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Understanding Negligence in Healthcare: Insights into the NHS Resolution Early Notification Scheme
- May 1, 2025
- Latest Journal
By Julia Parvia
Midwifery expert at Somek & Associates Ltd
Negligence in healthcare remains one of the most pressing issues within medical practice. It’s a concept that not only affects individual patients but also the healthcare professionals and institutions involved. Medical negligence occurs when healthcare professionals fail to provide a standard level of care, resulting in harm to patients. With the complexity of modern healthcare, it’s essential for both legal and medical professionals to understand the depth of negligence, its implications, and how schemes like the NHS Resolution Early Notification Scheme (ENS) are attempting to address it.
This article delves deeply into the concept of medical negligence, its legal underpinnings, and the vital role that the NHS Resolution Early Notification Scheme plays in mitigating the impact of clinical errors.
What is Medical Negligence?
Medical negligence refers to the failure of a healthcare provider to exercise the standard of care expected in a specific situation, which directly results in harm or injury to the patient. It is important to recognise that medical negligence does not merely mean poor outcomes; it specifically involves a breach in the expected standard of care.
Negligence can manifest in various forms. Some common examples include:
• Misdiagnosis: When a doctor incorrectly diagnoses a condition, which could lead to delays in treatment or incorrect treatments.
• Surgical Errors: Mistakes made during surgery, such as operating on the wrong site, leaving surgical instruments inside the patient, or causing unnecessary harm during the procedure.
• Medication Errors: Incorrect medication dosages, administering the wrong medication, or failing to recognise allergic reactions.
• Failure to Monitor: Neglecting to monitor vital signs, especially in critically ill patients, which can lead to severe complications.
• Failure to Inform: Not providing adequate information about a medical procedure or its risks, leaving the patient unable to make an informed choice.
The consequences of these errors are profound. Patients may suffer unnecessary pain, prolonged recovery times, additional medical expenses, or, in the worst cases, death. Furthermore, medical negligence can also damage the trust patients place in the healthcare system and undermine the overall confidence in medical practitioners.
The Legal Framework: Bolam and Bolitho
The legal landscape surrounding medical negligence is shaped by several key cases that establish how negligence should be assessed in court. Two particularly important cases in this area are Bolam v. Friern Hospital Management Committee (1957) and Bolitho v. City and Hackney Health Authority (1997).
• Bolam v. Friern Hospital Management Committee (1957): This case established the Bolam Test, which states that a healthcare professional will not be held liable for negligence if they have acted in a manner that is consistent with a practice that is accepted by a responsible body of medical opinion. The Bolam Test effectively shields healthcare providers from negligence claims, as long as their actions align with recognised medical practices.
However, the case also made it clear that if a practitioner fails to follow standard procedures, or if their actions are clearly unreasonable in the circumstances, they can still be found negligent. While this ruling offered substantial protection for medical professionals, it also created a legal presumption that medical opinions based on long-standing practices were reasonable.
• Bolitho v. City and Hackney Health Authority (1997): The Bolitho Case refined the Bolam Test by requiring that medical opinions are not just widely accepted but must also be logically sound and defensible in court. The courts ruled that even if a medical practice is accepted by a body of professionals, it must also withstand judicial scrutiny. The decision in Bolitho helped ensure that the Bolam Test didn’t become a mere formality; medical decisions must have sound and logical reasoning behind them to be considered justifiable.
Together, these two cases provide a framework that ensures medical decisions are reviewed from both a medical consensus perspective and a logical, judicial perspective, striking a balance between medical discretion and the protection of patient safety.
The NHS Resolution Early Notification Scheme: A Proactive Approach
In 2017, the NHS introduced the Early Notification Scheme (ENS) as part of a broader effort to address the growing concerns about medical negligence, particularly in the area of maternity care. The ENS is designed to facilitate a more proactive approach to dealing with incidents of serious avoidable harm. The scheme primarily focuses on incidents where serious injury, especially in maternal and neonatal care, has occurred.
The scheme works by identifying potential cases of avoidable harm early, triggering an immediate investigation and initiating a process to understand what went wrong, how it happened, and what measures can be taken to prevent a recurrence. The ENS also aims to streamline the reporting process to allow for quicker resolutions and minimise the emotional, legal, and financial burdens on affected families.
One of the key benefits of the ENS is that it promotes a shift from reactive to proactive medical practice, allowing for the identification of risks before they escalate into significant harm. By focusing on maternal care, where the potential for harm is high, the ENS has had a profound impact on preventing long-term consequences for both mothers and babies.
Key Elements of the NHS Resolution Early
Notification Scheme
1. Early Reporting: Healthcare providers are required to notify the NHS Resolution within a specific time frame (usually 30 days) when a serious incident occurs. This early intervention allows the NHS to take immediate action in investigating the cause of the harm and providing appropriate support to the patient and family involved.
2. Investigation and Root Cause Analysis: Once an incident is reported, an investigation is conducted to determine whether negligence or avoidable errors occurred. This investigation involves assessing whether the care provided met the standard of care outlined in legal precedents like Bolam and Bolitho. The investigation aims to identify systemic weaknesses, if any, and implement strategies to address them.
3. Support for Families: The ENS ensures that families affected by incidents of serious harm receive adequate support, including access to counselling services and legal advice. This approach helps families understand their rights and the process that will unfold.
4. Learning from Incidents: Another key goal of the ENS is the identification of systemic patterns of harm within the NHS. By analysing the causes of incidents, the NHS can implement preventative measures that reduce the chances of similar events occurring in the future.
5. Collaboration: The scheme emphasises collaboration between medical professionals, legal teams, and affected families. This collaborative approach allows for better communication, transparency, and a quicker resolution of issues, ultimately leading to fewer adversarial legal disputes.
Enhancing Legal and Medical Accountability
By incorporating the Bolam and Bolitho principles into the framework of the ENS, the scheme ensures that the standard of care is not only aligned with widely accepted medical practice but also underpinned by logical and ethical reasoning. In this way, both legal accountability and medical responsibility are emphasised in the process of investigating and addressing clinical negligence.
Expert witnesses involved in the ENS must carefully assess whether the care provided aligns with both established practices and sound reasoning. Their conclusions are essential, as they determine whether the care provided was acceptable and, if not, whether negligence occurred.
The Bolam and Bolitho principles create a robust legal framework that prevents healthcare providers from being held liable simply because they made a decision that other practitioners might not have made. Instead, they are held accountable based on whether their actions align with rational, scientifically supported practices.
Expert witness role in Early Notification Scheme
Expert witnesses in maternity care, typically obstetricians, midwives, or other specialists, have in-depth knowledge of clinical standards and practices within the field. They help evaluate whether the care provided met established guidelines and whether the decisions made during pregnancy, labour, and delivery were appropriate. In the context of an early notification scheme, experts assess whether midwifery and medical staff followed appropriate procedures, identifying any early signs of potential errors that could lead to claims of negligence.
An in-depth assessment is required to establish whether any harm or injury to the mother or baby occurred due to substandard care or whether it was an unavoidable complication. Their professional opinion can clarify whether there are grounds for a claim or whether the issue may be attributed to a known medical risk, rather than negligence.
The Duty of Candour: Transparency and Trust
An essential component of the ENS is the Duty of Candour, which requires healthcare providers to be open and honest with patients when something goes wrong. This legal obligation is part of the Health and Social Care Act 2008 (Regulated Activities) Regulations and demands that healthcare practitioners inform patients when they suffer serious injury due to medical error.
The Duty of Candour requires healthcare professionals to:
• Disclose incidents of serious injury.
• Provide an accurate account of what happened.
• Apologise to the patient or their family.
• Explain what steps have been taken to prevent recurrence.
The ENS aligns with this obligation, ensuring that serious incidents are disclosed promptly within a 30-day window. This approach encourages transparency, helping to rebuild patient trust while fostering a culture of openness within healthcare environments.
Benefits of Early Notification: Reducing Litigation Stress
One of the most significant advantages of the ENS is its potential to reduce the emotional, financial, and legal stress that families experience during prolonged litigation. By ensuring that incidents are reported early, the scheme facilitates faster investigations and, ultimately, quicker resolutions.
For patients and families, this means that they are more likely to receive answers and closure without the lengthy delays typically associated with medical negligence cases. For healthcare providers, the early identification of issues can help resolve disputes more quickly, ensuring that they can mitigate the legal consequences of negligence.
Furthermore, by utilising Bolam and Bolitho, the ENS helps reduce the likelihood of drawn-out legal battles. Decisions are grounded in well-established and rational medical reasoning, which simplifies the adjudication process.
Systemic Improvements and Lessons Learned
The ENS isn’t just about addressing individual cases of medical negligence - it also serves as a tool for systemic improvement within the NHS. By collecting data from reported incidents, the scheme helps identify trends and patterns that may indicate broader issues within the healthcare system.
For example, if multiple incidents involve similar medical errors or procedural lapses, this could highlight systemic weaknesses in training, protocols, or communication. By analysing this data, the NHS can implement targeted reforms aimed at reducing the occurrence of medical negligence across the system.
Legal Insights: Shaping Case Strategy
For legal professionals, the ENS provides a valuable opportunity to assess and evaluate clinical negligence claims early in the process. This enables lawyers to better gauge the merits of a case, assess liability, and negotiate settlements quickly. The streamlined process offers the chance to resolve disputes in a manner that is fair, transparent, and less adversarial.
Courts are increasingly valuing early resolutions over prolonged litigation, and the ENS encourages this through its emphasis on early reporting, early investigation, and early settlement. Legal professionals should be aware of the role that the ENS plays in shaping case strategy and ensuring that cases are handled promptly and efficiently.
Additional Insights and Considerations:
1. Impact on Healthcare Culture: The ENS doesn't just affect legal aspects of healthcare disputes but plays a significant role in shaping the culture of transparency within the NHS. By reducing the fear of reprisal for honest mistakes, it promotes a culture of learning and professional growth.
2. Legal and Ethical Implications: The evolution of the Bolam and Bolitho principles reflects an increasing focus on ethical reasoning in medical practice. Courts are looking for a balance between established practices and rational, ethical decision-making.
3. Future of the ENS: As more data is collected through the Early Notification Scheme, there will be opportunities for refinement and adaptation to emerging healthcare challenges. Continuous evaluation and learning from reported incidents will ensure that the ENS remains effective in enhancing patient safety and reducing medical negligence.
Conclusion: A Proactive and Accountable Approach
The NHS Resolution Early Notification Scheme represents a paradigm shift in how medical negligence is addressed within the healthcare system. By prioritising early identification, reporting, and investigation, the ENS ensures that healthcare providers are held accountable for their actions while promoting a culture of transparency and learning.
For both medical professionals and legal experts, understanding the intricacies of negligence and the workings of the ENS is critical for improving patient safety and fostering accountability within the healthcare system. Through this collaborative approach, the NHS is better equipped to handle clinical negligence cases, promote a safer healthcare environment, and support both patients and professionals through difficult times.
References
Decision Making and Consent (General Medical Council)
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Supreme Court, “Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) - The Supreme Court”
Principles of Medical Ethics: Beauchamp, T. L., & Childress, J. F. (2013). Principles of Biomedical Ethics. Oxford University Press
Pre-Action Protocols – Justice UK
Legal Aid and Access to Justice Act 1999
Legal Aid Statistics Quality Statement (GOV.UK, March 28, 2024)
Department for Work and Pensions, “Compensation Recovery Unit”
NHS Resolution, “Mediation in Healthcare Claims – an Evaluation” (2020)
Shoosmiths, “What Is the Early Notification Scheme for Maternity Negligence Claims? | Shoosmiths Serious Injury” (Shoosmiths, March 31, 2021)
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Civil Procedure Rules 1998
Pre-Action Protocol for Professional Negligence – Civil Procedure Rules
Human Rights Act 1998
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
All Answers Ltd, “The Bolam Test in Clinical Negligence” (November 6, 2023)
Legal-Lore, “BOLAM AND BOLITHO TEST” (Legal-lore, July 10, 2022)
National Health Service Act 2006
Health and Social Care Act 2012
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 Regulation 20 King’s Printer of Acts of Parliament, “The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014”
Department of Health, “Introducing the Statutory Duty of Candour” (2014)
“Openness and Honesty When Things Go Wrong: The Professional Duty of Candour” (General Medical Council)
Somek and Associates
We have midwives working clinically across a full range of specialisms who are medico-legally trained and fully conversant in understanding CPR and the necessary legal tests. Our midwives are also trained in ENS and Fitness to Practice report writing and processes.
To view our full range of expert witnesses visit
https://www.somek.com/site/expert-witness/find-an-expert/?stafftype=registered-midwife