5 Things Parents Need to Know About MNSI Maternity Safety Investigations

A letter from MNSI following a traumatic birth can be the closest thing to an admission of liability, but it’s actually an offer to investigate the causes and impact to prevent future occurrences, while also being entirely separate from any claim for compensation you make, provided that you have grounds for one.

1. MNSI is an investigator, not a court of law

Maternity and Newborn Safety Investigations (MNSI) took over the maternity investigations that previously fell under the remit of the Healthcare Safety Investigation Branch (HSIB) as of October 2024. It is often incorrectly referred to by the name of its predecessor.

The reason for its creation can actually be found in the Ockenden Reviews of Shrewsbury & Telford and Nottingham, which concluded that maternity services were failing to learn from the same set of fatal incidents, as there was no formal mechanism for nationwide auditing of such cases. MNSI is meant to focus on the investigation of the most serious incidents, which carry the highest risk of systemic repetition and the most damaging consequences to date. It will examine the relevant failures at a systemic level and, if applicable, recommend updated procedures to the trust that would have been responsible for the prevention of similar occurrences.

2. Participation is voluntary and separate to any legal proceedings

Usually, you are asked whether you wish to provide your account of the birth, or an opinion on the provisional draft report, as well as whether you wish to participate in the investigation at all. All of these are optional on your part. You may decline any or all of them, or even ask for certain findings to be noted earlier than indicated in the report.

It is crucial to understand that participating in the investigation in no way benefits you in a legal sense. It does not pause the limitation period; it does not preserve evidence. It cannot be used as notice to litigation, or commencement thereof, in any capacity that a court would accept. Incorrectly, some parents assume that interacting with an investigator in any capacity is sufficient to “get things moving” for their claim, but, legally speaking, they have not done anything of the sort. Investigation and litigation are entirely separate, and your actions in one have no bearing on the other.

3. The “safe space” rule ensures that nothing you say can be used against you

This may be the most important detail in this entire notice, as it serves as the strongest argument for consulting a solicitor as soon as possible. Due to MNSI operating under a “safe space” policy, anything you say to the investigator, anything that is said to you by them, and any documents produced for the investigation are formally off-limits as evidence. You cannot share them with the NHS Trust, use them in disciplinary proceedings, or present them as evidence in a civil compensation claim.

In other words, your involvement with this particular branch of the NHS ends with whatever information you choose to provide for the investigator’s review. The reason for this is that it is considered beneficial to both parties that parents and staff alike are encouraged to be completely honest, without fear of reprisals. While it may seem like a sensible decision from the investigation’s perspective, it renders the entire process useless for any parent who wishes to utilise the information gathered for litigation purposes. MNSI’s reports are, in essence, designed to be conclusive and definitive statements of fact, behind which there is no evidence that can be extracted and presented in a court of law.

4. Medical expert evidence defines any claim

If a claim does not meet the Bolam/Bolitho standard, it is simply dismissed. Otherwise, the matter of causation may prove to be a contentious issue, depending on the specifics of the case. Most claims of this nature are settled before trial, with the causation being the most challenging element to prove. By virtue of that difficulty, it is also the most common reason for a claim to fail, unless it is patently obvious. Courts have ruled that in matters of causation, it is the defendant’s responsibility to prove that the outcome would have been the same, even if the alleged breach of duty did not occur. This is not the claimant’s burden to prove, and it is not the defendant’s responsibility to disprove.

In practical terms, this means that your solicitor will need to secure all the obstetric and neonatal notes before anything else can be done. An independent expert must then review the handwritten notes, CTG traces, partogram, cord gas results, neonatal resuscitation, observation charts, and, in the case of HIE, brain scans, as well as any relevant evidence in the event of a dispute over the mechanism of injury. Particularly if the CTG trace has shown signs of fetal distress which were either ignored or incorrectly interpreted, it may well be the most critical piece of paper in the entire claim. Parents who suspect that their child’s injuries constitute a Brain Injury at Birth Claim (HIE) need to understand that expert medical opinion, not the MNSI report, is the only tool that can demonstrate the breach of duty and causation in sufficient detail for the court to accept the claim.

Producing such an opinion, however, is rarely a quick process. A detailed report from an expert witness, going through all of the above points and actually citing the relevant notes, may well take several months to produce. This is before instructing another expert to review the neonatal care notes and possibly a third to discuss the child’s long-term prognosis. A family in need of answers is unlikely to receive them in due time, but the alternative is to have a rushed, superficial assessment that is easily rebutted by the defence if any part of it is not thoroughly evidenced. Courts are not easily impressed by speculation, and it is vital for all parties to provide properly evidenced material.

Proving what might have happened can be exceptionally complex. Infant HIE is the result of a series of factors, and there are usually several points at which the outcome could have been different. If the infant was delivered ten minutes earlier, for instance, they would not have been subjected to the ten minutes of oxygen deprivation. Their condition can be expected to be comparable, slightly better, or slightly worse than it is, with a similar, lesser, or greater requirement for aftercare and supervision at the NICU, potentially. These are issues for expert witnesses, who will have to deliberate on the most difficult matters for the family, and make recommendations that satisfy all parties. If you are the family, it is unlikely to be an easy decision to make.

5. Why Waiting for the MNSI Report May Delay Legal Action

One of the worst misconceptions to be dispelled is the idea that parents should wait for the MNSI report before taking any legal action. There are three reasons why this approach is ill-advised.

First of all, it is entirely normal for MNSI investigations to take a long time, sometimes stretching to several months, with particularly complex or serious infringements requiring additional time, as in the case of EHRC investigations. Secondly, the limitation period is not paused or in any way affected by your participation in the investigation. While many claims of this nature are brought by the child’s litigation friend up until their 18th birthday, it can be significantly later in some cases, with potentially devastating consequences for both sides. If you choose to wait, staff members will have moved on, memories will have faded, and most records will either be inaccessible to you or, if private, have been deleted in accordance with data retention policies. Finally, as explained above, the MNSI procedures are deliberately designed in such a way that nothing you say can be used against you in any capacity. Waiting for the report to be issued does not help your case in any way; it merely postpones the point at which the opposing sides will have to present their evidence in court.

The practical advice is to seek legal advice as soon as possible and begin preparing the necessary expert evidence in parallel with the MNSI investigation, ideally before engaging with it yourself. You will need to instruct a solicitor to secure the relevant records for you, so that they are available for expert review, and you should know that funding is rarely, if ever, an issue for such claims. Most personal injury claims of this nature are handled on a no-win-no-fee basis, with the litigation friend appointed to represent the child’s interests in court.

It is also worth remembering that the financial burden for the care, treatment, and general support of a child with cerebral palsy can be exceptionally expensive, and often stretches into adulthood. For the NHS and publicly funded organisations, such costs can prove to be prohibitively high. Having expert witness evidence prepared for the unique circumstances of your family is crucial to getting the appropriate support for the child in the future.

As a result, while MNSI’s role in maternity and newborn safety is undisputed, as is its ability to provide appropriate funding in some of these cases, it is not nearly as helpful in cases where the child is already permanently injured. It cannot, by itself, provide the necessary funding for litigation, which would need to be sourced separately by the family and the NHS in each individual case.