


Three recommendations are made, all with a systems level focus. NHS Resolution to support the:

  1. Work of royal colleges and wider stakeholders to improve antenatal counselling before trial of VBAC.
  2. Work of royal colleges and wider stakeholders to improve awareness in relation to response to harm for families and staff.
  3. Working relationships with NHS providers and wider stakeholders encouraging a joined up approach between trust legal services and maternity and risk teams.


The EN scheme has been innovative in its approach to investigating liability and getting the right support to affected families at the right time. It is clearly demonstrating the value of early investigation to reduce the potential for future harm. It is a key part of NHS Resolution’s strategic shift to move ‘closer to the incident’ and is a contributor to the National Maternity Safety Ambition to achieve a 50% reduction in stillbirth, maternal and neonatal mortality and serious brain injury from the 2010 rate by 2025.

NHS Resolution has established the Maternity Voices Advisory Group to build closer links with parents, families and carers in the scheme to inform its work and management and to collaborate to provide family-facing resources. A larger evaluation is proposed for 2023 to assess the impact of EN on families, staff and the service.

How Capsticks can help

We are regularly instructed by NHS Resolution in the legal investigation of these birth incidents and in turn support Trusts in furthering the aims of the scheme.

Capsticks is a national leader in representing both NHS and private healthcare providers as well as medical malpractice insurers. Our dedicated team is renowned for advising on the defence and resolution of clinical negligence claims, inquests, management of complaints and serious incident investigation/ inquiries, and providing an innovative outsourcing service for claims and inquests handling.

We are holding a Clinical Risk Forum on 16 November 2022 ‘Maternity care in focus’ if you would like to join us please register here.

If you have any queries on the topics discussed in this insight, or the impact on your organisation, please contact Philip Hatherall, Helen Thackwray or Charlotte Rathbone.