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THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS

PERSONAL INJURY =

THE EXPERT WITNESS ISSUE 8 SUMMER 2014

COSMETIC SURGERY - FORENSIC REVIEW PSYCHOLOGY - MICROBIOLOGY - HIP SURGERY Vol 1 Issue 8 - Summer 2014 UK £4.00 Euro 5.00


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The leading event for professionals working in Austere Medical Environments

Co-located with

Austere Medical Environments (AME) is a new event focussed on the delivery of care in challenging and remote environments. Featuring a dedicated exhibition, the 5th edition of Trauma Innovation, and the Institute of Remote Health Care’s annual conference; the two-day event will unite more than 600 key decision-makers and leading practitioners from the military, emergency and civilian fields.

Conference Confer reence 7-8 October 2014

Organised Or rg ganised by

To T o find out more, mo orre, e register re egister your int interest terrest e at: www w.ame-ev . vent.co.uk/tellme emorre www.ame-event.co.uk/tellmemore


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Editorial From digital forensics to forensic psychology… Welcome to the summer issue of The Journal. In this issue we have the usual blend of industry issue overviews and personal insights from the leading thinkers and doers. David Nicholson from DNA Worldwide looks back at Forensics Expo Europe and the bigger picture made possible with the expansion of digital forensic solutions and the collaborative future he envisages for practitioners across the board in this arena. The handling of whiplash claims and the costs incurred have come under the forensic microscope of Lord Faulks QC, Minister of State for Justice, in a letter to stakeholders in early May this year entitled: “Whiplash Reform: Proposals on Fixed Costs for Medical Examinations/Reports and Related issues”. We look at how it is going about the reform of civil litigation funding and costs in relation to whiplash claims. From the proposals on the fixing of fees for medical reports by Consultant Orthopaedic Surgeons and Physiotherapists, to the workload of Plastic and Reconstructive Surgeons, change seems to be a constant of our post-Jackson world. In the later context, the appetite for cosmetic procedures continues to grow. According to the British Association of Aesthetic Plastic Surgeons, the economy appears buoyant once more as austerity gives way to augmentation, with an impressive double-digit rise in all cosmetic procedures, a trend not seen since the heady pre-recession days of 2008. We look at the risks behind the scale of this growth as well as reactions to recent attempts at its own particular reforms. With England exiting the World Cup, and Andy failing to repeat last year’s amazing feat at Wimbledon, it’s been a disappointing summer so far on the sporting front. But with coverage of the main issues by seasoned professionals such as an eminent Barrister and leading Psychologist, the contents of this issue will keep you ahead of your game. Des Griffin Editor This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products. No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2013.

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Events and Conferences Delegates will consider use of the topic box model to structure the meeting and as a way to effectively question the other expert. Delegates will also learn how to explore the reasons for areas of agreement and disagreement; how to work effectively towards the Joint Statement and how to draft the Joint Statement.

Bond Solon Training Excellence in Report Writing (1 day) Starting 6th August 2014 09:00 in London Starting 8th September 2014 09:00 in Manchester Courtroom Skills (1 day) Starting 7th August 2014 09:00 in London Starting 16th Sepetember 2014 09:00 in London Starting 9th Sepetember 2014 09:00 in Manchester

To find out more or to book, contact RICS Training: 024 7686 8584 or email us at drstraining@rics.org

Austere Medical Environments Olympia London 7-8 October 2014 Book online now www.ame-event.co.u Austere Medical Environments (AME) is a new event focussed on the delivery of care in challenging and remote environments. Featuring a dedicated exhibition, the fifth edition of Trauma Innovation Conference (TI), and the Institute of Remote Health Care’s (IRHC) annual conference; the two-day event will unite more than 600 key decision makers and leading practitioners from the remote, military and civilian fields, as well as industry experts in pre-hospital care.

Cross-Examination Day (1 day) Starting 8th August 2014 09:30 in London Starting 10th September 2014 09:30 in Manchester Criminal Law and Procedure (2 days) Starting 11th December 2014 09:00 in London Starting 18th September 2014 09:30 in Manchester Civil Procedure Rules for Expert Witnesses Certificate Starting 11th September 2014 09:30 in Manchester Starting 16th October 09:00 in London

Professional Solutions

Family Procedure Rules for Expert Witnesses Certificate Starting 18 September 2014 09:00 in London

Professional Solutions provides expert witness training of the highest quality. Presented by barristers, solicitors and forensic consultants, our small-group workshops are targeted to meet the needs of the experts in attendance.

Call Bond Solon on 020 7549 2549 for further information or to enrol.

Writing Evidence in Planning Appeals This one-day workshop will deal with drafting skills for writing evidence across all three appeal procedures, with particular emphasis on accuracy and precision in the evidence. Written communication strategies will be introduced and applied to planning evidence to show how well-written evidence can influence the decision of the Inspector hearing the appeal. Date: 16th September 2014 Time: 9.30-4.30 pm Registration at 9.00 am www.prosols.uk.com

RICS Expert Witness Training Training Manchester, 2-10 Mar 2015 London 13-21 October 2014 This training will equip experts with the knowledge, practical skills and confidence to prepare and undertake the role of an expert witness effectively. During this 4 day training course, set over 1 module per day, experts will consider the benefit of using an agreed agenda and how to prepare using the case preparation model to identify issues, facts and opinions.

Contact Us We welcome your views and contributions, please send all articles letters and comments to, admin@expertwitness.co.uk For all editorial comments and enquiries please contact: info@expertwitness.co.uk Editor, Des Griffin, des@expertwitness.co.uk Artwork & Design, Chris Connelly, chris.connelly@expertwitness.co.uk All accounts and bookings Lee Hirst, lee@expertwitness.co.uk EXPERT WITNESS JOURNAL

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Contents

Listed below are some of the article featured in this issue Management of the Expert in Litigation A chapter from ‘Brain and Spine Injuries the fight for Justice’ by Bill Braithwaite QC

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Whiplash Reforms

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Evidence vs Anecdote by Judith Baumhauer

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Common Pathologies in Shoulders by Keith Borowsky

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Total Knee Replacement by Ian Forster

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Hip Replacement Surgery in 2014 by Mr Godfrey Charnley

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Reporting Discrepancies in Radiology by Dr Ravi Ayer

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Appetite for Cosmetic Procedures

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To Prove Dental Negligence by Dr Joesph Fell

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Malingering, Factitious or Function Disorders by Dr Linda Monaci

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The ‘Nonsense’ of Mental Age by Galen Ives

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What resulted from the index even? The dilemmas of causation and apportioning Psychological distress by Dr Koch, Dr Leckhart, Dr Willows and Dr Lucas

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Personal Injury Litigation and Mental Health by Dr Nick Cooling

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Development of the Forensic Market by David Nicholson

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Smoke and Mirrors by Iain McArthur AVF

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Air Guns, the Law and how the frequently get it wrong by Mark Mastaglio

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Forensic Archaeology as a Primary Method of Detection by Karl Harrison & Gaille Mackinnon

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Immigration into Britain by Dr Bashir Qureshii

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Expert Witness and Court Skills Training by Andrei Szerard

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Manchester Law Society

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Careless or Dangerous Driving causing GBH by John McGlinchey F.E.S

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Non Medical Carbon Monoxide Poisoning By Stephen Walsh

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Tree Preservation Orders by March Chester

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RICS News

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Feigned or Foe by Andrew Acquier FRICS

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All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint. Printed in England 2014. The Expert Witness Journal Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk

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New AF Guidance Could Prevent 7,000 Strokes Thousands of people with the heart condition atrial fibrillation, which causes irregular or abnormally fast heart rates, could be saved from strokes, disability or death because of new guidance from NICE.

that prevent blood clots forming. Unfortunately only half of those who should be getting these drugs, are. This needs to change if we are to reduce the numbers of people with AF who die needlessly or suffer life-changing disability as a result of avoidable strokes.”

The update highlights the need to ensure people with atrial fibrillation (AF) are offered the right treatments to reduce their chance of dying from strokes. The condition affects around 800,000 people in the UK; but it's thought around 250,000 others may be undiagnosed. Symptoms can include heart palpitations, dizziness, shortness of breath and fatigue.

The Royal College of Physicians welcomed the updated NICE guidance. “Management of atrial fibrillation remains lamentable with far too many people having strokes because they have not been adequately treated either to get them back into a normal rhythm or to anticoagulate them,” Professor Tony Rudd, chair of the Intercollegiate Working Party for Stroke, said in a statement in June 2014.

“Atrial fibrillation is a major cause of stroke because it often leads to the formation of blood clots. We know that AF increases the risk of strokes by up to five times. It's estimated that the condition causes around 12,500 strokes each year,” says Professor Mark Baker, NICE's Director of Clinical Practice.

Professor Rudd continued: “We welcome the new AF guidelines. The clear statement that treatment with a single antiplatelet drug is of no value and that the vast majority of patients should receive an anticoagulant is very much welcomed and brings the NICE guidance into line with the recommendations made in National Clinical Guidelines for Stroke, published in 2012.

“We also know that that around 7,000 strokes and 2,000 premature deaths could be avoided every year through effective detection and protection with anticoagulant drugs

Dr Khalid Mahmood Consultant Cardiologist MB ChB MRCP (UK) If you you n need eed a report report o on nas specialist pecialist s subject ubject tthen hen m make ake sure sure you you iinstruct nstruct a Specialist Specialist

Mr Khalid Mahmood is a Consultant Cardiologist and the clinical lead for cardiology at The Solihull Hospital in the West Midlands.

Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW Consultant C onsultant Orthotist Orthotist and and Orthotic Orthotic Expert Expert Witness Witness Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics and and over over 18 18 yyears ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth principles and he kknowledge nowledge of of orthotic orthotic p rinciples a nd practice practice h e has has specific specific expertise expertise iin: n: ƒ Post Post trauma trauma orthotic orthotic rehabilitation rehabilitation ƒ Neuro-rehabilitation Neuro-rehabilitation ƒ Complex Complex disabilities disabilities ƒ Orthopaedic Orthopaedic conditions conditions ƒ Adult and Adult a nd paediatric paediatric orthotics orthotics ƒ Lower biomechanics Lower limb limb b iomechanics ƒ Lower Lower limb limb orthotics orthotics Complex ffoot oot a nd a nkle conditions conditions ƒ Complex and ankle Foot orthotics orthotics ƒ Foot Specialised o rthopaedic a nd b espoke footwear footwear ƒ Specialised orthopaedic and bespoke

He has experience in Non Invasive and Invasive Cardiology including a lead role in the Transoesophageal Echocardiography service, supportive roles in stress Echocardiography, pacemaker clinics and cardiac CT service. Mr Mahmood is proficient in permanent pacemaker insertion, cardiac catheter work, diagnostic catheterisation (left and right heart) and has experience in interventional cardiology. Mr Mahmood has clinical governance expertise as lead in quality control of transoesophageal echocardiography. He is involved in audit, informal appraisals with senior colleagues and attendance at grand rounds/MDT meetings.

He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the cclaimant, laimant, defendant expert. He has Expert Witness d efendant and and as as a single single joint joint e xpert. H eh as undergone undergone full full E xpert Wi tness with Bond Solon and holds Expert Witness ttraining raining w ith B ond S olon a nd h olds tthe: he: Certificate Certificate of of E xpert W itness Accreditation byy Bond Law A ccreditation (CUEW) (CUEW) iissued ssued b Bond Solon Solon and and Cardiff Cardiff University U n iv e r s ity L aw School. Registered S chool. R egistered with with the the Health Health & Care Care Professions Professions Council Council (HCPC). (HCPC). Consulting C onsulting a at: t: 1 152 52 Harley Harley Street, Street, a able ble to to travel travel throughout throughout the the UK UK for when for cclient lient vvisits isits w hen rrequired. equired. Orthotic O rthotic Experts Experts Ltd Ltd 52 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton Surrey, KT5 9LJ Surrey, K T5 9 LJ Tel: +44 7721-514568, Tel: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Fax: +44 20 7192 3339 Fax: +4 4 ((0) 0) 2 07 192 3 339 E-mail: E-mail: iinfo@OrthoticExperts.co.uk nfo@OrthoticExperts.co.uk

EXPERT WITNESS JOURNAL

Tel: 07795 460 224 Email: khalidmahmood99@hotmail.com Spire Parkway Hospital 1 Damson Parkway, Solihull, West Midlands B91 2PP

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A report, also published recently to coincide with this guidance by a group set up to advise on the implementation of NICE guidance, known as the NICE Implementation Collaborative (NIC)ii, highlights the steps needed to increase the uptake of anticoagulant drugsiii.

adjustments and so represent an attractive option for some people with AF. However, there is evidence that these drugs are not being as widely prescribed as they could. The new generation of oral anticoagulants are potential lifesavers for some people with AF - particularly those who find it difficult to control their blood clotting with warfarin or those who are intolerant to warfarin. They are also an option for people newly diagnosed with AF who have a higher risk of stroke and for those currently taking aspirin for stroke prevention.

Until recently the only anticoagulant available to people with AF who were assessed as being at increased risk of stroke was warfarin. Although cheap and effective, warfarin has drawbacks which can make taking it problematic for some people. For example, many foods can interfere with or alter the effects of warfarin, such as green leafy vegetables, as well as alcohol and many medicines.

Professor Neal Maskrey, Consultant Clinical Adviser, Medicines and Prescribing Centre, NICE, and member of the NIC NOAC consensus group, said: “Alongside the publication of the NICE guideline there are two novel approaches to support the implementation of the new evidence about stroke prevention for people with AF. The NICE Implementation Collaborative has summarised key aspects of the new guidance around the use of the new generation of oral anticoagulants and recommends ways in which local practices can be adapted to deliver high quality treatment for people with AF.”

Also, regular monitoring and dose adjustments to ensure that the drug is working properly - which is often carried out in special clinics - can affect patients' work, social and family life. For example, attending anticoagulant clinics may be particularly difficult for some elderly patients who are housebound or have mobility problems. Since 2012 a number of drugs belonging to a new generation of oral anticoagulants have been approved by NICE. Known as novel oral anticoagulants (or NOACs), they don't require such regular monitoring and dose

Visit www.nice.org.uk or www.rcplondon.ac.uk for more information. ■

Dr Maurice Pye

Dr Peter Turkington

MB BCh BSc Hons MD Hons FRCS London

MbChb MD FRCP

Consultant Cardiologist

Consultant Physician in Respiratory Medicine Dr Turkington has a wide range of experience in all aspects of Respiratory Medicine and is Medical Director at a University teaching Hospital.

I am a Consultant Cardiologist with more than 15 years experience. I have a wide experience in all aspects of cardiology, particularly ischaemic heart disease (angina, heart attacks), interventional Cardiology (balloon angioplasty /stents), heart rhythmn disorders and pacemakers.

More than 10 Years of Experience in Medico-legal work with instructions for claimant or defendant and as a single or joint expert.

Areas of expertise include: ◆ Asbestosis ◆ Asbestos related pleural disease ◆ Mesothelioma ◆ Inhalational injury ◆ Asthma ◆ Fibrosing lung diseases ◆ COPD ◆ Obstructive sleep apnoea ◆ Sleep disorders ◆ Non invasive ventilation ◆ Medical negligence (related to respirator disorders)

I have produced medico-legal reports on behalf of Claimant and Defendant for the courts for over 10 years Nuffield Hospital, Haxby Road, York, North Yorkshire YO31 8TA

Consultations at: Spire Hospital Manchester Russell Road, Whalley Range, Manchester M16 8AJ

Contact Jane Moss Tel: 01904 715191 Fax: 01904 715192 Mob: 07713 627418

Tel (enquiries): 0161 206 5155 Email: Peter.Turkington@srft.nhs.uk

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APIL Overview For nearly 25 years, the Association of Personal Injury Lawyers (APIL) has been fighting for the rights of injured people. Its 4,000-plus solicitor, barristers, and academic members are dedicated to campaigning for change in the law to benefit injured people and to preserve their right to access to justice.

Different levels of APIL accreditation indicate the practitioner’s level of experience and expertise. Firms can also be accredited. Injured people can recognise accredited firms or accredited individuals from the APIL quality mark they can display on stationary and in offices.

All APIL members sign up to the APIL code of conduct and consumer charter when they join the association, ensuring that members act in their clients’ best interests at all times. “Membership is not, on its own, an indication of experience, expertise or competence so many members join our accreditation scheme,” said APIL chief executive Deborah Evans.

Many lawyers also join APIL to get involved in campaigning to improve the law to help injured people, and to try to help people understand that if someone is injured through no fault of his own, he is entitled to the care and compensation he needs to try to put his life back on track. Current campaigns include the need to change the restrictive law on psychiatric injury; to create a fairer system for bereavement damages which recognises entitlement for a greater range of family members; and a continuous drive for efficient and fair justice for people with mesothelioma. The association’s work also includes campaigns to prevent needless injuries. For example, APIL is currently running an anti-tailgating campaign to encourage motorists to ‘Back Off’ from one another and prevent crashes and whiplash injuries, and therefore claims.

“Our accredited lawyers have to jump through some pretty difficult hoops to be granted accreditation and are often specialists in a particular field, such as brain injury or clinical negligence. Injured people can be assured that they are in qualified and experienced hands under our accreditation scheme,” Deborah went on.

APIL also maintains a database of nearly 800 available witnesses covering more than 280 categories, with expertise ranging from agriculture to bioscience specialisms. “Our members need to do the best by the injured people they serve,” said Deborah. “So a large part of our work includes ensuring our members have the right tools for the job, like proper training and access to the right expert witnesses,” she added. APIL has been doing this work for almost 25 years and is absolutely committed to carrying the work on into the future on behalf of the injured people its members serve. Non-lawyers can also become involved in campaigns, as APIL has recently introduced a new category of membership for associates. This includes expert witnesses who do not wish to be listed on the expert database but would like to support APIL’s activities. This new category of membership has been developed especially for those who are not legal practitioners but who agree with APIL’s objectives, code of conduct and consumer charter. For more information, visit APIL’s website at www.apil.org.uk.

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Management of the Expert Expert in Litigation by Bill Braithwaite Q.C. one of the leading catastrophic injury lawyers in the country. Multiple winner of the Personal Injury Barrister of the Year Award The following chapter is taken from Mr Braithwaites’s book ‘Brain and Spine Injuries The Fight for Justice.” I start this chapter with a quote from a case, which emphasises the importance of selecting good experts, and using them appropriately: “Regrettably, I was not at all impressed with some of the answers which I received from Mr *. I did not feel he was the wholly unbiased and independent witness one would expect. Some of his answers were given more or less on the hoof and were ill thought out....”: Rhodes v West Surrey etc HA 1998 Lloyd’s Rep. Med. 246 at 252. From a practical point of view, I would add a few considerations. It is essential that the expert should have appropriate sympathy for the injured person, but it is equally important that sympathy should not be allowed to cloud his or her judgment. Good claimant lawyers want to hear the true opinion of the expert, not what he or she thinks that the claimant or the lawyers would like to hear. It is very helpful if the expert is “litigation literate” – ie he knows roughly how our legal system works. Almost all decisions made are made on the balance of probabilities, and it is often counter-productive if an expert uses other, inappropriate tests. On the other hand, good lawyers must be cautious that experts do not intrude into giving advice about the conduct of the litigation, unless specifically asked. They should not be, or appear to be, advocating the case on behalf of the claimant.

Having set the scene, it may help to continue with a brief description of an expert’s duties (with which I agree), as laid down by one of the bodies which gathers experts together (there are several such organisations, but one has to be cautious about selecting an expert solely from a directory, because the acid test is the performance of an expert in consulting with the client, writing a report, giving helpful advice in consultation, and appearing in court). Since 2005, there has been a Code of Practice for Experts, which confirms that experts must be independent, impartial and objective. They must act with integrity, honesty and fairness. They must be competent in the area of expertise in which they are expressing opinions, and they should not stray outside the area of their expertise. They must make sure that they have all the information necessary to do the work or to give an opinion, whether it is favourable or unfavourable to the client they are reporting about. EXPERT WITNESS JOURNAL

There are some treating consultants who feel that they should not get involved if litigation is in progress, or contemplated, because it hinders rehabilitation, but I do not 7

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necessarily agree. Equally, there are some solicitors who are reluctant to instruct a treating consultant simply on the basis that they might not be able to avoid the type of un-objective and overly sympathetic approach described above. We have invariably found that good treating consultants with appropriate litigation experience do not fall into the perceived trap. Dealing as I do with those who are injured catastrophically, it is very disheartening to read some of the poor medical reports which are obtained, particularly when one knows the level of expertise which is theoretically available. It is possible that the treating doctors will have a more detailed knowledge of the injured person and his or her problems than a reporting doctor. However, that is only half the problem, because a doctor who does not have all the other requirements for a good litigation expert should not be used.

about the avoidable frustrations of adjournments, and settlements at the door of the court) if and when the time comes (which it rarely does).

Selection of the Expert In one sense, this is the most important single aspect of the use of the medical expert ¬ by the lawyer. A good expert will be alert to the lawyer’s requirements, and will not need detailed instruction: he will prepare a comprehensive report, which deals with all relevant matters in an appropriate way, and he will highlight any further investigations or enquiries which are necessary. In short, he will have the interests of his client (whether claimant or defendant) at heart, although he will always have as his guiding light the essential need for integrity, fairness and impartiality.

The Civil Procedure Rules are supplemented by a Practice Direction.

Part 35 of the Civil Procedure Rules provides that Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings It is the duty of experts to help the court on the matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.

Where there is residual disability, experts practising in the field of rehabilitation may be appropriate to assess the disability and handicap, and may be more conversant than most with outcome and disability measures, so that some objectivity can be incorporated into the case. They are also likely to be aware of issues such as burden of care, loss of earnings, and the breakdown of personal and emotional relationships, and they should be able to give a good overall assessment of the client's situation, which can link in to other non-medical assessments. As they are used to multi-disciplinary working, rehabilitation experts should have a good understanding of the attitudes of nursing and therapy staff and there is, thus, less chance of any conflict of opinion.

The personal injury litigation lawyer should consider it essential to build up an extensive database of experts prepared to report on various different types of injury, together with comments about their forensic skills. This is a slow and gradual process, because ideally the lawyer needs to see the expert in all aspects of the procedure. That involves seeing his or her written reports, discussing cases in consultation, and seeing them give evidence.

The Instructions The consultant is entitled to expect a coherent letter of instruction, enclosing all relevant documents. It should not be too long (there‟s nothing more tedious than page after page of information which is contained elsewhere in the papers), and it should set out the essential issues. Some consultants are annoyed by letters telling them how to set about the task, but they should perhaps remember that the reason for the letter may be the solicitor‟s experience of consultants who appear not to know some of the basic requirements. There are different views about the detail required, but on balance I would favour erring on the side of caution, and including too much detail rather than too little. This would apply particularly to the issues which need to be considered, and possibly to the law involved, as distinct from the facts, which should be set out clearly in the statements of the people concerned (whether they are the claimant or the defendant). Some consultants prefer an initial letter asking them whether they are prepared to accept instructions, although this is more likely to be so in clinical (medical) negligence litigation.

The lawyer can be helped very much by experts. They should consider carefully whether they wish to undertake this type of work, which undoubtedly has its annoyances and frustrations (many caused by the lawyers!). If they do, they should do so competently and efficiently, seeking all the time to improve their performance and to make sure that they are giving the service which is required. Once they have decided to prepare medico-legal reports, experts could help in the selection process by accepting instructions only when they feel that the injury is within their area of specialisation, and suggesting an alternative if there is someone who is better qualified. The corollary is that they should make sure that lawyers know their areas of interest and expertise. By accepting instructions to report, a consultant is implicitly agreeing to appear in court if necessary, and therefore should do so with good grace (subject to what I say below

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I mention above the “balance of probabilities”, and would like to deal with the use of words such as “possibly” and “probably”. The judge makes most of his decisions on the basis of what is probable, rather than what is possible. I realise it may be an impossible wrench for some scientists to abandon, even briefly, their notion of certainty, but it must be done. It is always useful if they will adopt the legal words, because failure to do so is likely to lead to tedious letters from the lawyers asking for clarification of phrases such as “may well”, “strong chance”, “real threat”, and so on.

An important reason for the early involvement of the main experts, together with solicitor and barrister, is that it is usually helpful for the injured person and his family to get to know the people who are going to be so important in the eventual outcome of his or her claim. I find it so much more satisfactory to get to know the injured person and the family gradually. Then, when a case is coming near to its end and I have to advise the client and his solicitor whether an offer by the insurance company should be accepted, or whether we should fight on to court, I have got to know the whole family, and we can have a friendly and informed discussion, rather than have them spend the entire consultation wondering what I am like, if this is our first meeting, and whether I am any good.

Formation of the Team I favour the early consultation between the lead consultant(s), solicitor, barrister, and claimant and family. Again, this is not always used, probably because of cost, and I can see that, in some cases, the expense would not be justified. However, in the litigation in which I am involved it seems to me to be under-used: the vital ingredient in litigation, essential to blend all the flavours together so that they combine into an effective whole, is teamwork, and I feel strongly that the team should be created from the outset, with as many of the members involved as early as is possible. Of course the traditionalist can foresee all sorts of difficulties in this notion: costs, insurers objecting, consultants objecting and so on, but I have had the advantage of seeing the system working, and sometimes also of having to cope with the alternative. There is probably nothing more frustrating than being instructed in an important case, when it is listed for trial in a month or two, and wishing that you had been given the opportunity to discuss experts, tactics, presentation and all the other indefinable elements which contribute to a successful result. Precisely the same must apply to the consultant who has done his best for the claimant, and who then sees the lawyers fail to understand the principles involved. It does seem to me that an early consultation can be justified in cost terms, by the gathering together of all the strands so that there is minimum duplication by the experts.

In a difficult case, it is possible for the consultation between the lawyers and doctors to take place before the latter examine the claimant, so that the real issues can be discussed and agreed, thus allowing the consultants to concentrate on the points that matter. In complex cases, opinions will be sought from nursing staff and professions allied to medicine, as well as from others, such as employment advisers, architects, therapists, etc. Doctors should not feel that their views are threatened by these, as it is important to gain a balanced view of the client's overall problems and needs. It also supports the philosophy of multi-professional working. The Timescale If the consultant considers that he has the expertise to accept the instructions, he should suggest a timescale in his acceptance letter. This must be realistic, for him that is, because it is unacceptable to start the process of seeing the claimant if the report cannot be produced within a reasonable time, or the time requested by the solicitor. I have come across cases in which it has taken a year or more to obtain the report from the date of instruction; that is only acceptable if it can be built into the litigation process without inconvenience (which it often can). If a consultant is offering dates for medico-legal appointments more than a few months ahead, I would suggest that he should consider refining his practice so that he can manage the appointment within a reasonable time.

An example involved a young German girl who was injured in a car crash in England whilst she was here working. She was soon taken back to Germany so that she could be looked after by her parents in their home, but her case needed all the same investigation and preparation as would an action by an English person. Because of this girl’s condition, pretty well the entire team (including the solicitors and me) travelled to Hamburg and, in a full day’s consultation with a translator, the case strategy was mapped out, the final need for additional experts evaluated, detailed instructions were taken on outstanding points, the experts visited the existing home, and the claimant and her parents were comforted and reassured. All those involved were able to hear how the claimant’s family was explaining their wishes, and so could make their contribution on the spot, rather than having to suggest alternatives at a later stage.

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The Consultation and Examination I am surprised sometimes to see medical reports which do not contain a detailed and accurate history, coupled with a careful review of past and present complaints. The consultant should take as much time as is needed to obtain an accurate history, because it is not uncommon for this part of his report to be scrutinised in court, and every small discrepancy to be highlighted, perhaps to the detriment of the claimant. A possible improvement would be for the solicitor to take an early detailed statement covering all aspects which seem to be necessary (but only what is relevant -for example, a passenger in a car is not likely to have to describe the crash, unless the mechanism of the accident is relevant to the issue of whether a seat belt would have protected him from injury); that statement 10

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could then be sent to all consultants, with clear instructions that it should be read before the consultation, and that there should be no unnecessary repetition. I suggest this because I have heard scores of clients and families complain about how often they have had to repeat the same history again and again, and yet it seems to come out differently in each medical report.

developing more appropriate measures of functioning, and several are now being validated. The choice of the appropriate scale related to the client's circumstances will be up to the examining doctor, but he or she will have to rely more and more in the future on being able to quantify the findings, and it is hoped that the whole process will become more reliable. This will allow better prognostication (prediction of the future).

The consultant should be sympathetic, but that is not to say that he or she must be blind to exaggeration or fraud. There is a potentially difficult path to walk here, because some consultants are unable to bring a sense of fairness to the process. Whichever side has instructed the consultant, he should make sure that he is absolutely fair to the claimant, although that does not mean that he must believe everything he is told! He must take enough time (more than the 5 or 10 minutes I sometimes hear about), and he must make sure that he asks all the relevant questions; in my opinion, it is not acceptable for a consultant to take only a limited, and sometimes inaccurate, history, and then to assert later, accusingly, that the claimant did not tell him something.

While it is important to have objective measurements of disability and handicap, it is also important to determine the impact of the disability on the family, and on significant people in the client’s life. The doctor should actively seek, for instance, to consider the client's potential employability. Obviously, all the above is related to the health perspective, and solicitors will be seeking advice from others, such as care experts, case managers, architects and employment advisers. However, the bringing together of doctors, health professionals and lawyers is a positive step forward in the rehabilitation process and can help people who have suffered a personal injury, provided that they all work together for the best outcome.

The relationship between symptom onset and the accident or incident may be important in determining the connection, and the appropriateness of symptoms in time and intensity. The passage of time since the injury will often cloud or alter the client's memory, and the use of G.P. records, hospital notes and previous medical reports may allow the examining doctor to seek further confirmation of the symptoms. It is important to gauge the effect of the symptoms and disability on the client, his family and his lifestyle. This will obviously include all aspects including his or her home life, employment and personal relationships. It is also valuable to get a carer's or family member's view, although objectivity should be kept in mind.

Possibly one of the most important and commonly overlooked aspects of the examination and report is the effect of ageing on the claimant. Many injuries, particularly the more serious ones, are likely to become more significant as advancing age depletes the physiological reserves. Perhaps the most obvious examples are paralysis and amputation, but in fact there may be important effects of ageing on all sorts of injuries. Not only may the person suffer more, but also the need for care and equipment may increase, sometimes substantially. The Report Introduction The principles governing experts have existed in similar form for a long time, as demonstrated by the quotation below, which is approaching 20 years old. “The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation...

Just as the findings on physical examination should be listed, the residual impairments and disabilities should also be noted. Their relationship to the injury and to the symptoms should be documented along with the appropriateness of the resultant disability or handicap. This is particularly important for people with complex deficits of mobility, co-ordination, dexterity, quality of movement, sensation, communication, cognition and higher cerebral functioning, mood and behaviour. Measurement of impairments should be incorporated at this stage, if possible. It is likely in complex cases that a follow-up consultation will be necessary, and measurement will allow comparison of the client's abilities between one examination and another. It may be possible to use a global scale of assessment, such as the modified Barthel Index score of activities of daily living, or the Functional Independence Measurement, and several such assessment methods exist (but see my reservations about the use of such measures, in the chapter on Brain Injury Behaviour). The professions most concerned with the management of disability and with rehabilitation are

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2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise... An expert witness in the High Court should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.... 4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

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Past medical history Again, care is needed. G.P. records may be important, to check whether there is any relevant history. It is important that the consultant does not get carried away by earlier incidents: it may not be attractive or realistic to suggest that some trifling problem years earlier means that the claimant, who has an unblemished work record, would only have been able to manage another six months even if the accident had not happened. However, I have come across cases where there has been a supervening illness which would have prevented the claimant from working in any event (sometimes fatal). Another point to bear in mind is that GP and other medical records can be misleading or in some cases simply wrong. If a consultant does spot something he feels is of note, it is as well to ensure the record relied upon is accurate and fair.

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one... In cases where an expert witness who has prepared a report could not assert that a report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report... 6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court. 7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports....”: Mr Justice Cresswell in The Ikarian Reefer 1993 2 Lloyd’s Rep 68.

Examination The consultation and examination should take place in an accessible location with due notice being given to the client and copied to the solicitor. If the doctor is not known to the client, directions on how to get to the consultation help both the client and the doctor. One of the commonest causes of irritation is clients or doctors turning up late, and in the case of clients this may be due to inability to find the location of the examination. Disability access information should be given to clients, and doctors would be well advised to utilise the services of a disabled person to ascertain the real accessibility of their examination suite. Information should also be given to the client about the format of the consultation process, the examination and the report, to encourage clients’ active co-operation. Where possible, the examination room should be welcoming, and attention given to this often gives better results for both clients and doctor. The client should also be given instruction by the solicitor beforehand as to what is going to happen, and part of this should include physical appearance. To make a favourable impression, clients should present themselves appropriately dressed in clean clothing, which should be relatively easy to remove for the examination, and put on again.

Preliminaries There are some basic requirements which really ought to be observed. All reports should state, preferably at or near the front, the name, address, qualifications and expertise of the consultant, the source of his instructions, the date of the report, the date of examination, the claimant’s name (spelt correctly), address and date of birth. There should be a brief CV. All documents supplied should be listed, although this used to be controversial: some people thought that, if you did that, the other side was entitled as of right to see all such documents, which might be embarrassing. The current position is that the opposing party will only be entitled to see a document listed in a report if the expert used that document as a significant part of his process in forming his opinion or in the unlikely event that there is some reason to believe there is something “inaccurate or misleading” about the expert’s statement of the instructions he received. Put another way, if it is necessary to see the document in order to understand the opinion expressed by the experts, or there is something untoward about what he says about the instructions he received then it, or the instructions received, must be disclosed.

The patient should always be treated with courtesy and patience. It is not uncommon for a claimant's lawyer to ask how he or she was dealt with by both their own and the other side's consultants, and sometimes evidence is given about a doctor's abrupt or unsympathetic approach. Also, it is surprisingly common for claimants to comment on the way in which they have been treated by medico-legal consultants, and it is not always the other side's experts which are at fault. It is an undoubtedly embarrassing experience for a consultant to have to reveal that he allows only quarter of an hour in a case of serious, difficult or complex injury. The doctor's prior preparation should include the reading of the relevant notes and documents because, as with any consultation, the client's opinion of the doctor's knowledge of the case will influence the solicitor's opinion of the report. Examination is often straightforward, although there is more room in

In some cases, particularly medical negligence, a chronology is appropriate and helpful. All pages must be numbered, and I think it makes it easier to use the report if the paragraphs are numbered also. Presentation matters. History of the accident I repeat that a careful history of the accident or incident may be vital: if the expert has been supplied with a good statement, it will make his task easier, but otherwise it must be done painstakingly. Of course, a solution would be for the expert to insist on a full statement, which I have said above might be a way to protect the injured person from repetition of his or her history. EXPERT WITNESS JOURNAL

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non-paralysing spinal injury for the unfair examination than in most other areas of practice: it is surprising how frequently decent, respectable, hard-working people are accused by doctors of lying or exaggerating.

Discussions between Experts It is now possible, at last, for experts of like discipline to meet, with the object of discussing the issues, identifying the areas of agreement and disagreement, and the reasons for disagreement, and so narrowing or eliminating some or all of the differences between the parties. This approach does create potential difficulties, but it can be a very effective way of eliminating unnecessary argument. I have to acknowledge the problems which can be created, one of which is that one expert might be browbeaten or overborne by the other, and so fail to maintain the position which he so confidently asserted in his report or in consultation. He then comes back, full of explanations and excuses for having sold your case down the river! In fact, only the other day a solicitor made exactly that complaint to me, but I think that there are various answers: one is that you should be more careful in selecting your expert, and another is that, if your case is hopeless, you might as well find out now! Of course, another potential problem is that the exercise calls for goodwill on both sides: it is all too easy for one or the other to take a negative attitude, to listen to the arguments of the opposing expert, but not to embark on a real discussion. This is partly due to lack of instruction by the lawyers, but sometimes it can be caused by the reverse, namely a direction to the consultant that he should not commit his client to any adverse position, which may be interpreted wrongly as meaning that there should not be a sensible exchange of views.

Present condition This is the area where thought has to be given to the effect of the injury on the patient. The correct approach is to consider what he did before the accident, whether he would have continued in that job (redundancy, promotion) and lifestyle, and whether his present condition prevents him from returning to that job, or to any work, and if his lifestyle has been unavoidably altered. Prognosis This is the prediction for the future of the condition. Of course this can be difficult, particularly if the consultant persists in thinking that he must be “certain”, “sure” or “convinced” about the future. What is required is an informed consideration of the nature of the injury, the stress to which the affected area will be subjected, and the likely progress of degeneration, either due to the injury or to age. Remember that what is not crippling now may become so in the future, in which case the claimant may be able to recover compensation. I feel that we give too little thought to future deterioration: it really is not always as difficult as some consultants seem to think. If a doctor cannot make a prognosis on the balance of probabilities, then he or she should say so in clear terms: however, it is important for doctors to realise that courts are seeking to make predictions as to the future in all sorts of different areas, and therefore it is not always helpful to be told that it is impossible to predict. Educated guesses are perfectly acceptable provided they are stated as such.

Part 35.12 of the Civil Procedure Rules provides that the court may direct a discussion between experts for the purpose of identifying the issues and, where possible, reaching agreement. The court may specify the issues which the experts must discuss. A statement may be ordered, showing the issues on which they agree and disagree, with reasons for disagreement. The content of the discussion between the experts must not be referred to at the trial unless the parties agree, and the agreement by the experts is not binding on the parties unless the parties agree.

Further investigations Suggestions for further investigations or enquiries are usually welcomed, and are in accord with the notion that the team of experts, legal and medical, should work together to achieve the best possible result for the patient. This may include a further examination to check progress, but I would advise against too frequent up-dating: it is tempting to be too optimistic about the timescale of litigation!

An undecided question used to be whether the solicitors (and possibly the barristers?) should be present at this type of meeting. On the one hand, the issues are for lawyers to resolve, and so they are in the best position to guide discussions and understand the true flavour of the meeting: on the other, they might allow the adversarial nature of the litigation to get in the way of a free and frank exchange of views, and they might inhibit their own consultant from making a concession which he would otherwise do, on the basis that he did not want his instructing solicitor to see him give way. There is still no clear rule, but the practice seems to be developing whereby the lawyers draft the agenda for the experts’ discussion, but rarely attend. Agendas drafted by lawyers may or may not be useful, depending on the particular circumstances of a case. The danger is that, sometimes, a tightly drafted agenda can inhibit rather than encourage open and frank discussion and may distract experts from issues they consider critical.

Authorities In complex cases, it is sometimes useful to consider, and refer to, relevant medical authorities and texts. The law Particularly in clinical (medical) negligence litigation, it may be important for the expert to set out the law as he understands it to be. First, it shows that the report is based on the correct principles and, secondly, if he is wrong, it is as well to be told at an early stage rather than in the witness box.

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disasters), but I know that some of our Spinal Injury Units feel that many of their patients have not pursued the question of litigation fully. Another problem which they perceive from their close contact with the patients is the difficulty of making sure that true specialists are instructed, rather than someone with whom the patient has had contact in relation to an entirely different type of legal problem.

Joint Instruction of Experts A possible solution to these problems may be to instruct one expert jointly, by agreed letter, without revealing detail which might be thought to be awkward: either solicitor would then have the right, if he chose, to obtain another report if he was not satisfied with the independent one. An incidental result of this approach might be that experts would gradually become more neutral. I must make it clear that I do not mean to say that, as a body of people, they are not fair, but there are those who have a tendency to produce reports which seem to be one-sided. With non-specialist judges, such experts do occasionally carry the day, but generally they are counter-productive, raising issues where truly there are none, offending both legal and medical practitioners (and claimants), and delaying resolution of the action. This was rarely done until recently. I suspect the reason was that legal practitioners are frightened of the possibilities for disaster, and that there was not perceived to be a suitably large pool of truly independent specialists who could undertake the task with the integrity and fairness which is essential. I ought to make it clear that, in the area in which I operate (brain and spine) I see many wonderful consultants who could fulfil the role of single independent expert admirably. Usually they report for both claimants and defendants, and so have developed an understanding of the needs and demands of both sides, which is a good recipe for an even-handed report.

There is scope here for doctors to have some input, by enquiring about the nature of the accident to see whether litigation is realistic and either recommending a solicitor, or a range of them, or by urging the patient to consult one (preferably a specialised one). Well-conducted litigation can be therapeutic! I consider it entirely appropriate for doctors to enquire about the progress of the case, particularly if their patient seems to be distressed by the time taken by the litigation. In fact, I think that consultants can and should go further, if it seems to them that things are not progressing as they ought to; for example, if the accident was straightforward, the consultant might wonder why proceedings have not been commenced at an early stage, why legal aid has not been obtained, why witnesses have not been seen and statements taken, and so on. Some doctors regard the litigation process as being extremely difficult for the patient (a view with which I would agree), and I think that gives them the right, in the course of their treatment of the injured person, to try to minimise the distress caused by the legal side of the injury.

The suggestion by Lord Woolf is that the object of the exercise is to assist the court to a just conclusion, and that the court should know best who is likely to do that. I am very unhappy about this idea. There are so few judges who have ever done any quantity of personal injury litigation that it is unrealistic to expect them to be able to select suitable experts in what may be a complex dispute. Nevertheless, Part 35.7 of the Civil Procedure Rules provides that the court may direct that evidence on an issue is to be given by one expert only: where the parties cannot agree who should be the expert, the court may select from a list or direct that the expert be appointed in “such other manner as the court may direct.�

However, a change which may have been taking place over the last decade is that good claimants’ lawyers now realise that they must not let the court dictate the pace of the claim, because a fair result is often dependent on whether the case comes to court at the optimum time. If it is brought before the judge too soon, he might be swept away by the tide of optimism which often surrounds the rehabilitation process, and he might accordingly predict a better outcome than is realistic. Similarly, if the claimant has not settled into appropriate accommodation, and has not established a suitable support package, it is more difficult to predict what will turn out to be his or her lifetime need.

Time to Trial I hoped, 10 years ago, that there would be a real drive forward aimed at greater efficiency on all fronts, so that one could realistically expect an action to come to trial within five years at the most, or possibly even only three years, from the date of the accident. There was a study in 1993 (Dr Paul Cornes, Disability Management Research Group, Edinburgh University) which gave some very interesting figures for serious brain and spine injuries: of the 152 cases studied, the average period between accident and settlement was 64 months, only 26 took three years or less to finish, and six took more than ten years. One of the things which would improve the time lag would be to persuade either the injured person, or those responsible for him, to consult a lawyer straight away. This seems to be fairly easy in some types of litigation (for example, common industrial conditions and diseases, and major

Exchange of Reports The almost invariable rule has always been that reports should be exchanged mutually, that is to say each side sends the reports to the other at the same time (sometimes there is so much ill-feeling that the solicitors have to agree that the reports should go in the post at a specified time on a given date), like speciality for like. This means that the report should be comprehensive, dealing with all foreseeable, realistic arguments whether for or against the case of the side instructing. This is a slightly contentious issue, because some would say that it is not wise to alert the other side to a line of argument which they might not see otherwise. That is a problem, but the resolution is probably a matter for the expert in discussion with the lawyers: in the end, it is the expert who will be in the witness box. If he did not deal with all relevant issues, he may be asked why he failed to do so, and the answer will

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have to be either that he failed to see it (incompetent!) or that he deliberately concealed it (unfair?).

The Hearing Caution “By contrast, Doctor P... delivers what is in my judgment a devastating critique of Doctor M’s report and evidence. He is supported by the careful and impressive evidence of Doctor B. I accept the evidence of those 2 doctors. The effect of the evidence is that there is no scientific basis for Doctor M’s conclusions as to the ..., and furthermore that upon all the reports and examinations of all the doctors in the case including, of course, the ... reports to which I have referred, the Claimant does not suffer from anything physical which can possibly be attributed to the 1984 accident. The lymphocyte test referred to by Doctor M in one of her reports is negative. It seems to me unfortunate that the phrasing of the relevant report suggests to the outside observer that there might be some significance in that test in favour of Doctor M’s thesis. Doctor M may be a prophet before her time. But in my judgment her evidence was in many respects bizarre and unscientific. Her qualifications are basic. Her business seems to be unacceptable to the vast majority of doctors, and to the insurance houses and her methods and treatment have no parallel or place in the National Health Service routines. I feel that I should say no more. In my judgment the basic case put forward by Doctor M fails...”: Mr Justice MacPherson of Cluny in Taylor v Airport Transport & Warehouse Services Limited [1993] 4 Med LR 231.

The Listing System This is the system operated by the courts to arrange trial dates for individual cases. Unfortunately, we have not yet got to the stage where we can ask for a trial date at a moderately early date in the course of the litigation, and then work to that date; instead, we have to have the case ready for trial on both sides (ie both claimant and defendant), and then we ask the court to fix the trial date, which is usually, in these big cases, 6 to 9 months ahead, thus wasting all that time, and creating the need for further up-dating. All lawyers, and many doctors and other experts, have suffered listing misadventures and disasters, sometimes with equanimity but on other occasions with gnashing of teeth and steam from the ears. Of course it can be difficult, verging on impossible, to cater for witnesses who don’t turn up, for all the myriad eventualities of litigation and, no doubt worst of all, for lawyers who settle their cases at the door of the court. Having made that concession, I feel that it is vital that large cases, sometimes with a dozen or more experts, and always with a desperately worried claimant, should be listed so that they are heard without adjournment caused by lack of court time or many of the other reasons sent to thwart us. One solution, which I hardly dare suggest, is that court time should not necessarily be regarded as the most important element in the listing process.

Preliminaries The expert should familiarise himself with the physical layout of the court, and ask about the judge, his or her foibles and professional background. He should make sure that he has all the relevant documents, in the same order or bundle (the trial bundle) as everyone else. Nothing is more annoying than the witness who fiddles about with all sorts of tatty bits of paper, in the apparently forlorn hope of finding something relevant. All working papers should be put in order, preferably in a file, so that there is an air of efficiency. If the space in the witness box is not enough, the expert should ask for more. He or she should try to remember to look at the barrister when he is asked the questions, and at the judge (far more important!) when answering.

There are many aspects of listing which affect doctors and other experts. First, they should be consulted about the date. Secondly, in substantial litigation, thought should be given to the time when they are likely to be needed: in a five day case, it is very common to insist that the experts attend for all five days, but that is very wasteful of their time, and of cost, and it should be possible to timetable the witnesses so that they waste the minimum of time. However, the best plans will be scotched if the court, having listed the case for 10.30am, does not start it until 3pm. Thirdly, the vexed question of witness summonses (ie court orders forcing the experts to attend court on a given day or days -disobedience is contempt of court and could, theoretically, lead to a prison sentence): should lawyers issue them against doctors and other experts, or not? It is easy for experts to take offence, and sometimes rightly so, but how else does the conscientious lawyer prevent his consultant, an essential element in a five day case which has been booked for nine months, being summonsed in some other case to attend at another court in relation to another case? Communication is usually the answer. Fourthly, one particularly nasty lawyers’ habit is to ask the consultant to keep three weeks free because the court is considering listing the case during that period. That may be acceptable for a short period, but not for long. One solution for experts is to agree, at a substantial booking cost per day!

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The Substance The expert should always keep within his or her area of expertise. By this time, opinions should be firm and clearly considered (Heaven help the expert if they are not), and he should be the master of his subject. Provided he keeps his temper, all should be well. Judges still take old fashioned, hand written notes, which seem to take ages, and they can get quite tetchy if experts talk too fast, but the experts must not be provoked. It is possible that the barristers will know a good deal about their subject, so it is wise to be careful! The Judge I’m treading on really dangerous ground here! Many judges are selected for their experience of the topic in question, but it seems to be too much to ask that personal 15

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injury actions, some involving hundreds of thousands, or millions, of pounds, should be allocated to a judge who has spent at least a substantial part of his or her working life practising in that type of work. This is a contentious issue, I know, and there are doubtless reasons why it might be difficult. The significance for the medical profession is that, whilst solicitors and barristers are (I believe) becoming more and more specialised in the realm of personal injury litigation, it is entirely possible, and even probable, that the judge trying the action will have spent his practising life in a different sphere of law, and therefore will not be familiar with the concepts of personal injury generally. I acknowledge that it must be very galling for consultants to have to go back to first principles, when in reality they should be able to expect extensive experience. Nevertheless, part of the art of being a good witness, and therefore a good expert, is to be able to communicate opinions clearly, despite provocation from opposing counsel, to someone who seems to be ignorant of the basics.

been treating her for years and was sure she was genuine (he had occasionally seen her unawares, and her attitude was appropriate). One of the consultants made a snobbish remark about “only a teaching assistant”, for which he had to apologise, and they both showed themselves to be unfair. Predictably, the judge rejected their evidence (one of them did not really understand the language of spinal injury). The claimant and her husband were so upset that they complained to the employers and to the senior partner of the solicitors. At the other end of the teaching scale, a headmistress of unimpeachable respectability was put through the legal grinding machine by insurers who insisted on calling doctors to allege that she was dishonestly exaggerating her injury (one of the doctors, a professor, being described by the judge as “less than frank”). It took five days to achieve justice for her, and she was awarded good compensation (far more than she would have accepted if the insurance company had behaved decently).

The Adversarial System My own feeling is that the adversarial system may require some modification in order to render it more suitable for complex personal injury claims. An enormous amount of time and money can be spent on medical and other expert reports, sometimes on both sides, and I wonder occasionally whether this could be avoided in part by the joint instruction of an independent expert known to be both fair and knowledgeable. I have dealt with this possibility above, but here I would just like to suggest that there is room for consultants to try to reduce the adversarial nature of litigation: the aphorism that, if two experts cannot agree, one of them is not an expert, may be true. Real expertise, coupled with honesty, fairness and integrity, might reduce the ability of the lawyers to argue!

A third example relates to a woman who was driving her car when an off duty policeman crashed head on into her. She lost both legs, one arm and her husband, and sustained some brain damage, but was treated appallingly by the insurance company, who took the case to trial, conducting it in such a way that the claimant was very upset and distressed. Fortunately, she was able to withstand the pressure (including an offer of almost a million pounds a few days before trial, coupled with the threat that, if she rejected it, they would fight every inch of the way). She was awarded £1.8 million. Conclusion I have gone into detail about the use of experts by lawyers to demonstrate how our system works, which ought to give some insight into the scope for improvement. One of the pressures which I would like to see being brought to bear is doctors becoming more involved in some aspects of the litigation process, so that they can encourage the lawyers to improve their systems in order to make them more workable and efficient. Enthusiastic doctors, who are truly specialist and knowledgeable, and prepared to work as part of a team, with integrity and fairness, would be an enormous impetus for lawyers to reduce wrangling, cut cost and achieve a just result with minimum delay.

Examples Mrs A was a respectable woman who had worked as a school assistant for the local education authority for seven years. She was well-liked by all at work. She slipped on a badly polished floor and injured her lower back. She was off work for a short time, but then returned: she could not carry on, and was eventually found outside the school where she worked, sitting in her car, crying because of the pain. She went to various consultants, both as part of her treatment and for medico-legal reports. Most of them were useless, but eventually we instructed a spinal surgeon of ability who told us clearly what the injury was, and the prognosis. The employers instructed solicitors who always defend, and they instructed two retired orthopaedic surgeons, neither with any recent spinal experience. There were videos of the claimant, which the defence surgeons said showed that she was dishonest, and they also commented on her inappropriate responses on examination. One of the surgeons had written three separate reports on the same day (why do that, unless you want to hide something?), and many of their reports were concealed until a few weeks before trial. We called most of the staff from the school to show that the claimant was a decent, honest woman, and her G.P. to say that he had EXPERT WITNESS JOURNAL

To Order: Brain and Spine Injuries The Fight for Justice.

Second edition only available as an e-book. Send a cheque for £25.00 payable to “The Book Account” to Chantal Campbell at Exchange Chambers, Pearl Assurance House, Derby Square, Liverpool L2 9XX. Or call Chantal Campbell on 0151 236 7747 or E-mail campbell@exchangechambers.co.uk

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Fixed Costs Proposals in Whiplash Reform The handling of whiplash claims and the costs incurred have come under the microscope of Lord Faulks QC Minister of State for Justice in a letter to all stakeholders in early May this year entitled: “Whiplash Reform: Proposals on Fixed Costs for Medical Examinations/Reports and Related issues”

Fixed fees for medical reports The proposal is for all initial medical reports to be subject to a fixed fee: • £180 for a GP report • £420 for a report from a consultant orthopaedic surgeon (including review of medical records)

The government has made the reform of civil litigation funding and costs a priority; and it is focusing on reform of the medical examination and reporting process in relation to whiplash claims, as highlighted in the Government’s whiplash reform response paper, published in October 2013.

• £180 for a report from a chartered physiotherapist • £50 for an addendum report reviewing medical records from a GP or physiotherapist • £80 for answering questions posed under CPR 35. The cost for obtaining medical records has also been capped at £80, comprising no more than £30, plus the direct cost from the record holder.

This has paved the way forward on a number of issues outlined in the letter as: • The need to fix fees for medical examinations and reports in whiplash claims • Discouraging offers to settle being made before appropriate medical reports have been obtained • The imperative for independence in the commissioning and provision of reports • A process to permit only experts with appropriate accreditation to conduct medical examinations The aim is to have the necessary amendments to the CPR and the pre-action protocol for low value personal injury claims in road traffic accidents (the RTA protocol) ready to be implemented in October 2014, according to Hill Dickinson. Paul Edwards Head of Costs at Hill Dickinson sums up the proposals as follows:

Proposals An agreed definition of the type of claims covered A cross industry working group has agreed a definition of ‘Soft tissue injury claim’ to be included in the RTA protocol. It reads: ‘‘Soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.’

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Extra information for medical experts It is proposed to add provision for a defendant to put its version of events forward to the medical expert, where necessary. The plan is for this to be done via the insurer and the MOJ is asking for input on how this could be best arranged, with the policyholder needing to provide their specific authority for the insurer to do so.

that the only sanction in this situation should be that the cost of the report cannot be recovered.

Financial interest in medical reporting intermediary In the interests of ensuring the independence of medical experts, the MOJ is proposing that a prohibition is introduced on either party having a financial interest in any agency through which a medical report is obtained. It is also asking for input on further measures to make sure, for example, that reciprocal arrangements cannot be established between firms to subvert the prohibition.

In its response to a consultation on the proposals, the society said it ‘strongly welcomes the inclusion of physiotherapists’ on the list of professionals who can undertake assessments and provide initial medical reports.

The Chartered Institute of Physiotherapy has a representative on the group and has expressed support for the introduction of fixed fees for medical examinations and reports for whiplash claimants.

The proposed list also includes GPs and consultant orthopaedic surgeons. Under the proposals, the fee for an initial medical report from a physiotherapist or a GP would be £180. The society’s response to the consultation supports this figure.

The MOJ is also asking for views on what should happen if a claimant does obtain a report outside of the fixed fee scheme.

By contrast, a consultant orthopaedic surgeon would receive £420, inclusive of a review of the person’s medical records where applicable.

Pre-med offers Finally, in connection with pre-med offers, the consultation discusses what should happen if a claimant obtains an initial report outside of the fixed fee scheme. It suggests that, in this situation, the defendant should be able to make what it terms a pre-medical offer, albeit this is a slightly unusual description given that there would in fact be a medical report in existence. Claimants are arguing

The CSP also reinforces the message that physiotherapists are experts in whiplash injury and have the necessary skills and experience to undertake medical examinations in these cases. The government hopes to implement its reforms in the summer or Autumn. ■

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Mr Ian Nelson Consultant Orthopaedic Spine Surgeon

Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims.

MB BS, MChOrth, FRCS

Mr Nelson has an excellent knowledge of general Orthopaedics with a special interest in spine surgery.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2014.

He has regularly written Personal Injury reports as instructed by claimant and defendant solicitors since 1988. He has appeared in Court on two occasions in 2012. Mr Nelson restricts his area of medicolegal expertise to all aspects of spine injuries and disorders

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham & London. Other locations and Domiciliary visits can be arranged.

Contact: Level 2, Gate 6, Brunel Building, Southmead Hospital, Westbury on Trym. Bristol, BS10 5NB Tel: 0117 414 1620 Contact: Mr Ian Nelson Secretary Mrs Mary Burns Email: mary.burns@nbt.nhs.uk Web: www.bristolspinesurgery.com

Contact person:

Jane Griffiths (Medico Legal Manager) Tel: 0161 485 1881 Mobile: 07885 913 912 Email: expertpainreports@gmail.com Suite 5, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG

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Evidence vs. Anecdote in Foot and Ankle Surgery Judith Baumhauer, M.D., M.P.H. Professor and Associate Chair of Orthopaedic Surgery University of Rochester Medical School, Rochester, NY This article is based on the Naughton Dunn Lecture given by Judy Baumhauer at the BOA Annual Congress in Birmingham 2013. Evidence: The available body of facts suggesting a belief is true or valid. Anecdote: A short, amusing or interesting story that need be neither true nor valid.

revisit some of these established treatment trends to determine if there is an evidence base to support their use. The ancient Chinese developed the concept of evidence based medicine, however it was in the early 1990's that Gordon Guyatt and colleagues brought the current concept of evidence based medicine to the fore1. This led to an evidence based hierarchy that has been peer reviewed published and well accepted2 (Table 1 overleaf).

Diagnosis and treatment decisions are often based on sketchy information passed down through the years; eventually becoming dogma; gradually assuming the mantle of fact masquerading as knowledge. We must

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Table 1: Levels of Evidence in Medicine2 Level 1 Level 2 Level 3 Level 4 Level 5

In the conclusions that are drawn from the evidence of the article: "Isolated FDL transfer to the navicular arrests the flat foot deformity, relieves pain and restores inversion power of the hindfoot at two years." Is this evidence or anecdote?

Randomised Clinical Trials (RCT) Lower quality RCT Case controlled Studies Case Series Expert opinion

Using quality research measures, this paper is defined as a Level 4 paper, a case series with a small subject number (17). There is no control arm therefore all patients underwent FDL tendon transfer to the navicular. The authors did not utilise any validated methodology or outcomes measures. There was no standardised radiographic methodology available at that time and no functional outcomes were obtained. The authors did use standardised surgical techniques and post-operative treatment protocols for this patient group. There were no statistical analyses performed on any of the parameters measured in this paper. The duration of follow up was a minimum of two years. Based on this information and assessment of the quality measures utilised to determine the conclusion statements, it would seem that this case series described a surgical treatment however; it did not prove that this surgical intervention relieves pain and restores inversion power of the hindfoot. It is therefore a well-meaning anecdote.

The quality of the information obtained influences the level of evidence ranking. Quality indicators include the type of study, quality of the study design, per cent follow up, statistical methods and enrollment criteria utilised for the clinical trial3 (Table 2). Table 2: Quality indicators for Clinical Research in Medicine* Type of Study Quality of the Study Design % of Patient Follow up Statistical methods Enrollment criteria *Wright RW, Brand RA, Dunn W, Spindler KP: How to write a systematic review. Clin Orthop Relat Res. 2007 Feb;455:23-9.

The rigor of these quality measures impacts the level of evidence assigned to the research.

There are numerous case series available in the foot and ankle literature (Hunt et al). These case series do not have a level of evidence to support universal adoption of the suggested treatment as in the use of an isolated FDL transfer to navicular however; they do provide information that can lead to further study. Pinney published a symposium on evidence based medicine: “What is it and how should it be used?”7. A section looked at case series (level 4) and case reports (level 5)8. These published Level 4 and 5 studies allow clinicians and researchers to be exposed to new ideas which may be the stepping stones for more advanced study. Friedman, JAMA 19999 commented about Level 4 and 5 studies. “These lower level studies provide detailed observations and descriptions of new diseases or conditions. They also provide pilot study data for future power analyses and aid in study design. These Level 4 and 5 studies also may have a quick turn around on time sensitive issues opposed to Level 1 and 2 studies which often can take years to get the available data and conclusions into the literature. These case series and case reports may be the only options for orphan or very rare conditions and they also allow us to detect drug side effects in an expedient manner. “Hoffman et al10 published an article on the negative implications of case series and case reports. They looked into the percentage of case series and case reports that have been used as stepping stones for Level 1 or Level 2 studies. They highlighted that most new ideas, from these lower level evidence papers, are not substantiated with more

Foot and ankle research has primarily been Level 4 retrospective cases series. A recent publication by Hunt and Hurwit (2013)4 reviewed our foot and ankle literature to assess the level of evidence over a 9-10 year time period. They found 70% Level 4 studies, 12% Level 3, 9% Level 2 and only 9% Level 1 studies. This was actually an improvement over earlier papers looking at the level of evidence in foot and ankle literature5! Although current publications record the level of evidence, older literature did not. Here we will look back on some well held principles of foot and ankle care from older literature to determine whether or not these “peer reviewed” papers were in fact based on evidence or anecdote. The index citation tool on the Web of Science was used to provide a listing of the most highly cited peer reviewed papers in the world literature cross referenced for foot and ankle over the last 30 years. Identifying a highly cited paper and assessing whether or not the science behind that paper used quality research principles would give us some insight as to whether or not we are perpetuating dogma or if we are truly using high level evidence. "The rupture of posterior tibial tendon causing flat foot surgical-treatment" authored by Roger Mann and Francesca Thompson in 19856 was cited 213 times. EXPERT WITNESS JOURNAL

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rigorous research. They argue that the case series and case reports contain misleading data and conclusions with small subject numbers and wide variation. The data is often qualitative and not quantitative and it lacks validated outcomes measures as we saw with the FDL to navicular paper. They summarise their conclusions with a comment “does more harm than good by focusing on the bizarre.”

“substantial evidence supports screening all patients with diabetes to identify those at risk for foot ulceration. These patients might benefit from certain prophylactic interventions including patient education, prescription foot wear, intensive podiatric care, and evaluation for surgical interventions.” If we look at the quality research indicators, this paper was in fact a Level 1 systematic review. The authors looked at 165 articles, 22 of which were randomised controlled trials. The primary outcome measures utilised in the study included ulceration or amputation with or without intervention. They reviewed the factors resulting in diabetic foot ulceration including peripheral neuropathy, vascular insufficiency, increased plantar pressures, poor glucose control and smoking and examined interventions aimed at decreasing ulceration or amputation. These interventions included patient or physician education, custom foot wear, orthoses, preventative surgery, and routine foot exams. In reading this article and the referenced supportive publications from the systematic review, it was clear that patient or physician education, custom foot wear, orthotics and preventative surgery had no impact on decreasing foot ulceration or amputation. The isolated factor that decreased ulceration and amputation was routine foot examination. It appears that seeing the patient in a routine period of time such as every six months does decrease the risk of foot ulceration.

Despite the negative comments made by Hoffman and his colleagues, there are historic examples of Level 4 and 5, evidence that have made great contributions to the advancement of patient care. In the 1980’s, Drs. Conant and Volverg recognised a unique tumor, Kaposi’s sarcoma in eight homosexual males11. It is their recognition of this link that led to the recognition of AIDS and HIV virus transmission. In 1952, Dr. Jonas Salk produced a polio vaccine consisting of a dead injectable virus, and in 1957 Albert Sabin, M.D. produced an attenuated vaccine tested in 19 children that could be taken orally12. Salk was credited with the eradication of polio in the United States while Sabin’s oral vaccine has been utilised throughout the world. These Level 4 case series changed care around the world. Mr. Naughton Dunn, M.D. recognised the importance of case series and the re-evaluation of his patients to improve patient care. In his presidential address in 1928 he stated, “If we refer to a modern textbook on orthopaedic surgery we find that all the principles on which we rely for the treatment of infantile paralysis are recorded, so that I have nothing new to offer. My only reason for selecting this subject for discussion is that so many alternative treatments are advised that a frank review of these and the results of our own practice and experience may be helpful”13. Mr. Dunn recognised that anecdotal information had been perpetuated by repetition. He recognised the need for a frank assessment of these treatments. Mr. Dunn published a case series entitled “Calcaneal cavus and its treatment” in 191914. He looked at a wedge resection of the midfoot to correct a cavus foot along with a soft tissue release of the Achilles. He provided pre- and post- operative radiographs and clinical photographs of his patients. This type of surgery and treatment is still utilised today.

The conclusions stating that the patients might benefit from certain prophylactic interventions should only include routine foot exams. The other aspects of patient or physician education, custom foot wear, orthoses, preventative surgery are only options and not substantiated by this publication. It is often the case that a significant amount of resources and time is spent on patient education, physician education, custom foot wear, orthotics and preventative surgery for diabetic patients suffering from ulcerations. The support for these treatments might actually be regarded as anecdote rather than evidence. A better summary that is supported by the evidence would have included only routine foot exams.

In summary, the rupture of the posterior tibial tendon causing flat foot – surgical – treatment by Drs. Mann and Thompson was a meaningful case series but not critical evidence. It led to a number of higher level evidence studies with control groups comparing different treatment options for posterior tibial tendon dysfunction. It did advance the science.

Mr. Naughton Dunn recognised the importance of clinical outcomes in assessing our patients and stated in a paper published in 1922 “Orthopaedic surgery is so closely associated with function that perhaps in no other branch of surgery is the patient in a better position to judge of the practical success or failure resulting from any operative procedure”16. Naughton Dunn was certainly ahead of his time in recognising the importance of patient derived outcomes.

The fifteenth most commonly cited Web of Science article in foot and ankle was out of JAMA entitled “Preventing foot ulcers in patients with diabetes”15. The conclusions are

The number one citation from the Web of Science was a paper entitled “Clinical rating systems for the ankle-hindfoot, midfoot, hallux, and lesser toes”17. This particular

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paper has been cited over 1,200 times. The summary statement from this article is “Four rating systems were developed by the American Orthopaedic Foot and Ankle Society to provide a standard method of reporting clinical status of the ankle and foot. The systems incorporate both subjective and objective factors into numerical scales to describe function, alignment and pain.� An example of the hallux metatarsophalangeal-interphalangeal scale is provided in Table 3. Table 3 Hallux Metatarsophalangeal-Interphalangeal Scale (100 points total) Pain (40 points) None Mild, occasional Moderate, daily Severe, almost always present Function (45 points) Activity Limitations No limitations No limitation to daily activities, such as employment responsibilities, limitation of recreational activities Limited daily and recreational activities Severe limitation of daily & recreational activities Footwear requirements Fashionable, conventional shoes, no insert required Comfort footwear, shoe insert Modified shoe or brace MTP joint motion (dorsiflexion plus plantarflexion) Normal or mild restriction (75o or more) Moderate restriction (30o -74o ) Severe restriction (less than 30o ) IP joint motion (plantarflexion) No restriction Severe restriction (less than 10o ) MTP-IP stability (all directions) Stable Definitely unstable or able to dislocate Callus related to hallux MTP-IP No callus or asymptomatic callus Callus, symptomatic 0 Alignment (15 points) Good, hallux well-aligned Fair, some degree of hallux malalignment observed, no symptoms Poor, obvious symptomatic malalignment

These clinical rating scales are anatomic outcomes instruments that are clinician derived and administered. There are four anatomic scales and each includes the items of pain, function and alignment in a point allocation system that totals 100 points. It takes about five minutes to complete. Despite high numbers of citations for this paper, many subsequent publications have raised questions over the validity and reliability of the clinical rating scales18-20. This paper, the number one cited foot and ankle paper identified by the Web of Science, is anecdotal and proven to be inappropriate for future use.

40 30 20 0

With the sun setting on the AOFAS clinical scoring systems, comes an opportunity to re-evaluate what type of outcomes measures might be appropriate for foot and ankle. The PROMIS is a Patient Reported Outcomes Measurement System that has been developed in collaboration with Northwestern University in Chicago, IL and National Institute of Health21. It allows healthcare providers to assess patient reported outcomes through the utilisation of a technique called item response theory (IRT) and computer adaptive testing (CAT). Through the PROMIS system, patients are asked questions in a variety of different domains including lower extremity physical functioning. The American Orthopaedic Foot and Ankle Society is currently organising pilot projects to look at the

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Mr Roger Helm Consultant Orthopaedic Surgeon

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MB, ChB, FRCS (Eng), FRCS (Edin( (Orth) Consultant Orthopaedic Surgeon at Doncaster Royal Infirmary since 1991. General Orthopaedic/trauma practice with a special interest in hand and upper limb surgery. Royal College specialty tutor for 10 years. Over 25 research papers published in international journals.

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Over 15 years experience in Personal Injury and Clinical Negligence medico-legal work including report preparation (several hundred yearly), conferences and Court appearances and lecturing. Approximately 80%

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Contact: Monika Stenton Email: RogerHelm@aol.com Address: Park Hill Hospital, Thorne Road Doncaster DN2 5TH Tel: 01302 865131 Fax: 01302 864205 Mob: 07796 958255 Area of work South Yorkshire and Nationwide

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From: Kitaoka HB, Alexander IJ, Adelaar RS, Nunley JA, Myerson MS, Sanders M. Clinical rating systems for the ankle-hindfoot, midfoot, hallux, and lesser toes. Foot Ankle Int. 1994 Jul;15(7):349-53. EXPERT WITNESS JOURNAL

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feasibility of the PROMIS physical functioning CAT tool22First steps included gathering data from 10 academic centres to optimise the data collection and the utilisation process. With the next step PROMIS will be rolled out into a sample of private practices that often do not have the infrastructure for outcomes assessment. Additionally, the Society has been examining the bank of questions that are currently utilised in the lower extremity physical functioning domain and comparing it to other legacy scales such as the clinical rating scales.

Jul;15(7):349-53.

In summary, evidence is really based on quality research. There are quality measures that can be used to evaluate publications. We need to be critical in the assessment of research that influences the treatment of patients to determine whether or not the foundation of any research is evidence or anecdote. All levels of evidence have value; however, taking research directly to our patients needs a critical eye to avoid dogma.

22.Hung M, Baumhauer JF, Latt LD, Saltzman CL, SooHoo NF, Hunt KJ; National Orthopaedic Foot & Ankle Outcomes Research Network. Validation of PROMIS ® Physical Function computerized adaptive tests for orthopaedic foot and ankle outcome research. Clin Orthop Relat Res. 2013 Nov;471(11):3466-74.

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18. Guyton GP: Theoretical limitations of the AOFAS Scoring System: An Analysis using Monte Carlo Modeling. FAI 22:779; 2001. 19. Baumhauer JF, Nawoczenski DA, DiGiovanni BF, Wilding GE: Reliability and Validity of the American Orthopaedic Foot and Ankle Society Clinical Rating Scale: A Pilot Study for the Hallux and Lesser Toes. FAI 27:1014, 2006. 20. Pinsker E and Daniels TR: AOFAS Position Statement regarding the future of the AOFAS Clinical Rating Systems. FAI 32:841, 2011. 21. Cella D, Yount S, Rothrock N, Gershon R, Cook K, Reeve B, Ader D, Fries JF, Bruce B, Rose M; PROMIS Cooperative Group. The PatientReported Outcomes Measurement Information System (PROMIS): progress of an NIH Roadmap cooperative group during its first two years. Med Care. 2007 May;45(5 Suppl 1):S3-S11.

23. Hung M, Nickisch F, Beals TC, Greene T, Clegg DO, Saltzman CL. New paradigm for patient-reported outcomes assessment in foot & ankle research: computerized adaptive testing. Foot Ankle Int. 2012 Aug;33(8):621-6. 24. Hung M, Franklin JD, Hon SD, Cheng C, Conrad J, Saltzman CL. Time for a Paradigm Shift With Computerized Adaptive Testing of General Physical Function Outcomes Measurements. Foot Ankle Int. 2013 Oct 7. [Epub ahead of print]

© British Orthopaedic Association 2014. Originally published in the Journal of Trauma & Orthopaedics

Correspondence: Judith Baumhauer, M.D., M.P.H. Professor and Associate Chair of Orthopaedic Surgery University of Rochester Medical School 601 Elmwood Avenue, Rochester, NY 14642 U.S.A. Email: judy_baumhauer@URMC.Rochester.edu

References 1.Cook DJ, Jaeschke R, Guyatt GH (1992). "Critical appraisal of therapeutic interventions in the intensive care unit: human monoclonal antibody treatment in sepsis. Journal Club of the Hamilton Regional Critical Care Group". J Intensive Care Med 7 (6): 275–82. 2. Sackett DL, Rosenberg WM, Gray JA, Haynes RB, Richardson WS: Evidence based medicine: what it is and what it isn't. BMJ. 1996;312(7023):71. 3. How to write a systematic review. Wright RW, Brand RA, Dunn W, Spindler KP. Clin Orthop Relat Res. 2007 Feb;455:23-9. 4. Hunt KJ, Hurwit D: Use of patient-reported outcome measures in foot and ankle research. J Bone Joint Surg Am. 2013 Aug 21;95(16):e118 (1-9).. 5. Barske HL, Baumhauer J: Quality of research and level of evidence in foot and ankle publications. Foot Ankle Int. 2012 Jan;33(1):1-6. 6. Mann RA, Thompson FM: Rupture of the posterior tibial tendon causing flat foot. Surgical treatment. Bone Joint Surg Am. 1985 Apr;67(4):556-61. 7. Pinney S. Symposium: evidence-based medicine: what is it and how should it be used? Foreward. Foot Ankle Int. 2010 Nov;31(11):1033. 8. Baumhauer J: The use and misuse of Level IV and Level V evidence. Foot Ankle Int. 2010 Nov;31(11):1037-9. 9. Friedman MA, Woodcock J, Lumpkin MM, Shuren JE, Hass AE, Thompson LJ. The safety of newly approved medicines: do recent market removals mean there is a problem? JAMA. 1999 May 12;281(18):1728-34. 10. Hoffman JR: Rethinking case reports. West J Med. 1999 May;170(5):253-4. 11. Rubenstein SA, Jenkin WM, Conant MA, Volberding PA: Disseminated Kaposi's sarcoma in male homosexuals. J Am Podiatry Assoc. 1983 Aug;73(8):413-7. 12. Katz SL. From culture to vaccine--Salk and Sabin. N Engl J Med. 2004 Oct 7;351(15):1485-7. 13. Dunn, Naughton: Presidential Address: The surgery of muscle and tendon in relation to infantile paralysis. Proceedings of the Royal Society of Medicine. Section of Orthopaedics. October 2, 1928. John Bale, Sons & Danielsson, pub. 14. Dunn, N: Calcaneo Cavus and It’s Treatment. J Orthopaedic Surg. 1:12:1919 15. Singh N, Armstrong DG, Lipsky BA. Preventing foot ulcers in patients with diabetes. JAMA 293(2):217-28, 2005. 16. Dunn N.Stabilizing Operation in the Treatment of Paralytic Deformities of the Foot. Proc R Soc Med. 1922;15(Surg Sect):15-22. 17. Kitaoka HB, Alexander IJ, Adelaar RS, Nunley JA, Myerson MS, Sanders M. Clinical rating systems for the ankle-hindfoot, midfoot, hallux, and lesser toes. Foot Ankle Int. 1994

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More Patients Surviving Major Trauma This July, NHS England Chief Executive Simon Stevens applauded “a major NHS success story” as new figures show about 600 more patients are surviving major trauma since changes to services in April 2012. The 16,000 life-threatening major traumas are the biggest cause of death in children and adults under the age of 40 annually. In all, some 37,000 are seriously injured in England each year.

“The NHS of the future will be one where more support for frail older patients is provided locally, but where for really major conditions, patients get quick access to centres of excellence. We need both – not either/or.” “This reminds us that healthcare is constantly changing and the NHS needs to adapt with it. Sometimes we need to centralise in order to save lives, at other times we need to make services more local to meet the needs of patients.”

An independent audit, commissioned by NHS England and produced by the Trauma Audit and Research Network (TARN), shows that patients in England have a 30 per cent improved chance of surviving severe injuries after the introduction of Regional Trauma Networks across England in April 2012. This equates to 600 more lives saved than in 2012, the audit suggests – currently each year about 3,000 people reach hospital alive but die of their injuries.

Regional Trauma Networks were developed by doctors, nurses and allied health professionals including paramedics and physiotherapists. They aim to ensure patients get the best possible care from the scene of an accident to their rehabilitation at home. Those with the most serious injuries can go directly to one of 25 major trauma centres around the country. Previously they were taken to the nearest hospital but few district hospitals have ever had capacity to provide the specialist comprehensive care – 24 hours a day, seven days a week – that these patients need urgently.

Simon Stevens says: “This is a major success story – more people are surviving serious injuries because they are taken straight to specialist trauma teams who identify life-threatening problems quicker and perform life-saving operations earlier.”

Visit www.england.nhs.uk for the full details. ■

Mr R N Brueton Consultant Orthopaedic Surgeon MB BS, MRCS, LRCP, FRCS (Lon), MD (Lon), BA, MA

Mr Brueton is a Consultant Orthopaedic Surgeon, based in London. With a particular interest in the management of trauma, especially pelvic and acetabular fractures. He has operated on over 70 acetabular fractures. His expertise in the treatment of fractures of the upper and lower limbs is considerable. Contact: Mr R N Brueton 45 Grosvenor Road London N10 2DR Tel: 0208 442 0464 Email: bruetons@ar2.net

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Common Pathologies in the Shoulder and Dilemmas in Diagnosis and Treatment by Mr Keith Borowsky

Trauma and Orthopaedic Surgeon specialising in Shoulder and Elbow Surgery MBBcH (Wits), F.C.S. (Orth.), M.Med. (Orth.) Possibly the most striking difference the shoulder joint has compared to other joints in the body is its exceptional range of motion. Through this fact (Teleologically) the prehensile animal obtains placement of a sophisticated working tool (the hand) in the greatest possible working area.

comparatively reduced range of motion. At the extremes of motion one or other part will impinge on its mating part’s shaft bone curtailing range. The advantage of such joints however is inherent stability or resistance to dislocation. By contrast the bony architecture of the shoulder is that of a ball on a flat plate (the glenoid bone.) What keeps it stable is the rotator cuff- a cowl of musculo -tendinous structures that emanate from the contours of the flat plate and clasp the peripheries of the ball. When the cuff contracts it effectively replaces the function that bony socket extensions of the flat plate would have. The advantage- extraordinary range of motion. The disadvantage – instability . The shoulder is the most frequently dislocated joint.

So how does the shoulder achieve this and why do other joints not have this capacity? The answer to this is the rotator cuff and the joint shape. Most joints have articular surfaces that are well matched and captive of each other. Eg the hip is a ball and socket joint whereby the socket covers a fair proportion of the ball. The elbow is a hinge joint with mating parts that are similarly captive. The price for this arrangement is a

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Shoulder joint

Hip joint

Elbow joint Joint Capsule

Acromion Coracoid Process

Articular Cartilage

Radius

Scapula

Trochlea of the Humerus Synovial Membrane

Annular Ligament

Joint Cavity

Hip Joint

Humerus

Olecranon process

Femur Glenoid Ulna

Olecranon Bursa

acromio clavicular joint (a small joint between the collar bone and acromion at the top of the shoulder) start to develop (not necessarily symptomatic.) The incidence of capsulitis (or frozen shoulder) becomes more marked – a common and strange condition whereby the capsule progressively contracts and can produce excruciating pain and a global restriction in range. The condition can persist for over a year and tends to resolve spontaneously by about 18 months.

The rotator cuff is therefore charged with stabilizing the joint, and as such works hard every day of one’s life! It is perhaps not surprising that with age and degeneration of tendon quality that spontaneous deficiency and tearing of the cuff will occur. This is most common in the top tendon of the cowl – supraspinatus. If one looks across the population very few if any 20 year olds will have a degenerative tear. In dissection of cadaver specimens over 70 years of age approximately 30 % will show tears- and these tears may have been totally asymptomatic.

In the more elderly age group ( above 65) degenerative arthritis (occasionally accompanied by significant cuff tearing –cuff tear artrhopathy) feature more prominently. Low energy fragility type fractures particularly in females become more prominent.

Thus the rotator cuff provides the fulcrum by providing a sort of dynamic non- bony socket. Larger more external muscles provide for more power of motion based on the presence of this fulcrum. When the cuff fails the fulcrum often (but not always) is lost leading to a condition termed “pseudo paralysis.“ This really means loss of mechanical fulcrum.

These age divisions for responsible pathology are a good guide to the likely problem, but of course they are not invariable - eg an elderly person may also dislocate their joint.

Common pathologies in the shoulder and and dilemnas in management. Common pathologies are perhaps best viewed by typical age of presentation. In the young say below 30, both activity profile and pliability of the soft tissues (capsule, ligaments, muscles and tendons) is highest. Not surprisingly therefore dislocations and instability are more common, whereas degenerative arthritis is rare. Dislocations and their milder counterpart subluxations, affect both the ball and socket and the joint between clavicle and acromion (top most bone of the shoulder). High energy fractures from accidents and sports also usually affect this age group.

Dilemnas in management in part occur firstly because the various regions that can be affected are so close to each other. Thus the main ball and flat plate, the rotator cuff and the acromion bone, and the ac joint are geographically very close to one another. So it can be difficult to tell which structure is causing the problem. Additionally more than one structure can be pathological at the same time. For example impingent and ac joint arthritis may well co-exist. Impact of medico-legal cases. Superimposed on the above pathologies, an injury can produce difficult questions as to causation. Management can also become complicated. The immediate and natural perception of the injured person is that the accident is the sole cause- particularly if he/she never suffered symptoms prior to this. Almost all the degenerative conditions above may be worsened by trauma. Could trauma cause a rotator

In the middle age group say 40 plus, rotator cuff tendonitis and degenerative tearing starts to develop. Tendonitis commonly is associated with a reduced space for the top tendon (suprapinatus) to move under the acromion bone. This produces one of the commonest pathologies- impingement. Some degree of arthritis of the EXPERT WITNESS JOURNAL

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cuff tear or impingement? Certainly severe trauma could tear a rotator cuff eg an unexpected rip on the upper limb in waterskiing could tear the rotator cuff even in a young person with no degenerative tendon features. But this is rare. In the middle aged or elderly there is very likely to have been some aspect of degenerative tendon pathology before the accident. However quite often this may have been completely asymptomatic. The difficult question then remains- had the accident not occurred how long would such potential degenerative change have remained asymptomatic? And therefore how much has the accident contributed to the problem? This clearly is not an exact science. About 50% of asymptomatic small tears may never become symptomatic. About 50% of asymptomatic small tears progress in size. So on balance the previous history of problems becomes important in assessing contribution of the accident.

From the treatment side a medico legal factor can affect success. The relationship with work is not uncommonly changed , financial considerations on all sides may add stress and distort progress. There is therefore quite a possibility that the poorer outcomes typical of workman’s compensation cases attend medico – legal cases. Pressure to return to work can impose unrealistic expectations of healing time, and antagonism towards the perceived causative party for the accident can delay recovery. From a purely treatment perspective perhaps the most important aspects to resolve are diagnosis (clarity of medical causation) and early relief of pain (usually followed by restoration of function.) The effect of time here is particularly significant. It is essential that as an accurate a diagnosis is achieved as soon as possible (sifting out as much as possible the work related antagonism and finance.) Early relief of pain and realistic healing times are cardinal for the best result even if these appear to conflict with expectations. Arnold K Henry’s comment in regard to early treatment of pain is as pertinent today as it was many years ago:

When it comes to arthritic change the answer is usually clearer and linked to time. Trauma can certainly produce fractures into a joint, and these can lead to arthritic change as visible on x-ray. But such x-ray changes take time to develop. So clear arthritic change on an x-ray shortly after an accident indicates preceding pathology. Absence of x-ray changes of arthritis does not exclude more subtle cartilage damage, nor the possibility that damage not detectable on routine x-rays might evolve to more radiological changes later on.

“Such lesions should be treated urgently, before the pain takes root within the thalamus*, thence to wear slowly out or wear out the patient. For when the thalamus is sick, no surgery can cure – except the guillotine.” ■ * Thalamus - particular area in the brain thought responsible for mediating pain.

Mr Keith Borowsky

Dr Anba Soopramanien MD, PhD, FRCP

Trauma and Orthopaedic Surgeon specialising in Shoulder and Elbow Surgery

Honorary Consultant in Spinal Injuries & Rehabilitation Medicine, Salisbury District Hospital

MBBcH (Wits), F.C.S. (Orth.), M.Med. (Orth.)

Clinical and medico-legal specialist Interest areas: ❖ Spinal Injuries and Back pain ❖ Spinal Cord Injuries ❖ Brain Injuries ❖ Rehabilitation ❖ Whiplash Injuries

Mr Keith Borowsky is a Trauma and Orthopaedic Surgeon who has been practising orthopaedics for over 30 years, including 22 years experience as a consultant. Mr Borowsky current position is as a Substantive Consultant at Medway Maritime Hospital, a position he has held for the last 14 years.

Clinics in Salisbury, Southampton, London; Available for Home Visits Prepares approximately 200 reports per annum Instructions: Claimant 70%; Defendants 30%; SJE 20%

Mr Borowsky has been involved in medico-legal reporting for over 19 years, undertaking personal injury and road accident reports. He also offers expertise on existing reports where cases are in limbo because diagnosis is unclear.

Contact: Mrs Kamala Sundaramoorthy, BCom, MBA Tel: 01722410559 Fax: 08721114561 Mob: 07436795689 Email: dr.soopramanien@btinternet.com Address: Tythe House, Odstock, Salisbury, SP5 4JA

Contact: Keith Adrian Borowsky Tel: 01634 662 834 Email: kesujeca@gmail.com Spire Alexander Hospital Impton Lane, Walderslade, Chatham ME5 9PG

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Total Knee Replacement A Good Reliable Operation by Ian Forster There are recent reports which doubt the efficacy of this. At the start of the operation a high dose of antibiotics is usually given with the induction of anaesthesia and usually two further injection s after the operation.

Thousands of total knee operations are performed every year. Those performing them may do a hundred + each per year but others do only a few per year. Results therefore are variable and do follow the numbers of the experienced surgeon. Some surgeons use computer assistance which seems logical to improve the results by improving the placement of the replacement. So far no benefit has been shown certainly in the short term or the long term if this is carried out. The majority of knee replacements would be done without such help.

Unfortunately infection occurs in a number of patients despite this. It is increasingly likely when there is infection elsewhere such as in the urine or whether there is local breakdown of the wound possibly after previous scarring due to surgery. Diabetes can be a cause of infection. Skin infection when it does occur can be treated by clearing and by antibiotics but not deep infection which generally means removal of the prosthesis and revision with antibiotics usually in two stages. Therefore it is best to avoid infection if at all possible.Infection itself is unlikely to be negligent if all the usual precautions are teken.

Long term results can be assessed because all total knee replacements in the UK are put into the National Joint Registry. Surgeons can find out their own results as well as the overall results and the results of their particular unit. In spite of all the best efforts there are 10-15% of patients who following total knee replacement still have unexplained significant pain.

4. All patients do have bleeding to the wound after total knee replacement and the question is whether this is excessive. This is more likely to be when an anticoagulant is given as a prophylaxis against DVT. For this low doses of anticoagulants are used but side effects are very common. Despite this there can be excessive bleeding with very swollen knee which can give rise to the need for washout, can delay mobilisation and can make the knee stiff afterwards. Again generally there would be no negligence.

The early complications following operation are the same as those discussed in the consent form naturally:-Pain Infection Bleeding DVT/PE Neurovascular injury. 1 If the pain is unexplained revision is not helpful. Loosening can be a cause of pain this usually comes on later and not immediately after operation. Patients are usually well after the operation and doing well then pain occurs later as the replacement loosens.

5. DVT prophylaxis is of two types, both chemical and mechanical. Chemical prophylaxis is the use of small dose anticoagulants, those used are numerous and there are numerous regimes. The NICE guidelines do guide but are not mandatory. The suggestion in the NICE guidelines is two weeks of chemical prophylaxis and mechanical prophylaxis using TED stockings for six weeks. The other forms of mechanical prophylaxis, calf or foot pumps, are undertaken straight after surgery in the recovery room until going to the ward. As soon as anyone gets up and walks around these are not usually practical.

2. Mal positioning of the prosthesis can produce ligament pain or impingement. The investigations looking at the possibility of loosening are X rays or CT scans, not MRI since the metal would cause too much distortion of the image.Subtraction programs can make an MRI scan useful but this is better avoided if possible. 3. Today total knee replacements are almost always done in a laminar flow theatre. EXPERT WITNESS JOURNAL

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As the hips are further apart than the knees then the ideal angle between the femur and tibia is 5-10 degrees. If it outside this range it is possible a breach of duty has occurred since such positions (especially less than 5 degrees) predisposes to early failure because of increased stress and loosening. If the knee is very stiff before the operation a full range of movement is not usually obtained after the operation in the long term and sometimes it is not able to straighten it fully. If there is considerable deformity visible from the front then correcting this may be possible but at the expense of nerve stretching and damage and a much more extensive operation.

Aspirin used to be a very commonly used drug. This has been shown to be ineffective, although it is also without complications it does not tend to help in the reduction of DVT risk. Even with use of both chemical and mechanical prophylaxis it needs to be remembered that deep vein thrombosis can still occur, it merely reduces the risk. 6. Neurovascular damage would be extremely rare and unusual following a total knee replacement and would certainly be negligent unless major correction of the knee is required and the nerves could then be stretched as a result that correction. The patient, in this situation, would have to be advised before surgery that this risk was a possibility. After it has happened,unfortunately one has to wait and see what recovery there is. The nerve itself would be entirely intact merely the nerve fibres having been damaged.

The patella is a problem. Some surgeons always replace it, some never replace it and some do it if they think it is necessary. There is no real literature to support any of these approaches against the other. This is a matter of personal preference. It is important that the patella tracks properly and moves in the right groove after operation. A dislocating patella can cause considerable disability and may well need further surgery to correct it. Such a situation may notify a breach of duty depending on the pre-operative state and difficulty of correction.

All these possible complications have been included in the pre op consent and it should be taken as late as possible before surgery. There is usually a pre-operative assessment clinic ten days before trhe operation normally. This clinic is also a good place to determine patient’s medical conditions which may require a consideration and pre-operative treatment for instance hypertension or urine infection. Usually the risk of a deep vein thrombosis is assessed at this clinic.

One of the most difficult complications to manage and to improve is where there is detachment of the patellar tendon at its insertion. This seems to occur particularly with inexperienced surgeons. In a primary operation with no obvious abnormality and no previous surgery then such an occurrence would be negligent. It is very difficult to reconstruct.

It is expected that the final resulting alignment should be a straight leg with flexion over 90 degrees. This is usually obtained by using the instruments provided by the manufacturer in the way specified by the manufacturer in their technical instructions. This is with or without computer assistance.

Stiffness of the knee can cause major dissatisfaction. It can occur when the knee is stiff pre op, where it is well known that post-op movement can be predicted from pre-op movement. Failure to place the knee replacement in quite

Below and opposite, examples of Knee replacement surgery

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the right position or using the right size can give rise to both pain and stiffness.This can also be a breach of duty. If the joint line is raised to what it was pre op and above the normal the result will be a biomechanical mismatch which would prevent movement without pain. If however the femur is put too far forward and too big it will cause increased pressure on the patello femoral region and this will lead to pain and difficulty in flexing because of that. Such patella movement will therefore be blocked by this mal positioning. If the degree of mal position is great then it is definitely negligent. Minor differences might not be so however minor differences are unlikely to cause a problem with pain and severe lack of movement. Malposition of the individual implant in the bone can also cause problems. Perhaps there might be loosening and pain from increased point loading of that prosthesis. Depending on the degree of fault this could be negligent but small mistakes are common and not usually symptomatic. The problem is there is no literature giving figures to advise us as to what is acceptable.

controlled not to loosening or any other problem. Amputation as an outcome,would only be considered negligent if the preceding procedures had not been satisfactory. For instance if someone had a failed procedure then had a hinge replacement and the hinge then failed the first procedure may be negligent. Unfortunately more extensive operations such as hinges tend to fail earlier and so would be less satisfactory than the more straightforward operations.

Stiffness can also occur when the knee is painful, the knee being too painful to move. Sometimes patients do not cooperate fully with physiotherapy so that movement is not satisfactory. Pain can also be due to infection (which should always be ruled out first) or if a stem is being used on the implant such as in a revision prosthesis. This can touch on the cortex on the inside of the shaft of the long bone and could give to direct pain at that point which can be very difficult to deal with. Loosening of the knee could give pain, but this should be later and not immediately. The average life of a total knee replacement is 10-15 years. Loosening does not occur until about ten years post op.

One of the reasons for loosening is that the standard fixed bearing knee replacement cannot rotate easily unless the plastic surface of the joint is flat leading to increased wear. With a mobile rotating tibial implant the surface can match its opposite surface,ie the femur, but still allow rotation, theoretically reducing wear. Such knee replacements are popular currently but there is no evidence as yet that they last longer. Either type of operation would be acceptable provided it was carried out correctly.

One of the problems with pain following knee replacement is that the pain occurs in 10-15% of patients without a clear cause and revising these particular operations is usually unrewarding. You have to really know why the pain has occurred and why the patient is disabled before revision is carried out. There are occasions when revision is carried out initially against ones better judgement but actually a cause is found and is correctable but these are very difficult to predict and there are no investigations 100% effective in finding a cause.

Mental health of a patient has been shown to be a cause of failure of the operation particularly with continuing pain. Patients with mental health issues need to be very carefully counselled as to the likely result before they go on to have the procedure. This does not mean that the procedure should not be carried out but should proceed cautiously with the patient being fully informed.

Early failure is seen in younger patients but not interestingly in the obese patient. Clearly there is likelihood if you have a total knee replacement at 25 then you need a revision total knee replacement for the rest of your life every 10-15 years. After four or so replacements the bone stock becomes increasingly poor and it is increasingly difficult to revise the knee. In this instance an arthrodesis or surgical fusion of the knee may be required or amputation. The amputation rate is most surgeons’ hands is 0.4% but this is usually due to infection which cannot be

EXPERT WITNESS JOURNAL

If somebody has pain and no cause is found then this is the ideal situation for referral to a pain clinic for treatment such as injections or various drugs to be used to deal with the neuropathic pain that they have. Along with signs of neuropathy such as change of temperature change of

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colour and hypersensitivity, there should be a positive diagnosis if at all possible. TENS machines can be helpful.

Therefore if somebody has arthritis which is beyond this area but only a small amount this may be accepted and a Uni inserted. If the damage in the knee is considerably outside the area being replaced this could be regarded as negligent if a uni was carried out. Also with uni compartmental knee replacements, balance of the knee being critical, all the knee ligaments need to be normal including the cruciate ligaments which are often damaged in arthritis. If a ligament is absent or not affective then one cannot undertake a uni compartmental knee replacement successfully unless one simultaneously reconstructs the ligament. This is an operation which is not carried out much these days as this particular combination of surgery has become unpopular.

Ligament injuries particularly to the medial ligament are not common following knee replacement. Preoperative ligament laxity should be noted and assessed. This could mean using a different prosthesis which could have an effect on outcome and so the patient should be warned. In a standard knee replacement the area around the ligament should be protected very well by bone levers which go between the bone and the soft tissue. It is not always easy to see exactly where one is cutting through a jig, which is a solid block of metal. When a saw blade may move outside the bone and gets near to the ligament one has to be careful to avoid it since dividing the ligament is definitely negligent unless again there has been previous surgery and therefore there is a major risk of damage because of the soft tissue being so abnormal. If the ligament is divided repair and bracing is very helpful and should be curative although some laxity continues but possibly without symptoms.

Clearly if somebody has a uni knee replacement because of arthritis successfully and after some years some other parts become arthritic then the replacement needs to be converted to a total knee replacement. This would be usual and would not be unexpected and would certainly be within the normal range of operations and not breach of duty. Sometimes knee replacements have mobile bearings and those bearings can dislocate, this again can be a problem.

It has been shown many times if there is a failure of a ligament and the ligament continues to be unstable then the only treatment is hinge prosthesis. In a young patient this could be a considerable disadvantage since the revision rate from this would be very high.

With all this doom and gloom you may think that knee replacements fail frequently and would advise your family to avoid them. In reality the vast number of the many knee replacements performed do well and result in an improvement of disabilty in our patients lasting for many years. â–

Uni compartmental knee replacements replacing only one part of the knee have become very popular and are used when only that single part of the knee is damaged.

Mr A J M Birnie

Mr William Scott Consultant Orthopaedic Surgeon

Consultant Orthopaedic Surgeon FRCS GMC

MBBS (London), FRCS (England) Mr William Scott is a Consultant Orthopaedic Surgeon. He has wide experience in general orthopaedic conditions both in assessment and surgical management, with emphasis now on the management of shoulder and upper limb conditions. Areas of exerptise; Orthopaedic & Trauma Surgery Shoulder Hand, Wrist & Upper Limb Hip and Knee injuries Personal Injury Road Traffic Accident Whiplash Falling Tripping and Slipping Fitness to work

Tel: 0191 373 4457 Fax: 0191 373 4457 Alternative contact Mrs Davison (Sec) Tel: 0191 584 4614 Fax: 0191 565 5998 Email: ajmb@ajmbirnie.com Eshwood House, Acton Road, Esh Winning, Durham DH7 9PL

Mr William Scott has extensive experience in medico-legal reporting including report writing, giving evidence in court and has acted as a single joint expert. He is familar with the Jackson reforms.

Rooms also at: 8 Grange Terrace, Stockton Road Sunderland SR2 7DF

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Bromley Medical Chambers Kinnaird House 37-39 London Lane, Bromley, London BR1 4HB Tel: 0208 460 5544 Email: amcalisterdilks@bromleymedicalchambers.co.uk

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Hip Replacement Surgery in 2014 by Mr Godfrey Charnley, Consultant Orthopaedic Trauma & Hip Surgeon, MBBS, FRCS, FRCS (Ed), FRCS Orth. In London, before the Second World War, Mr Philip Wiles replaced both the femoral head and the acetabular socket with a “metal on metal,� prosthesis in patients with juvenile rheumatoid arthritis.

Introduction With an ever growing and ageing population, hip replacement surgery has become common place, worldwide, for millions of patients over the past 50 years. The pain relief , improved function and mobility possible after successful surgery enhances the patient's Quality of Life, so much that they score the success of this procedure equal to that of a coronary artery bypass graft or a kidney transplant.

After the War, in Paris, two brothers, the Judets, noticed that a new material, acrylic, did not seem to have an allergic response, and after successfully replacing the femoral head in a few hip fracture patients, they expanded the indication for their prosthesis to osteoarthritis of the hip, initially with good results.

With the increasing numbers of joint replacements performed and a higher patient expectation, the costs to the NHS budget is not inconsiderable and the litigation burden attached to the operation has grown significantly over the past decade. This is especially the case after the catastrophic failure of certain designs of implants recently.

Sadly, this material after a while started to fragment and caused squeaking. A patient with a French squeaking hip visited John Charnley at an Orthopaedic Unit in the mid 1950's when he was working in Manchester. This stimulated him to further research in hip replacement, and some of his designs were unsuccessful. Eventually he designed a low-friction arthroplasty. This was a small diameter, femoral component which articulated with a polyethylene socket. Both were 'grouted' into the pelvis and femoral cavity with dental bone cement.

This article will review the history, evolution, standard risks and complications of hip replacement surgery and possible areas of litigation.

History Orthopaedic Surgeons are by nature inventors and on occasions this has led to attempts to revisit ideas that in the past have been partially successful, but also have previously failed.

In 1959, Charnley opened and led a Centre for Hip Surgery at Wrightington, near Wigan, where Charnley supervised the surgery and monitored all of his patients, often until their death.

The Holy Grail is a hip replacement that can last forever without the need for revision. As material science and technologies have advanced, so have the surgical options. Much of this development, if not all, has its roots in the United Kingdom.

Charnley would not allow other surgeon's to use his design of hip prosthesis unless they had trained with him at the Hip Centre.

It is to Europe that we should look first with Dr Gluck, a Surgeon working in Hungary and Berlin, who replaced the upper part of the femur, the femoral head, with ivory for tuberculosis. EXPERT WITNESS JOURNAL

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success than the previous metal on metal total hip replacements. So successful were the early patient outcomes with Birmingham hip re-surfacing that the Press seized on the concept and it was featured both in written publications but also on television, on the Tomorrow's World programme, where it was described as the 'Everlasting Hip'. In turn, The National Institute for Clinical Excellence (NICE), recommended that such a design should be considered for all active patients under 55. Many other manufacturing companies of orthopaedic prostheses wished to copy McMinn's philosophy and developed their own similar designs. Some of these were not brought to the market with such rigorous testing as McMinn had done, leading to disastrous results. One implant , the ASR hip, was manufactured by DePuy and as a resurfacing and combined with a total hip stem, very high failure rates within 3 – 7 years started appearing in the literature in 2010. DePuy withdrew the product in a world-wide product recall. As hundreds of patients have been faced with having their ASR hip resurfacing or total hip revised, guidelines were then issued regarding the introduction of novel implants both by the Department of Health, The British Orthopaedic Association and the Medical Devices Agency.

Back in Paris, Robert Judet and colleagues in the early 1970's looked for alternative means of fixation without the cement. They used rough surfaced implants to enable bone on-growth. This is now known as cementless fixation and is the most common form of fixation of hip prostheses in North America and much of Europe. Special biological coatings have been found to enhance bone on-growth and fixation.

Quality Controls Some 10 years ago, the National Joint Registry for England and Wales was created. The Registry followed on from similar Registries in Scandinavia, particularly Sweden and Finland and Australia. The goal of such Registries is to audit the outcome of hip replacement surgery between units, and in time, individual surgeons.

Elsewhere in the United Kingdom, others tried alternative bearings to Charnley's metal on polyethylene.

Between 2003 and 2012, 500,000 patient details have been stored in this audit. The audit can help to identify implants that are not as successful as others, and in turn, it may also highlight units where surgery is less successful than in other centres.

In Norwich, McKee and Farrar, tried a different design of metal on metal. A small number of these hips have lasted for over four decades, but the majority tended to 'weld' together, causing premature failure.

More and more of this information from the NJR is available to the public as well as to the orthopaedic community.

Peter Ring, working in Surrey, re-visited the idea of a metal on metal hip with cementless fixation in the 1960's, but the long term results were not as good as John Charnley's, and once again, this concept fell out of favour.

The manufacturing companies have also been asked to participate in a scheme known as 'Beyond Compliance'. This is to introduce greater control over the introduction of new technologies, hoping to avoid the problems seen with the DePuy ASR hip. In an ideal world, any new device should match the long term clinical survivorship of tried and tested implants,

It was brought back to life in the 1990's by Mr Derek McMinn and colleagues working in Birmingham. With improved metallurgy and manufacturing techniques, rather than replacing the whole of the upper femur, a capping or 're-surfacing', metal on metal design had better EXPERT WITNESS JOURNAL

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such as the Charnley hip or the Exeter hip, another UK design with over 30 years of clinical experience, having been developed by Professor Ling and colleagues in the South West. These two hips have a reported survivorship of 90% at 15 years in many independent publications.

NICE and the National Audit Office have also recommended that surgeons consider total hip replacement for certain types of hip fractures. Previously, only part of the broken hip, the femoral head, would have been replaced with a part hip replacement (a hemi-arthroplasty). It is recognised now that a full hip replacement has greater success in active patients, but hemi-arthroplasties are still performed for more frail patients.

Targets and Costs Patient expectations have increased with the increased frequency of hip replacement surgery. Their expectation of successful surgery within a short time scale has been fed with the political drive to reduce waiting list times from years to 12 – 18 weeks.

By advocating an increased volume of hip replacements, not only for inflammatory or degenerate arthritis, but now hip fracture, there will be an inevitable associated volume and cost increase.

In 2004, 53,000 total hip replacements were performed and in 2012, 86,000 hip replacements. This represents a 7% year on year increase. The average cost of a total hip replacement is just over £5,000 and the global cost to the NHS is in excess of £300,000,000 per annum.

Success and Standard Risks An uncomplicated hip replacement has a 90% chance of being successful, after a period of rehabilitation, with the patient being pain free and more mobile, and expecting their joint replacement to last for 15 years, if not longer. All designs of joint replacement will inevitably wear out with time as they are mechanical devices.

To achieve the waiting list targets there has been a boom in the number of hip replacements performed away from NHS hospitals, with a significant number funded by the NHS in the Private Sector and also at Independent Sector Treatment Centres.

Hip replacement surgery is a major operation and with it carries risk of infection (1% - 3%), dislocation (1% - 4%), fracture (1%), thrombosis and embolism (< 1%), nerve or artery injury (< 0.5%), heterotopic ossification (new bone formation causing stiffness – 1%), tender scars and tendons (1%).

During the past 10 years, that the National Joint Registry has been collating information, there has also been a large rise in the volume of revision hip surgery. These more complex operations are predominantly done within the NHS, and are more expensive procedures, currently representing 14% of all of the hip replacement operations recorded.

There are of course, cardiac and pulmonary risks of the operation and anaesthesia, with death being a 1 in over 300,000 chance for unexpected medical issues.

The age of the patients having hip replacement surgery has reduced, but the commonest age for male patients is 60-69, and a decade older in the female population.

Some of these risks have increased, particularly infection, due to bacterial organisms becoming more resistant to the current antibiotics available, and with patient factors including obesity and type II diabetes, associated with

Failed Hip Socket

Hip Resurfacing and Total Hip

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increased infection risks, themselves becoming more and more prevalent.

This is not infrequently seen when inexperienced Surgeons use inappropriate designs of implants that do not match the anatomy of their patients, nor show any evidence of planning in advance, the surgery.

Patients with neurological problems, such as Parkinson's disease and other forms of neurological weakness or lack of co-ordination are more at risk of a dislocation. Patients with reduced mental faculties, such as dementia, are more likely to have peri-prosthetic fractures as well as dislocations, particularly after hip fracture treatment.

Nerve damage around the hip, particularly affecting the sciatic nerve, but on occasions the femoral nerve, can be caused by excessive retraction of the neural structures or direct damage with cautery or inadvertent placement of sutures. Rarely the sciatic nerve may be damaged by the bone cement leaking around it.

Recently, concerns have been raised regarding 'Toxic Bone Cement'.

Dislocation of the hip joint can be caused by mal-positioning of the femoral stem or hip socket (acetabular component).

It is known that bone cement can reduce blood pressure during general anaesthesia, but there are ways to reduce this risk and the mortality of patients, (particularly those who are frail), with a hip fracture, is up to 30% within three months of their fracture.

Mal-positioning of the femoral component may also cause a catastrophic fracture. This can also occur if too large an implant is chosen for the host femur.

This shocking statistic is not to do with poor surgical technique nor indeed the bone cement, but more importantly illustrating that many patients who fracture their hip are very vunerable presenting with pre-existing , serious , medical co-morbidities, a combination of which with a hip fracture, may lead to their sad demise.

Thrombosis prophylaxis should be provided, particularly to patients who have previous personal or a strong family history of abnormal blood clotting or deep venous thromboses in the past. All patients should be given appropriate prophylactic antibiotics to lower the risk of infection.

Potential Areas for Successful Litigation For the vast majority of patients, a hip replacement should be successful, accepting the standard risks above.

In 2010, payments to patients by the NHS Litigation Authority totalled ÂŁ863,000,000. 15% of these claims were orthopaedic, accounting for some 9% of the monetary value.

Nevertheless, in a few number of cases, there may be a Breach of Duty of Care to an individual.

The total cost of orthopaedic claims has been reported to have risen by over 60% over the last 3 years in comparison with a 12% general rise in overall NHS litigation during the same period.

Excessive lengthening or altering the dynamics of the hip can lead to pain and discomfort.

Examples of litigation EXPERT WITNESS JOURNAL

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Metal on Metal Hips Described as the 'biggest disaster in orthopaedic surgery', the premature failure of metal on metal hip replacements and certain designs of hip resurfacing have caused patients and their families great concern, with widespread media coverage since 2010. Whilst the Birmingham hip resurfacing has stood the test of time and is still a good option for a young, active male patient, it has been found to be less successful in women. Competitor company products are not as successful and the ASR hip has reports of an almost 50% revision tariff within 8 years. Patients unexpectedly developed metal sensitivity around their hip joints to certain devices, with not only pain and on occasions loosing or fracture around their components, but with abnormal soft tissue responses.

British Medical Journal cover & picture of metal on metal implant

These soft tissue responses are variously described as metallosis, ALVAL (and acute lymphocytic and vascular response), an Adverse Reaction to Metallic Debris and pseudo tumour formation. At the furthest end of the spectrum of this response is significant destruction of the bone, but also the local musculature and soft tissues, leading to a combination of poor function, permanent disability and additional scarring following revision hip surgery.

Conclusion For the vast majority of patients, hip replacement surgery remains a very successful, pain relieving operation. For a small number of patients, the operation can be unsuccessful, with surgical error or the wrong type of joint replacement design. All surgeons involved in hip replacement surgery should fully inform their patients of the risks and benefits appropriately prior to surgery, and the National Joint Registry will enable the orthopaedic profession and patients and their representatives to be increasingly aware of success and failure rates. â&#x2013;

Claims against DePuy have settled in the United States of America for several million dollars, and in the United Kingdom, several major law firms are bringing Class Actions against DePuy and its parent company, Johnson & Johnson.

Mr Godfrey Charnley Consultant Orthopaedic and Trauma Surgeon MBBS, FRCS, FRCSEd, FRCS (Orth) Mr Godfrey Charnley is a Trauma and Orthopaedic Surgeon who has been practising in Orthopaedics for some 19 years as a Consultant with a particular interest in Hip and Knee replacement surgery. Mr Charnley has published four chapters in Orthopaedic Textbooks and authored or co-authored over fifty pieces of original research as papers or presentations in leading Journals and at International meetings. He reviews scientific articles for Hip International, the Journal of the European Hip Society and the Bone and Joint Journal. Mr Charnley has been involved in Medico-legal work including general musculo-skeletal injury for over 25 years, and more recently as an expert witness in relation to Medical Negligence and Product Liability associated with hip replacement surgery.

Contact: Mr Godfrey Charnley Email: carol.harris@ramsayhealth.co.uk Tel: 01245 234 020 Fax: 01245 234 059 Address: Springfield Hospital, Lawn Lane, Springfield, Chelmsford CM1 7GU Mr Charnley has Medico-Legal clinics in East Anglia, the North East, Central London & the South West EXPERT WITNESS JOURNAL

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The Nature of Reporting Discrepancies and Potential Biases in Radiology Expert Witness Testimony by Dr Ravi Ayer BM, BSc, MRCS, FRCR When medical professionals are subject to litigation, quite often the case notes, the clinical sequence of events and the actions of medical professionals involved are assessed by an expert witness instructed by either the defendant or the claimant, but acting for the court bound by the Civil Procedure Rules Part 35.

Very few discrepancies result in irreversible patient harm and even fewer discrepancies become the subject of litigation. Causes of a reporting discrepancy The RCR details several reasons why a reporting discrepancy might occur, not always as a result of radiological interpretation error.

As imaging is an integral part of the diagnostic workup of many patients, the role of the radiologist expert witness is complex, and radiologists may be asked to comment on several issues. These include but are not limited to deciding whether or not: a) A reporting discrepancy has occurred. b) There has been a dereliction of duty by the medical professional or radiologist involved.

a) Inadequate, misleading or incorrect clinical information The process of image interpretation and generating a radiological report is much more than a technical exercise in image description. The radiologist has to weigh information from multiple sources including previous imaging, clinical information, outpatient clinic letters, operation notes, blood and pathological test results. The responsibility for providing this information is the responsibility of both the referring clinician and the radiologist. Often salient points can be neatly and concisely summarised in a request form or referral letter.

This article will first define a radiology reporting discrepancy. It will then seek to outline the different causes of a reporting discrepancy and highlight the biases that have the potential to cloud an expert witness’s medical report when providing an opinion on cases subject to clinical negligence. The article will conclude by considering some measures that could be employed to reduce bias during the analysis of a clinical negligence case.

This information can completely change the significance of a given radiological finding or appearance. With the addition of the appropriate piece of clinical information, a given radiological finding can be changed from a pathological appearance to a non pathological one. Conversely, omission of vital information can lead to image misinterpretation.

By the end of this article, it is hoped that the reader would have a much clearer understanding both of the multifactorial reasons for radiology discrepancies and of the inherent biases in radiology expert witness report writing. Definition of a reporting discrepancy The Royal College of Radiologists (RCR) produces helpful guidelines on the handling of reporting discrepancies. It defines a reporting discrepancy occurs when ‘a retrospective review or subsequent information about the patient outcome, leads to a different opinion to that expressed in the original report’. It then goes on to say ‘Not all discrepancies are errors’. (1) EXPERT WITNESS JOURNAL

The practice of image interpretation is both an art and a science and therefore the quality of the radiological report is highly dependent on the information provided on the request form. Expert witnesses and counsel should therefore be aware of the critical influence of clinical information on image interpretation in medical litigation cases involving medical imaging practitioners.

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i) Errors of perception This is the failure to report an abnormality that is visible in hindsight. The conspicuity of the lesion when viewed in hindsight can range from an easily identifiable abnormality, to an extremely subtle but definite abnormality, though to findings on a medical image that could conceivably have been reported as within an accepted normal range, but are subsequently felt to be pathological. Subtle fractures and early cancers on chest X rays are common pathologies that can be missed. It is also often the case that if the abnormality is widespread, has a uniform appearance with no disturbance of body symmetry, it becomes harder to perceive. A particularly difficult perceptual error is the failure to appreciate the absence of an organ or other anatomical structure.

b) Reduced image quality Images that are of reduced quality are often more difficult to interpret and the potential for missing pathological abnormalities increases. There are a large number of factors that affect image quality, too numerous to mention in this article, but these can be divided into patient, equipment and equipment operator factors. In addition, erroneous data produced by artificial means may be projected onto the final radiographic image and confused for pathology this is known as radiological artefact. Patient factors include, but are not limited to: Patient movement (often due to confusion, fear or pain), obesity, metallic implants and hardware, and problems with positioning. Equipment malfunction or failure can introduce several radiological artefacts and also reduce image quality. Regular servicing and maintenance of equipment reduces this risk.

Radiologists are predominantly trained to identify pathology or disease within an anatomical structure, whereas the absence of a given structure is much harder to perceive.

The equipment operator, usually a radiographer, has a crucial role in adjusting numerous physical parameters in order to obtain a high quality image. A highly experienced radiographer can usually produce images of a consistently higher standard compared to a less experienced radiographer. Working conditions are also crucial as errors undoubtedly increase during intense periods. Wrong side labelling remains a potentially serious cause of error that remains difficult to eliminate completely.

A much rarer error of visual perception can sometimes occur, particularly when structures are closely opposed, analogous to the image either indicating two opposing faces or a candlestick, whereby the radiologist can perceive the image in the incorrect manner.

c) Excessive workload and poor reporting conditions Advances in imaging technology, new treatment algorithms and guidelines, less acceptance of clinical uncertainty, increasing defensive medical practice and changing patient expectations are some of the reasons why the amount of medical imaging performed has risen exponentially in the last few years. Although there has been an expansion in resource to cope with this, it invariably has been insufficient to meet rising need. Radiology is now an extremely time pressured specialty, interruptions to reporting are frequent and therefore as a direct consequence, errors can increase across the entire department.

Do you see a candlestick or two faces? ii) Errors of reasoning The abnormal findings are identified but incorrectly dismissed as normal, or identified as abnormal, but attributed to the incorrect cause.

Expert witnesses and counsel should be sentient of the fact that the potential for discrepancies to occur as a result of excessive workload is on the increase and likely to continue an upward trajectory.

Such as in the case where a tumour on a medical image could incorrectly be reported as benign, when in fact malignant or vice versa. However, fear of committing this error can give rise to an increased prevalence of the ‘blanket diagnosis’ whereby every conceivable cause is mentioned as an exercise in defensive medical practice. However ‘blanket diagnoses’ are usually of limited use to the referring clinician.

d) Observation or interpretation errors Errors that are judged to fall predominantly into this category are probably the most common reason that radiologists become the subject of litigation. These errors can be of several types (2)

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subtle enough to have been missed at initial clinical review. Also occasionally, the communication of a normal radiology report may also be of significance.

Radiologists can occasionally be caught out ‘playing the odds’. This is when a given radiological appearance can have a innocent or a more ominous cause. However statistically, the chances of an innocent cause far outweigh the more sinister cause often by many hundreds of times. In order not to subject every patient to further invasive tests with potential side effects for very little overall benefit, the radiologist may have to accept the small chance of an incorrect diagnosis. There is as yet very little medical or legal consensus as to whether this is an acceptable way of practising medicine.

Implications for expert witnesses Expert witnesses and counsel should be aware of the various reasons why a radiological discrepancy might occur when dealing with cases where radiologists are involved. In particular, they should be aware that good clinical information informs accurate radiology reporting; of the importance of image quality in radiological diagnosis; of the exponential rise in imaging not matched by resource provision; of the different types of observation or perception error; of the importance of language and unambiguous wording and finally new issues that have arisen regarding communication of the report to the referring clinical teams.

iii) The false positive A normal appearance, or variant of normal is incorrectly reported as a pathological finding. Potentially invasive further testing may then follow. iv) Satisfaction of search The phenomenon whereby the successful identification of one abnormality, results in a premature termination of image interrogation, leading to a decreased likelihood of identifying other associated or unrelated abnormalities.

Deciding whether there has been a dereliction of duty In order for negligence to be proven a Claimant (usually the patient him/herself) must show that the doctor owed a duty of care to the patient, that the doctor was negligent in his management, and also that the patient suffered harm as a result. The Claimant has to succeed on both liability (that the medical professional acted in a manner that no other fellow professional would have done) and causation (that harm resulted that would not have otherwise occurred)

e) Ambiguity of wording or summary of report. The radiologists’ primary medium of communication is the written radiology report. Therefore a high degree of proficiency in the written language is essential in order to impart nuance and emphasis, and produce unambiguous reports that communicate to the reader clearly what the radiologist is thinking. Occasionally, if ambiguous language is used, a referring clinician can ascribe a completely different meaning to the report than that intended by the radiologist.

Dr Ravi Ayer BM BSc MRCS FRCR

Consultant Musculoskeletal Radiologist

f) Report communication issues. The traditional view is that it is the responsibility of the referring clinician to check the results of all tests that they request. This remains the case for the majority of all studies where the radiology report remains the primary method of communication.

Expertise in all aspects of musculoskeletal radiology including • Imaging of musculoskeletal trauma, fractures and soft tissue injury • Spinal Trauma imaging • Bone and soft tissue cancer imaging • Sports injury • Musculoskeletal infection • Degenerative and rheumatological disease • All aspects of musculoskeletal imaging

Increasingly however, this traditional view has been called into question. There is now an increasing expectation that important findings are directly communicated to the referring clinician. In the USA, radiologists have been successfully sued for solely relying on the referring clinician to view the radiology report and not directly communicating results of important findings. There remains considerable ambiguity in the accepted method of communication and what constitutes a significant finding. Unsuspected cancers discovered on imaging are usually communicated to the clinical team, however studies that are initially reviewed by the referring clinician and subsequently reported by the radiologist are more difficult as the radiologist has to decide whether the findings are EXPERT WITNESS JOURNAL

• Plain film • Ultrasound • • • •

Computed Tomography (CT) Magnetic Resonance Imaging (MRI) Arthrography Fluoroscopy

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Tests of liability The Bolam test The Bolam test refers to a tort law case of 1957, that established a number of principles in the demonstration of liability that are still applied today. The most important principle arise from this case is that doctors cannot be held liable, and therefore cannot be negligent, if he or she acted in accordance with a ‘responsible body of medical opinion’. The Bolam test has since been refined by the Bolitho test, but nevertheless still remains an importance principle of tort law. In practice, in a court setting, the medical expert is required to provide an impartial opinion on the standard of care delivered by the medical professionals involved.

microscope. Psychologically, it is often not possible to completely mentally dismiss all the supplementary clinical information you have just read and provide an opinion based on what the radiologist knew at the time or detached oneself from the fact that you are providing a medico legal report. This information influences the opinion subconsciously. There are a number of other potential biases which will be detailed in brief. Conflict of interest bias This can arise if the expert witness knows any of the parties involved. This is best disclosed at the outset, at which point the expert’s ongoing involvement in the case can be reviewed.

Potential biases during expert witness testimony Clearly experts are required to provide a dispassionate, impartial and independent review of the facts of the case, and although bias has no place in medicolegal reporting, there is potential for the objectivity of expert witnesses to be influenced by several types of bias.

Empathy bias If the subject matter is particularly emotive, this has the potential to influence the medicolegal report. Expert witnesses are therefore reminded to provide opinion on the facts of the case, and not become swayed by empathy for either party.

Types of bias Hindsight bias Hindsight bias has been described as as ‘the tendency for people considering a past event to overestimate the likelihood of having predicted its outcome’ (3,4). Sometimes called the ‘Iknewitallalong' effect, it is ubiquitous in medicine, and particularly in radiology where images and reports are electronically documented and available for scrutiny by a large number of individuals, often in public fora.

Instruction bias Experts are paid by their instructing solicitor, and therefore reports have the potential to be biased in favour of the party the instructing solicitor is acting for. Experts are bound by the civil procedure rules and CPR 35(3) states that: ‘it is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.’ Selection bias The other side of the coin from instruction bias is selection bias. Selection bias means that the experts retained by a party will not represent a random sampling of expert opinions. Rather, they will represent the perspective the solicitor wishes to present to court.

Information bias When instructed by a solicitor, the assessing expert witness would normally be provided with the clinical diagnosis, comprehensive case notes, medical images, operative findings, pathology reports and details of the current patient clinical status, very little of which would have been available to the reporting radiologist. This is known as information bias,. The expert witness report using this information would have an inherent advantage compared to the initial reporting radiologist and would therefore be prone to hindsight bias.

Historical bias Radiology, is a rapidly evolving specialty within medicine. There are technologies and concepts that were not in clinical practice only a few years ago. The expert must be careful to recognise this and assess the fact in the context of the practice at the time.

Situation bias The interpretation of the image can be influenced by the situation in which it is interpreted. Regardless of the clinical information available to the expert witness, the expert would spend a lot more time and subject the radiological examination to a higher degree of scrutiny, than would be possible in a busy clinical setting, due to the mere fact that it formed part of a litigation case.

Ways of reducing bias The measures proposed below seek to reduce bias among medical experts when assessing radiology reports. As greater measures are taken to reduce hindsight bias, the practical difficulty and expense involved increases. 1) The situation where the expert witness is in receipt of the clinical diagnosis, operative findings, comprehensive clinical information renders the resulting testimony potentially susceptible to hindsight, information and situation bias.

Bias can unwittingly skew the opinion of an expert medical report in a case where a radiological opinion is under the EXPERT WITNESS JOURNAL

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2) The expert witness could be provided only with the information that was available to the reporting radiologist at the time. This would eliminate the hindsight bias, however the resulting testimony may still be susceptible to situation bias.

‘responsible body of medical opinion’ as defined in the Bolam test. This option is the most practically difficult, expensive and open to ethical question. Conclusion It is important for expert witnesses and solicitors dealing with radiological examinations that are subject to litigation for clinical negligence to appreciate the number of different causes of reporting discrepancy and radiological error. The precise identification of the root causes for reporting discrepancies can therefore be more complex than at first thought.

3) The expert could be shown a panel of radiology cases, only one of which was the subject of litigation, the reminder being standard clinical cases. This would lessen the situation bias in method 2), but not completely eliminate it. In all likelihood, the measures detailed above are reasonably practical and these measures with a little effort could possibly be undertaken. The measures detailed below are probably not practical, but are included as theoretical methods of bias reduction.

It is also important to realise that our cognitive apparatus is prone to bias, often on a subconscious level. To pretend that such bias does not exist or can easily be managed is not an appropriate response. By realising that biases exist, expert witnesses and solicitors can take these into account and if necessary put measures in place to reduce them.

4) The case that is subject to litigation could be inserted into their standard clinical work requiring completion, without the expert’s knowledge, with the clinical information that was available to the reporting radiologists’ at the time. This would eliminate situation bias but does not account for individual intraobserver variability, that is, the expert radiologist own variation in performance from case to case. There may be ethical issues to blinding the expert witness in this scenario.

References: 1) Standards for radiology discrepancy meetings. The Royal College of Radiologists 2007. Published guidance, available online. 2) Renfrew DL et al. Error in radiology: classification and lessons in 182 cases presented at a problem case conference. Radiology. 1992 Apr;183(1):14550. 3) Bias in medicolegal reporting. The MDU. http://www.themdu.com/guidanceandadvice/latestupdates andadvice/biasinmedicolegalreporting 4) Gunderman RB. Biases in radiologic reasoning. AJR 2009. 192:3. 561564

5) The above process could be repeated, but across a panel of expert radiologists. This would eliminate situation bias and provide a truer indication of a

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Appetite for Cosmetic Procedures Increases Despite Implant Scandal According to the British Association of Aesthetic Plastic Surgeons, the economy appears buoyant once more as austerity gives way to augmentation, with an impressive double-digit rise in all cosmetic procedures, a trend not seen since the heady pre-recession days of 2008.

Despite being rocked by a worldwide implant scandal, the sector proved impossible to deflate for long, with breast surgery up just two years after the crisis by a whopping 13%. Britain is well on the way to reaching ideal figures, with a stratospheric rise in liposuction of 41%. The number of total surgical procedures in 2013 rose above 50,000 and their order of popularity for men and women combined has remained entirely unchanged for the past five years.

New statistics from BAAPS published in February 2014, which represents the vast majority of NHS-trained consultant plastic surgeons in private practice, reveal that the number of cosmetic ops last year increased 17% on average since 2012 and not even one individual procedure decreased in popularity. EXPERT WITNESS JOURNAL

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choosing tried and tested surgical methods rather than the magical-sounding quick fixes that fail to deliver promised results.

Highlights: • Last year saw 50,122 procedures performed, a rise of 16.5% on average overall; but every one of the cosmetic ops monitored individually also showed a double-digit rise across the board. Such a significant increase has not been seen since before 2008, mirroring other UK trends (such as housing*)

The BAAPS has recently established the National Institute of Aesthetic Research (NIAR) based at the Royal College of Surgeons to investigate which new treatments really deliver what they say and therefore take the “hocus pocus” out of choosing a cosmetic treatment.”

• The year 2013 also recorded 41% rise in liposuction procedures; possibly a backlash against the many non-surgical treatments for body contouring which may have proven less effective than advertised

According to Michael Cadier, consultant plastic surgeon and BAAPS President Elect; “The number of procedures undergone by both men and women has increased in impressive numbers; it t is encouraging to see that despite – or perhaps because of – a turbulent period in the sector, patient confidence in selecting appropriately trained and qualified surgeons is growing rapidly. At the BAAPS we continue in our mission to promote public education and safety in aesthetic plastic surgery.”

• Breast augmentation (‘boob jobs’) saw an increase of 13%: despite the PIP scandal, demand for the procedure doesn’t appear to have significantly diminished in the longer term. Breast augmentation remains the top surgical procedure in the UK. • Women are increasingly turning to liposuction, as the procedure increased by an impressive 43% and rising in popularity among females to 6th place from 8th place in 2012.

The figures in full: MEN & WOMEN COMBINED The top ten surgical procedures for men & women for 2013 (total 50,122 - an increase of 16.5%) In order of popularity: Breast augmentation: 11,135 – up 13% from last year Blepharoplasty (eyelid surgery): 7,808 – up 14% Face/Neck Lift: 6,380 – up 13% Breast Reduction: 5,476 – up 12.5% Rhinoplasty: 4,878 – up 17% Liposuction: 4,326 – up 41% Abdominoplasty: 3,466 – up 16% Fat Transfer: 3,302 – up 14.5% Browlift: 2,138 – up 17% Otoplasty (ear correction): 1,213 – up 14%

• Antiageing procedures also continued to prove popular among men and women, with eyelid surgery up by 14%, face and neck lifts up by 13%, fat transfer (where fat is injected into the face to add volume) by 15% and brows rose by an expressive 17% • Male surgery numbers rose by 16% overall but the proportion held steady from last year, with men still accounting for one in ten (9.5%) aesthetic plastic surgery procedures. • Body contouring procedures showed the biggest increase among males, with liposuction up by 28% and gynaecomastia (or ‘man boobs’) up by a quarter (24%).

WOMEN ONLY The top ten surgical procedures for women in 2013 (45,365 total - an increase of 16.5% on 2012) Women had 90.5% of all cosmetic procedures in 2013. 2013 figures for women in order of popularity:

According to Rajiv Grover, consultant plastic surgeon and President of the BAAPS with responsibility for the UK national audit of cosmetic surgery;

Breast augmentation: 11,123 – up 13% from last year Blepharoplasty (eyelid ops): 6,921 – up 14% Face/Neck Lift: 6,016 – up 13% Breast Reduction: 4,680 – up 11% Rhinoplasty: 3,841 – up 19% Liposuction: 3,772 – up 43% (Up to 6th from 8th place in 2012) Abdominoplasty: 3,343 – up 16% (Dropped to 7th place from 6th in 2012) Fat Transfer: 3,037 – up 15% (Dropped to 8th place in 2013 from 7th) Brow lifts 1,962 – up 18% Otoplasty (ear correction): 670 – up 19%

“Both the UK economy and the British public seem to be well on the way to regaining their shape with the most impressive rise in demand for cosmetic surgery we have seen since the onset of the recession in 2008. Patient confidence and also consumer confidence has returned with Britons choosing to spend on procedures with proven track records such as liposuction which remains the gold standard for body contouring. The continued double digit rise of cosmetic surgery underlines the fact that whether it is breast augmentation or antiageing procedures like facelifting the public are EXPERT WITNESS JOURNAL

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sector, represents yet another thoroughly wasted opportunity to ensure patient safety," said Rajiv Grover, president of the British Association of Aesthetic Plastic Surgeons. "With all the evidence provided by the clinical community, choosing not to reclassify fillers as medicines with immediate effect or setting up any kind of compulsory register beggars belief. Legislators have clearly been paying only lip service to the sector's dire warnings that dermal fillers are a crisis waiting to happen.”

MEN ONLY The top ten surgical procedures for men in 2013 (4,757 total. An increase of 16% on 2012) Men had 9.5% of all cosmetic procedures in 2013. 2013 figures for men in order of popularity: Rhinoplasty: 1,037 – up 9% from last year Blepharoplasty (eyelid surgery): 887 – up 17% Breast Reduction: 796 – up 24% Liposuction: 554 – up 28% (Up to 4th from 5th place in 2012) Otoplasty (ear correction): 543 – up 8% (Dropped to 5th place from 4th) Face/Neck Lift: 364 – up 19% Fat Transfer 265 – up 10% Brow lifts 176 – up 18% Abdominoplasty: 123 – up 15% Breast augmentation: 12 – Static

Peter Walsh, chief executive of the patient safety charity Action against Medical Accidents, said: "The government is putting its ideology about freeing up industry from red tape, bureaucracy and regulation ahead of patient safety, which is irresponsible. The harm from private cosmetic surgery can lead to disability and even death.” The sheer scale of the market reinforces this pessimism. A growing numbers of patients are suing plastic surgeons over mistakes during operations designed to improve their appearance, according to the Medical Defence Union, which represents over half of Britain's doctors and surgeons when they are accused or malpractice or negligence. Its data shows that breast surgery, facelifts, eyelid operations, nose reductions and weight-loss procedures account for 80% of the rising number of legal actions, with blunders leading to damages payouts of more than

The risks behind the scale As reported in the last issue of the Journal, the two main industry bodies have condemned the lack of action by the government in reviewing what is a booming growth sector. The Keogh report was commissioned in response to the PIP implant scandal, but plastic surgeons say the government has failed to follow through on its recommendations. Among the points made in the recent Department of Health review of the cosmetic surgery and non-surgical treatments industry, Professor Sir Bruce Keogh criticised "highly misleading" advertising and marketing practices. Keogh called for tougher controls over the marketing of surgical procedures and raised concerns over television shows such as The Only Way Is Essex, which he suggested encourage women to get surgery, both trivialising and glamorising it in the process. The review called for a code of ethical practice to ensure that advertising is conducted in a socially responsible manner. It also recommended that certain advertising practices like time-limited deals, financial inducements and package deals such as "buy one get one free" offers should be prohibited. But despite these good intentions, cosmetic surgery will continue to be the wild west of medicine, say professional bodies, because of the government's failure to bring in the controls recommended by its own NHS medical director. Plastic surgeons say they are appalled by the government's response: it does not clamp down heavily on the use of dermal fillers. Nor does it require that anybody involved in cosmetic procedures is properly trained, qualified and registered. "Frankly, we are no less than appalled at the lack of action taken – this review, not the first one conducted into the EXPERT WITNESS JOURNAL

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£500,000. Cosmetic surgery compensation claims are upheld in 45% of cases, compared with 30% of cases for medical compensation claims in general.

Mr Eric Freedlander BSc. (Hons.) MB, ChB, FRCS, FRCS (Plast.) Ed.

According to an article in The Guardian, the MDU said the increase was due to "a huge rise in both the number of procedures and patient expectations of a perfect outcome" as well as surgeons failing to get proper patient consent and doing substandard work. It refused to disclose more details of the research, citing commercial confidentiality, but said the rise in cosmetic claims over a five-year period was "significant".

Consultant Plastic Surgeon I have over 20 years experience providing medico legal reports for both claimants' and defendants' solicitors in cases of personal injury and also in cases of alleged medical negligence. I have appeared as an expert witness in court on a number of occasions.

A recent survey by the BAAPS revealed that as many as two out of three surgeons were seeing patients presenting with facial injectable ('dermal filler') complications. Nearly nine out of ten of those with permanent fillers required corrective surgery or were inoperable. ■

I have extensive experience in nearly all areas of my speciality including: • Burns • Soft Tissue Injuries &Scarring • Hand Injuries

References The BAAPS (www.baaps.org.uk), based at the Royal College of Surgeons, is a not-for-profit organisation, established for the advancement of education and practice of Aesthetic Plastic Surgery for public benefit. Members undergo thorough background screening before they can join.

• Head & Neck Surgery • Cleft Surgery • Cosmetic Surgery

Tel: 0114 230 9160 Fax: 0114 230 9160 Mobile: 07702 339 930 Email: efreedlander@mac.com Claremont Hospital, 401 Sandygate Road, Sheffield, S. Yorks S10 5UB

Mr John Michael Porter Consultant Plastic Surgeon MS, FRCS, FRCS (Plastic Surgery)

The Droitwich Spa Hospital St Andrews Road, Droitwich Spa Worcestershire WR9 8DN Tel: 07932 337 812 Email: benara.rahman@hotmail.co.uk

Mr Porter has attended medicolegal training courses from 1996 until 2002 and in 2012. He was an NHS consultant plastic surgeon from 1991 to 2012, with interests in breast surgery, hand surgery and skin cancer. He was in private practice from 1996 to 2008. Mr Porter undertakes personal injury and clinical negligence work, within his areas of special expertise. He possesses the Bond Solon Cert MR Part 1 certificate. Mr Porter is available at Consulting rooms in Droitwich and Wolverhampton. EXPERT WITNESS JOURNAL

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To Prove Negligence Appoint an Experienced Dental Practitioner by Dr Joesph Fell

extensive surgery and chemotherapy, and possibly a better outcome.

As almost 90% of dental treatment in the U.K. is carried out in general practice, it is my contention that if negligence is to be proven, then the claimant's solicitor should instruct, as an expert witness, a dental practitioner experienced in all aspects of general practice. Such a witness in Scotland would have to take into account the legal test of negligence in Scottish Civil Law which comes from the landmark case of Hunter v. Hanley, in which Lord President Clyde wrote that, in order to prove liability in cases of clinical negligence, "it must be established the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care." A similar test (Bolam) applies in England.

Can an experienced general dental practitioner help in cases like these? Yes, as he/she understands the regulations, standards and guidelines in practice at the time. â&#x2013;

Dr Joseph Fell Dental Surgeon BDS

Breach of duty is one aspect to consider; causation is the other - i.e. did the error cause actual harm to the patient or did it make an existing condition worse. A recent case comes to mind. This concerns a woman patient who consulted her dentist regarding an ulcer on her tongue. The dentist diagnosed the ulcer as of traumatic origin and smoothed down a sharp filling. The ulcer did not improve and the dentist kept it under review for three months. The dentist was on holiday, when, luckily for the patient she consulted another dentist who immediately referred her to the local specialist hospital. Squamous cell carcinoma was diagnosed and surgical resection, radiotherapy and chemotherapy was carried out.

8 Nithsdale Road Glasgow G41 2AN Tel: 0141 639 2335 Mob: 07971 000 717 E-mail:joefell174@gmail.com

Was this negligent treatment by the dentist? Yes, as the guidance states that unexplained oral ulceration persisting for more than two weeks should be referred urgently to the local maxillofacial or oral medicine unit. Was there causation? Yes, because if the patient had been referred timeously, then the treatment would have commenced three months earlier and there would have been less

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Neglect Behind Child Tooth Decay Hospital Admissions In response to a new report that more children in England are being admitted to hospital because of tooth decay than for any other reason, oral health charity the British Dental Health Foundation believes neglect is behind the recent statistics.

potential lifetime of poor dental health and dental phobia. It is the view of the British Dental Health Foundation that this is parental neglect in three areas, all of which are basic oral hygiene principles. "The increase in consumption of sugary foods and drinks is one of the key reasons for dental decay. Proposals such as the introduction of a duty on sugary drinks and decreasing the levels of sugar in foods have both been put forward in the last 12 months. From an oral health point of view it is how often sugary foods and drinks are consumed, which heightens the risk of tooth decay. If parents remember this message, there will be an inevitable reduction in consumption and benefits for both general and dental health."

Figures from the Health and Social Care Information Centre show more than 26,000 children aged five to nine were admitted for tooth decay, an increase of more than 3,000 since 2010. Chief Executive of the British Dental Health Foundation, Dr Nigel Carter OBE, said: "It is incredibly worrying to see that almost 26,000 five to nine year-olds treated in hospital for tooth decay. However, these figures are an improvement on 30 years ago when many extractions were performed under anaesthetic in practice.

"Tooth decay is entirely preventable through nothing more than a few very basic oral health messages. The British Dental Health Foundation encourages everybody to brush their teeth for two minutes twice a day using a fluoride toothpaste, cut down on how often they have sugary foods and drinks and visit the dentist regularly, as often as they recommend." â&#x2013;

"It is unacceptable that a child's first visit to the dentist be made at a time when they are in pain and have multiple teeth needing extraction. This sets the child up for a

Dr Allan R Thom Consultant Orthodontist and Registered Specialist LLM, BDS, FDS, DOrth, MOrth, RCS (Eng), FDS (Edin).

Consultant and Registered Specialist Orthodontist. Accredited teacher University of London, Honorary Senior Lecturer Guy's Hospital. Experienced in all aspects of orthodontic treatment, orthodontic surgery, cleft lip and palate, facial deformity and dental trauma. Lectured and taught internationally. Trained in report writing and cross examination. LLM (Medical Law and Ethics). Consultations available in London, Kent and Sussex. Waiting time: 3 -4 weeks - Reports 5 working days.

Tel: 01892 528 915 Fax: 01892 513 268 Mob: 07808 596 119 Email: arthom@hotmail.co.uk Address: 52 Warwick Park Tunbridge Wells, Kent TN2 5EF

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Dental Phobia Causes Greater Anxiety People afraid of the dentist are being reminded that dentistry has significantly changed after an alarming number of Brits say a visit is scarier than 10 of the UK's most common phobias, a new survey reveals.

the dentist than the UK's 10 most commonly reported phobias, according to Anxiety UK. One in three (33 %) said a routine check-up was scarier than interacting with other people. Visiting the dentist also caused greater anxiety than open spaces (31 %), blushing, driving, animals and confined spaces. Spiders and flying (25 %), and vomiting and illness (24 %) completed the list.

Oral health charity the British Dental Health Foundation asked more than 2,000 people if they were more afraid of

The survey also pointed to some of the main reasons a visit to the dentist is seen as scary. When asked what influences fear of the dentist the most, one in three (31 %) said needles and injections while one in four (25 %) suggested pain was the main influence. Karen Coates, a Dental Advisor at the British Dental Health Foundation says the organisation's Dental Helpline receives many calls about fear and phobia, and that the reality is there is nothing to worry about. "People who are scared of the dentist often call us for help because they're at the end of the line. Their teeth don't look nice anymore or they're in a lot of pain with toothache, and they want to make the first step to seeing a dentist and getting their teeth sorted out. â&#x20AC;&#x153;Advances in technology have also improved dentistry. Treatment can now be completely painless. The dental wand (a computer-driven injection system) is great for anyone with a needle phobia or a numbing gel can be used to numb your gums before an injection. Many dentists also offer techniques such as sedation and relaxation to help their nervous patients." â&#x2013; EXPERT WITNESS JOURNAL

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Specialist Healthcare & Care Workers Training Centre Opens Jan Bagshaw Nurse Prescriber and Expert Witness realised in the course of her professional briefs that there was a serious deficiency in the quality of training that is generally in the healthcare industry, which in some cases was resulting in serious consequence. Jan who is also a Nurse Prescriber and trainer in Epilepsy Awareness and Rescue Medication in her own practice for two decades decided to expand her practice to include the training of healthcare professionals and care workers in the fundamentals of Care Planning, Dignity in Care, Medication Management and Defensible Record Keeping with key training in Awareness of Epilepsy, Tracheostomy and other Critical Illness.

Jan & Peter in the Training Centre with the Strap line on the wall.

To be added towards the end of the year will be an Induction and Refresher course for Domiciliary Care Workers. A new comprehensive website will go live in the next few months under the banner of “Community Yes.” The Training Centre administration is attended from 9.00am to 3.00pm Monday to Thursday on Telephone 01706 373075 and email admin@communityes.co.uk Jan Bagshaw has been joined in this exciting project to enhance the quality of training and awareness by Peter Ruffell who as an entrepreneur business man, as well as being Jan’s Practice Manager is Commercial Executive of “Community Yes” operates from the training centre and available at all times on 07814 102215 or peter@communityes.co.uk ■

This expansion has already been rolled out nationally with the recruitment of a team of specialist senior nurses and a lead pharmacist who have presented awareness and training courses at venues of client’s choice throughout the UK, which has over the last 3 years had excellent results and endorsements from Leading Pharmaceutical Companies and Healthcare Care Providers.

Jan Bagshaw

The new complement to the national training is the addition of a bespoke training centre at Marida House in Littleborough Greater Manchester, easily located on the main A58 from Rochdale to Halifax, where full day courses are offered in each of the foregoing elements in comfortable rooms with high end refreshments and lunch provided.

Nurse Consultant Epilepsy, Independent Prescriber RGN, RM, Dip HE, Epilepsy Diploma, Bond Solon Trained Expert Witness

Jan Bagshaw, is a clinical nurse specialist in epilepsy. She provides a wide range of services for people living with and working with epilepsy. Jan is an expert witness in nursing care, as a nurse prescriber, she has provided independent epilepsy services and specialist training courses to clients, family members, carers, support workers and all levels of healthcare professionals to develop and widen their knowledge base of epilepsy and associated care issues. Jan has extensive experience in coordinating care services for people with neurological conditions including acquired brain injury, diseases and alcohol and drug abuse. Jan also undertakes the training of healthcare professionals and care workers in the fundamentals of Care Planning, Dignity in Care, Medication Management and Defensible Record Keeping with key training in Awareness of Epilepsy, Tracheostomy and other Critical Illness.

Contact: Jan: 07731 725181 Peter: 07815 102215 Jan@communityes.co.uk Peter@comminityes.co.uk Available 24/7 on mobile, Offices manned 9am-3pm Mon - Thurs Marida House, 76 Featherstall Rd Littleborough, OL15 8DW

Jan Bagshaw presenting to delegates including Doctors and Prison Service Administrators. EXPERT WITNESS JOURNAL

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True Impact of Neurological Conditions The Neurological Alliance is a collective voice for more than 80 national and regional brain and spine organisations working together to make life better for 10 million children, young people and adults in England with a neurological condition

The Alliance observes that despite their huge impact, historically very little information has been collated and published about neurological conditions and how people affected by them are cared for and supported by the NHS and social care services. There has also been a poor understanding of their prevalence and economic and societal impact among decision-makers at the national and local level.

In April 2014, it published a new report revealing the economic and societal impact of neurological conditions, setting out the steps needed to address the major gaps in neurological data and intelligence.

Following the 2012 Public Accounts Committee (PAC) report on neurological conditions, which drew national attention to the dearth of neurological data and intelligence, and work that it has undertaken since with Dr David Bateman, the National Clinical Director for Neurological Conditions, NHS England and the Health and Social Care Information Centre (HSCIC), the first neurological dataset was launched in March of this year. This brought together for the first time accessible neurology data from various sources within health and social care.

New figures showing that: • The number of neurological cases in England has now reached approximately 12.5 million – this equates to 59,000 cases per clinical commissioning group • 1.3 million hospital admissions were recorded for people with a neurological diagnosis in 2012/13 – representing an increase of more than 500,000 over a five year period • The NHS spent over £4.4 billion on neurological conditions in 2012/13 alone

Whilst the publication of the dataset is a seminal step forward, it is only the beginning, with the publication “Measuring up” forming a vital part of a campaign to push

• NHS expenditure on neurological conditions increased by over 200% between 2003/4 and 2012/13

Dr Marta Elian Consultant Neurologist and Expert Witness

Dr Marta Elian has provided expert witness reports in neurology for over 20 years. Her specialist areas are epilepsy, motor neurone disease, multiple sclerosis and objective smell tests. She is able to give evidence in court for either claimant or defendant and as a Single Joint Expert. Her experience includes cases involving personal injury as well as disputes over medical negligence. To save paying for the use of an interpreter, and his/her time consuming service. Consultations can be conducted in Hungarian, Romanian, German, French, or Hebrew.

Tel: 0207

722 5508 Fax: 0207 483 1761 32a Queens Grove, London NW8 6HJ EXPERT WITNESS JOURNAL

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for the creation of a comprehensive system of neurological data and intelligence capture and analysis. A spokesman stated: “The NHS has done great things with data and intelligence for patient communities such as cancer and cardiovascular disease; with the right systems in place it has the opportunity to do similarly great things for people with neurological conditions.”

Network is the most significant step to improving services and outcomes for people with neurological conditions.” The Network will: • Promote efficient and effective data collection throughout the neurology journey • Provide a common national repository for neurology datasets • Produce expert analyses, to monitor patterns of neurology care • Enable use of neurology information to support audit and research programmes • Use information to drive improvements in neurology care and clinical outcomes

Launch of first Neurology Intelligence Network Building on this initiative, the Neurology Intelligence Network was launched on 17th June 2014 by Rt Hon Norman Lamb, Minister of State for Care Services. Sponsored by Public Health England, in partnership with NHS England, and supported by the Department of Health, the Neurology Intelligence Network is one of only five Health Intelligence Networks being developed during 2014-15: • Mental Health, Dementia and Neurology • End of life care • Cancer • Cardiovascular • Child and maternal health

The Neurology Intelligence Network website has already been launched and provides information on emergency admissions to hospital for 12 neurological conditions across all the Clinical Commissioning Groups in England. The conditions are: epilepsy, headache and migraine, motor neurone disease and spinal muscular atrophy, multiple sclerosis and inflammatory disease, peripheral nerve disorders, tumours of the nervous system, neuromuscular disorders, central nervous system infections, Parkinson’s disease, Huntington’s disease, dystonia and tremor.

Arlene Wilkie, CE, Neurological Alliance said: “For the first time neurology is a focus for NHS England and Public Health England. They have sponsored this initiative and they will make it a success. For too long neurology has been forgotten. I believe this Neurology Intelligence

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Visit www.neural.org.uk for more information on these initiatives. ■

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Can Diabetes Drug Help Parkinson’s Patients? A trial to test whether a diabetes drug may help slow down Parkinson's disease is under way at the newly opened Leonard Wolfson Experimental Neurology Centre (LWENC) Clinical Facility at the National Hospital for Neurology and Neurosurgery (NHNN), according to the UCL Institute of Neurology.

Results showed that patients on Exenatide appeared essentially unchanged throughout and beyond the trial period, while the control group had an expected rate of gradual decline in movement and cognitive ability. Although the results of the study in 2013 provided strong encouragement for Exenatide as a potential diseasemodifying agent in Parkinson’s disease, a larger trial was essential. The current trial aims to recruit 60 patients.

The first patient has been dosed with Exenatide, a licensed drug used since 2005 to treat patients with Type 2 diabetes, and which appears to have neuro-protective properties.

'Repositioning' medications that are already licensed for use in humans and show sufficient merit in the laboratory, greatly reduces the risk and cost of drug development in conditions such as Parkinson's. While we of course hope that this double blind trial shows positive results for PD patients, we also hope that this style of investigatorinitiated trial can serve as a useful template for licensed drug repositioning in other neurological conditions”, says Dr Thomas Foltynie, Chief Investigator.

Thomas Foltynie, a consultant neurologist at the NHNN and Senior Lecturer at UCL Institute of Neurology, is the Chief Investigator of this clinical trial (funded by the Michael J Fox Foundation) in which patients affected by Parkinson's disease will inject themselves with Exenatide over a 12-month period. Patients will undergo clinical assessments, brain imaging and a collection of biological samples to gain insight into the safety and tolerability of the drug.

The LWENC Clinical Facility has been specifically designed to undertake experimental medicine studies and early phase clinical trials to identify potential disease modifying therapies in the field of neurology and neurodegeneration. ■

The benefits of Exenatide first came to light several years ago, when an initial study showed that the drug was able to rescue dying nerve cells.

Dr Roger Slater

Maggie Sargent RGN

Consultant in Anaesthesia & Intensive Care

Nursing Care Expert

MBChB. BSc. MRCP. FRCA. FICM Maggie Sargent RGN is a leading nursing care expert, who in the last 30 years has herself received some several hundred instructions from solicitors to evaluate care for litigation purposes.

Consultant in Anaesthesia and Intensive Care in NHS practice since 1989.

She and her associates cover cases involving brain injury, orthopeadic and general body injury, damage at birth and mesothelioma. In these fields they liaise with medical experts, occupational therapists and architects.

Preparing medico-legal reports for 15 years. Has published peer review papers and articles in anaesthesia and intensive care practice.

In addition to this the team is also involved in case managing clients who have a wide range of nursing and care needs and they can provide costs of case management reports.

Tel: 07710 280 348 E-mail: rogermslater@btinternet.com

All experts have considerable experience of attending conferences and giving evidence in Court.

Correspondence address: Church Lodge Little Wenlock Telford TF6 5BD

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Maggie Sargent & Associates Darlingscott Farm, Darlingscott, Shipston-on-Stour, Warwickshire CV36 4PN. Tel: 01608 682500 Fax: 01608 682372 Email: office@maggiesargent.co.uk

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Malingering, Factitious or Functional Disorder? Clinical Neuropsychology and the perennial issue of Symptom Validity. by Dr Linda Monaci,

Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist. Many practitioners appear to privately offer medicolegal services involving the assessment of cognitive and emotional functioning after a road traffic accident. What can be challenging is to distinguish between clinicians who have completed all the relevant training, those who are qualified as a Clinical Psychologist and those who instead even lack the basic compulsory registration to practise. It is relatively common to come across practitioners who believe assessing someoneâ&#x20AC;&#x2122;s cognitive functioning just consists of â&#x20AC;&#x153;administering some testsâ&#x20AC;?. However, even graduate psychologists (employed in the NHS as Assistant Psychologists) can administer tests under supervision. The challenge and the aspect requiring clinical skill, is how to interpret data generated from testing.

Psychological Association, APA; 2000). Malingering is thought to be more likely when people are interested in pursuing material or financial gains.

Medico-legal assessments involve interpreting potentially complex clinical situations, but also additional litigation factors. Practitioners must be mindful that human behaviour can be influenced by a range of internal as well as external factors. Historical records show that human beings have long engaged in deceptive behaviour to avoid duties or bring them advantages. For instance, the Hebrew Bible reports that David feigned insanity to escape from a king who viewed him as an enemy (Sam 21: 10-15, cited in Stone & Boone, 2007). As early as Roman times, Galen reported two cases involving feigned illness to avoid performance of duties (Lund, 1941).

A related concept is that of factitious disorder. This term was thought to have been first used by Gavin in 1838 (cited in Kozlowska, 2007) in his book on military malingering, to indicate a type of malingering in which clinical evidence is tampered with or artificially produced. Factitious disorder first appeared as a diagnosis, distinct from malingering, in the Diagnostic and Statistical Manual of Mental Disorders-III-R (DSM-IIII-R; American Psychiatric Association, APA, 1987). This disorder is thought to be associated with psychopathology and may be a means by which vulnerable individuals maintain attention of healthcare professionals (Shorter, 1992). However, the diagnosis of factitious disorder continues to elicit debate. Richard and Wessely (2010) suggest that this term was coined by doctors who did not want to affect the relationship with malingering patients without providing them with the blameless label of functional disorder. They argue that this term no longer has a role in current medicine and it should not be used.

Malingering may seem to be a clearly defined behaviour; however, what makes its recognition challenging is that it is often not possible to be sure whether the fabrication of symptoms is intentional and whether external incentives are present. The potential for malingering is nevertheless one possible threat to the validity of information gathered during clinical assessments. Given the potential secondary gains associated with the outcome of a medico-legal evaluation, malingering must be considered a possibility in this context.

Currently the term malingering is used to describe the intentional fabrication (or feigning) of physical and psychological symptoms for external incentives. Such incentives may include, avoiding military duty, avoiding criminal prosecution, obtaining financial compensation or obtaining drugs (American EXPERT WITNESS JOURNAL

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Both malingering and factitious disorder require the individual has a conscious intention to produce or report symptoms. When considering a behaviour that is outside conscious intention, this can be diagnosed as functional disorder (DSM-IV; APA 2000). Functional disorders (or somatisation disorders), specifically conversion disorders when the symptoms involve the nervous system, were called ‘hysteria’ and have been reported as early as in pharanoic Egypt, Roman and medieval medicine (Veith, 1993). They are often used interchangeably and their conceptualisation has evolved over time, from being due to wandering womb (King, 1993), to spiritual possession (Veith, 1993) until suggested by Breuer and Freud (1895; cited in Lamberty, 2008) as originating from an unconscious conflict. According to Stone et al. (2005), functional disorder refers to a variety of physical symptoms that have a psychological origin and conversion disorder refers to a psychoanalytic concept that describes neurological and sensory symptoms thought to be not malingered, but related to psychological factors. A similar concept is symptom misattribution; this involves an individual developing an idea that explains their symptoms that is not consistent with established medical evidence. An example may be that benign common cognitive failures are seen as proof of having sustained a brain injury following a minor blow to their head.

Case examples It may be argued that the Clinical Neuropsychologist’s role is identifying inconsistency in a clinical presentation rather than attributing this to malingering, factitious or functional disorder and that it is then the Court that makes the determination on whether malingering has occurred. Consider the case of an individual who reported during the consultation of being unable to drive and to carry out most simple activities of daily living (e.g. buy and cook food) as a result of their brain injury. However, they arrived on time and well kempt on their own to the consultation and reported to live on their own with no obvious problem would certainly raise a strong suspicion of malingering. This clinical picture appears to include many inconsistencies, however, reviewing of the medical notes, clinical interview with the individual (and any third party informant) and the results on specific tests might or might not provide support for a diagnosis of malingering. Whether it is part of the Expert’s role or whether it is the prerogative of the Court to make this determination can be debated. Often the legal case may involve additional evidence, such as surveillance recording, that may not be usually available to the medical experts and this may help the Court establishing whether symptoms that appear unusual or unlikely may be consistent with malingering or perhaps just with symptom misattribution or a functional disorder.

Making the distinction between malingering, factitious disorder and functional disorder is difficult as this involves understanding an individual’s internal motivation, of which even the individual themselves may not be fully aware. It is also difficult to differentiate between malingering and factitious disorder as the first is thought to be associated with external incentives and the second with internal incentives. For instance, it can be argued that if someone’s illness delayed a divorce (which the sufferer does not accept), this may be an external incentive, as well as an internal one. Not only it is difficult establishing intention but also distinguishing between what constitutes an external and an internal incentive.

Symptom validity testing may also be helpful in cases where individuals develop a perception of being disabled and can also develop mood disorders, which in themselves are often associated with self-reported cognitive difficulties. An example of this could be a young man1 who following a mild traumatic brain injury during a car accident does not receive any formal cognitive assessment or any guidance on recovery by NHS services. The NHS treatment focuses on his other injuries, but he experiences cognitive problems. He goes online and reads about brain injury symptoms. During his rehabilitation funded by the claim, cognitive symptoms are attributed to emotional disturbances and he does not receive any expert formal assessment of his cognitive functioning. He is referred to a charity for people with head injuries where he shares his difficulties with other attendees. He starts feeling his life is ruined and feels resentful with the driver of the car in which he travelled. Eventually he receives an expert clinical neuropsychological assessment as part of his compensation claim. Twelve months post-accident he has not yet returned to work due to his self-perceived cognitive problems. He still suffers from anxiety and depression and his activities of everyday living are very limited. Symptom validity testing can help rule out any

It is fair to conclude that there could be several reasons as to why a clinical presentation may not be consistent with what is expected based on clinical history, investigations, behavioural observations and/or established medical knowledge of the condition in question. Intentional deception for the purpose of external gains should always be considered, but cannot always be assumed. For instance other psychological processes may underlie symptom over-reporting and poor effort on cognitive tests following head injury. Furthermore it is also possible that symptom overreporting and poor effort on cognitive measure coexist with organic injury. EXPERT WITNESS JOURNAL

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It appears important that Experts do not pick and choose when to administer tests of symptom validity but that these are always included in the test battery. This way there can be no doubts over their impartiality. The BPS guidelines indicate that these should always be included unless there are very significant clinical reasons as to why they would not be necessary; an example reported by the guidelines is when assessing people who live in a 24-hour care facility.

cognitive underperforming and verify whether the cognitive assessment results are a true representation of his abilities. It can also monitor for the presence of any symptom over-reporting. At formal assessment his cognitive test results indicate intact cognitive skills and treatment recommendations are made. He then goes on to receive CognitiveBehavioural Therapy (CBT) by a treating Clinical Neuropsychologist, including guidance on recovery following a mild brain injury and symptom misattribution. The aim is for the young man to feel again satisfied with his abilities, to feel able to cope, for him to gradually return to work, for his mood to improve and for his activities to return to normal levels.

Disregarding the complexities of psychosocial variables may otherwise lead practitioners to erroneously conclude someone intentionally feigns their symptoms when this is not the case. Some assessments do not include symptom validity and one may wonder whether these reflect limited knowledge in the field. This is why it is important that only qualified Clinical Neuropsychologists are involved in carrying out medico-legal evaluations of cognitive functioning. For those outside the field: being a Chartered Psychologist with the BPS does not necessarily indicate that the Psychologist is registered with the Health and Care Profession Council (HCPC), which would be statutorily required to be employed in the NHS. Recent BPS professional guidelines (2013) stated that although the title of Clinical Neuropsychologist is at present not legally protected titles, “Clinical Neuropsychologists should meet the competency standards examined by

These examples highlight the importance of considering the whole clinical picture, both also relying on validated and standardised tools, both for the purpose of establishing diagnosis, causation and prognosis. The assessment process Clinical neuropsychology plays a role in identifying and flagging up inconsistent or dubious symptoms. Assessment usually includes review of the medical records, a semi-structured clinical interview with the individual and ideally a third party informant, such as a family member or a close friend. Additionally psychometric tests of emotional, personality and cognitive functioning can be administered to cover all the cognitive domains (i.e. intellectual functioning, attention, memory, visuo-spatial skills and executive functioning). If the individual to be assessed is a reliable historian and if there is no intentional (or not intentional) symptom exaggeration or cognitive underperformance both the interview and the test administration can yield accurate information. Symptom validity testing contributes to identifying inconsistent presentations (i.e. identify a presentation that is not thought to be consistent with what is known or expected of a certain condition). It is then down to detailed clinical assessment to determine whether a pattern on test results is due to malingering, somatisation or the controversial factitious disorder, or whether perhaps simply the results obtained are not a true representation of someone’s cognitive skills. Symptom validity testing is considered increasingly important in clinical or medico-legal assessments as presentations may at times be inconsistent with clinical records, history, behavioural presentation and/or third party accounts. Internationally it has been agreed that assessing for symptom validity, including effort, is nearly always necessary (e.g. British Psychological Society, BPS, 2010.) EXPERT WITNESS JOURNAL

Dr Linda Monaci Consultant Clinical Neuropsychologist Medico-legal assessments for suspected or known brain injury and/or brain dysfunction: • • • • • •

Traumatic brain Injury, Post-Concussion Syndrome, Stroke, Dementia, Neuropsychiatric conditions, Including mental capacity and fitness to plead. • Dr Monaci can also carry out assessments in Italian. Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments within 2–4 weeks, reports produced in a further 2–4 weeks. Consulting rooms in Surrey, consultations available nationwide and home visits may be arranged. Chartered Psychologist (BPS), Registered Practitioner Psychologist (HPCP). Laurea, Pg.Dip., D.Clin.Psy., Psychol., Q.i.C.N., C.Sci., A.F.BPsS

www.monaciconsultancy.com linda@monaciconsultancy.com T. 020 8123 4173

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the BPS Qualification in Clinical Neuropsychology (QiCN)”. “Therefore, the BPS DoN strongly recommends that all appropriately qualified Clinical Neuropsychologists should join the SRCN to support public safety. To refer to oneself as a Clinical Neuropsychologist, Consultant Clinical Neuropsychologist or to offer Clinical Neuropsychology services whilst not listed on the SRCN is acting against this professional & ethical guidance. Professionals undertaking QiCN training should always have their clinical neuropsychological work supervised by a member of the SRCN.” ■

King, H (1993). Once upon a text: Hysteria from Hippocrates. In S. L. Gilman, H. King, R. Porter, G. S. Rousseau & E. Showwalter (Eds., pp.3-90). Hysteria beyond Freud. Los Angeles: University of California Press.

References

Lund, F. B. (1941). Galen on malingering, centaurs, diabetes and other subjects more or less related. Columbia University Press.

Kozlowska, K. (2007). The Developmental Origins of Conversion Disorders. Clinical Child Psychology and Psychiatry, 12: 487. Lamberty, G. J. (2008). Etiological theories of somatoform disorders. In G. J. Lamberty (Ed.) Understanding somatisation in the practice of clinical neuropsychology (pp.3146). New York: Oxford University Press.

American Psychiatric Association (APA, 1987). Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III. 3rd ed.). Washington DC: American Psychiatric Press Inc.

Richard, A. A. & Wessely, S C. (2010). The origins of factitious disorder History of the Human Sciences. 23: 68-85.

American Psychiatric Association (APA, 2000). Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV, 4th ed.). Washington DC: American Psychiatric Press Inc.

Shorter, E. (1992) From Paralysis to Fatigue: A History of Psychosomatic Illness in the Modern Era. New York: Free Press. Stone, D. C. & Boone, K. B. (Ed). (2007). Feigning of physical, psychiatric and cognitive symptoms: examples from history, the arts and animal behaviour. In K. B. Boone (Ed.) Assessment of Feigned Cognitive Impairment (pp.3-12). New York: The Guilford Press.

British Psychological Society (BPS, 2010). Assessment of effort in clinical testing of cognitive functioning for adults. British Psychological Society (BPS, 2013). Instructions on the Professional Use of BPS Membership Grades and Titles in relation to Neuropsychology

Veith, I. (1993) Hysteria: The History of a Disease. Northvale, NJ: Jason Aronson.

Magdala Psychology Limited Dr Mark Cheesman BSc MSc (Eng) MPH PhD CPsychol AFBPsS MAE PVRA ABP

Registered Practitioner Psychologist (HCPC) Chartered Health & Occupational Psychologist With a number of associates we provide evidence based, objective and comprehensive assessments of individuals who are experiencing restrictions in their occupational and functional capacity for work due to an injury, health condition or disability. We are able to provide assessments at home and at work and use a full range of objective measures including psychometric, cognitive and psychological assessments to establish capacity for work, recommendations for treatment and rehabilitation and adjustments and supports at work and also outside of work where appropriate. We are able to identify transferable skills, provide vocational guidance, tailored coaching, initial vocational rehabilitation evaluation and return to work case management as appropriate. In addition we are able to provide assessments for dyslexia/dyscalculia and other specific learning difficulties and to screen for other difficulties.

Dr. Pavan Chahl Consultant Psychiatrist MBBS, MRCPsych, CCT (General adult psychiatry), Section 12(2) approved I work as a Consultant Psychiatrist both within the NHS and the independent sector. I have previously been on the Council of the Birmingham medico-legal society and the Birmingham medical institute.

We are also able to provide expert reports for court and Employment Tribunals on matters of employment and vocational assessment and rehabilitation. We are also able to provide tailored training on matters around disability and health and the workplace including mental health.

I have significant experience of dealing with cases that relate to Personal Injury, Family law, The Disability Discrimination Act and Clinical negligence. I have done reports for the Defendant, Claimant and also joint instructions.

Please contact

Mark Cheesman

Tel: 07985 883 549 Fax: 0121 603 1852 Email: pchahl@doctors.org.uk

23b Magdala Road, Mapperley Park, Nottingham NG3 5DE Tel: 07730 927 444 Email: mcheesman@gmail.com Area of work: Nationwide and International

Wallflower Consulting 17 Portland Road, Edgbaston, Birmingham, West Midlands BH16 9HN

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The “Nonsense” of Mental Age by Galen Ives - Consultant Clinical Psychologist The concept of mental age seems to be quite familiar to the general public, if the popular press is anything to go by – it is common to read that a certain adult, often an offender or a victim, had a mental age of nine, or whatever. The legal profession also seems comfortable with the concept, as judged by the frequency with which I am asked to specify an adult’s mental age in the context of carrying out capacity assessments. Unfortunately, I am never able to comply with such requests because the concept is “nonsense when applied to adults”. I quote the psychologist Thurstone, writing in 1926! (1) It is very striking that almost a century later this message has still not sunk in, and it shows how compelling the idea is, even if it has no scientific merit.

happens to increase the brain’s size is that these develop and connect with each other in ever-increasing complexity. By the time we reach the age of two years, our brain is already about 80% of the size it will be in adulthood. In the course of these early years there are critical periods for the development of specific skills and types of awareness, in widely differing areas covering the cognitive, emotional and social arenas. For example, visual stimulation is especially important in the three to eight month window, as this is when binocular vision develops; a sense of shame appears first at about ten months, and successfully fostering this is vital to producing a child who will behave and respond to discipline; the brain is especially receptive to learning language before the age of about five years. Crucial to all these developmental processes are the experiences we have and the care we are given as infants and small children; for the brain to develop properly, we need constant physical and mental stimulation. Those who suffer severe, early neglect develop markedly smaller brains than their more fortunate peers, and their deficits are then life long. This is the basis of a variety of what we regard as personality disorders, and explains why these are so difficult to treat.

Let us begin with a quick look at the neurology of our cognitive development, something of which Thurstone would have known little. We are unique among primates (and indeed most mammals) in being born with a very immature brain – at birth, our brains weigh only about a quarter of that which they will eventually attain. Our closest relatives, the chimpanzees and bonobos, are born with fully three quarters of their adult brain weight. The relatively greater intelligence with which we humans are endowed seems to be a consequence of evolution allowing our brains to mature during the course of childhood rather than in utero. Perhaps surprisingly, we are born with practically all the nerve cells we will ever have; what EXPERT WITNESS JOURNAL

Whilst we obviously continue to learn after the age of five, the neurological picture is less dramatic until we reach puberty, when something remarkable happens: the brain 57

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loses up to half of its internal connections. If this happened in an adult it would look like severe brain damage, and maybe it accounts for why adolescents can appear so odd! Then over the next decade or so, the brain slowly rewires itself in preparation for adulthood. Again, experiences are crucial in forming the direction this will take; the new and temporary plasticity of the brain can, under the right circumstances, offer a window of opportunity during which earlier damage can be mended and problems healed. All too often, though, an already disturbed adolescent will seek out companions who simply reinforce dysfunctional patterns and the opportunity is lost. Worse, there may be significant drug abuse during this formative period, and in extreme cases drug misuse appears to produce irreversible neurological damage, although such effects remain poorly researched and understood.

So where did the idea of mental age come from, and does it have any use? Our understanding of human development has changed over the years; children used to be regarded simply as small versions of adults and I recall my grandmother saying that she was glad she grew up before adolescence was invented! When the first IQ test was developed by the French psychologist Alfred Binet in the early 1900s, this was done in a relative absence of knowledge about mental development, and a subsequent refinement by the American psychologist Lewis Terman at Stanford University, resulting in the Stanford-Binet test being published in 1916, was carried out in a similar conceptual vacuum. Binet’s instrument, designed to identify “slow” children who needed educational help, used a battery of 30 different tests; as children grew older, their overall scores on the battery increased reasonably linearly with age and the idea of a “mental age” arose from this. If a child aged ten gained a score which would be expected of the average child of seven, he or she was said to have a mental age of seven. The IQ was then given as mental age divided by actual age times 100, i.e. 7/10 x 100, which is 70 in this example.

Our brains reach maturity by our mid 20s; our abilities stay reasonably constant for a couple of decades then begin to decline from about age 40. As part of capacity assessments, psychologists routinely measure “processing speed,” the rate at which information moves around the brain. One standard test of this involves the subject copying symbols corresponding to the numbers one to nine as fast as they can. The average person can manage to copy out about 73 of these in two minutes in their 20s and 30s; this drops slightly to 70 by 40 years and then declines to 54 at age 60, i.e. a decrease of about a quarter over two decades. The curve then continues to fall, until by age 85 our average person can copy only about 35, i.e. about half what they could do in their prime. This of course relates only to processing speed and says nothing about accumulated knowledge and wisdom, or the ability to apply these; knowledge acquisition follows an entirely different curve from simple processing speed, as well as being heavily dependent upon education, occupation and social milieu. It has been shown, for example, that the number of books in a household is a powerful predictor of the educational attainment of the children growing up in that household (2), and this is quite consistent across cultures.

Modern tests do not calculate IQ in this way; instead, a person’s performance is compared with a reference group of people their own age, and the IQ is a statistical representation of this based upon the so-called normal distribution, the famous bell-shaped curve of the German mathematician Carl Friedrich Gauss. This is called a “deviation IQ” (because it is based on the statistical concept of standard deviation); all modern instruments use this method simply because it is a more robust, valid and scientific way of doing the maths. But despite this, and the lively debates about the relevance of the mental age concept, particularly in adults (as per the quotation above from Thurstone in 1926), the mental age calculation for IQ remained in use in successive versions of the Binet test until as recently as 1973, when the third edition introduced deviation IQs.

What the above illustrates is that development from birth to adulthood and later is not a smooth, linear process, but rather one which proceeds by fits and starts, with critical periods, different rates of change and particular periods for the development of certain specific skills, such as language. Some abilities later decline whilst others continue to develop. Also, an adult has a different brain structure from a child, having been through the developmental changes of adolescence. All of this complexity makes nonsense of the idea that a level of mental development at one age can be compared as a simple ratio with the level at another, particularly across the chronological gulf separating adults from children. EXPERT WITNESS JOURNAL

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The concept still has some relevance in providing a snapshot of specific abilities in children, particularly those which tend to develop linearly with age, such as reading or mathematical ability. It is not inappropriate to describe a child who can read as well as the average eight year old as having a reading age of eight. This can also be used to quantify the difficulty of a specific piece of text, which can be described as requiring a certain reading age to be understood. The British Ability Scales, widely used in the assessment of children, give “age equivalent” scores for the various scales in addition to deviation scores, although these are not meant to be understood as implying a mental age as such. The use of the mental age concept throughout the majority of the 20th century in psychometric testing has no doubt contributed to the perceived legitimacy of the idea. It also has a popular appeal, as people who have pronounced learning disabilities can often be childlike in their ways, leading to the notion that they are “just big children”. The trouble is, however appealing the idea of mental age may be, it does not stand up to any scientific scrutiny. Our chronological age proceeds in its smooth, inexorable way, punctuated by regular birthdays to remind us of its advance; in contrast, our mental development is complicated, messy even, with active and slack periods, qualitative changes and later decline. Trying to compare the one against the other was never going to work, as Thurstone perceptively noted in the early days of the debate. So I am afraid that I shall continue to disappoint those who would like me to measure an adult’s mental age. About the author: Galen Ives is a Consultant Clinical Psychologist and an experienced expert witness, available for work through Carter Brown www.carterbrownexperts.co.uk

Horseshoe Reporting Services Limited Dr Ruth Jarman has over 20 years experience in general psychiatry and has been a consultant Psychiatrist for the NHS since 2005. She has been in medico – legal practice since 2007 and specializes in the psychiatric aspects of medical negligence.

References (1) Thurstone L The mental age concept Psychological Review Vol 33(4), Jul 1926, 268-278

She has been instructed in cases involving: ● Personal injury ● Child Care Proceedings ● Fitness to Plead and Fitness for imprisonment and Mitigation ● Employment issues including both disciplinary and discrimination issues in accordance with the Disability Discrimination Act

(2) Evans M, Kelley J, Sikora J, Treiman D Family scholarly culture and educational success: Books and schooling in 27 nations Research in Social Stratification and Mobility Vol 28 (2), June 2010, 171–197

In treating adults, she has interest in the consequences of trauma and chronic pain as well as the emotional effects in adulthood of childhood abuse. She has expertise in assessing individuals from the age of 13 with mental health problems. She also has additional training in forensic practice. Dr Jarman keeps up to date with CPD for medical legal practice and is trained in report writing, giving evidence in court and expert meetings. She regularly attends legal updates. Dr Jarman has prepared reports and given evidence in the criminal, civil and family courts as well as mental health tribunals and coroners courts. She is entered on the APIL, EWI and AvMA approved Lists.

Dr R JARMAN BSc (Hons), MB ChB, Psychiatry, Consultant Psychiatrist Tel: 01904 701738 Mobile: 07921 823 167 Email: ruthfarnworth@mac.com Address: 11 The Horseshoe, York YO24 1LY

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What Resulted from the Index Event? The Dilemmas of Causation and Apportioning Psychological Distress. Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Dr Bruce Leckart, Clinical Psychologist, Los Angeles, USA Dr Jon Willows, Chartered Psychologist, Hugh Koch Associates LLP Dr Victoria Lucas, Chartered Psychologist, Hugh Koch Associates LLP factors. The notion of apportionment is typically applied with respect to three time frames: prior to the index event, the index event period itself and also at the time of the medico-legal assessment period (typically 3 – 36 months later.)

Introduction The ability to reliably identify a psychological ‘injury’, to understand its causes and to establish appropriate attribution to a trigger event are crucial to the successful functioning of the civil court and to the law firms and the clinical experts who provide services to them. This paper describes some of the key factors considered by psychological and psychiatric experts when forming a clinical opinion in the fields of personal injury, medical negligence and employment disability.

Effects of other adverse events A common misconception is that the more ‘stressors’, or adverse life events, an individual has experienced across the course of their lifetime, the more pathology and disability is apportioned to their previous history.

Ensuring and maximising evidential reliability involves careful consideration of any pre-injury psychological issues, as well as any pre-event and post-event stressors (Leckart, 2009). This process may well involve ‘apportionment’ i.e. the estimation of the percentage of psychological injury caused as a direct result of the index event, as opposed to other unrelated pre-event or post-event

However, two important factors can run counter to this: a] the positive ‘toughening’ effect of adverse life experience resulting in resilience and increased coping ability for subsequent [e.g. index] stressors, and b] the time gap between previous life events and the index event, which may well have allowed the individual to resolve or otherwise overcome a previous trauma.

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Of course a prior history of trauma can also leave the individual with a vulnerability or pre-disposition to later psychological problems. The balance between these issues in any one particular case requires careful consideration.

Recall effects: faulty memory or intent? It is sometimes observed that claimants appear to have difficulty in recalling full details of their own history. Initial questioning may result in gaps and inconsistencies in recall, which on re-questioning and prompting can then be explored in more depth. These gaps can be due to memory effects and/or to motivational or intent effects.

Furthermore, it is, well known that symptoms of anxiety and depression are common in the general population. The UK-based NICE guidelines state that after one prior treated episode of depression, there is a 50% chance of a further episode within that individual’s lifetime. This raises another relevant medico-legal question – might the claimant not have had the particular symptoms claimed even if the litigated event had not occurred? This, essentially, is the powerful ‘but for’ question.

Memory effects: a) Short-term and long-term memory impairment. b) Impaired concentration at interview. Motivational effects: a) The claimant’s lack of perceived relevance of particular areas of questioning. b) The intention to mislead or perhaps overemphasize index event effects

Other issues, which experts need to grapple with when assessing causation, include: a) What were the effects of the claimant’s pre-event personality including their resilience, and tendency to minimise or maximise their distress?

Another important factor, which can amplify both memory and motivational effects, is the ‘recency effect’. In many interview situations, the index event is either the most recent event of any significance or, perhaps, one of two (or three) recent significant events. As a result of ongoing litigation, and the perceived emphasis of the assessment interview upon the index event, the event itself can acquire greater cognitive and emotional significance for the claimant. This can, understandably, result in other life events being placed rather further back in the claimant’s mind.

b) Indication in their pre-event history of a significant predisposition of vulnerability to the development of further symptoms when experiencing stressful events? c) To what extent do the frequency and severity of any pre-event episodes of psychological symptoms predict further such episodes at/or around the time of the index event? d) Further, how might the above conflict with, or else confound, the ‘egg-shell skull’ principle, which insists that the Court must take the claimant ‘as it finds him/her’?

This process, if not taken into consideration at interview, can adversely affect the quality of the claimant’s recall of their own previous history thereby affecting the validity of the information upon which the expert bases his/her opinion.

Pre-event stressors There is, of course, no exhaustive list of possible stressors or adverse life events to investigate. However, the list below illustrates some of the more typical events and issues to be considered:

Enhancing reliability of causation and apportionment Assessment of evidential reliability requires a comprehensive and critical evaluation of historical factors, both pre- and post- the index event(s). This issue necessarily informs the other key medico-legal issues of diagnosis, prognosis and any treatment recommendations that are made.

Work = Work accident (and injury), redundancy, fear of redundancy. Work harassment, conflict or disciplinary situation. Traffic =Car accident, motorbike accident, cycle accident or pedestrian accident.

Further questioning and examination of written data challenges helps the expert to undertake an iterative and ‘repeated review’ of his/her opinion in the light of new, additional and sometimes conflicting information, in order to arrive at the ‘best fit’ opinion.

Medical = Significant medical illness, significant medical illness to partner, children or parents. Social = Significant financial debts, marriage, divorce, separation and relationship difficulties (such as living apart).

Level of symptomatology in 12 month pre-index event One key medico-legal issue is to establish the extent to which any previous stressors resulted in any marked anxiety or depressed mood (or other psychological symptoms), which may have been ongoing at the time of

Other = Childbirth, termination, house move, alcohol misuse, non-prescribed drug use, the prescription of antidepressant medication.

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scale or as a range (e.g. 65 – 70.) Its greatest utility is in assessing changes in a claimant’s level of functioning across time.

the index event i.e. that were pre-existing. From a medico-legal perspective, the individual must then be construed as someone with an ongoing or pre-existing problem at the time of the index event, rather than being a vulnerable person with a pre-disposition to develop anxiety, depressed mood or other psychological symptoms.

2) Mixed mathematic/linguistic valuation (or MMLV) allows the use of broad, common-sense categories to be used to represent attribution in terms of labels such as: predominantly (over 50%;) partly (49% or less,) materially (33% or more with clarification.)

In such circumstances, GP records and claimant self-report are used to assess the level of psychological distress during the immediate 6-12 month period prior to an index event.

3) Non-mathematical impressions (or NMI) is a procedure in which the examiner elects not to state attribution in any substantive or concrete way, preferring the use of descriptive terms only such as ‘predominantly,’ ‘partially.’

Subsequently, a post-accident diagnosis such as “the claimant suffered an exacerbation of pre-existing symptoms” may be appropriate when it is clear that the claimant had pre-existing emotional difficulties at the time of the index event.

Whichever approach is taken, it is always important to have established a comprehensive history in which the individual’s adverse experiences are catalogued and their reactions and styles of dealing with those events are determined. At that point the psychologist’s job is to assess how the individual’s personality and previous experiences affect how they view the current, litigated stressor to form a subjective opinion about what proportion of the current psychological disability is due to the litigated event and what proportion is due to other factors.

Attribution: Science or clinical clarity? The process of apportionment can be a totally subjective judgment, whereby the expert simply ‘pulls a number out of the hat’ citing the use of ‘clinical judgment’ from years of professional experience. Obviously, this is neither acceptable nor scientific. When more than one adverse event exists, some form of quantitative apportionment is requested and required. The three models that have been promulgated to assess relative attribution are: 1. GAF score comparisons, 2. Mixed mathematic/linguistic valuation (MMLV) and 3. Non-mathematical impressions (NMI). 1) GAF (Global Assessment of Functioning) scores: Leckart (2009) stated that the overall clinical assessment requested by the GAF score allows a numerical comparison of assessments at different occasions in the claimant’s history. This approach involves identifying the particular ‘baseline’ GAF score that best describes the claimant prior to the injury in question (and just after the index event), which is then compared to a GAF score representing the claimant’s level of functioning at the time of assessment. The baseline GAF score is readily determined through a careful clinical interview and inspection of the medical records. In terms of ‘functioning’ this process helps establish what the individual could and could not do and their level of feeling, thinking and behaving before the most recent injury. Then, the claimant’s immediate post-event and current GAF scores are determined in the same way. With some simple arithmetic, the net result is an apportionment figure. It is recorded as a simple number on a 100-point EXPERT WITNESS JOURNAL

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Many cases involve situations in which the ‘psychological’ claim is as a result of a ‘physical’ injury, which in turn, has been apportioned from an orthopaedic perspective. Naturally, a psychologist does not simply transpose the orthopaedic apportionment percentage since this, typically, does not take into consideration the psychological symptoms, e.g. the emotional impact of chronic pain and the psychological impact of not being able to function physically, as before, in one’s everyday life.

Conclusion The ability to understand how experts assess causation and apportionment is a critical component of the medico-legal process. This causes certain dilemmas for experts both in their initial assessments and also when they discuss a joint opinion with ‘the other side’s expert’. The expert uses a number of strategies to produce, at any one moment of time, an opinion that is a reliable account of all available information. This opinion may alter or be modified over time if and when additional information becomes available. ■

Further ‘apportionment’ complications arise in situations where there are multiple index events/accidents to consider; for example, if two or three traffic accidents have occurred within a short period of time. In these circumstances, symptoms can appear to ‘overlap’. It is then incumbent upon the expert to decide, clinically, how much of the current morbidity/injury is attributable to each of the accidents. This process involves identifying proportionality such as ‘33% x 3’ or ‘50% x1’ and ‘25% x 2’. It is also likely that no rigorous or scientific procedure can be applied in such circumstances and the examiner will have to resort to their subjective judgment.

References Leckart B. (2009) Apportioning psychiatric disability in worker’s compensation. May, 1, 4. Leckart B. (2010) Apportioning Psychiatric injuries. December, 1, 23. Koch HCH & Kevan T (2005) Psychological Injuries XPL. St Albans. Koch HCH, Lillie FJL and Kevan T (2006) Perfect attendance: Decision making model for assessing the significance of GP attendance record. Legal and Medical, January, 16 – 17

Dr Hugh Koch, Dr Jon Willows and Dr Victoria Lucas can all be contacted via www.hughkochassociates.co.uk

Sources of data In exploring history and the aetiology of the alleged psychological ‘injury’, the five main sources of data are the claimant’s subjective self-report, the results of the psychologist’s Mental State Examination, the objective psychological testing results, any available contemporaneous records (GP, hospital; occupational health) plus any other collateral sources of information such as witness statement from relatives, friends and colleagues. Generally, when an expert has difficulties in identifying causation, the problem lies in having insufficient or inadequate data from these sources (Leckart, 2010).

Dr Bruce Leckart can be contacted at Westwood Evaluation & Treatment Center, Los Angeles, California, www.drleckartwetc.com

Mr Paul Jones

The validation of a claimant’s self-report is partly achieved by a review of medical or occupational records. It is also dependent on the claimant’s clinical presentation, which might include vagueness, evasiveness, and/or an over-dramatized or unrealistic presentation. The issues inherent with this review have been considered elsewhere (Koch, Lillie and Kevan, 2006) and will be subject to a further debate in this journal.

Consultant Clinical Psychologist BSc CPsychol AFBPsS Consultant Clinical Psychologist with more than 35 years experience, 25 years in the NHS, principally child and adolescent/family. In private practice since 1996, much of which involves public and private law proceedings concerning child protection and involving child and adult mental health assessments, assessment of risk, attachment issues, questions of permanency planning and contact/residence disputes.

With specific reference to attribution and causation, the following GP-record related information is pertinent: 1. Mention of index or other accidents. 2. Mention of relevant adverse events (pre- or post-index event). 3. Mention of psychological symptoms and, where present, their severity and duration as well as the treatment provided (e.g. psychotropic medication or referral to a specialist service) linked to the index event. 4. Medical certification for psychological symptoms.

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Therapeutic work is undertaken with traumatised children and adults. Personal injury reports are provided. HCPC registered - Chartered Member of British Psychological Society.

Contact: Kate Cuthbert/Alex Binks - Secretary Tel: 0191 263 0808 Fax: 0191 209 3998 Mob: 07940 812 460 Email: pauljonesassociates@blueyonder.co.uk Clinical & Forensic Psychology Services PO Box 54, Wallsend, Tyne & Wear NE28 7YR

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Mental Health Act Code of Practice Consultation The Department of Health is seeking views on proposed changes to the Code of Practice: Mental Health Act (1983).

Care and Support Minister, Norman Lamb, said: “I want to build a fairer society with better mental health for everyone. We’re reviewing the Mental Health Act Code of Practice to make sure health professionals, patients, relatives and carers have clear, up-to-date guidance on what people can expect when they are detained under the Act.

The consultation ‘strong code: better care’ is asking for thoughts on a new draft Code which includes: • 5 new guiding principles • significantly updated chapter on how to support children and young people, on the use of restraint and seclusion and the use of police powers and places of safety • new chapters on the care planning, equality and human rights, links to the Mental Capacity Act and Deprivation of Liberty Safeguards, and support for victims.

“We’re asking for views on how the Code can best include recent changes in mental health such as improvements to crisis care and work to reduce the use of restraint.” This review is one of a number of government changes, to bring about better care and health outcomes for people with mental health problems and bring mental health and care services in line with services for people with physical health conditions.

The Code protects patients’ rights, informs health practitioners’ decisions and ensures that the Mental Health Act is followed. The Code guides people who are detained or treated under the Act, their families and carers about care and support available during a crisis, and what to do if it isn’t received.

The DoH aims to increase awareness of the Code and make it easier to understand for those who are using it, especially individuals subject to the Act, their families and carers. A new Code, reference guide and ‘easy read’ version will be published by April 2015.

The DoH states that the Code has sometimes been inconsistently applied, misunderstood or ignored. It is felt that a revised Code will help provide better patient protection and reflects legal changes and healthcare developments since its last revision in 2008.

The consultation is open until 12 September 2014. ■

Dr James Finlayson MB ChB MRCGP MRCPsych Certificate of competence as medico-legal expert of Royal College of Psychiatrists and Inns of Court School of Law Approved and designated practitioner under mental health act (Scotland)

I have over 30 years experience as a doctor - as a rural GP and as a consultant psychiatrist I have prepared over 500 reports in civil (including medical negligence), criminal and mental health fields for Scottish, English and Irish jurisdictions. Tel: 01478 650 417 Fax: 01478 650 466 Mob: 07597441363 Email: jadfinlayson@doctors.net.uk 7 Gedintailor, The Braes, By Portree Isle of Skye, Scotland IV51 9NJ

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Personal Injury Litigation and Mental Health Recovery Personal injury litigation can provide an important pathway towards treatment and recovery for victims of trauma, apart from primary and secondary health-care. The mental health consequences of major trauma can be lengthy and complicated and locally-based mental health services may be ill-equipped to deal with these cases, with respect to specialist expertise and funding. Local treatment protocols may not allow for more lengthy, complex care-pathways.

Increasingly, psychiatric experts will make reference to NICE Guidlines and best practice in terms of psychotherapeutic and psychiatric treatment for trauma victims, who may have had difficulty in accessing appropriate treatment because of waiting-lists or poor quality.

It is well-recognized that a significant percentage of mood disorders fail to be diagnosed at the primary health-care level. Victims of trauma also suffer from under-diagnosis of treatable forms of mental disorder. These include post-traumatic stress disorder, generalized anxiety, depressive disorder, phobic anxiety and obsessive-compulsive disorder.

Trauma cases seen in practice as a psychiatric expert include road traffic accidents, workplace injuries, terrorist events, major disasters and increasing numbers of emotional, physical and sexual abuse cases. High profile cases have raised the public awareness of long-term mental health consequences as a result of trauma and the issue of sexual abuse of vulnerable individuals has been raised as a result of extensive reporting of cases such as that of Jimmy Savile and Rolf Harris. Psychiatric experts have been involved in providing evidence for The Irish Redress Board, multiple cases involving local authorities in The United Kingdom, cases against specific individuals and there is a widening debate about historical abuse cases, in particular.

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Dr Nick Cooling Consultant Psychiatrist MBBS, MRCPsych, Dip Clin Psych Dr Cooling specializes in cases of personal injury and he has considerable experience in the assessment cases of post-traumatic stress disorder, anxiety, depression and other psychiatric disorders resulting from major disasters, work-place accidents, road traffic accidents and medical negligence. Dr Cooling provided the original expert psychiatric evidence for the Hillsborough Disaster, the Omagh Bomb Case and the Childers Fire Disaster, in Australia. He has provided expert opinions for the Bradford Fire Disaster, the Paddington Rail Crash, the Sowerby Bridge Disaster and multiple terrorist events. He has assessed cases in Holland, the United States, Australia, South Africa and the Republic of Ireland. Dr Cooling has provided expert evidence for the Irish Redress Board, in cases of physical and sexual abuse. He is often instructed in cases of alleged sexual abuse. Dr Cooling provides assessments of Mental Capacity, organic mental disorders, brain injury and he provides opinions for Employment Tribunals. In addition to personal injury cases, Dr Cooling undertakes prison assessments, including parole reports and mental health evaluations. Dr Cooling provides opinions for insurance companies, government departments, local authorities, police forces and pensions agencies. He maintains a large medico-legal practice with 40% claimant cases, 40% defendant cases and 20% joint instructions.

Contact: Secretary Kate Coley Email: nickcooling4@aol.com Tel: 01626 873 466 Fax: 01626 873 466 Mob: 07773 225 330 or 07792 947 356 Address: Hill View Cottage, The Strand, Ringmore, Shaldon, Teignmouth, Devon TQ14 0ES


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usage of expert witness testimony and there is always the danger that individuals with potentially treatable mental disorder may be funnelled through the criminal justice system, without adequate access to mental health-care.

Expert reports may include opinion regarding the availability and appropriateness of various treatments, including physical treatments (eg anti-depressants) or psychotherapy (eg cognitive behavioural therapy or eye-movement desensitization and re-processing).

Forensic psychiatric expert reports may go through a period of atrophy during these difficult times, but other areas are likely to expand, with expert psychiatric evidence required for immigration cases, victims of torture and the emerging cohorts of abuse victims within a care-setting. Road traffic accidents result in psychiatric disorder including depression, post-traumatic stress and phobic anxiety. Workplace accidents and occupational stress cases remain prevalent, but funding personal injury cases has become more difficult.

Experts may provide advice on appropriate rehabilitation programmes for cases of brain injury. Chronic pain cases may require complex treatment packages with, specific input from pain experts and psychiatrists. The Jackson reforms are having a significant impact on the whole field of personal injury litigation, in terms of adherence to court timetables and timely provision of expert evidence.

A career in medico-legal practice remains challenging and the huge pressures and changes in the British legal system may well alter the type of cases coming forward. Legal process is important both in terms of redress and access to medical treatment. â&#x2013;

Joint expert reports, identifying areas of agreement and disagreement, also provide a forum for discussion of treatment options. A consensus between the experts regarding optimal treatment may be very beneficial. Increasingly, it is likely that multi-disciplinary agreements regarding suitable treatments will emerge between various specialties, for example, orthopaedic, pain, neurology and psychiatry. It is recognized that the very process of being involved in the litigation process may be stressful for the individual, but the up-side of the process is that it provides validation of the negative health consequences for the affected individual and the experts involved in that process may well have a very helpful contribution to make in terms of identifying beneficial treatment pathways. Claimants may derive considerable benefit from specialist centres for multi-disciplinary pain management, the use of technology to maximize personal independence, or brain injury rehabilitation centres. Personal injury litigation can represent a point-of-access to these specialist treatments, which may not have been available previously, because of lack of local provision or lack of the required specialist input.

       



             

        



           

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Traditionally, psychiatric experts have provided opinions on fitness to plead and mental health disorders seen in the criminal court system, but substantial cuts in the availability of Legal Aid have already restricted access to expert opinion for individuals facing criminal prosecution and it is increasingly recognized that people may not even have legal representation. This funding clamp-down in the criminal courts will be likely to reduce the availability and EXPERT WITNESS JOURNAL

     



 

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Development of the Forensic Market David Nicholson, DNA Worldwide Group, looks at forensic futures Of course you can be forgiven for asking – how does this relate to forensics? On the surface this is something that the doctors may be asked to deal with – however – as an individual working in the forensics market we are also on the coal front. We are the individuals that get to see what is going on with society when it is pushed to its limits.

Forensics Expo Europe highlighted the diverse and committed forensics market in the United Kingdom and re-enforced that although the Forensic Science Service (FSS) no longer exists – visitors across the world still view UK firms as world leaders. With the DNA Worldwide experience in DNA, Toxicology and hard science forensics – now taken as an essential foundation for any Forensic work - what stood out the most was the expanding range of digital forensic solutions.

The work that we all do – in many cases – is because someone has effectively been pushed over the limit in some shape or form- they are hurt and they are not able to cope with that hurt. Therefore the quality and the care we provide in the work we do is paramount. The importance of not only the scientific facts but also the true support we can provide will be called upon in increasing ways we are yet to imagine.

It can be easy to work in your own field, somewhat isolated to the bigger picture and what is actually going on worldwide. As the show started I began to ask what is the real purpose of forensics? What are we actually all here trying to do?

The current state of the forensics market If we consider that Forensics Expo Europe was a snapshot of firms and individuals working in forensics then the following observations can be made;

The state of humanity I am sure those questions are pondered by many and to give some context we have to consider the state of humanity and the fact it is not in a great shape. Illness and disease are seeing a dramatic rise, individuals are giving up on life with over 3.5million dependent alcohol drinkers in the UK and prescription medication being the most abused drug worldwide.

1. There are some great technologies 2. There are some great people involved 3. We are constantly changing offerings However on the flip side what I noticed was; 1. 2. 3. 4.

By 2022 mental health issues will be the leading illness in the developed world and cancer rates are going through the roof. The health system is spending over 75% of its budget to manage individuals with Long Term Illness and over the next 10 years we will see a 35% rise in individuals with multi long term illnesses. And without meaning to sound alarmist over £3 billion is spent treating people where doctors have no idea what the dis-ease actually is!

Albert Einstein advised that “everything is energy” and in 1999 Serge Benhayon advised therefore “all is because of energy.” Whilst normally left to those in the field of quantum physics perhaps its time to start to consider this in relation to forensics? We once thought that the world was flat and ridiculed those that knew it was round – in the same way we once thought that identical twins have the same identical DNA something taught to this day in every school. In 2013 the DNA Worldwide Group Laboratory – Eurofins Medigenomix Forensic carried out a landmark discovery

Child Porn, aggressive abuse against women, slavery, drug trafficking, war and mental and physical domestic violence are all on the increase. It is predicted that there are now more hardcore child pornography images that people in this world. In effect it paints a picture of the grave state we are in as society and highlighted the rise in need for Digital Forensics. EXPERT WITNESS JOURNAL

A lack of connection between forensics and people A somewhat hidden or protected approach to working Individual firms trying to survive A very hierarchical approach viewed with caution

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by proving that identical twins actually have different DNA.

3. The importance of quality – foremost this states with the quality of the forensic scientist not in terms of how “clever” they are but in terms of the way they take care of themselves, the quality of how they talk, eat, walk and of what they right. The responsibility we have to take care of our body first will then support us in how we develop the industry as we will learn true team work.

The above is just one example from our field of work and I am sure that each company has there own examples of the work they have done and how this has changed the considered norm in their field. A possible future for forensics For the forensic market to truly make a long-term difference I’ve taken the opportunity here to look at how the forensics field could look like in the future;

In Summary Many may dismiss the points raised regarding the future of forensics and you have every right to – it may take many years, hundreds of years – but what can’t be dismissed is the fact that society is not doing well at all – and we need to look at our area of work and how we are within that.

1. An underlying commitment of true integrity – those in the field will see the importance of both personal and professional integrity – in fact they will be understood as one and the same. Technology and products will be developed not for self-interest but as answers for the real problems that exist.

As I walked around the Forensic Expo I asked if the great Egyptian Pyramid was built thousands of years ago by a civilization that had none of the “technology” in the form we have today – but which were dedicated and truly committed to working together – then what would be possible if we combined that same way of living with the technology we have today?

2. True Collaboration – working together without concern for who financially benefits – knowing that together we are able to truly consider what is best for the industry and each will be taken care of. At the moment collaboration is done, to a limited degree, while those involved tend to hold back and guard in case their “Ideas” or “products” will be stolen. Therefore the collaboration is limited – in the future by being fully open together that can change.

Forensics is an exciting field to be in. Each one of us has an amazing opportunity to be part of that – but the state and quality of the industry moving forward is down to us and how we are within it. That can never be forgotten. ■

Dr P Rajpal Consultant Psychiatrist M.B.B.S, Dip. Psych Med, M.R.C Psych P.G.Dip (Mental Health Law) Consultant Psychiatrist. Specialist interests include Asperger’s Syndrome in adults, and Autism in adults and ADHD in adults, Capacity assessments and Court of Protection reports, Tribunal reports ( MHA 1983). Competency and skills in the following areas; Managing mental illness including Schizophrenia, Bipolar Disorder, Personality Disorder, ADHD, Epilepsy, anxiety and depression. Diagnosing and managing Neuro Developmental disorders including Autism, Asperger, ADHD, Genetic Conditions including Downs Syndrome, Fragile X and Cerebral Palsy. Risk assessments including; HCR 20, risk of violence, sexual aggression, and Aspergers/Autism related risks. Dealing with complex health needs. Training completed in Civil Procedure Rules with Bond Solon. Can speak and understand 4 Asian Languages, including Hindu, Urdu, Punjabi and Marathi.

Contact Priory Hospital Heath House Lane, Stapleton, Bristol BS16 1EQ Also at 10 Harley Street, London W1G 9PF Tel: 07876 508 420 Email: conspsychiatrist@gmail.com

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by Iain Mc Arthur of AVF In May 2010, Suzanne Pilley disappeared on her way into work in the centre of Edinburgh. Four years on, the 38-year-old has never been found.

Despite extensive searches of the remote forests in Argyll, Suzanne’s body was never recovered. Nevertheless, in April 2012, Gilroy was sentenced to life in prison for her murder.

Despite never recovering a body, a detailed police investigation revealed she had been murdered in the basement of her workplace by her colleague and ex-lover, David Gilroy.

CCTV analysis of Gilroy’s movements and use of his car was pivotal in this case and securing a conviction. What’s caught on camera is increasingly being used to secure convictions and identify criminals. As this BBC Crimewatch episode re-construction demonstrated, audio and video ‘clips’ are central to the investigative process.

Police believe David Gilroy went to the basement of the office with Suzanne as she arrived at work. He then murdered her, leaving her body in a stairwell. He then brought his car to work, putting in the boot of his silver Vauxhall Astra.

As any viewer will be aware, Crimewatch depends on these clips to stimulate the memories of the public and piece together a jigsaw of evidence.

Before doing so, he arranged a meeting which would require him to drive about 130 miles to Lochgilphead in rural Argyll the next day.

In what has become part of our diet of media consumption, a typical episode will have a series of CCTV clips of suspects in crimes up and down the country.

Through CCTV and mobile phone analysis, police believe that during that journey on Wednesday 5 May 2010, Gilroy disposed of Suzanne’s body.

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There are occasion however, when the authenticity of audio visual evidence comes into question; Notable ones that have arisen are

One nation under CCTV Whatever the crime, burglary or murder, a CCTV camera will never be far away.

1. The Daily Mirror pictures of a soldier allegedly urinating on an Iraqi published in 2005. After a complex investigation by the SIB Military Police and AVF, markings on the truck, the weapon, the camouflage pattern on the uniform and even the moles on the soldiers arm were compared to the newspapers images and it was proven beyond doubt that the photographs had been carefully staged to create proof of alleged mistreatment of prisoners. As a result of this, Piers Morgan lost his job as editor of the newspaper.

The British Security Industry Authority (BSIA) has estimated there are up to 5.9 million closed-circuit television cameras in the country, including 750,000 in “sensitive locations” such as schools, hospitals and care homes. Their survey’s maximum estimate works out at one for every 11 people in the UK, although the BSIA said the most likely figure was 4.9 million cameras in total, or one for every 14 people. According to the BSIA, “Effective CCTV schemes are an invaluable source of crime detection and evidence for the police. For example, in 2009, 95 per cent of Scotland Yard murder cases used CCTV footage as evidence.” The scale and penetration of CCTV and the evidence it can contain is all very fine. But images can be grainy and of poor quality to the extent that material won’t stand up in court.

2. The News Of The World published a story (from covert video material on their website) of the then world snooker champion John Higgins apparently making a deal to throw a match whilst in the Ukraine. AVF were engaged by Mr Higgins and after close scrutiny it was apparent that the video had been incorrectly subtitled and the order of the footage had been changed, this changed the outcome of the hearing as the video had been biased towards the allegation

Investigators need help with recordings to enhance images and get a better picture of the criminal party, whether on sound or vision. This is where specialists such as Audio Video Forensics Ltd come in. Audio Video Forensics has worked with UK Legal Firms, Police agencies & military clients for over 19 years as an enhancement bureau & in expert witness capacity at Crown Court & Old Bailey level. Using some of the most cutting edge technology available the company has successfully enhanced & transcribed previously thought impossible recordings.

3. Expressen Newspaper in Sweden had an image supplied to them that allegedly showed the king of Sweden 20 years earlier in a strip club with a group of scantily clad women. At the time the picture was submitted, the King had a book published about him that tarnished his reputation and AVF was tasked with authenticating the images. After detailed analysis the image was deemed highly suspect due to differences in shadow angles and the amount of manipulation that had already occurred on it.

It has extensive experience in assisting the investigation of serious crime including murder, paedophilia, arson, robbery, fraud, military crimes, rape, GBH, aggravated burglary etc. And it has conducted many crime reconstructions from on-site height estimations to video preparation for the aforementioned BBC Crimewatch. Whereas DNA analysis takes centre stage in many investigations, audio and video analysis can be just as incontrovertible. Separating the grit from the gruesome The analytical eye and ear of Audio Video Forensics has unravelled both audio and video evidence from mobile phones to multiplex video tapes in highly complex and high profile cases such as the Rhys Jones murder enquiry, the Milly Dowler Murder enquiry, the Mark Duggan Case (for BBC news), the Raoul Moat case (for SKY News), the Baha Mousa enquiry (Iraq) and the Daily Mirror Iraq fake photo enquiry (for ITN).

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For example, the companyâ&#x20AC;&#x2DC;s insights were behind the high-profile coroner ruling that Terry Lloyd - the ITN reporter shot dead in Iraq - was unlawfully killed by American troops.

An Old Bailey jury took three hours to find Thomas Hughes guilty of murdering Krystal Hart. Hughes had denied the shooting, saying another man was responsible. But parts of the incident - including the sound of two shots and Hughes hurrying away - were caught on CCTV.

Video footage filmed just after the incident showed American tanks and soldiers inspecting the wreckage of Mr Lloyd and cameraman Daniel Demoustier's 4x4 in Iraq.

When Daily Mirror editor Piers Morgan published photos of British soldiers supposedly abusing an Iraq, little did he know that his job was on the line.

The footage was shown at Mr Lloyd's inquest at Oxford Coroner's Court. It was taken by a cameraman attached to the tank unit alleged to have fired on Mr Lloyd's convoy.

The Queenâ&#x20AC;&#x2122;s regiment demonstrated to reporters aspects of uniform and equipment which it said proved the photographs were fake. The regiment's Brigadier Geoff Sheldon said the vehicle featured in the photographs had been located in a Territorial Army base in Lancashire and had never been in Iraq. Once again AVF was able to uncover the truth.

The video was released to the Royal Military Police some months after the incident by American authorities. Audio Video Forensics looked at the tape and estimated that 15 minutes of film may have been cut from the beginning.

Sound & Vision Iain Mc Arthur who heads up the company says his success is based on the convergence of technologies and enhancement processes. Sound came before vision, but the two were soon to converge.

The Coroner said: "Part of the footage appears to have been edited... around the time perhaps that Mr Lloyd may have been involved in the incident." In another high-profile criminal case, a "wannabe gangster" was jailed for life for the murder of a pregnant neighbour in a cold-blooded execution following a parking row.

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Starting out, Iain worked for 15 years in recording studios as a sound engineer and a producer in the fields

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cia, Transport Police, Derbyshire, PSNI, Royal Military Police (S.I.B.).

of music and commercial/television work. Whilst working in the field of CD mastering he progressed into the field of forensic audio enhancement particularly since CD mastering involves equalisation, compression and noise reduction; all processes involved in audio enhancement. He holds an OND in Sound recording technology (Acoustics/electronics/studio techniques) and has worked in the Research & Development Department of renowned Pro-Audio manufacturer AMS-Neve, developing audio mixing desk technology for the film industry.

Summary of expertise • 20 years' experience as a professional sound & video technician • Over 19 years' experience in field of audio, video & still image enhancement & analysis • Advanced enhancement, tracking & stabilising of shaky & poor quality video using Video Analyst software - a NASA-designed system used to analyse the Columbia Space Shuttle disaster & the only privately owned system outside the USA

He was Lead Software Test Engineer on their flagship product the DFC Digital Film Console (Over 70% of the world's blockbuster films are mixed on D.F.C.) where his responsibilities were in Software Development and Testing, Training and Customer Support.

• Unsurpassed audio enhancement & analysis • Damaged audio, video & Dictaphone tape recovery • Detailed transcription of noisy recordings for court presentations

Iain now has over 19 years’experience working as an Independent Forensic Audio/Video Enhancement and Transcription Specialist. This has enabled him to take on high-profile jobs such as the aforementioned death of ITN journalist Terry Lloyd and the Daily Mirror's Iraqi fake photograph story.

• Voice pitching to disguise witness • Analysis of audio & video recordings for signs of editing or tampering • Subtitled transcriptions on DVD of telephone calls & video recorded conversations • Still image & DVD copies from VHS or digital CCTV • Video de-multiplexing of up to 128 cameras • Vehicle, clothing, facial & object comparison • Face blurring of witnesses & number plates • Computer graphics (CGI) simulations

A great deal of his work involves video & audio enhancement/transcription assignments received from various Police Services or Independent Legal Representatives. These often arrive accompanied by partial transcriptions, and invariably the material needs enhancement for clarification, independent transcription and verification that no editing has taken place.

Testimonials I am writing to you by way of providing a testimonial/ recommendation for work undertaken by an expert witness approved by the National Crime Faculty.

Reflecting the significance of this type of evidence, Iain is contracted for all forensic audio and video work for the UK Military Police (worldwide).

AVF came recommended through the Crime Faculty during 2003 when we were investigating a murder committed by a convicted prisoner during a period of temporary pre-release parole. There was no useful eye-witness evidence and no conventional forensic evidence to connect the suspect to the crime.

As continuous improvement is part and parcel of the personal development process, Iain has trained with Intergraph Public Safety in Huntsville, Alabama in video enhancement techniques; and he is now the European trainer of Intergraph video enhancement software in Europe. This is Video Analysis software and has been used on the Space Shuttle disaster and on all US Government analysis of Osama Bin Laden video footage.

However, police later inserted a covert audio recording device in prison after the suspect had returned to gaol. We then recorded his conversations with visitors who were also suspected conspirators in the murder. The prison’s internal security cameras were also trained on the suspect and his visitor’s during the audio recording process.

Iain is also one of only two users of Digicleen specialised audio enhancement software in the UK. This software is used by over 100 offices of the Federal Bureau of Investigation in the US and is highly regarded due to its advanced noise reduction capabilities.

Unfortunately, the quality of the audio was very poor and required considerable enhancement. AVFs services were secured and they set about lip-synching the audio track with the separate video material. AVF then enhanced the quality of the audio recording before finally producing a high quality series of DVD’s with sub-titled dialogue.

These credentials and technological maturity are the main reasons Iain’s client base has grown to include the cream of private legal firms, HM Customs, MET Police (& Special Ops.),GMP. Strathclyde, Cheshire, West Mids., West MerEXPERT WITNESS JOURNAL

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The final product contained incriminating statements and admissions including a confession to the murder. The S.I.O., Detective Superintendent Hugo Frew and Senior Prosecuting Counsel in the case, Mr. Terence Mooney Q.C. have both been highly impressed with the results of AVFs work. They provide a wide range of services for both audio and video forensic work and is regularly used by UK police services.

DNA DEFENCE Forensic Science Consultancy

I cannot recommend Audio Video Forensics highly enough. Paul McParland - Detective Sergeant, Police Service of Northern Ireland, Belfast.

Independent specialist expert witness service to lawyers STR DNA profiling Y-STR Serology (body fluids) Crown continuity

‘I instructed Audio Video Forensics on a number of occasions in the past 12 months. The service was efficient and Audio Video Forensics worked diligently to assist the preparation of the defence case. Without doubt, the evidence provided influenced the positive outcome of the proceedings and I have no hesitation in recommending Audio Video Forensics.’ Paula Porter, Solicitor and Head of Thompsons National Criminal Law Unit

DNA Mixtures Paternity Bloodstain patterns Crown methodologies

Low Copy Number Scene of Crime Hairs Crown accreditation

We review and give expert opinion on Crown results and reports and where required re-examine exhibits and conduct further laboratory testing. Our chartered experts: Bond Solon CUBS trained, many years experience in Crown and defence roles, University guest lecturers, advisors to the Crown, professionally cited and honest, objective, clear and helpful to the court. With our knowledge we believe we offer a totally unique service. DNA Defence Ltd 1, Harley Place, Clifton Down, Bristol BS8 3JT DX 130678 CLIFTON 4 T 0117 370 2727 F 0117 911 8583 E info@dna-defence.co.uk W dna-defence.co.uk Registered No 6575771

For further information please contact: Iain McArthur Email: mail@audiovideoforensics.com Website: www.audiovideoforensics.com

Is your opinion worth a million? Towards the end of last year, Apple awarded one expert witness £1 million ($1.75 million) to construct a damages figure in the case against Samsung. Many of the witnesses in the case were professionals who specialised in user interface technology, patent protection and wireless communications. Obviously this was an exceptional case. But the UK is almost certain to follow suit in terms of an increasing demand for forensic specialists and digital technologists capable of rising to new investigative and disclosure challenges. Make yourself available by starting with your profile on the No.1 Google ranked website www.expertwitness.co.uk and complementary platforms. Find an expert using the only Free Searchline facility in the UK on 0161 834 0017

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Air Guns, the Law and How the Police Frequently Get it Wrong by Mark Mastaglio © The Forensic Firearms Consultancy Ltd 2014 The Forensic Firearms Consultancy (FFC) Ltd is frequently instructed in cases involving air guns. Depending on the circumstances, somebody in possession of an air gun can be charged with a number of offences under the Firearms Act 1968. One such offence is the possession of a specially dangerous air weapon. This article explains what this means and how the police’s approach in determining an air gun’s status frequently ignores accreditation standards and results in an answer that is not scientifically supportable.

In this Act, the expression “firearm” means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes— (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and (b) any component part of such a lethal or prohibited weapon; and (c) any accessory to any such weapon designed or adapted to diminish the noise or flash caused by firing the weapon; and so much of section 1 of this Act as excludes any description of firearm from the category of firearms to which that section applies shall be construed as also excluding component parts of, and accessories to, firearms of that description.

There are millions of air guns in circulation in the UK today; law-abiding citizens who use them for recreational purposes, target shooting or vermin control possess the vast majority. Most air guns that use a spring-piston or a pre-charge mechanism are “firearms”. The definition of “firearm” is given in section 57(1) of the Firearms Act 1968, it states: EXPERT WITNESS JOURNAL

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The term “air weapon” is encountered throughout the 1968 Act, its definition within the Act might seem rather convoluted, and it is found in section 1(3)(b), which states: an air weapon (that is to say, an air rifle, air gun or air pistol) which does not fall within section 5(1) and which is not of a type declared by rules made by the Secretary of State under section 53 of this Act to be specially dangerous.

of section 5(1)(aba) of the 1968 Act as amended by the Firearms (Amendment) Act 1997. Possession of a section 5(1)(aba) prohibited weapon carries a mandatory minimum sentence of 5 years imprisonment. Despite there being no statutory quantitative definition of “firearm” the police tend to use a figure of 1 Joule in their assessment of what is or isn’t a firearm(2). There is no scientific basis for using this figure.

The upshot of this is that all air weapons capable of causing a fatal injury are firearms and they, and their component parts, are not subject to section 1 certificate control, provided they are not specially dangerous. You may think the phrase specially dangerous is a curious one, however it does have a precise definition in the Firearms (Dangerous Air Weapons) Rules 1969. In a nutshell these Rules give kinetic energy limits for pellets discharged from an air weapon; if an air weapon is capable of exceeding these limits then it is deemed specially dangerous. For air pistols the kinetic energy limit is 6 foot pounds and for air rifles it is 12 foot pounds. Consequently if an air rifle exceeds the 12 foot pound limit then it becomes a section 1 firearm and a Firearms Certificate is required to possess it, however if an air pistol which has a barrel less than 30cm or an overall length less than 60cm, exceeds the 6 foot pound limit then it becomes a prohibited weapon by virtue

Police Forces sometimes employ their own in-house armourers to classify air guns. The core duty of police armourers is to maintain and issue the weapons used by the Force’s armed response units. However in recent times armourers have been tasked to classify seized guns, including air guns, a job that would once have been done by trained firearms forensic scientists. When they determine the power of an air gun armourers tend to use unaccredited equipment and procedures, the former not having been calibrated to any traceable standards. FFC Ltd has been instructed in cases where police armourers have measured the output of air rifles as being between 12 and 13 foot pounds and a prosecution has ensued. This is the numerical equivalent of a motorist driving at a maximum speed of 32.5mph in a 30mph zone and then being

FORENSIC FIREARMS CONSULTANCY CONSULTANT FORENSIC SCIENTISTS www.forensicfirearmsconsultancy.com

FFC offers bespoke, customer-led solutions to all firearms and GSR-related investigations. Forensic Firearms Consultancy (FFC) Ltd is an innovative company led by two world-renowned experts. During their time at the UK Forensic Science Service (FSS), Mark Mastaglio and Angela Shaw became the most senior scientists working in forensic firearms and gunshot residue (GSR) respectively. It is the only UK-based private consultancy offering this level of expertise, experience and worldwide reputation in firearms and GSR. FFC can undertake work at every level of forensic firearms and GSR examinations and has extensive experience of complex, sensitive cases from across the globe. The FFC directors are two of the most senior and experienced practitioners in the UK, with over 35 years of combined court going experience. FFC’s Expert Witness service includes:             

Examination of the full range of cases, from the alleged illegal possession of firearms and ammunition to complex interpretation of fatal shooting incidents In-depth knowledge of firearms legislation involving complex classification issues – an insider’s knowledge of firearms law policy Antique firearm evaluation Air gun classification Computer aided simulations of crime scenes and projectile trajectories” Potential for accidental discharge Trajectory reconstruction analysis, including scene visits Determination of the type of gun used Determination of how many guns used Range of fire determination Interpretation of autopsy findings, including autopsy examination attendance Interpretation of GSR findings (incorporating SEM-EDX results) Critical analysis of GSR contamination issues

If you need immediate advice, please contact either Mark Mastaglio on +44 7919 217 848 or Angela Shaw on +44 7919 392 397. Otherwise please email us at: enquiries@forensicfirearmsconsultancy.com. Our website is at: www.forensicfirearmsconsultancy.com

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arrested by the traffic police and prosecuted for speeding. Worse still it is the equivalent of the traffic police using unaccredited processes and incorrectly calibrated radar speed guns!

Dr Rajesh Rajendran Consultant Medical Microbiologist & Infection Control Doctor

The law concerning air guns and their classification is not straightforward. The police classification of air guns, using a definition of firearm that has no basis in law or science coupled with the use of unaccredited procedures and equipment not traceable to any national standards, has frequently been found to be wanting.

MBBS, FRCPath Dr Rajesh Rajendran is a Consultant Microbiologist & Infection Control Doctor based in Cheshire. He has a vast experience in management of infections and in infection prevention and control. He is an expert in diagnosis of infection, and is a specialist in Infection control within acute Hospital Trust in the NHS and in the community which includes contact tracing for communicable diseases and expert advice on community infection control.

FFC Ltd has a huge amount of experience in determining whether or not the methodology used in air gun classification is fit for purpose. The use of improper methods by the police has been, and will continue to be, successfully challenged by FFC Ltd. ■

Contact: Dr. Rajesh Rajendran Tel: 01625 661 832 Email: rajeshnair18@gmail.com Address: Maclesfield District General Hospital Pathology Department, Cooper Building, Victoria Road, Macclesfield SK10 3BL

References 1 The foot pound is an imperial nomenclature unit of energy defined as the energy required to raise a 1lb mass a height of 1’. 2 The Joule is the SI nomenclature unit of energy defined as the energy required to raise a 1Kg mass a height of 1m.

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Forensic Archaeology as a Primary Method of Detection by Karl Harrison PhD Dip CSE (Dunelm) MIfA

Gaille MacKinnon BA MSc MCSFS MIfA FRAI (Cert FA-1) Scientists at Alecto Forensics Over the past twenty years, the discipline of forensic archaeology has established itself in the United Kingdom as a primary method of detection for buried human remains (Hunter et al., 1994; Hunter & Roberts, 1996; Hunter & Cox, 2005; Hunter, 2009). These days, forensic archaeology tends to be regarded as one of a suite of disciplines that have evolved through time to become known under the generic umbrella term of ‘forensic ecology’. These include sedimentology, botany, palynology, limnology, entomology, stable isotope studies, radiocarbon and other dating techniques, zoology, archaeology and anthropology (Ritz et al., 2009; Wiltshire, 2009; Cox, 2012; Meier-Augenstein, 2010; Márquez-Grant & Roberts, 2012).

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The utilization of these forensic ecology disciplines within the criminal justice system has been achieved predominantly through the recognition that specific variations, patterning and disturbances in landscape, geological, botanical and ground signatures can be identified and can therefore be a vital contribution to criminal investigations (Ritz et al., 2009). These interpretations are also often greatly enhanced by an increasingly sophisticated understanding, adoption and utilisation of geophysical search equipment and techniques (Davenport et al., 1992; Buck, 2003; Killam, 2004; Ruffell & McKinley, 2010). Whilst the application of traditional archaeological excavation methodologies to criminal investigations that involve buried human remains has been an important

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Márquez-Grant & Roberts, 2012; Dirkmaat, 2012). In addition to the life sciences, however, are the earth sciences or ‘geoforensics’, which includes a number of sub-disciplines, including soil science, sedimentology, microbiology, micropalaeontology and archaeology (Ruffell & McKinley, 2010).

milestone in optimising our ability to elucidate and extract evidence from the grave and burial environment (Davenport et al., 1992; Hunter & Cox, 2005; Dupras et al., 2006; Connor, 2007; Cox et al., 2008; Blau & Ubelaker, 2009; Dirkmaat, 2012). As a consequence, forensic archaeology has negotiated an important position within criminal investigation, existing as it does between the outdoor crime scene most usually controlled by the Crime Scene Manager and Police Search Advisor, the mortuary setting typically dominated by the forensic pathologist and anthropologist, and the laboratory environment of the forensic scientist.

The initial comparison of trace evidence between victims, suspects and crime scenes has traditionally been attributed to the stories of Sherlock Holmes, the famous late 19th century London detective created by Sir Arthur Conan Doyle. Within a number of his stories, Doyle has Holmes utilising soil and particulate evidence in order to identify suspects and crime scenes (Murray et al., 1975).

It has been the experience of the forensic archaeologists, anthropologists and ecologists at Alecto Forensics that a multidisciplinary and strategy-led approach to the search for human remains offers by far the highest chance of success for the subsequent location and recovery of remains, whilst also maintaining an effective control of the search area and preserving the integrity of the crime scene and any associated evidence contained therein.

However, the first documented use of comparative trace evidence analysis for forensic purposes appears to be substantially earlier than Doyle’s novels. In 1856, Professor Christian Ehrenberg “a famous zoologist and geologist, a correspondent of Humboldt and Darwin…and an expert on diatoms” (Ruffell & McKinley, 2010:4) used microscopy to identify the original location of a robbery of silver from a cargo consignment on a Prussian train (Donnelly, 2011.) This nascent interest in the Victorian period for forensic science and for ecology evidence types in particular, was not just limited to Doyle’s detective stories and the one real case example that we know had been examined by Ehrenberg many years before. At about the same time as Holmes was using forensic ecological evidence to solve crimes in Doyle’s novels, the Austrian criminalist, Hans Gross, had recovered soil from a pair of shoes and used microscopic analysis to link this evidence to the suspect of a crime (Donelly, 2011). His seminal work, Handbuch für Untersuchungsrichter als System der Kriminalistik (Handbook for Examining Magistrates as a System of Criminology) published in 1893, detailed the use and application of various scientific disciplines to forensic science and he is still regarded by some as “the father of scientific forensics” (ibid.)

This article presents a number of case studies that demonstrate what can be achieved when a comprehensive and integrated range of multidisciplinary search, ecological profiling and forensic solutions is applied to support criminal investigation. The Establishment and Consolidation of Forensic Ecology Ecology is the study of the diverse range of organisms that inhabit the complex ecosystems and environments that exist across our planet. This diversity is immense and is reflected in the extraordinary number, extent and range of organisms from microbial and bacterial communities, insects, multicellular plants and algae, fish, birds, reptiles and mammals (Gaston, 2000). In broad terms, ecologists study the relationship and interaction between organisms and their environment, the distribution and abundance of these organisms within their particular ecological niches, and the processes that influence them and the wider ecosystems within which they exist.

Similarly in 1904, another German scientist, George Popp, conducted a microscopic examination of clothing associated with the murder of a young woman. Popp continued to conduct forensic examinations of trace evidence throughout his life, particularly those involving forensic ecology evidence types, and is yet another early scientist credited with becoming a pioneer in the field of forensic science (Murray & Tedrow, 1975; Ruffell & McKinley, 2010). At about the same time, a number of scientists in France were also attempting to make observations on the sequence of colonization of insects on bodies in cemeteries in order to establish post mortem interval determinations in murder investigations (Gunn, 2006).

Forensic ecology can be defined as the application of the principles of the various sub-disciplines of ecology to the crime scene or other scenes or items of interest in order to provide environmental information that will assist a criminal investigation. The disciplines which are currently regarded as sitting under the ‘umbrella’ of forensic ecology include anthropology, botany, dating and stable isotope analysis, diatom studies, entomology, palynology and zoology, (Haglund & Sorg, 2001; Hunter & Cox, 2005; DEFRA, 2005; Gunn, 2006; Connor, 2007; Wiltshire, 2009; Ritz et al., 2009; Meier-Augenstein, 2010; EXPERT WITNESS JOURNAL

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Cox, 2005; Hunter, 2009). The skills and training of the archaeologist have been increasingly used and applied to search methodologies, assessment and identification of sites of potential forensic interest, excavation and recovery of human remains and associated items of evidence and evidence types. Forensic archaeology often plays a significant role at the crime scene and successfully integrates with other forensic and ecology disciplines to provide the most comprehensive array of forensic science techniques available to a criminal investigation.

Following on from the work of these early pioneers in forensic science was the French criminalist, Edmund Locard, who became famous for his “Exchange Principle” which stated that: “…whenever two objects come into contact, there is always a transfer of material. The methods of detection may not be sensitive enough to demonstrate this, or the decay rate may be so rapid that all evidence of transfer has vanished after a given time. Nonetheless, the transfer has taken place” (Locard, 1929.) Locard’s observation and contribution to forensic science and the development of analytical techniques to detect trace evidence in criminal investigations cannot be underestimated. Today, forensic science has moved forward to such an extent that the methods and techniques of detection that are now available are now so very sensitive that the ‘evidence of transfer’ does not vanish as rapidly as Locard had once observed.

Research themes in forensic ecology and technological developments and adaptation of practice to casework also continue to increase exponentially (DEFRA, 2005; Tibbett & Carter, 2008; Cox et al., 2008; Ritz et al, 2009; Wiltshire, 2008; Ruffell & McKinley, 2010; Meier-Augenstein, 2010; Amendt et al., 2010; Márquez-Grant & Roberts, 2012). The disciplines of geoscience now include subjects such as decomposition chemistry, decomposition of materials within soil environments, assessment and measurement of microbial activity and biomass within soils (Tibbett & Carter, 2008); whilst Ruffell & McKinley observe that geoforensics now includes themes and techniques that encompass “geography (physical, human, geomorphology, social, cartography, GIS), profiling, geophysics, remote sensing and geostatistics” (2010:9). In addition, the promotion of forensic geoscience has seen the establishment of a number of working groups and committees which have been formed to develop and advance forensic geology and promote its use in police and law enforcement (International Union of Geological Sciences (IUGS), Geosciences for Environmental Management (GEM) and the Geoforensic International Network (GIN) (Donnelly, 2011:51).

One of the important developments in the utilisation of the disciplines of forensic ecology has been the growth of forensic archaeology and its increasing use in the search, detection and recovery of human remains, clandestine burials and associated evidence and the reconstruction of perpetrator behaviour and actions (Boyd, 1979; Davenport et al., 1992; Hunter, 1994; Haglund & Sorg, 1996, 2001; Hunter & Cox, 2005; Dupras et al., 2006; Connor, 2007; Cox et al., 2008; Hunter, 2009; Blau & Ubelaker, 2009; Dirkmaat, 2012). From the British perspective, it can be argued that the forensic pathologist, Keith Mant, undertook the first application of forensic archaeological techniques. Professor Mant was a British forensic pathologist in charge of the medical section of the British Army’s War Crimes Investigation Group following the end of the Second World War. He conducted exhumations of the graves of Allied servicemen and also excavated a number of mass graves of victims from the concentration camp at Ravensbrück (Blau & Ubelaker, 2009). Mant’s post mortem reports and scientific analyses ultimately provided the wider forensic community not only with the first informed observations on the process of human decomposition and post-depositional taphonomy, but also produced the first specific guidelines for forensic excavation and body recovery (Mant, 1950, 1987).

In considering the search for and location of clandestine burials, it is crucial to understand the range of actions that might be considered as appropriate police responses (Buckley & Langley, 2012). Depending on the nature and veracity of directed intelligence, it might be possible for an enquiry team to identify specific sites of interest. Where such sites can be defined with specific parameters, they can be treated as crime scenes from the outset (ACPO, 2006). Such a decision might also be regarded as a high risk one; deployment of staff onto a crime scene associated with a major enquiry entails the production of a forensic strategy and the consideration of extensive sequential evidence collection and the potential for significant expenditure. Deployment to major crime scenes, including murder, fatal fires and sexual assaults takes precedence over the attendance of volume crime scenes. The confirmation of suspected scenes of major crime will initially be the responsibility of uniformed police response teams, who in relation to this role are referred to as the first officers attending (FOA). Initial attendance at the major scene and

After Mant, the first archaeologist to be asked to attend a crime scene in the United Kingdom was Professor John Hunter, Emeritus Professor for Archaeology at the University of Birmingham. Professor Hunter developed the practice of forensic archaeology within the UK and it is now the case that the discipline is well respected and routinely used by police forces and the criminal justice system across the country (Hunter et al., 1994; Hunter & EXPERT WITNESS JOURNAL

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on-going scene examination is generally undertaken by Crime Scene Investigators (CSIs). Any CSIs deployed to a major scene would be managed directly by a Crime Scene Manager (CSM) who has a responsibility to ensure that a forensic strategy is complied with, and that findings from the crime scene are communicated back to the Police Incident Room. Whilst the CSM is deployed to the scene with CSIs, the Crime Scene Coordinator (CSC) has overall responsibility for deploying staff to scenes; they coordinate the examination strategies of numerous CSMs and ensure integration between the forensic strategy and the overall investigation directed by the Senior Investigating Officer (SIO). Because of the close relationship between the SIO and CSC, there is an expectation that crime scene coordination should be managed from the Incident Room. As such there is generally no requirement for CSCs to deploy to crime scenes as this can hamper their pivotal role as a focus of communication and decision-making.

Sampling from footwear

Whether the investigation is focused primarily on sequential forensic examination in the first instance, or on intelligence and search, it is fundamental that the contracted expert recognises the pivotal direction provided by the Senior Investigating Officer and the Incident Room (ACPO 2005). Whilst it is crucial that scientific procedure is deployed in the most robust way possible, it must form a part of an integrated inquiry, and an understanding that the direction of the investigation is initiated by police action. Investigating detectives rarely attend crime scenes associated with major offences. Developments in DNA recovery, concerns about scene contamination and tighter strategic control of detective actions via the Home Office Large Major Enquiry Suite (HOLMES; www.holmes2.com) has largely removed the requirement for a detective presence at the scene.

All actions carried out by CSIs within the context of the major crime investigation should be guided by a written forensic strategy. The strategy will be outlined in some detail at the highest level by the CSC who ensures that the overall forensic strategy document is agreed by the SIO and integrates with other aspects of the investigation. This strategy can then be disseminated down to the lead examiners at each of the identified scenes; a large, complex scene with numerous opportunities for evidence gathering would be controlled by a CSM, because the CSCâ&#x20AC;&#x2122;s strategy may require adapting to suit the challenges of the scene. A relatively small and simple scene with a restricted range of forensic potential (such as a prisoner in custody) may well be entrusted to a lone CSI supported by a fairly proscriptive examination strategy.

The expert is recognised by the courts of England and Wales as being qualified and experienced in a specific subject, and as such able to provide evidence of opinion to the court. There are no specific academic qualifications that grant expert status; rather the court reserves the right to recognise expertise in any required area. Along with this status comes a substantial degree of responsibility; not least the requirement of impartiality and independence no matter whether the contracting agency is a police force or a defence solicitor.

In contrast with the fixed framework associated with the definition and examination of a major crime scene, it is more common that the no-body murder investigation is characterised by a period of search. Where directed intelligence associated with specific identified sites is absent or uncorroborated, a Senior Investigating Officer would be unlikely to consider speculative forensic examination. More probably, a Police Search Adviser (PolSA), normally a middle-ranking police officer with specialist training in search coordination, would be given responsibility for identifying anomalous locations that might be associated with body deposition within a wide landscape of possibilities. Such coordination would usually comprise both the deployment of search-trained police officers, as well as the integration of specialist services, such as findings derived from forensic telephonic examination, or aerial reconnaissance.

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Under the direction and guidance of the Office of the Forensic Science Regulator, forensic practitioner and expert accreditation is moving inexorably forward. The accreditation of forensic anthropologists is now governed by the professional body, the Royal Anthropological Institute of Great Britain and Ireland (RAI), who have put in place the first structured framework to provide certification of practitioners of this discipline. This robust framework will permit investigating authorities, lawyers, the judiciary and other relevant professional bodies to gauge the level of practitioner expertise that is required for their purposes and identify the most suitable Forensic Anthropologist to engage. 81

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Likewise, the professional body for archaeologists in the United Kingdom, the Institute for Archaeologists (IfA), have formed a Forensic Archaeology Special Interest Group. Within this group is a sub-group expert panel of experienced forensic archaeologists (FAEP) who accredit and regulate the work of those acting or seeking to act as expert witnesses and also consider issues arising in the course of work to liaise with Her Majesty’s Government, the Forensic Science Regulator, the Crown Prosecution Service and other relevant bodies.

areas that the investigative team was happy to regard as being of low significance, such as the farmhouse itself and the concreted floors of the animal stalls. An area of more immediate concern was a large pile of dead and decomposing livestock that had been set fire to prior to arrival to the arrival of the police and was still smouldering at the initiation of the search operation. This deposit could only be searched by hand-raking out the animal remains to confirm the absence of any intermixed human body parts or skeletal elements.

The No Body Murder The characterisation of a no body murder is difficult in the extreme due to the fact that there are so many different and individual variables within each no body murder investigation. For example, the victim’s profile and the circumstances surrounding their disappearance will dictate how initial investigations and intelligence gathering are carried out, what specific investigative tools are utilised (cyber forensics, forensic telephonics, etc.) and how search parameters and appropriate forensic search strategies are subsequently formulated.

Ultimately, the search was partial and inconclusive. Whilst much of the farm area was visually searched, there was no systematic sequence of ‘least to most’ invasive searching, which would be consistent with a comprehensive and co-ordinated strategy of search and forensic examination. The pile of decomposing pigs was subjected to a partial search, but as the excavation of this area went deeper in depth, safety concerns about collapse grew greater, and ultimately the search was discontinued. Prosecutors advanced a ‘no body murder’ case against two defendants that was based on a hypothesis that the body of the missing male had been fed to the pigs and as such could not be found. The jury consequently delivered a ‘not guilty’ verdict on both of the charged males. Ideally, earlier interaction between the investigative team, the PolSA and the forensic archaeologist might have granted an opportunity to prepare a more comprehensive strategy of search that would have lent greater weight to the prosecution case.

Alecto Case Study 1 A UK police force was investigating a suspected no-body murder in which a settled member of the travelling community had gone missing. Proof of life enquiries centred on mobile phone and bank activity added further confidence to suggest that the missing male was deceased. Human intelligence from the male’s family implicated a second male in the disappearance. The potential scene most strongly associated with the suspect as a site of body deposition was a pig farm owned by the suspect’s family.

Alecto Case Study 2 An extensive search for a missing female by a UK police force ultimately ended in a successful conclusion through a mix of investigative skill, technical expertise and the use of specialist search techniques. The female in question had been missing for just over a year, during which time police enquiries had established the likelihood of her being deceased. The investigative team had subsequently prioritised a male suspect with whom she had had a relationship in the months prior to her disappearance.

The investigative team had initially considered the successful recovery of human remains from a site such as a pig farm as being practically impossible. This was due to the belief that hard tissue fed to pigs would be entirely digested leaving no evident trace; the capacity of pigs to smell buried items and disturb them; and the extensive sewage system lying under the pig stalls which carried large quantities of water, effluent, feed and bedding. Despite these significant challenges, on seeking the opinion of the forensic archaeologist, it was suggested that pig digestion would be unlikely to completely destroy human bone without further processing. Further, that stalled pigs would be unlikely to have an opportunity to detect and disturb deeper burials, or indeed to interfere with burials that may potentially be located elsewhere on the farm site, or buried within the extensive system of raised earth embankments constructed around much of the farm area that functioned as a windbreak.

The male suspect had been arrested, questioned and subsequently released, during which time technical intelligence had been gathered from his communication devices suggesting a potential area of search. This area remained rather expansive encompassing a number of fields on either side of a small country road located a short distance outside the town where the male and female both lived. Whilst this area remained too wide to consider any form of comprehensive search solution, it did allow for the targeted use of geophysical and geochemical search techniques to attempt to elucidate an area of burial. This

The search phase of the operation was initiated on the arrest of the suspect. A search of the farm revealed large EXPERT WITNESS JOURNAL

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technical approach was combined with overt, high-visibility police searches of field boundaries and specific areas of interest within the site parameters. Ultimately, the high visibility techniques of the police search proved more successful, albeit by indirect means. As the search progressed across the fields comprising the area of interest and gradually got closer to the actual burial location (which had been correctly assumed to lie in a field next to the country lane), the suspect decided to attempt to move the femaleâ&#x20AC;&#x2122;s body to prevent its discovery. This attempt failed and resulted in the partial uncovering and disturbance of the body, before the male opted to hand himself in to police custody, and thus triggered the securing of the scene and the careful and systematic recovery of the remains and associated evidence.

Alecto experts in the field

The search phase of this case study was fully integrated into the investigation, and a broad rural area of interest indicated via police intelligence was searched utilising a multidisciplinary and strategy-led approach. The deployment of a planned sequence of police and high profile specialist search techniques prompted the suspect to attempt to move the remains in order to avoid their imminent discovery. This attempt was completely unsuccessful and he was subsequently convicted Alecto Case Study 3 A search of an extensive detached house with an adjacent industrial yard, located in a rural area close to a busy main road, was initiated following a report that the sole female occupant of the house and majority partner in the industrial yard business had gone missing. Questioning of the femaleâ&#x20AC;&#x2122;s business partner suggested that he may have been complicit in her disappearance and, as a consequence, a search of the house and ground was instigated.

Diatoms

The search area was controlled by the PolSA, but with close reference to the requirements of the CSM, who ensured that the forensic strategy was adhered to, particularly with regard to anti-contamination procedures and the sequential recording and examination of areas of concerted search. The potential for burial as an act of concealment was considered by the investigative team at an early stage in the examination. This was due in part because of the general industrial nature of the site, but more specifically because the presence of a mechanical excavator around the material times of the femaleâ&#x20AC;&#x2122;s disappearance had been established. In addition, intelligence suggested that there had recently been a substantial movement of earth from large piles of spoil present in the industrial yard. As a

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Pollen

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Above Soils examined in the laboratory Left, Military deployment

Despite this clear initial focus, wider consideration of the site by the PolSA and CSM remained crucial and a planned strategy was prepared to prioritise subsequent areas of searching should the embankment area prove not to feature concealed human remains. However, this planning ultimately proved to be redundant when the top of the brick shaft was located and excavation of the shaft commenced. The body of the missing female was finally located at a considerable depth at the base of the shaft. While early identification of the industrial area to the rear of the house had been primarily driven by suspect and witness interviews and by the preliminary findings of evidence found during associated property searches, the development of a coordinated police search and forensic examination strategy at the scene was the shared responsibility of the PolSA and CSM. Within this partnership arrangement, it was tacitly understood that primacy of responsibility lay with the PolSA until the location of human remains was confirmed, at which point the seniority of roles was reversed, with the CSM acting as the senior decision-maker.

consequence, the support and advice of the forensic archaeologist was sought at a relatively early stage, with the result that they were involved in the creation of a coherent interdisciplinary strategy of search and excavation. The nature of the site suggested a clear priority search area centred on a derelict branch railway line and platform that formed part of the farthest boundary of the industrial yard. This platform was closely associated with a large deposit of soil that had been formed into a linear embankment. This embankment was believed to conceal beneath it a brick-lined shaft contemporary with the construction of the mid to late-Victorian period railway line. The soil embankment posed a number of substantial challenges for the deployment of specialist search techniques, in that it was comprised of uneven made ground with rubble inclusions which was poorly suited to geophysical survey In addition, the ground level was raised so that venting the embankment with an augur would largely fail to penetrate the underlying â&#x20AC;&#x2DC;naturalâ&#x20AC;&#x2122; ground surface to facilitate the use of cadaver search dogs. As a consequence, controlled machine and hand excavation by a police search team operating under the supervision of both the forensic archaeologist and the CSM was utilized.

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This search was proactive and sequential, with a clear order of investigation both across the main scene as a whole, as well as with regard to specific actions taken at the primary site of interest by the railway platform. The nature of the deposition site was such that the non- or semi-invasive search techniques of geophysical survey and cadaver dog use were largely ineffective. Therefore, the controlled excavation of the brick shaft had to be relied 84

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upon as the only effective methodology that would ultimately establish the presence or absence of human remains. Crucially, this development only served to increase the importance of appropriate oversight by a forensic archaeologist, rather than preclude it, and this interdisciplinary approach was ultimately successful in the recovery of the remains of the missing woman.

There is another side to multidisciplinary interaction between the forensic ecology disciplines which has thus far attracted less attention from either academic authors or FSPs, but which this article has attempted to consider in detail; the integration of the forensic ecologist within the structure of the police investigation and specifically alongside police search officers and CSIs in the context of no-body murder search and location operations. It is arguable that the forensic ecologist present at such scenes has longer and more in-depth contact with the police than their counterparts who work primarily as laboratory-based analysts. No body murder investigations frequently represent some of the longest and most complex investigations, with greater initial reliance on human and technical intelligence than most other responses to major crime outside of the arena of counterterrorism. Within this context, the forensic ecologist must retain their independence and objectivity to ensure they meet the robust requirements of the court whilst being able to facilitate the specialist needs of the police investigation.

Conclusion Over the past twenty years, the various types of forensic scientist involved in the location of buried and concealed remains have grown used to considering themselves part of a multidisciplinary effort within a criminal investigation. Forensic geoscientists, botanists, palynologists, entomologists, geophysical search specialists, forensic archaeologists and anthropologists are generally happier to conceive of their disciplines as forming part of a suite of methods broadly classified under the banner of ‘forensic ecology’. Moreover, they do not consider that than any one specialism offers a superior capability within a crime scene investigation over another as their functions are frequently complimentary and are at their most effective when coordinated as an ensemble (Davenport et al., 1992; Tibbett & Carter, 2008; Wiltshire, 2008; Cox et al., 2008; Ritz et al., 2009; Ruffell & McKinley, 2010; Amendt et al., 2010; Márquez-Grant & Roberts, 2012).

As a consequence of this, it behoves the forensic ecologist engaged in body search and location to not only possess an intimate understanding of the general processes of forensic examination, but in addition to have an awareness of the requirements and capabilities of police search professionals, and furthermore to understand the processes that underpin the workings of the Major Incident Room. The optimization of confidence in any police search supported by forensic ecology requires a sequential, analytical approach informed by scientific best practice as a sine qua non, and the continuing development of scene and laboratory quality standards in forensic science will greatly assist in underpinning this axiom.

Whilst the application of these various natural sciences to forensic search scenes is not new, their formal affiliation with one another in the syncretic science of forensic ecology certainly is. The synthesis of these disciplines has not always been entirely straightforward, even though one could argue that their shared stated goal is to harness their various scientific specialisms to assist the courts and the criminal justice system. Despite this, the various disciplines of forensic ecology have certainly made progress in development and consolidation with one another, particularly in the last decade. This development appears to be two-pronged, deriving at about the same period of time from a small number of academic authors with an interest in forensic search and body location and recovery as an overt development of their science (Haglund & Sorg, 1996, 2010; Killam, 2004; Ruffell & McKinley, 2004, 2010; Hunter & Cox, 2005; Dupras et al., 2006; Connor, 2007; Tibbett & Carter, 2008; Cox et al., 2008; Hunter, 2009; Ritz et al., 2009; Meier-Augenstein, 2010; Márquez-Grant & Roberts, 2012; Dirkmaat, 2012); and in a less obvious manner by the maintenance of a range of forensic ecology provision solutions offered by a number of Forensic Service Providers (FSPs) in the United Kingdom over the same period of time. EXPERT WITNESS JOURNAL

Further to this, however, is a secondary challenge to optimal searches, which lies in the manner in which the various agents of police major investigations interact with and reflect on the advice and work of the forensic ecologist, and vice versa. Such a complex and multifaceted challenge is not so easily nor so comprehensively addressed through academic writing or forensic service provision as the conceptualisation and branding of the science of forensic ecology, but it remains just as critical to its eventual maturity and acceptance as a suite of disciplines with a criminal investigation.

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Blau, S. & Ubelaker, D. 2009. Handbook of Forensic Anthropology and Archaeology. Walnut Creek, CA: Left Coast Press. Boyd, R.M. 1979. ‘Buried Body Cases’. FBI Law Enforcement Bulletin, 48, 2, 1-7. Buck, S.C. 2003. Searching for graves using geophysical technology: field tests with ground penetrating radar, magnetometry and electrical resistivity. Journal of Forensic Sciences, 48, 5-11. Buckley, R. & Langley, A. 2012. Aspects of Crime Scene Management. In: N. Márquez-Grant & J. Roberts (eds.), Forensic Ecology Handbook: From Crime Scene to Court, p 7-21. London: Wiley-Blackwell.

Alecto Forensics We offer an extensive range of forensic ecology evidence services and provide 24/7 scene attendance and mortuary and laboratory examinations for both new forensic investigations and historical cold case reviews within domestic, international, military and defence settings. Our fully accredited scientists offer a wealth of expertise in their specialised fields including:

Connor, M.A. 2007. Forensic Methods: Excavation for the Archaeologist and Investigator. Lanham, MD: Altamira Press. Cox, M., Flavel, A., Hanson, I., Laver, J., & Wessling, R. 2008. The Scientific Investigation of Mass Graves. Towards Protocols and Standard Operating Procedures. Cambridge: Cambridge University Press.

• Aerial Imagery Collection, Reconnaissance & Exploitation • Anthropology • Archaeology • Body Mapping, Reconstruction & Presentation • Botany • Entomology • Geophysics • Heights and Confined Spaces • Limnology (diatom analysis) • Palynology (pollen analysis) • Soil Science • Stable Isotope and Dating analysis • Underwater Search and Recovery

Cox, E. 2012. Diatoms and Forensic Science. In: N. MárquezGrant & J. Roberts (eds.), Forensic Ecology Handbook: From Crime Scene to Court, p 141-151. London: Wiley-Blackwell. Crown Prosecution Service (CPS) / Association of Chief Police Officers (ACPO). 2010. Guidance Booklet for Experts Disclosure: Experts’ Evidence, Case Management and Unused Material. CPS Strategy and Policy Directorate. Also available online at: http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/annex_k_ disclosure_manual/#a16. Davenport, G.C., France, D.L., Griffin, T.J., Swanburg, J.G., Lindemann, J.W., Tranunell, V., Armbrust, C.T., Kondrateiff, B., Nelson, A., Castellano, K. & Hopkins, D. 1992. A multidisciplinary approach to the detection of clandestine graves. Journal of Forensic Sciences, 37, 6, 1445-1458. Department for Environment, Food & Rural Affairs (DEFRA). 2005. Wildlife Crime. A Guide to the Use of Forensic and Specialist Techniques in the Investigation of Wildlife Crime. London: DEFRA.

If you would like further information about the services we can provide or the forensic ecology evidence types and how they can help in an investigation, please contact: Adam McConochie, Ecology Services Manager Alecto Forensic Services, P.O. Box 1339, Preston. Lancs. PR2 0TJ. Ph: 01772 715050 adam.mcconochie@alectoforensics.

Dirkmaat, D.C. (ed.) 2012. A Companion to Forensic Anthropology. Oxford: Blackwell Publishing. Donnelly, L. 2011. The Renaissance in Forensic Geology. Teaching Earth Sciences 36, 1, 46–52. Dupras, T.L., Schultz, J.J., Wheeler, S.M. & Williams, L.J. 2006. Forensic Recovery of Human Remains. Archaeological Approaches. Boca Raton, FL: Taylor & Francis. Gaston, K.J. 2000. Global Patterns in biodiversity. Nature, 405, 220-227.

References

Gunn, A. 2006. Essential Forensic Biology. Chichester: WileyBlackwell.

Amendt, J., Goff, M.L., Campobasso, C.P. & Grassberger, M. (eds). 2010. Current Concepts in Forensic Entomology. London: Springer.

Haglund, W.D. 2001. Archaeology and Forensic Death Investigations. Society for Historical Archaeology, 31, 1, 26-34.

Association of Chief Police Officers (ACPO). 2005. Major Incident Room Standardised Administrative Procedures (MIRSAP). Wyboston, UK: National Centre of Policing Excellence.

Haglund, W.D. & Sorg, M.H. (eds.) 1996. Forensic Taphonomy. The Postmortem Fate of Human Remains. Boca Raton, FL: CRC Press.

Association of Chief Police Officers (ACPO). 2006. Murder Investigation Manual. Wyboston, UK: National Centre of Policing Excellence.

Haglund, W.D. & Sorg, M.H. (eds.) 2001. Advances in Forensic Taphonomy: Method, Theory and Archaeological Perspectives. Boca Raton, FL: CRC Press. HOLMES2: The future of crime management technology. www.holmes2.com. [Online. Accessed 29/08/13].

Association of Chief Police Officers (ACPO). 2011. Practice Advice for Expert Advisers. Version 3.4. Wyboston, UK: National Centre of Policing Excellence. EXPERT WITNESS JOURNAL

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Hunter, J.R., Heron, C., Janaway, R.C., Martin, A.L., Pollard, A.M., & Roberts, C.A. 1994. Forensic Archaeology in Britain. Antiquity 68, 758-769.

Márquez-Grant, N. & Roberts, J. (eds.) 2012 Forensic Ecology Handbook: From Crime Scene to Court. Chichester: Wiley-Blackwell.

Hunter, J R., Brickley, M.B., Bourgeois, J., Bouguignon, L., Hubrecht, F., De Winne, J., Van Haaster, H., Hakbijl, T., De Jong, H., Smits, L., Van Wijngaarden, L.H., & Luschen, M. 2001. ‘Forensic archaeology, forensic anthropology and Human Rights in Europe’. Science & Justice 41, 173-178.

Meier-Augenstein, W. 2010. Stable Isotope Forensics. London: Wiley-Blackwell.

Hunter, J.R. & Cox, M. 2005. Forensic Archaeology. Advances in Theory & Practice. London: Routledge.

Ritz, K., Dawson, L., & Miller, D. (eds.) 2009. Criminal and Environmental Soil Forensics. Springer:

Hunter, J.R. 2009. Domestic homicide investigations in the United Kingdom. In: S. Blau & D. Ubelaker (eds.), Handbook of Forensic Anthropology and Archaeology, p.363-373. Walnut Creek, CA: Left Coast Press.

Ruffell, A. & McKinley, J.M. 2010. Geoforensics. London: Wiley & Sons.

Murray, R.C., & Tedrow, J.C.F. 1975. Forensic Geology: Earth Sciences and Criminal Investigations. New Jersey: Rutgers.

Ruffell, A. & McKinley, J. 2004. ‘Forensic geoscience: applications of geology, geomorphology and geophysics to criminal investigations’. Earth Science Reviews 69, 235-247.

Killam, E.W. 2004. The Detection of Human Remains. 2nd Edition. Springfield, IL: Charles C. Thomas.

The Criminal Procedure Rules. 2013. No.1554 (L.16). Senior Courts of England and Wales, Magistrate’s Courts, England and Wales. The Stationery Office Limited.

Locard, R. 1929. The analysis of dust traces. Revue Internationale de Criminalistique, 1, 4-5. (English translation in American Journal of Police Science 1, 1930, 416-418, as taken from Ruffell & McKinley, 2010:323).

Tibbett, M. & Carter, D.O. (eds.) 2008. Soil Analysis in Forensic Taphonomy. Chemical and Biological Effects of Buried Human Remains. Boca Raton: CRC Press.

Mant, A.K. 1950. A Study in Exhumation Data. Unpublished M.D. Thesis. University of London.

Wiltshire, P.E.J. 2009. Forensic Ecology, Botany and Palynology: Some Aspects of Their Role in Criminal Investigations. In: Ritz, K., Dawson, L., & Miller, D. (eds.), Criminal and Environmental Soil Forensics, p.129-150. New York: Springer.

Mant, 1987. Knowledge Acquired from Post-War Exhumations. In: Boddington, A, Garland, A.N., & Janaway, R.C. (eds), Death, Decay and Reconstruction, p.65-78. Manchester: Manchester University Press.

Mr R Scott-Watson BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2) CUBSEWC DDAM FRCS(Ed)

RSW Medico Legal Ltd Expert Witness in Orthopaedic Trauma. APIL Expert. Injury reports and Employment Tribunal reports (Equalities Act.) Waiting list 4-6 weeks. Urgent reports undrtaken. Reporting since 1990. Over 18,000 reports. Cardiff University Expert Witness Certificate 2014. Fully trained in CPR, Court appearance (3 per year) and report writing. Low velocity impact traffic accident cases accepted. Clinics in Stourbridge, Coventry, Bristol, Swindon and Oxford Home and prison vists undertaken. Contact: Carol Couzens 7a Heath Lane Oldswinford, Stourbridge West Midlands DY8 1RF Tel/Fax: 01384 441126 Email: carolcouzens@ymail.com EXPERT WITNESS JOURNAL

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Immigration into Britain: The Truth, the Whole Truth and Nothing but the Truth by Dr Bashir Qureshi FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon. FRSPH

Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence. Historically, Great Britain is a nation of immigrants, over centuries, from many countries. However, long term immigrants welcome or oppose new immigrants; this is the story of our life. As an Expert Witness in Cultural, Religious & Ethnic Issues, the information which I include in this article would be based on my Experience Evidence, over my life time (1935-2014). I feel I have a unique life experience as I was born in the British Empire in India (1935-1947), educated as a doctor in Pakistan (1947-1964) and am practising medicine in London for 50 years (19642014).

Currently, the bulk of immigrant visitors and settlers in Britain are from Eastern Europe, due to free movement within European Union; Commonwealth citizens from Asian subcontinent –India, Pakistan, Bangladesh, Sri Lanka and African countries; and also asylum seekers from Somalia, Iraq, Libya, Syria, Afghanistan and other countries. The British are visitors and resident in almost all countries and vice versa. A minority of migrants are rich and invest money but the vast majority of migrants are workers who become the infrastructure in the workforce. Financially, the local population always has an upper hand.

Therefore, I salute all three flags and support all three cricket teams objectively. This article is based on my belief in objectivity and reason without getting involved in subjectivity and intuition. I hope this article can become a basis or valued source for Research, Politics and delivery of Justice in Immigration Issues. My intention is to impartially assist Courts and other Legal Authorities.

When does the immigration occur? Immigration in Britain is usually related to wars; World Wars I & II and local wars worldwide. Britain attracts asylum seekers. Almost every country, as a member of the United Nations, contributes to the Refugee Fund. Many countries, including Britain are paid from this fund for taking refugees and are expected to help the United Nations to deal with homeless and helpless human beings.

Who Immigrated to Britain? Focussing on 2014, three generalisations could be considered: No one but no one can enter and stay in Britain without a visa or work permit due to very strict border controls, illegal immigrants are deported; only those people stay in Britain who like Britain and the British; British people emigrate and settle in various countries worldwide. Air travel and mutually dependant economies have facilitated the migration worldwide. It is an irreversible phenomenon.

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Another reason for immigration is a significant event affecting Britain e.g. granting freedom to colonies and joining the European Union. Akin to every drug which has good and bad effects, such “immigration” has its advantages and disadvantages. The Politics is a science dealing with realities, without over-reacting and sticking strictly to what is right or wrong, which are relative terms. The politicians negotiate, avoid confrontations as much as possible and deal with these situations as best as they can in the long term interest of Britain.

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What made them leave their native countriesPush factors? 1. Poverty. Expenses more than income. 2. Inconsistent savings. 3. Unable to support one’s family. 4. Extended family system; to feed all relatives. 5. Political unrest. 6. Religious wars. 7. Tribal battles. 8. Family Frictions. 9. Personal Tensions. Why did British Govenrments invited ImmigrantsPull factors? 1. Employment opportunities. 2. Investment opportunities. 3. More work and jobs inspite of competition. 4. More income than at their home country. 5. Ability to support one’s family, in Britain or abroad. 6. Political stability. 7. Religious tolerance. 8. Freedom of choice in social life. 9. Peace of mind. Nuclear family system. Where are conflict points between Local and Immigrant British? 1. Jealousy among different Populations; about wealth, status and housing.

hands in an argument. They avail all opportunities available. If they cannot beat them, they join them. They possess most ingredients for success. Britain will always rule the waves and often win struggles at home and abroad.

2. Rivalry for jobs between Locals and Immigrants, leading to bitterness. 3. Property struggle among local communities, fences are hardly ever right.

The kind of cases go to Courts; Cultural, Religious & Ethnic issues. 1. Arranged marriage or forced marriage. 2. Choice marriage or family honour threat. 3. Courtship or family honour killing. 4. Private banking or money laundering fraud. 5. Female cultural circumcision or female genital mutilation. 6. Unmarried Muslim woman using another woman's Photo on her Oyster card in London. 7. Illegal immigration. 8. Medical tourism. Also sending medications abroad. 9. Mixed marriage created problems e.g. child abduction/ abuse. 10. Possession by Jinns/evil spirits and Exorcism, even killing. 11. Inter religious conflicts. 12. Inter immigrant communities’ rivalry/prejudices. 13. Neighbourhood property disputes. Sometimes mending fences. 14. Slave/subsistence employment of baby carers. Using zero hours.

4. Racial Prejudice: actual or perceived. 5. Political conflicts: tribal alliances in voting by immigrants. 6. Cultural clashes e.g. spitting in public, human biting in anger, e.g. sports. 7. Religious anger e.g. Purdah, Alcohol, Halal or Kosher food and medicine. 8. Mixed marriages; some people approve but others disapprove. 9. Effect of foreign local wars; terrorist training abroad, danger at home. What next; the future? “Everything changes in this world all the time, except this principle” Aristotle. The future of Great Britain would always be bright, as its past always has been. The British are trained to say a lot in a few words. They plan for one year, five years and 20 years ahead. They self denigrate intentionally to lower the anger from an opponent. They use more words than EXPERT WITNESS JOURNAL

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15. Employment Racial competition and conflicts. Tribunals decide. 16. East European Women, with small children, begging in public. 17. Criminal money transfer abroad swiftly. 18. Chewing “Qaat” (addictive drug) by Somali men; now illegal. 19. Interpretation costs and issues. 20. Social security benefits misuse. 21. Legal aid overuse and misuse. Now lawyers and Expert Witness suffer. The roles Solicitors and Barrister Play. In the British Adversarial Justice System, the Counsel and solicitors represent the Claimant or Defendant as much as they can, so as to give the judge in civil and criminal cases, and jury in criminal cases, the depth and breadth of all the facts related to the case. The Expert Advisor supports only one side as much as he/she can. The Expert Witness covers his/her area of expertise and impartially assists the Court, without favouring even the instructing solicitor. In this way the Judge has as much information as possible to deliver justice in every case. It is a fair play when justice is done and is seen to be done. ■

Safeguarding Children

Expert witnesses in child protection: developing excellence Mr Jeffrey S Hillman

15-16 September 2014, RCPCH London

Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth

An intensive, practical course developed in conjunction with Bond Solon, the UK’s leading expert witness training company and Alison Steele, a leading consultant Paediatrician in safeguarding.

I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence.

• Understand your role in the judicial process. • Learn how to produce high-quality reports and statements. • Develop your skills in order to give effective oral evidence. • Understand the relevant law and procedure.

I have been preparing reports supported by Literature references in personal injury and medical negligence cases for over 20 years. Between 1992 and 2012 I have advised in 1118 cases, 66% for Claimants solicitors and 30% for Defendants solicitors and 3% on joint instruction to bring my figures up to date.

Further information and to book: Web: www.rcpch.ac.uk/events Email: events@rcpch.ac.uk Tel: 020 7092 6104 12 CPD POINTS

I have a rapid response facility for cases with tight time constraints.

Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com

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Expert Witness and Court Skills Training by Andrei Szerard The prospect of giving evidence in a court of law can provoke feelings of anxiety in even the most battle hardened of experts. The sleepless nights spent nervously re-reading reports, the long walk to the witness box, the room full of impassive legal assassins, all seemingly intent on dismantling your professional credibility. Why on earth would anyone volunteer to do it?

The many misapprehensions and anxieties about the court process can intimidate even the best. The course that I ended up creating sets out to provide a realistic description of the system and what witnesses can properly expect to encounter in a trial. The aim is to provide expert witnesses with the confidence and means to give cogent and compelling evidence to the court. In order to do this, we begin at the beginning.

I’ve been one of those assassins for nearly 30 years and in that time I’ve cross-examined hundreds of expert witnesses. Most have been good. Some very good indeed. Some have been bad. Some have been downright hidebehind-the-sofa ugly. It was after one such encounter (a consultant paediatrician in full “rabbit/headlights” mode) that I ended up in discussions with Talking Life about creating an expert witness court skills programme. That was 5 years ago. Since then I’ve delivered training courses to hospitals, local authorities and government agencies all over the UK.

The System - and some myths In providing the training, I soon discovered that the English legal system was, in essence, a closed book to most professional and expert witnesses – even to those who had actually been through the process of giving evidence. With hindsight, I’m not too surprised at this (although I was taken aback by one doctor’s refusal to believe that Britain no longer used the death penalty). The system is not particularly open or accessible to the public and some lawyers and judges manage to retain a peculiar affection for ceremony, Latin and regalia. Mostly, of course, people (including professionals) sensibly tend to avoid having any contact with the legal system unless it becomes absolutely necessary and then tend to compartmentalise their role in proceedings.

We live in a time where reforms have had a significant impact upon the judicial system, particularly in relation to funding, and this has had an obvious effect upon the use of expert witnesses. As the number of experts engaged in court proceedings decreases, the quality expected of those witnesses correspondingly increases. EXPERT WITNESS JOURNAL

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court goes about its business and how Judges can be assisted in making what are often very difficult decisions. Leaving aside some of these irrational fears, the naked truth is that most witnesses run into trouble not because of the forensic brilliance of a cross-examiner but simply because they have chosen to ignore some pretty straightforward rules and procedures.

The result of this is that many inexperienced professional or expert witnesses tend to draw their understanding of the court process from other sources and that, inevitably, means media representations in film or TV. Unfortunately, these representations are almost always misleading. As an illustration, I ask delegates when they think a Judge would use a gavel during court proceedings. The answers invariably include “at sentencing”, “keeping order in court” or “at the end of the day”. Most are surprised to discover that no Judge wields a gavel in court – at least on this side of the Atlantic. American films and courtroom dramas have Judges hammering away to reinforce every dramatic plot twist. English scriptwriters simply copied the device with the result that belief in its existence has become almost “hard wired” amongst the public. (Lawyers are not immune from this. The current issue of “Counsel” magazine has several features and adverts illustrated by gavels).

The Basics I am still surprised by the number of “expert” or aspiring “expert” witnesses who are unfamiliar with the rules that govern them. The rules governing the provision of reports are all readily available on the Ministry of Justice website (www.justice.gov.uk) and are not extensive. This is not the occasion to provide a detailed analysis of the rules but it’s sufficient to say that they set out a basic framework of good sense and fairness. Compliance with the rules is not onerous but it is compulsory. Whilst perhaps not as entertaining as the latest Ian McEwen, they should be on every aspiring expert witness’s “must read” list.

The false but deeply held belief in the gavel is emblematic of the many myths associated with the trial process. Courtroom dramas (and there are many of them) portray lawyers as omniscient, eloquent and ruthless. Judges are humourless curmudgeons. Witnesses are usually dishonest or shifty. Worse still are the “expert witnesses” who arrive resplendent in their arrogant certainties only to have these mercilessly picked apart in cross-examination. They leave, shattered and humiliated, presumably to a life of penury and shame.

A common error amongst those unfamiliar with the rules is the belief that an expert witness is there for “one side or the other” and that their duty lies to those paying their fee. Expert witnesses are not hired guns – their duty is to the court. I once saw a child psychologist asked about this by a Judge in the High Court. Her inability to answer with any clarity led the Judge to disregard her evidence. Instructions Compliance with the letter of instruction is, of course, vital. Non-compliance can result in a very difficult few hours in the witness box. Occasionally, the non-compliance is accidental (not good). Sometimes the non-compliance is wilful: “What I think you should be asking me is…” as one consultant loftily wrote (not good at all).

As a lawyer, I would love these dramas to have some semblance of truth but the reality is, of course, very different. Lawyers do not spend their time shouting at each other and/or witnesses in court. Lawyers do not talk over witnesses endeavouring to give a nuanced opinion. Lawyers do not demand one word answers to complex questions. Lawyers do not, overnight, (with the aid of a montage – some pizzas, beer, a pile of books - I’m sure you’ve seen it) become experts in aeronautics or cardiology or metallurgy. Surprise witnesses do not burst through the door at the moment of judgment, demanding to be heard. Judges do not ask: “What is an iPad?”

Non-compliance by straying outside an area of expertise is another common, but deadly, sin. There are some experts who appear congenitally inclined to offer opinions on anything and everything (a Judge acquaintance of mine refers to them as “have a go heroes”). A psychiatrist who ventures an opinion on, say, radiology is only likely to succeed in undermining his credibility as a psychiatrist. I’ve seen it happen.

Real life in the courtroom is, as a senior Judge once told me, “Serious people, talking about serious things, in a serious way.”

Form and Format The key to the credibility of all expert evidence lies, of course, in the written report. It’s the first and best opportunity to impress a Judge and get him or her “onside”. If the report is well written, addresses the issues and provides a considered, measured opinion, any Judge reading it will form a positive view of the author. The well written, compelling report is also the simplest way to insure against having to appear in court to give live

The myths are, however, hard to break. Even the most cynical of professionals can believe that there’s a kernel of truth hidden in there somewhere. There isn’t, of course, but the nagging doubt and fear of the unknown can lead to the rapid onset of “rabbit/headlight syndrome” as afflicted that poor consultant several years ago. The course attempts to give those attending a real insight into how the EXPERT WITNESS JOURNAL

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There is a Judge in Liverpool who is reputed to demand a charitable donation from witnesses for every spelling mistake or grammatical error that he finds in a report. Putting loose change into a charity box is probably not the best way to start giving evidence and while some may find it slightly excessive, I think that the Judge’s irritation is understandable. The court demands the most exacting standards from expert witnesses and the care put into the structure of a report might well be a reflection of the care put into the opinions expressed by its author.

evidence. It can act as a major disincentive to potential cross examiners who may decide to direct their line of fire elsewhere. (I’m pleased to say that one government agency that we’ve worked with has seen a 90% drop in court appearances in the last year – just by improving the quality of the written evidence produced there). Conversely, of course, it can be the point at which things start to go seriously awry. A poor report will antagonise the Judge and have cross-examiners rubbing their hands in anticipation. Often, it’s the simple stuff that causes the problems.

Get the report right, however, and a witness may not even need to attend court. Sometimes, though, despite everything an appearance at court simply can’t be avoided.

There is no excuse for getting the format of a report wrong - there are many, many online resources and examples readily available. Depressingly, though, courts still see single spaced, un-headed, un-paginated, unstructured reports. There is still the very occasional sighting of a report written on a typewriter. These may look attractively retro but probably do little to convince that the author is at the cutting edge of research.

The Court Hearing A poll conducted in October 2013 concluded that most people ranked public speaking just below being buried alive in a list of commonly held fears. It is not surprising, therefore, that many delegates attending the course have a deeply ingrained anxiety about standing in a witness box and giving oral evidence.

As far as content is concerned, and whilst paying appropriate respects to my friends in the judiciary, it is fair to say that most Judges dislike complexity and crave simplicity. As with many of us, Judges have enormous pressures of time. Cases are backlogged for months. Courts are filled to overflowing. Hearings are double or even treble booked. Judges have to read case papers at night and over weekends. In that context, the expert report that gets to the point with the minimum of fuss and flummery will be the piece of evidence most likely to be seized upon by the Judge and held closely to their heart.

On the course, we cover the basics – preparing for court, what the inside of a courtroom looks like, where to stand, how to take an oath (some are upset that there is no guy in uniform handing up the Bible), what to call the Judge and general etiquette, before covering the processes and purposes of examination in chief, cross examination and re-examination. I try to emphasise that it is entirely normal for a witness to feel nervous before giving evidence – contrary to an orthodoxy that has developed wherein all nervousness is regarded as anathema – and that feeling can be channelled positively. Judges and lawyers feel nerves too, although delegates sometimes find this hard to believe.

There is, across the judicial board, an increased disapproval of the sort of report that needs to be weighed rather than paginated. Judges do not wish to spend the weekend wading through 300 pages if the same points and opinions could be set out in 50. A Judge told me recently that she believed that reports have increased in size over the years simply because word processing is so much easier. She may be right but there seems to me to be a belief amongst the many of the delegates that I encounter that reports have to include everything for fear of being criticised for missing something.

Delegates often regard the process of cross-examination as a form of unarmed combat (I blame courtroom dramas. Again). When asked, delegates often list good tactics to combat cross-examination as including “concede nothing!”, “give single word answers” or “anticipate where the questions are leading you”. All of these are, of course, doomed to fail, play into the hands of the cross-examiner and invariably result in the witness being regarded as defensive and unhelpful.

I have to reassure them that on very good authority (i.e. every Judge I know) that this is not the case and that given the choice between a few hours on a Sunday spent strolling to the local pub or sitting at a desk reading an unnecessarily repetitious, badly drafted report, they would much prefer the former.

I stress to delegates the importance of always remembering that the purpose of the expert witness is to help the court in its decision making. It involves listening (properly) to the question and taking time to provide an open, considered, pertinent answer. It can also involve the making of concessions where appropriate. If there is a concession to be made, I advise making it. It is not a sign

Spelling mistakes, grammatical errors, incorrect dates, clichés and unexplained acronyms are all judicial irritants. EXPERT WITNESS JOURNAL

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of weakness, unless it’s had to be wrung out of the witness or it is given in a grudging, qualified manner.

Practical Excercises I confess that I hate role play. I never find it truly convincing, even when very good actors are incorporated into training exercises. I think that the problem is that for the participants, the falseness of the situation is always present. In the case of a mock trial, for example, delegate “witnesses” are given a “brief” to learn about which they then give “evidence”. Whilst this may give some insight into the process, the reactions and feelings of the “witness” to cross examination are likely to be wholly different to those they might experience in a real witness box. In life, witnesses have much more personally invested in the evidence. They are likely to have “lived and breathed” the case or feel that they have their professional reputations on the line. In real life, witnesses react emotionally to criticism of their evidence and this can lead to many of the common flaws (such as defensiveness) discussed earlier.

Judges are looking for witnesses that they can invest their trust in. These are the sort of calm, measured witnesses who take time to consider questions and give reasoned answers. The “reasonable” witness is almost impossible to cross-examine to any effect. That’s fine, say many delegates but what happens when a witness is faced with a really aggressive cross-examination? (Tom Cruise in “A Few Good Men”, say) We look at this in some detail and consider why some advocates choose to adopt this manner of questioning. I ask delegates to assess whether (in real life) a Judge is likely to be impressed or assisted by this type of cross-examination and I recount how (as a very junior barrister), a High Court Judge interrupted my rather theatrical cross examination to tell me, in full Lady Bracknell tones, “Mr Szerard, I am not a jury!”

This presented a problem in designing some practical exercises for day 2 of the course. I wanted delegates to experience the process of cross examination but I also wanted it to provoke a more convincing response than traditional role play. After some consideration, I decided that delegates would have the most accurate experience of cross examination if they gave “evidence” about something drawn directly from their own lives.

We spend some time looking at how to deal with this and with other styles sometimes used in cross examination. I sometimes have to reassure delegates (often to their great disappointment) that lawyers do not, in fact, employ mysterious, rhetorical techniques acquired from years of study in a Himalayan monastery.

At the end of day 1, therefore, I ask delegates to prepare, overnight, a 10 minute talk about any subject of their choosing (these have included “bee keeping”, “weightlifting techniques” and “Lord Kitchener” – I might write a book). The following morning, in a courtroom setting, each delegate goes through the ritual of entering the witness box, taking an oath and giving their “evidence” in chief. Only limited questions are asked. I act as Judge, taking notes and, at the conclusion, providing each “witness” with some constructive criticism.

In summary, therefore, I suggest all that an expert witness needs to do is: 1. Be very good at their job; 2. Write concise, focussed, considered reports; 3. Be open, calm and authoritative in the witness box; 4. Be willing to make appropriate concessions; 5. Not get upset by aggressive questioning Sounds easy doesn’t it?

Talking Life is the No.1 choice for high quality training in the Public, Private and Voluntary sectors. Established for more than 15 years, we offer a portfolio of over 1000 in-house courses and a small number of specialised open-access courses which we can deliver from as little as £250 (+ vat) for a half day training course.

Talking Life has developed a high quality range of legal courses in recent years which has attracted outstanding feedback across our client database. Our Achieving Best Evidence (ABE) course uses highly innovative techniques, including the use of actors and our Court Skills training is second to none (though we say it ourselves!). Our Court skills and Expert Witness training team is led by a senior practising Barrister and our ABE course is led by a former senior specialist police officer.

At Talking Life we pride ourselves in exceeding our clients’ expectations. Through our training courses we believe that we can make a positive difference in today’s workplace.

Download the current Legal brochure from our website at www.talkinglife.co.uk or call on 0151 632 1206

Telephone: 0151 632 1206 Fax: 0151 632 1206 Email: info@talkinglife.co.uk or enquiries@talkinglife.co.uk Website: www.talkinglife.co.uk Talking Life Ltd 36 Birkenhead Road, Hoylake, Wirral, CH47 3BW

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Later that day, I ask each to return to the witness box and I cross examine them using some of the styles and techniques (good and bad) as discussed the previous day. Again, at the conclusion of each cross examination, I give them an analysis of how effectively I thought they responded to my questioning.

I’ve yet to encounter any previous delegate in a court environment but I’d like to think that if I did, I’d not be able to lay a glove on them in cross-examination. On the other hand, if anyone tries to give evidence in front of me about Lord Kitchener, they’re toast. ■ Talking Life delivers Expert Witness & Court Skills training in-house for organisations across the public and private sectors and will be running open access courses in Manchester and London in 2015. For further information about Talking Life’s Expert Witness training call 0151-632-0662 or email: sales@talkinglife.co.uk or visit our website: www.talkinglife.co.uk.

The intention is to provoke just enough nervousness in the delegates to be realistic but not completely terrifying. (I’ve been told of a course run for one government agency that included such a ferocious and belittling cross-examination of the delegates that they collectively refused to ever attend court on behalf of the agency again. I suspect the trainers were on a minor ego trip.)

We are holding a free 1-hour ‘taster’ session, “Court Skills in an Hour” for anyone interested in this training, in Manchester on September 2nd, 2014 and in Bristol on 16th October, 2014, both at 3 p.m. To register, visit the Talking Life website: www.talkinglife.co.uk/events/

Delegates have the advantage of learning not just from their own experiences in the witness box but from watching others go through the same process. We conclude with a general discussion about any issues raised. The reactions to the course are always interesting. Delegates invariably become deeply involved in the process (particularly on day 2) and appear to enjoy the challenge of giving evidence and cross-examination. After almost 70 separate courses, I’m very pleased that the feedback responses of delegates to the course remains universally high.

Andrei Szerard has been a qualified barrister for over 25 years, now specialising in family law at 3 Dr Johnson’s Buildings, Temple, where he was Head of Chambers. He has practised in all areas of criminal and family law, conducting cases at the Old Bailey, the Court of Appeal and the High Court in London. He has extensive experience of, and interest in, child protection and is also a highly popular and sought after trainer, combining his extensive legal experience and knowledge with an innovative and stimulating training style.

Overall, the course is an attempt to offer something that is practical, accessible and supportive. It’s also flexible (each course is bespoke) and affordable (a one man show rather than a role play Cecil B DeMille production).

Professor Christopher Nutting

Dr Elizabeth Soilleux

Consultant in Oncology; Clinical Director Head and Neck Cancer

Consultant Histopathologist MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)

MBBS, BSc, MD, PhD, MRCP, FRCR

Practising Consultant Haematopathologist and Autopsy Pathologist based in Oxford Honorary University Senior Clinical Lecturer and fellow of St Hugh's College, Oxford.

Professor Nutting provides medical reports and opinion in oncology,including chemotherapy, and radiation treatments, clinical negligence claims and research. He has specialist interests in complex radiotherapy techniques, head and neck cancer, thyroid, skin, and lung cancer. He has experience in running National clinical research trials to evaluate new cancer treatments.

Expertise in: Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome, myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology. Autopsy (post mortem) pathology

Contact: P.A.: Catherine Email: chris.nutting@rmh.nhs.uk Web: www.chrisnutting-oncology.co.uk Tel: 0207 808 2586 Fax: 0207 808 2235 Royal Marsden Hospital 203 Fulham Road London SW3 6JJ EXPERT WITNESS JOURNAL

Contact: Tel: 01865 220535 Fax: 01865 220519 Mob: 07798 643879 Email: elizabeth.soilleux@ndcls.ox.ac.uk 3 Roman Road, Wheatley, Oxford OX33 1UU

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Manchester Law Society Manchester is a world class city with a world class legal profession, the UK’s largest legal centre outside of London, and a powerhouse of legal talent. The 19 categories encourage nominations from small, medium and large sized firms, with a range of individual and team awards. The region's outstanding talent will be honoured at a glamorous and glittering black tie dinner on Thursday 5 March 2015 at The Midland Hotel, Manchester and we are again expecting the event to sell out to over 600 guests.

Described by the Legal 500 as ‘a sophisticated and highly competitive marketplace, second only to London’, the city is home to some of the world’s leading lawyers. Over 180 law firms are based in the city, employing in excess of 8,000 professionals. Many of the UK’s national and international law firms were founded in Manchester. Today they, along with many other Manchester firms, continue to expand into global markets. Businesses from around the world and in every industry sector source legal services from Manchester.

Make sure you and your firm are represented at the 2015 event by submitting your entry. See www.manchesterlegalawards.co.uk for details. CPD and networking Keen to ensure the provision of high quality CPD events at affordable rates we run an extensive range of courses. These include in depth one day conferences, which explore the strategic and technical concerns of the profession, and bite size seminars that provide updates on changes to law and updates to soft skills.

Manchester is also the birthplace of the national law firm. It has the depth of services and quality of practitioners to match the very best in the UK. In addition, you get value for money, no-nonsense advice. It is no wonder then that Manchester Law Society, instituted in 1838 and incorporated in 1871, is one of the largest, oldest, most dynamic and active local law societies in the country.

Recognising the importance of informal networking to all businesses we also run a highly popular Professionals Dinner Club where guests enjoy a private dining experience while making new contacts on a bi monthly basis.

The Society now has 2700 members who are encouraged to participate through the Society’s committees, action groups and forums from Civil Litigation and Crown & Magistrates’ Court to Legal Education and Social committees, COLP & COFA Forum, IT Directors Forum and an annual HR Directors lunch.

Highlights from our CPD calendar for autumn/winter 2014 include: Management Stage One Tuesday 16th September Compulsory for all Solicitors in their first three years after qualification, this course provides delegates with a practical foundation of essential management skills and knowledge and is approved by the Solicitors Regulatory Authority (SRA). CPD: 7 hours Cost: MLS Member rate £120.00 + VAT (£144.00 total) Non-member rate £170.00 + VAT (£204.00 total)

Manchester Legal Awards Now in its 6th year the Manchester Legal Awards is an excellent showcase of the profession. Organised and hosted by Manchester Law Society and firmly established on the legal calendar, the Manchester Legal Awards recognise and reward the wide range of skills and talent this region has to offer.

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CPD: 1.5 hours Cost: MLS Member rate £20.00 + VAT (£24.00) Non-member rate £40.00 + VAT (£48.00)

Insurance Law – Better Protection for Consumers Wednesday 17th September 2014 This talk is an essential for all insurance lawyers, as the better protection afforded to consumers under the 2012 Act presents an entirely novel approach to insurance law. CPD: 1.5 hours Cost: MLS Member rate £20.00 + VAT (£24.00) Non-member rate £40.00 + VAT (£48.00)

Personal Injury Conference Tuesday 21st October 2014 Our annual Personal Injury Conference returns in October with an exciting programme taking a strategic look at the future of the sector focussing on how to market firms and secure work. Cost budgeting being a serious concern for Personal Injury litigators the day will also explore techniques to maximise profitability and the future of funding. CPD: 5.5 hours Cost: MLS Member rate £150.00 + VAT (£180.00) Non-member rate £175.00 + VAT (£210.00) Employment Law Conference Thursday 23rd October 2014 Returning for 2014 the MLS Employment Law Conference tackles the pressing issues that concern the sector with a mixture of presentations and interactive workshops. Topics covered will include collective consultation and redundancy, the admissibility of pre-settlement negotiations in employment tribunal litigation and how to manage the misuse of social media. CPD: 4 hours Cost: MLS Member rate £45.00 + VAT (£54.00) Non-member rate £65.00 + VAT (£78.00)

Fatal Accidents Update Wednesday 1st October 2014 Are you aware of the latest changes to fatal accidents litigation? Matthew Stockwell and Wendy J Owen of St Johns Buildings Chambers will provide a comprehensive practice and damages update which will guide you all the way through the conduct of a fatal accident claim from the perspective of both the claimant and defendant lawyer. CPD: 3 hours Cost: MLS Member rate £45.00 + VAT (£54.00) Non-member rate £65.00 + VAT (£78.00) Get Social and Engage: Explaining Social Media Thursday 9th October 2014 Do you know how to engage with social media, use it to increase your industry profile and win work? Discover the benefits of embracing social media be that Twitter, LinkedIn, Facebook or Google Plus, and find out which platforms are most appropriate for your needs. CPD: 2 hours Cost: Member rate £20.00 + VAT (£24.00) Non-member rate £40.00 + VAT (£48.00)

For more information on Manchester Law Society including our programme of events and information on membership please visit www.manchesterlawsociety.org.uk.

Managing your Stars, Steadies and Slackers Wednesday 15th October 2014 Managing a successful team can bring many rewards. However, managing the stars, steadies and slackers who sit within your teams can be fraught with difficulty if you take your eye off the ball. In this seminar Mike Ode of Potential Unearthed tackles how to manage these people head on.

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To book a place on any of the events email CarlaJones@manchesterlawsociety.org.uk. ■

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Careless or Dangerous Driving Causing Grievous Bodily Injury by John McGlinchey - Forensic Engineering Solutions It is a regrettable fact that many solicitors do not treat the charge of causing grievous bodily injury by careless or inconsiderate driving as being substantially more serious than simple careless driving. The penalties, however, stress the difference in the two charges; a fine and discretionary disqualification for careless driving, but potentially a custodial sentence where the charge includes grievous bodily injury. It is for this reason alone that drivers must be entitled to a full and robust challenge to the charge against them.

and therefore open to question. But even the distinction between careless and dangerous driving is not objective, because again no agreed metric exists to determine the difference between below and far below that of a competent and careful driver. It is much easier to argue a charge down from dangerous driving to careless driving, than it is to go from careless to nothing. And so the charge of careless driving, which has a relatively low blame threshold, has a high conviction rate. In this article, however, I wonâ&#x20AC;&#x2122;t dwell on the standard of driving, but on the nature of injuries, in order to look at the more serious part of the charges. Furthermore, I wish to introduce the reader to an appreciation of the objective assessment of injuries, as opposed to the apparently traditional view that once a bone is broken it is surely a grievous injury. To do this I propose to begin with some statistics, then a consideration of how these have been reduced over the years, a word on fractures, and finally to an objective assessment of the injuries.

It is claimed that the test for the standard of driving is an objective one, but this isnâ&#x20AC;&#x2122;t necessarily correct. Objectivity is the assessment of something without personal bias, and to be objective one must be capable of relying upon some agreed metric that is capable of measuring the standard of driving. There are areas where one can clearly reach an objective conclusion, such as excessive speed where that can be calculated, but where is the objectivity in an eyewitness using their own opinion as the standard of measurement? Such an approach is clearly subjective EXPERT WITNESS JOURNAL

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Between 1939 and 1941 there were on average 8700 fatalities per year on Britainâ&#x20AC;&#x2122;s roads. By 1972 this had reduced to almost 7700, and by 2012 the figure was 17541. In 2012 the total number of reported casualties was 195,723, with 23,039 of these being considered as serious. Taking out the seriously injured and the fatalities we are left with 170,930 less seriously injured casualties. The document cited, unfortunately, does not define what constitutes a serious injury. However, whilst there has been a steady decline in road deaths over the years we must not lose sight of the fact that the numbers of people on our roads has increased dramatically, as have the miles travelled. So the real reduction in all casualties is much greater than the figures quoted above illustrate.

so another one comes along to be next addressed. At the time of writing, vehicle occupants have had the benefit of most of the safety interventions, and it is becoming increasingly difficult to keep making significant improvements in that area. For this reason, the research and investment is now concentrating on pedestrians, and making the vehicle more pedestrian-friendly in the event of a collision. I mention this merely to demonstrate how the research to improve the survivability of collisions migrates from one area to another, and it is rarely static.

Whilst there may by numerous reasons for reductions in casualties, the most important are the three Es; Education, Enforcement, and Engineering, and it is to engineering that we can now turn.

Biomechanics is the discipline that integrates the laws of physics, human structural anatomy, and working concepts from engineering that describe the motion of the body. Injury biomechanics couples the knowledge of force and motion with a thorough understanding of functional human anatomy and human tissue mechanics to explore the possible relationships between external events and mechanically induced injuries2.

In respect of developing in-vehicle safety systems, this involves many specialisms and disciplines, including the biomechanical engineer.

Engineering is a very broad spectrum, including numerous specialities within, and in respect of road safety this extends from civil engineering interventions in road design and improvement, to mechanical and biomechanical engineering within the vehicle itself.

Research into injury causation takes place in numerous ways, including the well-known crash test dummy. There is also significant research that is conducted with the use of cadavers, or parts of cadavers. From all the research conducted, there has to be a meaningful way of communicating the findings, and an objective basis on which injuries are considered. Whilst the extensive nature of the research methods is beyond the scope of this article, it is to the objective approach to injuries that I now wish to introduce the reader, but firstly, a word on skeletal injuries.

There are some very obvious and well-known in-vehicle interventions for improving safety such as inertia reel seatbelts and airbags for example. There is also the crumple zone, toughened glass, laminated windscreens, improvements in brake systems, ABS, and many more besides. Now, when I say that these are interventions for improving safety, what that actually translates as is that collisions are more survivable by reducing the severity of injuries, and indeed often removing injuries altogether.

I mentioned earlier about the apparently traditional view in the justice system that where a bone is broken then that is surely a grievous injury. The first point to make here is that medical experts will rarely speak of bones being broken. Instead, they use the word fracture, and then qualify the type of fracture that has occurred.

In order to improve the safety of the vehicle one has to understand the injury mechanisms, and with improvements in vehicle design so injury trends have changed over the years. For example, an injury with which I had a fascination for a time was a mid-shaft fracture to the right femur, which was over-represented as a driver fracture. There was a time in the past when anyone who suffered this fracture was probably already dead from something else. Perhaps from head or chest trauma from striking the steering wheel. But once those injury mechanisms were addressed with seatbelts, collapsible steering columns, and then airbags, so other injures, whilst always occurring, now had to be addressed medically. And in this area there arose a considerable amount of research into what is referred to as the knee-thigh-hip complex, or KTH injuries.

Fractures exist on a spectrum; they may be incomplete, complete, closed, open, comminuted, greenstick, spiral, transverse, impacted, Pottâ&#x20AC;&#x2122;s, Colles, displaced, non-displaced, stress, or pathologic3. There are also specific fractures to the skull such as the LeFort classification, with increasing severity from LeFort I to LeFort III. Clearly, therefore, there is a wide and varying range of fractures with an equally wide and varying degree of severity. But importantly, because there are so many different types it is clearly preposterous to consider that they are all the same in terms of severity.

Research into injuries was not restricted to the KTH complex, but systematically moved to other areas of the body. As one injury mechanism is attended to successfully,

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reader an appreciation of the extent of the skull that can be affected, bearing in mind that on the basis of threat-tolife, the middle image is still considered a moderate injury, not a serious one.

mechanism that they are addressing. In order to be appropriate they must take proper account of the severity of the injury that is being addressed, and for this reason there exists a classification system to allow the engineers and biomechanical experts to consider injuries objectively. In trauma research, the most widely used injury metric is the Abbreviated Injury Scale (AIS), which was first developed in 1971 as a system to define the severity of injuries throughout the body4. This is a standardised system for categorising the type and severity of injuries arising from vehicular crashes. Because the AIS system is developed for categorising injuries and injury severity from vehicular crashes so it is directly applicable to considering the actual injuries caused in the collisions that give rise to the charges of dangerous or careless driving causing grievous bodily injury.

Image source http://img.medscape.com

Moving to the thorax, one fractured rib is classified as AIS1 (minor) whilst 2-3 fractured ribs merits a classification of AIS2 (moderate). A fractured sternum also falls into AIS 2. Rib and sternum fractures are often associated with the use of seatbelts, but we can imagine the injuries that would be sustained if the seatbelt wasnâ&#x20AC;&#x2122;t being worn in the same collision mechanics, and I will return to this point later.

The AIS severity scoring system classifies each injury in every body region by assigning a code from AIS0 to AIS6, and this will be detailed below. The important point to appreciate about the classification system is that it is based on an injuryâ&#x20AC;&#x2122;s potential threat-to-life to the injured individual. The classification is as follows: AIS code 0 1 2 3 4 5 6

Moving to the lower limbs, a fracture of the patella, tibia, or fibula are all classified as AIS2 (moderate), as is a closed and undisplaced fracture of the pelvis. In fact, we have to reach the stage of a femoral fracture before we get to AIS3, which is then considered a serious injury. An open book fracture of the pelvis or an above-knee amputation are AIS4 injuries, so this gives some example of how significant some injuries have to be in order to most definitely reach the standard necessary to be considered grievous.

Injury non-injured minor moderate serious severe critical untreatable

An important point to appreciate at this juncture is that the scale does not use the word grievous, and we can consider this aspect before moving on. The word grievous means something that is more serious than serious, and on the AIS code that would then be an injury that falls towards the severe bracket, or AIS4. In my experience I have found that medical experts can be reluctant to consider some AIS3 injuries as being tantamount to that which is considered grievous, and may elect to consider that it should be an injury in the AIS4 bracket. However, the purpose of this article is not to resolve that particular debate, but to now introduce the reader to examples of injuries that fall into the brackets of definitely not being considered grievous on the objective basis of the AIS classification system.

There are many other types of injuries that can be sustained that are beyond the scope of this article, but the important point to note is that injuries arising from motor vehicle collisions that give rise to criminal charges can be objectively assessed. When dealing with motoring charges that include causing grievous bodily injury it is important that both aspects of the charge are robustly examined. To simply treat careless driving causing grievous bodily injury as if it were a careless driving case is to fail the client on the most serious aspect of the charge. After all, it is the injury component that can take the driver to jail, not necessarily the manner of the driving. In approaching these charges there are certain steps that I encourage solicitors and barristers to take.

In respect of head injuries, AIS1 injuries include a simple undisplaced vault fracture; an open and displaced mandible fracture; LeFort I and LeFort II maxilla fractures. The adjacent image shows LeFort I, II, and III fractures from left to right respectively, so this gives the

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Firstly, and it almost seems absurd that I should have to say this but unfortunately experience has taught me otherwise, demand that the prosecution produce medical

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reports on the injuries. I have been amazed to find defence lawyers accepting statements from the Injured Party as sufficient evidence of the severity of injuries.

caused the injury. In civil law this dilemma is reflected in the compensation being reduced by 25%, but in criminal law there appears to be no mechanism to deal with it expect perhaps in mitigation.

Secondly, obtain an engineering report from a suitably qualified collision investigator who also has biomechanical experience. Such an expert can provide advices on the most likely AIS classification that is appropriate to the injury or injuries being considered.

In another case, a 5-year-old boy was strapped into the rear seat of his parents’ car, but wasn’t placed in a booster seat. During a near head-on collision he suffered what is known as submarining, in that he slipped under the lap-belt section and out of the diagonal belt. This caused his body to flex around the compressing lap belt, which caused a separation of the spinal column and serious internal injuries from which he immediately died. When this injury mechanism was explained in my report, together with a description of the contrasting situation if a booster seat had been used, the medical experts agreed that the booster seat would have saved the child’s life.

Finally, obtain a defence medical report that considers the engineering report and medical reports in order that a proper medical consideration can be given to the actual injuries sustained. Before closing, I would like the reader to consider the following brief discussion on a couple of investigations that I conducted recently.

Engineers have worked tirelessly over the years to increase the survivability of collisions with the introduction of in-vehicle safety devices. When people elect not to use these devices they are exposing themselves to risks of injury that have been engineered out. Unfortunately, one individual’s choice to not use a seatbelt, for example, can have very detrimental consequences for another driver who has no responsibility for that decision.

I have dealt with a number of cases where drivers were unquestionably facing jail because of the very extensive nature of injuries, and even the death of some. In two of these cases, the injured party in one and the deceased in the other were not wearing seatbelts. The responsibility for wearing a seatbelt, once one is older than 14 years, rests with the individual, not the driver. Yet when that person is injured or killed the severity of the injury is then directly related to the driver in the form of having

In this article I have set out to introduce the reader to the concept of objectively assessing the severity of injuries arising from road traffic collisions. It is hoped that this introduction will equip lawyers with an additional tool with which to defend driving charges where causing grievous bodily injury is included. But as noted in the cases discussed above, this approach can also be extended into other areas of investigation in motor vehicle collisions to make arguments in mitigation. ■

Forensic Engineering Solutions A Comprehensive Provider of Forensic Engineering and Scientific Solutions to the Legal Professions and Industry. We advise on Criminal and Civil Matters, such as Dangerous Driving Causing Death, Firearms, Arson, Forensic Computing, Crime Scene Evaluation, Breaches of Health and Safety Legislation, Employer's Liability, Systems of Work, Accident Investigation, Building Defects etc.

Qualifications John McGlinchey holds a Master of Science degree in Forensic Engineering and Science, a second Master of Science degree in Collision Investigation. He has taken formal studies in forensic ballistics, impact trauma biomechanics, drink and drug driving, fatigue, driver behaviour, human performance and error. He is the principal of Forensic Engineering Solutions, is a Research Associate at the Cranfield Forensic Institute, and has been investigating motor vehicle collisions for over 25 years.

We also provide a solutions service to industry in respect of production difficulties, as well as an investigation service where accidents have occurred. Additionally, we can monitor computer usage and search for abuse, as this is becoming an increasing problem in the current age. Finding the right Forensic Consultant can be challenging, but engaging the wrong one can be catastrophic. You need a Consultant who has relevant forensic experience, industry knowledge, and, of course, familiarity with the role of the expert witness within the various legal forums. Forensic Engineering Solutions has the background and knowledge to help you or your client find the answers to the myriad questions encountered in litigation, criminal defence, and industrial process problems.

Forensic Engineering Solutions

References

80/82 Rainey Street, Magherafelt, N Ireland BT45 5AJ Tel: +44 28 796 33397 Fax: +44 28 796 33397 Email: info@forensicengineeringsolutions.com Web: forensicengineeringsolutions.com DX: 3309 NR Magherafelt

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1, House of Commons Library: Reported Road Accident Statistics: SN/SG/2198 2, Hannon P; Knapp K: Forensic Biomechanics: Lawyers & Judges 3, Tortora GJ; Anagnostakos NP: Principles of Anatomy and Physiology: Harper Collins 4, Schmitt KU; Niederer P; Walz F: Trauma Biomechanics – Introduction to Accidental Injury: Springer 101

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Non-Medical Carbon Monoxide Poisoning Forensic Investigations by Stephen Walsh MSc, C.Eng, CMIOSH, Gas Safe Registered. Carbon Monoxide (CO) is similar to air in that it is colourless, tasteless and non-irritant gas. It is slightly less dense than air and is very slightly soluble in water.

fatigue leading to collapse. These symptoms being diagnosed by her doctors as congestion of the spine. On returning to England she became bedridden for six years. The diagnosing of the CO symptoms still remains a problem which can delay to the correct treatment resulting in possibly long term involved litigation.

CO is the product of incomplete combustion of carbon based fuels such as Natural Gas (methane) Propane, Butane, Petrol, Diesel and other petrochemicals. Carbon Monoxide is a toxic gas to humans and animals because the haemoglobin has a greater affinity for CO than the oxygen in the air. The inhalation of CO forms carboxyhaemoglobin (COHb) in the victims body removing oxygen from the body’s tissues including the brain. What makes CO poisoning extremely dangerous is its insidious onset. It affects the mental ability, rendering a person incapacitated without them realising the dangerous situation. Any sudden exertion by the victim may cause collapse, preventing escape from the CO contaminated location. A person trying to escape for example a CO contaminated room may collapse on leaving their bed or chair.

Carbon Monoxide (CO) poisoning from domestic and commercial gas and electrical appliances can be one of the most difficult to prove. The collection of evidence that will stand Court examination being challenging together with finding an accredited expert witness. The expert needs to understand the complexity of CO within the incident environment and the technical knowledge and expertise of the alleged faulty appliance’s operation with its possible fluing arrangement. Fatality cases have one important advantage over personal injury cases in that the post mortem report will give the level of carbon monoxide within the body normally as carboxyhaemoglobin percentage (COHb%) trapped in the tissues at time of death. Personal injury cases require the Claimant to attend hospital for COHb tests within the shortest possible time to give effective test results for litigation. Once the living CO victim has been removed from the contaminated area and they commence to breath clean air the CO starts to leave their body (degassing). In atmospheric air Carbon Monoxide leaving the victim’s

One of the first recorded cases of Carbon Monoxide poisoning was Florence Nightingale. She may have been the first recorded victim of chronic carbon monoxide (CO) poisoning. During the Crimean War she carried out her administration duties at night with heating from a charcoal brazier which made her head ache. “They are killing me” she wrote in her letter home to her Aunt Mai. She also experienced the classic CO symptoms of nausea, chronic EXPERT WITNESS JOURNAL

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cases where during the winter months victims have used cooking appliances within a sealed kitchen for heating.

body has a “half-life” of between 4 and 4½ hours. This means the COHb level reduces to half its initial level within the half-life time and continues to leave the body therefore until it has an equilibrium with the victim’s surrounding air.

As the grill frets and oven warmed so the initial CO produced reduced. However, there then comes the second issue of air supply for combustion. The burning of gas appliances requires a clean supply of permanent outside air. When gas appliances have complete combustion to their manufacturers’ settings the main products of combustion are Carbon Dioxide, reduced levels of Oxygen and Water Vapour with minimal low levels of CO. When a room has no or restricted supply of combustion air from the outside the gas flames start to burn the air mixture in the room which contains the products of combustion. These products of combustion contaminate the room air resulting in insufficient Oxygen for combustion. As the flames burn the products of combustion, the Carbon Dioxide is reduced to with the Carbon Monoxide levels becoming increased. The process continues until there being insufficient Oxygen for combustion and the flame extinguished. Unfortunately before this situation arrives the victim in the room has become unconscious resulting in possible death. During the production of CO due to incomplete combustion other components are produced such as alcohols which become oxidised forming Aldehydes which have a characteristic smell. Although Aldehydes are poisonous their levels are only of sufficient concentration to cause nuisance and irritation to the eyes. The victim would succumb to CO poisoning first rather than Aldehydes.

Several years ago as part of my Occupational Safety and Health Masters (MSc) course I undertook a dissertation to study the Carbon Monoxide gas contaminating the breathing zone of gas fitters during their national assessment for their competence by monitoring their expired breath. An interesting development from this research was the secondary Carbon Monoxide contamination present within the fitters’ environment such as smoking tobacco and being a passenger in a stationary vehicle within a traffic jam inhaling the vehicle exhaust gases through windows and the vehicle’s ventilation system. There was one case in which the tenants of a rented house alleged Carbon Monoxide poisoning from a gas fire and combined boiler installed within the living room fireplace. Upon inspection the decorations had a brown sticky layer indicating products of tobacco smoke. After extensive testing of the gas appliance no spillage of the combustion products could be established. However the medical report showed elevated levels of COHb. The source was found by making an unplanned visit to the property where I found both tenants seated in their garden shed with a motor cycle engine running, they were both smoking with the door closed. Their litigation ceased. However, it was interesting how many other local tenants made claims their gas fires were faulty. The expert for the local tenants changed his report only by amending the claimant’s name and address without changing the rest of the report. He was unsuccessful in his unethical approach. The Natural Gas supplied to the U.K. gas appliances naturally occurs underground and is mainly methane gas. The exact analysis of Natural Gas (NG) is dependent where it is extracted. Methane is the major constituent which is mixed with such other hydrocarbons as Ethane, Propane and Butane together with inert Nitrogen. The gas does not have a natural smell so for safety reasons an odorant containing diethyl sulphide and ethyle butyle mercaptan are added. Natural Gas is not toxic to the frustration of persons trying to commit suicide by putting their head in gas ovens, however they can die due to lack of oxygen.

Before the introduction of Carbon Monoxide alarms an early indication of the products of combustion spilling into a room was condensation on cooler surfaces such as mirrors and single glazed windows. As a teenager I lived on one of the new government housing estates. The house was provided with a flueless gas fire within the dining room. It was found when the family used the fire during meals and homework periods the windows would stream with condensation pooling on the window shelf. More seriously we found the fire would put us to sleep. It was agreed very quickly not to use the fire. During the 1950’s and 1960’s there was no warning or published knowledge of fumes from open gas fires. These fires are no longer available except as decorative fires which should be provided with the correct flue and permanent outside air for combustion. A fault with replacement double glazing works has been the installers either remove or cover the permanent ventilation to the room for open flue ventilated gas appliances. The result being the same as using the cooking appliances for heating. The room now has no permanent air for combustion with the outside air. During periods

The burning of gas in domestic ovens and cooking grilles can lead to CO poisoning. When a gas flame initially comes into contact with the frites of the grille voluminous quantities of Carbon Monoxide can be produced. It being a similar situation with unserviced ovens. The yellow flame being incomplete combustion. I have had to investigate EXPERT WITNESS JOURNAL

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when internal doors are open allowing the gas appliance to draw air from the whole premises the process of combustion can use the open flue. When the internal doors are closed the combustion process depletes the air from the room with the products flowing up the flue to the outside air. There then comes a point when the gas appliance has reduced the air pressure within the room in which it has been installed to relatively less than the outside air. At this point the air flows down the flue to equalise the room pressure. This process passes air and the previously burnt products of combustion in the wrong direction over the flame which creates Carbon Monoxide. The room is now containing products of combustion including CO. The room pressure becomes equalised and now the process is reversed with the combustion products flowing up the chimney until the roomâ&#x20AC;&#x2122;s relative negative pressure pulls the air down the flue and increasing the CO contamination level in the room. This process continues resulting in greater contamination within the room which can also spread to bedrooms where the sleeping victims inhale CO which can result in fatality. The present Gas Safety (Installation and Use) Regulations 1998 have identified this situation of persons covering air vents or interfering with existing installed gas appliances at Regulation 8 â&#x20AC;&#x153;Existing Gas Fittingsâ&#x20AC;? and this regulation applies to all persons not only gas fitters. The modern gas fires have an oxygen depletion device (ODD) or Flame Supervision device (FSD). This device being designed to extinguish the gas pilot light which in turn extinguishes the gas burners on reduced oxygen within the air being drawn into the combustion process.

occupant of the room died when the products of combustion entered the newly installed opened window. Keeping the chimney and/or flue unobstructed is vital for the safe operation of all gas appliances. I recall two fatalities caused by persons obstructing open flue gas appliances. The first case involved a house which had been converted into two flats. The downstairs owner had an open flued gas fire in their rear living room. The flat above had a bedroom above this living room. The upstairs flat owner removed the chimney passing through the bedroom to construct a wardrobe without notifying the downstairs owner or the local council building control. The removal of the chimney resulted in all the products of combustion from the downstairs gas fire spilling into the living room where the owner was found dead in his armchair. The other case to memory being a local builder replacing the chimney above the roof level of a house. The chimney had two flues, one connected to a gas boiler flue, the other not used. The builder firstly demolished the existing chimney and then reconstructed a new chimney without sealing the remaining vertical chimney flue from the roof down to the ground floor thereby allowing the debris to fall down the chimney to the boiler. After he had constructed the new chimney he advised the house owner

 

          

Several years ago I had reason to seek alternative Chinese medicine for a pain in my hand. Whilst seated in the rear treatment room with pins protruding out of my hand I noticed a wall hung boiler on the outside wall with the flue protruding through the wall. Upon further observations I noted there had been a lean-to conservatory constructed onto the outside wall enclosing the end of the boiler terminal. This conservatory being used as the staff rest room. When the fault was shown to the establishmentâ&#x20AC;&#x2122;s owner, the pins were hastily removed from my hand and I was requested to leave. As I am Gas Safe registered I informed the gas supplier of this serious defective installation who agreed to terminate the metered gas supply. This is another case of the Gas Safety (Installation and Use) Regulations 1998, regulation 8 contravention. Another more serious case involved window refurbishments to a hotel. Some time before the refurbishment, a commercial boiler flue had been correctly installed with its flue terminal finishing below a hotelâ&#x20AC;&#x2122;s bathroom sealed shut closed window. During the refurbishment works the double glazing company wrongly provide an openable window above the flue terminal. The

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The personal alarms are activated at 30 COppm whereupon the personnel must evacuate the area immediately. Considering some areas in which victims are found can be in excess of 800 COppm the emergency services need immediate protection. For the domestic occupant the contamination evacuation level is 10 COppm.

he could use the boiler. Due to the debris obstructing the boiler’s flue the products of combustion spilled into the house poisoning the house owner asleep in his bed. Gas appliances have to be correctly serviced. A sorry fatality case involved two elderly people in their home heated by a warm air boiler. A local plumber serviced the boiler as a friend without knowing the servicing procedures. The boiler due to incorrect combustion became full of soot resulting in the products of combustion entering the property. It was evident the residents had suffered CO poisoning for some time due to the extent of headache pain killer displayed next to their bodies.

Another matter which requires further attention is the use of cooking appliances for the expeditions travelling to cold altitudes and cold polar regions. The flame when in contact with extreme cold air, cold cooking pots melting snow and cooking cold food produces elevated levels of CO which within the confined tents can be problematical and hazardous.

The upstairs flat owner, the builder and the plumber were found guilty of gross negligence manslaughter. I am at present investigating cases in some prestigious hotels, schools and commercial establishments. Any establishment with oil, gas, LPG, wood burning oil appliances and electric storage heaters can produce CO. Wood burning fires not only produce voluminous quantities of CO but also the products of combustion are carcinogenic. So the next time you sit snugly with your alcohol refreshment in front of that wood burning stove smelling the smoke spilling into the room first remember your are possibly inhaling two major death contaminates. In another case after a hotel had been refurbished a healthy family occupied several rooms. Within a short period of time members of the family became very ill. Initially they thought they had the flu or food poisoning. The symptoms worsened and an emergency ambulance was called. The paramedics immediately identified Carbon Monoxide poisoning and the family were taken to hospital where they were given hyperbaric oxygen treatment within a local hyperbaric chamber. The search for the source of the Carbon Monoxide being identified as defective refurbishment works connecting their rooms to the hotel’s boiler flue.

Commercial kitchens can produce high levels of Carbon Monoxide due to their cooking process. In these establishments there should be a Carbon Monoxide sensing device connected to a gas valve to close the metered gas supply in the event of elevated CO levels. However, in one case the local council checked the establishment and found unsuitable gas appliances producing elevated CO levels as part of the cooking process. In their haste to close the establishment they failed to carry out the correct procedures. This is where the expert acts to safeguard the establishment for correct procedures ensuring the safe work place conditions of the employees and customers. The local council lost the case. However the establishment were made aware of their responsibilities by the expert and they in turn replaced the defective cooking appliances. Another failed prosecution in which I was the expert witness for the Defence was heard at the Old Bailey. The case involved a gas fitter who had been engaged to service a flueless water heater within a domestic bathroom. At that time the Regulations allowed this appliance to be used for no longer than 5 minutes due to the possibility of the combustion products accumulating within the room. As part of the appliance’s service a label has to be affixed notifying the user of the 5 minute time restraint. The deceased (user) decided that while he was in the bath he would top up the water temperature by using the water from the flueless appliance. The deceased was found dead in the bath. The jury found the gas fitter not guilty.

This brings me to a personal view which I have voiced and as yet not been answered. The emergency services personnel of police, paramedics, firemen and others should all be provided with personal Carbon Monoxide alarms attached close to their breathing zone, the same type as used by gas fitters. There is a strong Health and Safety at Work issue for the employer to protect the employee. The employee when entering a CO contaminated room can very quickly find themselves the victim and not the rescuer. The Health and Safety Executive (HSE) document “EH40” states the level of permitted COppm over a 8 hour period is 30ppm or 200ppm during a 15 minutes period. However victims are normally in higher contaminated air. I have known cases where paramedics have suffered the effects of Acute CO poisoning when recovering a victim from a contaminated room. EXPERT WITNESS JOURNAL

There are many different ways in which Carbon Monoxide can find its way to the victim’s breathing zone. Equally because a person has inhaled the products of combustion it does not mean they have experienced Carbon Monoxide poisoning as a correctly serviced gas appliance after its warming period may produce less than cigarette inhalation level of COppm. Equally again incorrect 105

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the victim removed from the contaminated scene and the time the blood sample taken then there are engineering methods in which the level of contamination around the victim’s breathing zone can be calculated/estimated.

serviced appliance can produce elevated COppm causing death within minutes. To assist the alleged Carbon Monoxide poisoning case it is important to appoint the Expert/Expert Witness at the earliest point in time. In too many cases the expert is appointed as the court hearing date approaches. At this time the evidence has been removed and the necessary tests including COHb have not been undertaken. An early appointment of the expert can assist the case to a positive conclusion for the Court.

◆ The complication which can cause the expert difficulty in calculating the level of breathing zone contamination is whether the victim smokes tobacco and/or recreational drugs. An important issue for the expert is also to ensure their instruments are in date, certificated and calibrated.

The expert has to take into consideration many factors when inspecting the scene and analysing the case and some of these shall include: ◆ Correct Installation/servicing of appliance to manufacturer’s Instructions and the Gas Safety (Installation and Use) Regulations.

When collecting of evidence the expert has to draw on his practical experience and expertise. For the production of his report he has to comply with CrPR Part 33 for criminal cases and CPR Part 35 for litigation. Then the meeting of experts and giving oral evidence in Court. The expert needs to attend training courses such as provided by the Academy of Experts and Expert Witness Institute, and Bond Solon for the Accredited Expert Witness. Certification awarded after examination by Cardiff University.

◆ Has the flue been installed to Regulations requirements and Gas Standards recommendations. ◆ Was their correct permanent air for combustion provided. ◆ The degree of sooting – sooting is carbon a by-product of incomplete combustion.

Example of Defective Boiler Spilling CO. View of a boiler in a kitchen. This photograph shows the black staining on top of the boiler which is characteristic of a boiler spilling products of combustion into the room and depositing carbon onto the ceiling and finishings. The kitchen had been blackened by soot.

◆ Correct metered gas supply or LPG supply. ◆ Correct metered electrical supply. ◆ Whether unauthorised alterations had been made to the appliance. Also damage and ageing. ◆ Had alterations been made to the property. ◆ The weather conditions at the time of the incident. The prevailing wind in the U.K. being south westerly. The wind striking the side of the property (windward) creates positive pressure zone relative to the normal atmospheric pressure. Should an open flue appliance be within this zone the products of combustion can be blown back towards the appliance and into the property coming out of the flue diverter. The products of combustion can be traced through the property due to the wind’s positive and negative relative pressure zones. Equally wood and solid fuel appliances have the smoke blown into the property. Boiler flue terminals too close to openings into the property can allow entry of flue gases.. ◆ Contamination/poisoning caused by outside source and third party such as gas appliance flues crossing property lines and discharging into adjacent property. This contamination can be aggravated by weather conditions. Also CO gas leaking from one property into another due to poor building construction. ◆ The Instructing Party providing the Expert with the victim’s COHb% level together with the time at which EXPERT WITNESS JOURNAL

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Tree Preservation Orders: Avoiding Costly Mistakes by Mark Chester - Cedarwood Tree Care Tree Preservation Orders (TPOs) have been part of the legal and planning framework since their introduction as part of the Town and Country Planning Act 1947. They place a restriction on the pruning or felling of trees subject to a TPO. Usually, the consent of the local planning authority is required to undertake works. In the absence of this consent, the local authority can seek to enforce the breach, including pursuing a prosecution via the Magistrate’s Court.

trees have yet to be individually surveyed. When a new TPO is served, affected parties (land owners and neighbours) can object, and raise any queries, or make an objection. The query can seek to clarify the order, if, for example, a tree has been positioned in the wrong place, or is of a different species to that listed. An objection can be because someone does not consider the tree is appropriate for protection. There is a time limit to raising a query or objection, usually 21-28 days.

Since 1947, TPOs have been subject to periodic changes. In 2012, the regulations governing the administration of TPOs were subject to a substantial overhaul. This is having an impact which can affect the unwary, both owners and local authorities.

The TPO comes in to effect as soon as it has been served as a provisional document. The local authority then has six months from the date of serving the document to confirm it, with or without any changes. They may choose to ‘not confirm’. Previously, if an order was not confirmed within the six months, it simply became inactive until confirmed. Confirmation could then happen months or even years later. Any breaches would not be enforceable between the

Trees can be protected as individuals, within groups, within woodlands or within designated areas, in which the EXPERT WITNESS JOURNAL

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trees, and unless referred to on the plan, do not provide sufficient identification. They cannot be used on their own for identification. Interestingly, the details of tagged trees were omitted from the document. They were forwarded to me subsequently, but I am not the landowner, nor the land agent!

six months period lapsing and a subsequent confirmation. Local authorities are now required to confirm the order within the six months, otherwise a new order needs to be made. It is important to check the details contained within a new TPO. One client I have worked with had no concerns when a ‘woodland’ TPO was served on the woodland backing on to his garden (and owned by his neighbour). The local authority did not wish to include the garden. Unfortunately, a brook passing through the garden was taken to be the boundary of the woodland, which actually followed a line not shown on the local authority’s plan. My client didn’t check the document for accuracy, assuming he wasn’t affected by it. Years later, as the woodland began to spread in to his garden, he found the local authority reluctant to approve the removal of individual trees, or to amend the document. He now has a woodland garden.

In another case, a local authority produced a TPO to protect trees on the boundary of a potential building plot. The order had a poorly defined plan, with a narrow box becoming a rather thick single line as the sides merged. I highlighted this anomaly, to receive the response that this was just an issue with the printer, the plan was correct on the computer. The problem is that the printed plan IS the legal document. There are many misconceptions about TPOs. These include that all oak trees are protected, that trees in the grounds of a listed property are automatically protected, and that only individual trees within a conservation area are protected. All three statements are incorrect. A tree is only protected if it is the subject of a TPO, or within a conservation area. Anomalies remain in the system. A row of conifers forming a hedge, with individual trees having a trunk diameter of more than 75mm at 1.2metres height, enjoy some protection. It is not the same level of protection afforded trees within a TPO, but the penalties for not following correct procedure can be as severe.

Once an order has been confirmed, the only way by which it can be challenged is via the High Court, citing a procedural irregularity. This would relate to the manner in which it was served, or the confirmation was organised. Whether the tree was worth protecting is irrelevant at this stage. It is a costly option which should be approached with caution, and did not apply to this woodland case. Another client faced prosecution for cutting down trees and branches he considered to be exempt due to their condition. Material that is dead, dying or dangerous can be removed without the formal consent of the local authority. The landowner is advised to notify the local authority of their intended plans, and to keep photographic records. I was able to explain to the Magistrates that due to the vague wording of the legislation, and the condition of trees still within the woodland, it was likely that, on this occasion, the works undertaken were exempt. It was possible to defend the felling of a whole tree due to a single branch being dead. The wording has been tightened (probably a good thing). It is unlikely that such a defence could be successfully presented now, as it is now only permisable to remove sufficient material to make the situation safe.

It is important, when applying for permission to prune or fell a tree, to be clear about what you wish to do. Vague requests to ‘prune’ or ‘crown’ the tree tend to be unsuccessful. However, if a local authority refuses consent, it is a good idea to explore their reasons, as these can be erroneous. A TPO only exists to protect a tree as a thing of amenity. I have seen ecology, such as the potential loss of dormouse habitation, cited as a reason to refuse permission to prune trees. Laudable though protecting dormice may be, it is not within the remit of the TPO legislation. Similarly, we need to recognise that each tree has its day, and that felling, ultimately, may be the only realistic option. One client had a large tree in her garden, which had shed some substantial branches. Several other substantial branches remained on the tree, with the local authority agreed could be removed. She was refused permission to fell because the local authority preferred the tree to remain as wildlife habitat, even though the approved pruning would leave little more than a trunk. Whilst this was an understandable request and option, the trunk would have offered little amenity value, and the applicant wished to have an attractive tree in her garden. The request was not enforceable. The appeal inspector agreed that she could fell the tree and replace it.

TPOs can see overwhelming, often being accompanied by pages of legal text. However, only two parts really matter: the plan and list of trees (called the First Schedule). These two parts need to be clear and unambiguous. One TPO I was asked to comment on last year involved protected trees being tagged by the officer. Tagging can be a sensible idea, especially when managing a population of trees, and to enable identification for example during a planning consultation, so that all parties know exactly which trees are being considered. However, they can be lost from

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However, last year, a local authority in Manchester took a different approach. A landlord who owned a property let to several tenants, was keen to increase the rental potential of the property by converting part of the front garden in to a parking space. The problem he faced was that there was a large Yew tree in the front garden which made it difficult to construct the parking space. The property is in a Conservation Area. The landlord applied to the local authority for permission to fell the tree; permission was refused and a TPO served on it.

One of the major uses of TPOs is to protect trees in the context of development. They can be protected as a feature within a development (a useful tool as the consequences of damaging the trees can be substantial). There are also situations where the presence of protected trees can limit the extent of a development, or prevent it from proceeding completely. It is important that this tool is not abused; the tree being protected needs to be of sufficient merit to justify the protection regardless of the proposed development. It is inappropriate to use TPOs to frustrate developments, popular though this measure can be with some parties.

The landlord chose to proceed with site preparation work, without felling the tree. However, his contractors caused so much damage to the roots of the tree that it became unstable and needed to be felled, which the local authority arranged. Two points emerge in relation this case. Firstly, a tree does not have to be physically destroyed for destruction to have occurred; it is sufficient to have been made ‘worthless as a thing of amenity’ (1). I will return to this point later. The second is that the prosecuting council took the pioneering decision to prosecute citing the ‘Proceeds of Crime’ Act.

The penalty for breaching a TPO is a fine of up to £2500 per offence for unauthorised pruning works, and of up to £20,000 per offence for destruction. The reality is that, until recently, fines tended to be moderate, typically several hundred pounds for unauthorised pruning and several thousand pounds for destruction. Valuing a tree following destruction can present interesting challenges, and reflects the different benefits that trees can provide. TPOs exist to protect trees where this is in the interests of the ‘local amenity’, something which neither the legislation not the guidelines for administering actually define. It is hard to place a value on a thing of amenity, such as a view! In the 1970s, the arboricultural consultant Rodney Helliwell devised a method for allocating financial value based on contribution to the local setting considering a tree’s size, future life expectancy, the local tree population (with a solitary tree being deemed to be more valuable that an individual tree within a group) and its’ suitability to the setting.

After the defendant was found guilty, the judge took in to account the value that the additional parking space had given. This was valued at between £12,000 and £16,000. The fine included £14,000 for this gain, in addition to costs.

The Helliwell Method is useful in seeking to value the amenity contribution in a way that no other system does. However, it tends to value this contribution at levels similar to the fines typically awarded when a TPO is breached. It doesn’t allow for the cost of actually replacing a damaged tree. A single young tree can cost several hundred pounds to purchase, before it has been planted and maintained for sufficient time to enable it to be independent within the landscape, and few mature trees can be adequate replaced by a single sapling. Other valuation methods factor this in.

Principle Consultant

Mark Chester BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works. He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases.

With one of the main reasons for making a TPO being in connection with possible development, pruning or removal of a tree to facilitate construction works is often the cause of a prosecution for breaching an order. If the removal of a tree makes a development more straight forward, the risk of a fine of up to £20,000 is less of a deterrent than otherwise may be the case with other scenarios. It has long been a source of frustration for tree care professionals when a substantial mature tree is felled, and following a long and demanding prosecution, the guilty party faces a fine which seems paltry compared to their gain and the loss of the tree. EXPERT WITNESS JOURNAL

Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness." Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

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One challenge that this case highlighted for me, and a problem that is likely to increase with cut-backs in local government, is the loss of local knowledge and, of greater concern, of technical expertise amongst those responsible for administering TPOs. Increasingly, non-specialist planning officers are covering specialist roles. I have found myself attending planning meetings and having to explain procedures to an officer who is covering several roles and is unfamiliar with correct procedures. There are officers unfamiliar that the regulations covering matters such as site demolition and bat protection are different to the legislation governing trees and TPOs. It may seem an ideal scenario, to have the game keeper who is unaware of the framework within which they are operating. However, having been involved in a particularly protracted prosecution case pursued by an over-zealous local authority, I prefer to follow official channels!

In 1973, a utility company dug a trench close to the trunks of a row of Horse Chestnut trees. The trenching caused extensive damage to the roots of the trees, although the trees remained alive and were not immediately unstable. Facing prosecution, the utility company argued that they had not destroyed these trees. However, expert advice was that the damage was so severe that the trees had little future life expectancy. Indeed, by the time of the hearing, many were in decline and several had been removed or had fallen over. The judgement was that as â&#x20AC;&#x2DC;the trees had been made worthless as a thing of amenityâ&#x20AC;&#x2122;, they had been destroyed. When it comes to trees and planning, the priorities are clear; planning permission takes precedent over a TPO or the protection afforded by a Conservation Area. However, many development projects, such as domestic extensions and the construction of garages, parking areas and other infrastructure, can be exempt under the Permitted Development Rights. Building Control approval is still needed, and separate tree works consent may be required. In my days as a tree officer, I had one particular case that demonstrated some of the challenges of permitted development, up to date records, especially following development, home owner honesty and thwarted dreams. I received a routine enquiry checking the presence of a TPO at a property. With the address, I was able to confirm that a Beech tree in the front garden was covered by a TPO, with no other trees or TPOs highlighted. The home owner confirmed that there were no other trees within the property, including the rear garden.

It is easy to find fault with local authorities, citing examples where one would have taken a different approach. However, I have considerable sympathy with those charged with the task of administering the system. It is not easy! Local authorities are increasingly seeking the guidance of external parties to ensure they are making informed decisions. This is to be welcomed. Just as breaching a TPO can become a costly mistake, so too can getting enforcement action wrong. For want of an independent but informed view, away from the emotion of the case, I have seen land owners face avoidable problems and local authorities pursuing flawed prosecutions. The role of the Single Joint Expert in seeking to resolve matters should not be over looked!

I subsequently found that two bungalows had been built on land to the side of the property, with two Maple trees, on the boundary, being retained and made the subject of a TPO. Their address was cited as that of the new dwellings. The residents of the bungalows shared the driveway with the owner of the original property. This driveway provided, in effect, pedestrian access to the rear garden. The bungalows were in a quiet setting and provided their occupants with the peaceful retirement they had sought. I then became aware that the owner of the original property wished to construct a garage in the rear garden, accessed from the shared driveway. Planning permission was not required, and building control stipulations related only to the standard of construction work. The owner had written confirmation from me that protected trees were not an issue for her rear garden, and she had no wish to fell the two trees.

One of the challenges that a local authority can face is how to most effectively pursue enforcement. In my early days as a tree officer, I faced a case where approved pruning had been undertaken in a particularly poor way. The TPO had clearly been breached, and the local authority pursued a prosecution. The contractor pleaded guilty and was fined several hundred pounds per tree for damaging four trees. This was deemed a great success by the local authority. However, with hindsight, I have wondered whether this was the best option. The local authority had a successful prosecution, but there was no publicity to highlight that the contractor was actually not very good at his job. The fine went to HM Treasury and the poorly pruned trees remained as they had been left. Had I explored other options, including requiring the contractor to plant some new trees locally, or to remove and replace the badly pruned trees, there would have been greater benefit for the local community. On this occasion, may I suggest mea culpa, with the invaluable benefit of hindsight. â&#x2013;

The problem she faced was that it would be impractical to construct an access to the rear garden without causing extensive damage to the roots of the two trees, subject to another TPO. The neighbours were very concerned about the proposals, which would detract from the peace of their dream setting. Someone was going to be disappointed! In the end, the owner of the original property chose to not pursue the construction of her dream garage and a contentious tree works applications was avoided. EXPERT WITNESS JOURNAL

References 1. Barnet LBC v Eastern Electricity Board [1973], WLR 430

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RICS Warns About Flood Defences The average cost of restoring a flood-hit three bedroom house to its former condition could be on average £30,000, with flood proofing costing an additional £15,000 according to data issued by RICS.

It states that flood prevention measures – including adding non-return valves to drains, raising power points and laying tiled floors – comes it at around £15,000. It adds that although it is clearly a substantial extra cost, those who have fallen victim to the recent floods should seriously consider flood proofing as a means of both protecting their home and ensuring that they don’t have their lives turned upside down to the same extent in the future.

RICS has warned affected homeowners who are having their properties repaired to consider additional flood defence measures. While potentially costly, the amount of money saved and disruption avoided in the longer term should the worst happen once more makes it a sound investment, especially for those without comprehensive buildings insurance.

Those who have been affected by flooding and are unsure as to what to do next should consult a chartered building surveyor and download the RICS flooding guide.

The average £30,000 cost of repairing a typical three bedroom semi-detached property includes the likes of timber floors, plasterboard, kitchen units and cavity wall insulation and, in many cases, will be largely covered by a homeowner’s insurance company.

Gary Strong FRICS, RICS Director of Practice Standards & Technical Guidance commented: “Now the flooding is over those who have been affected will, naturally, be going back to their homes, assessing the damage and lodging insurance claims to get their lives back on track. In many cases, costs will be covered by the homeowner’s insurer but there are many out there who do not have comprehensive cover and could end up footing a very large repair bill. In either case, we recommend that those affected consider extra flood defences.” ■

RICS observes that the claims process can potentially take many months and, crucially, those without comprehensive cover could have to foot the entire cost themselves.

CALVERT CONSULTING

Calvert Consulting provides advice and an expert witness service on nearly all mapping matters. Carl Calvert specialises in boundary and rights of way disputes in England and Wales, and in copyright and other Intellectual Property matters in 'Common Law' countries and the EU. Although the consultancy was established in 2001, Carl has experience as an Expert Witness since 1991, covering both Copyright and aspects of land law dealing with Boundaries, Adverse Possession, and Rights of Way (both private and public) in both the High and County Courts and experience as a Surveyor for nearly 35 years with the Ordnance Survey.

Services For Boundary and ROW matters • A measured land survey • Examination of deeds and plans • Examination of Land Registry Documents • Analysis of archival maps • Analysis of aerial and terrestrial photographs • Demarcation of boundaries and rights of way • Preparation of Land Transfer plans • A Civil Procedure Rules (CPR) compliant Expert's report • Advice prior to litigation • Copyright in maps & GIS’ matters • Examination of the maps • An opinion on the probable existence of copyright • Forensic Cartographic study • Cardiff University-Bond Solon Certificate as an Expert Witness • Experience as an Expert Witness in Common Law & Civil Law countries

Email: carlcalvert@aol.com Mobile: 07786 438 213 Tel: 023 8086 4643 Fax: 0871 521 0057

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Landlords Face Prosecution over Criminal Tenants Landlords are to be punished for leasing properties which house criminal activity, following new laws announced in the Queen's Speech, according to Today’s Landlord.

The owners of residential properties could be prosecuted for “participation in an organised crime group” if they fail to report suspicions that premises are being used for crime.

Property owners will now face prosecution which could lead to up to five years in jail, if they allow criminal activity to occur within their properties, under new laws set out by Her Majesty in early June 2014.

According to the Telegraph, the new offence will also apply to commercial landlords and others who provide services such as transport or parcel delivery.

It has been announced that residential and commercial landlords could be punished for “participation in an organised crime group” if they do not report suspicions that their properties are being used for criminal purposes.

“However, it is primarily aimed at corrupt lawyers and other professionals who “turn a blind eye” when working for organised crime gangs and are then able to avoid prosecution by claiming they were unaware of the criminal activities.”

Commenting on the new offence and how it is primarily targeted at corrupt lawyers, Karen Bradley, the Organised Crime Minister, said: “Nobody is above the law. But for too long corrupt lawyers, accountants and other professionals have tried to evade justice by hiding behind a veneer of respectability.” She added: “This new offence sends out a clear message to those individuals - if you are helping to oil the wheels of organised crime, you will be prosecuted and face being jailed.”

It observes that the new offence will also be used to target the “Mr Bigs” of criminal networks who can be difficult to prosecute because they maintain little or no direct contact with their criminal empires. A Home Office spokesman confirmed residential landlords would be covered by the law if it could be proved they had reason to believe the premises were essential to criminal activity.

Crime within leased premises includes using a home to farm cannabis or hoard drugs, which will both be covered by the new offence.

EXPERT WITNESS JOURNAL

For example, a house used as cannabis farm or a drugs den is likely to be covered by the new legislation. A flat used only as a gangster’s home would not be covered.

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The Telegraph reports that the new organised crime Bill will also seek to toughen laws on stripping criminals of their assets. “It emerged earlier this year that £1.48 billion in confiscated criminal assets is still outstanding, sometimes many years after courts ordered cash, property or other high-value goods such as sports cars to be handed over. A Home Office spokesman said £330,000 which was ordered to be taken from a criminal in 1988 is, at 26 years, the longest-standing unpaid confiscation order. Another totalling more than £57 million following a Serious Fraud Office prosecution has also not yet been paid. The new Bill will introduce tougher punishments for failing to pay a confiscation order, increasing the default sentence from five to seven years for orders between £500,000 and £1 million, and from 10 to 14 years for those over £1 million.” ■

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Fees Transparency to Ensure a Fair Deal for Landlords and Tenants Letting agents will be required to publish full details of the fees they charge under plans announced by government ministers in May 2014. The move ensures a fair deal for landlords and tenants, closing off the opportunity for a small minority of rogue agents to impose unreasonable, hidden charges. The common sense approach avoids excessive state regulation which would push up rents for tenants.

the minority of rogue agents who offer a poor service. Ensuring full transparency and banning hidden fees is the best approach, giving consumers the information they want and supporting good letting agents. “Short-term gimmicks like trying to ban any fee to tenants means higher rents by the back door. Excessive state regulation and waging war on the private rented sector would also destroy investment in new housing, push up prices and make it far harder for people to find a flat or house to rent.”

Currently, the Advertising Standards Authority only requires letting agents to list compulsory charges to the tenant upfront in the process. Those letting agents who are found to have imposed hidden charges face little more than being “named and shamed” on the Advertising Standards Authority’s website.

The government’s amendment to the Consumer Rights Bill will be made at a future stage of the bill. The government will review the requirement for greater transparency after 12 months of operation to confirm it is delivering the expected benefits, and review whether any further steps are needed.

But the government wants to go further than this, and will require all letting agents to publish a full tariff of their fees - both on their websites and prominently in their offices. Anyone who does not comply with these new rules will face a fine – a much stricter penalty than currently exists.

Trade bodies have said any blanket ban on all fees would just increase rents.

The plans add to the work the government is already doing to offer stronger protections for landlords and tenants in the private rented sector, whilst avoiding excessive regulation which would force up rents and reduce choice.

The government has already introduced new legislation which will require all letting and managing agents in England to belong to an approved redress scheme. Last month, Housing Minister Kris Hopkins approved 3 redress schemes that all letting and property management agents will be required to join later this year - ensuring tenants and leaseholders have a straightforward option to hold their agents to account.

Housing Minister, Kris Hopkins, said: “The vast majority of letting agents provide a good service to tenants and landlords. But we are determined to tackle EXPERT WITNESS JOURNAL

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The 3 compulsory schemes - the Property Ombudsman, Ombudsman Services Property and the Property Redress Scheme - will offer independent investigation of complaints about hidden fees or poor service. Where a complaint is upheld, tenants and leaseholders could face compensation.

• Extra guidance for local councils on tackling rogue landlords, protecting tenants from illegal evictions and how best to push for harsher penalties before magistrates for housing offences. The government is also increasing investment in house building, as well as increasing institutional investment in new private rented sector accommodation. The new £1 billion Build to Rent fund will provide development phase finance to large-scale private rented sector developments, building up to 10,000 new homes for private rent and demonstrating the viability of developing and investing in large-scale private rented sector projects.

Other measures in the pipeline include: • A new code to set standards for the management of property in the private rented sector - with a view to making it statutory • A new “how to rent” guide, which will help tenants understand what they should expect from their rental deal

The government’s housing guarantee scheme is also supporting up to £10 billion worth of investment finance in large-scale private rented projects and additional affordable housing. ■

• The introduction of a voluntary, model tenancy agreement, which landlords and tenants can use for longer tenancies, which will provide extra security and stability for families

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Feigned or Faux? by Andrew Acquier FRICS them down and repainted them as ‘marine’ chests with ropes, anchors and other maritime motifs. They sold well as decorative pieces, the buyer being made fully aware that they were purchasing a revamped piece, the original of which did not exist. James’s firm also invented the carved half fish and half ships that used to hang in many pubs in the 1970s and 1980s. Crabtree and Evelyn contracted him at one time to produce hand painted signs for their outlets.

‘Come and have a look at this’, my client James beckoned me over. It was a catalogue from a joint venture involving a London museum and an American one celebrating the 200th Anniversary of the 1776 Declaration of Independence. The cover depicted the upper half of an inlaid marquetry eagle or some other bird above a vertically striped shield, the whole on an irregular oval stained softwood ground. ‘My carver in Devon made that’ said James. ‘It was a special commission and now it’s a catalogue cover’. Although, on initial investigation, the book did not claim the carving to be of any age, the implication was that it dated from the time that the museums were commemorating. Otherwise, why use it?

So it was not a great surprise to hear that my client had also approached one of the leading London auction houses. He pointed out to the cataloguers of the ship’s figureheads that had originally come from one of his carvers that polystyrene had not been invented in the early 19th century. I also heard about his Dutch painter of naïve beach scenes featuring Jolly Jack Tars, to which she added the signature ‘Samuel Snodgrass’. She thought it would be an obvious sign to the buyer that the work was of no age and was amused to find her work, supplied at £20 a pop, appearing in sale catalogues and selling for between £200 and £300. A short biography of the artist appeared in one catalogue!

Was it a fake or a forgery? No, because no apparent claim was being made for it. But it was a pastiche, a work of art using the style and materials of the period so that the result appeared to be of that time. But hang on just a minute, a closer examination revealed that the image was repeated within the text and was supposed to have formed a table top of a tripod table from a private collection and made in Connecticut in 1805. James pointed out that the base was crisply and evenly carved and bore no relation to the unsophisticated nature and uneven dimensions of the top. He had sold the piece as a wall hanging to an American collector and was surprised to see that it had reappeared with such a provenance. So it was a fake, as it was not as claimed, but not a forgery, as there was no intention by the original seller to deceive. It was still a pastiche.

The final story in connection with these facsimiles and pastiches occurred a number of years ago. My client was walking down Bond Street when he spotted a carving of a deer in the window of an exclusive antiques shop. He recognised it as having been made by his Devon carver for a special commission. He had paid £40 for it and sold it on for £80. He entered the shop and enquired as to the age and the price of the carving. He was told that it was a rare Richard III carving of a roe deer and priced at £6,500. Given that Richard was only on the throne for two years before losing his life at Bosworth Field, this appeared to be a remarkable feat of cataloguing. James then revealed

James ran a firm in Whitstable, also with an outlet in Colorado at one stage, that took old pine chests, stripped

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The consortium then tried to rescind the sale and get their money back.This was refused and legal action commenced.

his involvement. At the time of our meeting, James showed me the letter, written to him by one of the directors of the antique shop, requesting that he should make a stag carving to create a pair. He refused and thought that the matter was at an end. He asked for the roe deer to be removed from the window and understood that this had happened. The next he heard was that an investigative journalist had revealed that Harrods had bought it and sold it on for £11,000, at which stage the buyer had its authenticity checked. A further complication was that the journalist was working for the News of the World, but the editor was apparently a friend of Sir Hugh Fraser, the Chairman of Harrods, and the journalist suddenly found himself without a job. The story was then published in another Sunday newspaper.

I was then contacted by solicitors to value all the drawings and the ‘basket’ collection. It was clear to me from the start that these were works that appeared to imitate Francis Bacon’s style, without communicating any feeling whatsoever. Francis Bacon’s finished oil paintings have a contortion and tension about them that is unmistakeable. How could it be lacking here? After exercising due diligence and research into comparables, I valued them at a great deal less than the $1,000,000 or so that the new owners had hoped to achieve for each in selling them on. My report was then submitted. When the case came to court, Martin Harrison, the Chair of the Bacon Authentication Committee and the editor of the artist’s Catalogue Raisonne, due to be published later this year, also came to give evidence and stated that the drawings were not by Francis Bacon. There had been a complication in that some of the drawings from the Ravarino source had previously been featured in a court case in Italy and the judge in that trial had declared those particular drawings not to be fakes. The court had also ruled that some of the signatures were by Bacon. In the case where I had given Expert Witness, the judge determined that all the drawings put before the court were forgeries. The London Appeal Court rejected a bid to introduce new evidence in October 2013.

The roe deer was not intended to be a fake or a forgery, merely a reproduction, but its fate was determined by those seeking a substantial profit. Since that time I have seen other reproduced pairs. One pair used to flank the top of the stairs in the Savoy Hotel leading down into the River Room before its refurbishment a few years ago. More recently I was involved in an expert witness case involving a number of allegedly fake Francis Bacon works that had been offered to a consortium led by an experienced dealer. This involved six purported Bacon large scale drawings that had been executed by the artist and given to one of his then boyfriends, Cristiano Ravarino. Ravarino has claimed that between 300 and 600 of these large scale drawings (depending on which conversation was referenced) had been given to him by the artist as Bacon did not wish them to be included with the rest of his known work. Furthermore Bacon had claimed that he did not draw, although a small number of his oil sketches were extant as preparatory studies for finished oil paintings, but nothing in pencil. He had even cut the face out of several portraits with which he was unhappy, indicating how concerned he was as to how his work should be judged.

This leads us to another question. How should we assess the paintings produced by an assistant in an artist’s studio? They are clearly not fakes or forgeries, but are they to be regarded as genuine works? In the case of, for example, Sir Anthony Van Dyck (1599 – 1641), the artist, once successful, maintained a large London workshop, where he usually made a sketch, which an assistant then enlarged on canvas. Van Dyck then returned to paint the head and other flesh tones and left his assistants to complete the work; specialists in painting clothes were engaged where necessary. So a form of production line was created. In valuing a work by Van Dyck, it is essential to establish how much of the painting is ‘autograph’/actually his own work. Before establishing his studio he painted all of the work himself. So the value here will depend on the perceived involvement of the artist as adjudged by experts.

These six pieces had been offered alongside a basket of works that the dealer had understood had come directly from John Edwards, Bacon’s last boyfriend and the inheritor of part of his estate. When John died, his brother David inherited John’s estate. A premium price was sought, given the provenance direct from the artist. A deal was struck and money changed hands. At roughly the same time, another group, represented by a second dealer, bought another six large scale drawings from Edwards. The new owners of the first six, who had in place a potential sale to another collector, then submitted their works to the Francis Bacon Authentication Committee and were alarmed when these were rejected. The Committee stated that the style was “inconsistent with all the sketches and paintings currently attributed to Bacon.”

EXPERT WITNESS JOURNAL

When I worked for one of the leading London firms of auctioneers and valuers, one assignment took me to a house overlooking the Thames near Pangbourne. The clients owned a version of William Powell Frith’s ‘The Railway Station’, which depicts in detail a crowd at Paddington Station in the early 1860s. This was understood to be one of three versions completed by the artist, one of which is at Royal Holloway College; a second is in the Liverpool Museum. This third had been in the 117

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So how can we be sure that a fake is a fake and not a misidentified masterpiece? A great deal currently depends on the opinion of the world specialist, of which there are often more than one, working as a committee. And experts change their minds depending on the evidence placed in front of them. It can work the other way – the Rembrandt authentication committee sits every seven years and takes a fresh look at all the works fully attributed to the artist at that time. If a majority vote decides that a particular work is not genuine, then it is un-Rembrandted. Who the owner is makes no difference. Even the last Duke of Westminster had a previously authenticated painting’s authenticity reversed.

possession of the family for many years. On the basis of an initial appraisal, the family decided to sell and the work was taken to London for auction. On the day before the sale was due to take place, one of the leading picture dealers distributed a paper indicating that this version was not a work painted by Powell Frith, but by one of his apprentices, Marcus Stone. When the painting came under the auctioneer’s hammer the next day, enough suspicion had been aroused for many hitherto potential bidders to watch but not raise their hands, which resulted in the lot being unsold. It became evident on further research that Marcus Stone had painted this version under the supervision of Powell Frith, who had then signed it once complete, thus giving it, in his mind, his imprimatur. So is this work to be regarded as a fake, a forgery or a facsimile? Or is it the genuine article? We live in an age when, as did Andy Warhol before him, Damien Hirst has a factory which produces completed works to which he adds his name, and these works are regarded by the market as genuine. Have we changed the way in which we attribute art? And where does Marcus Stone fit into this? His own work was greatly appreciated and he became a collectable artist in his own right. He was successful enough by 1875 to commission Richard Norman Shaw to design for him The Studio House in Melbury Road in Kensington. And in 1993 his version of ‘The Railway Station’ was put up for auction again, when it made £133,500.

Can you be sure that you are looking at the real McCoy? It is all down to the level of scholarship that applies that day. There are often only temporary guarantees of authenticity, rarely definitive ones. You can never take it as read that historic authentication will apply when a painting is reoffered for sale. With increasing levels of professionalism Arts Surveyors are at the forefront of ensuring that owners get the correct levels of identification based on current evidence. ■

An added complication is that William Scott Morton, an architectural draughtsman, had been employed by Powell Frith to paint the structural elements of the station – these take up almost all of the upper part of the canvas. That means that the two fully attributed versions were only ever 50% painted by the artist in the first place. Another recent instruction involved an oil painting by Turner. A dealer had bought a work for a nominal sum that he believed was by Joseph Mallord William Turner (1775 – 1851) and then set about trying to prove it. The picture depicted Louis Philippe’s yacht entering Portsmouth Harbour. At one stage it was brought to the attention of the six Turner world experts, who all turned it down. My client carried further research, but wasn’t getting anywhere. Separate research on two sketches, nothing to do with the dealer owner, then resulted in a change in their attribution to Turner from James Duffield Harding. These were two preliminary sketches for the dealer’s finished oil. One by one, with the fresh evidence in front of them, the world experts changed their minds and a paper was written and published by the Turner Society acknowledging and detailing the new find. It was finally accepted that this was one of the paintings inherited by the son of Turner’s Margate landlady and subsequently sold in Wales a number of years later. Its value, given the authentication, has increased enormously. I was brought in to provide an open market value for the painting to be used as collateral. EXPERT WITNESS JOURNAL

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EWI Annual Conference 2014 will go down in the legal history books as the watershed year: A year when traditional legal practice finally changed forever No-one would have imagined that we would see Lord Justices on the picket line over reforms to criminal legal aid, nor civil claims struck out for minor breaches of process. All those who want to survive in the new era, whether drawn from building, construction, medical, criminal or other expert fields need to attend the EWI Annual Conference to learn from those who have been influential in the key reforms, and who have an inside track on what the future will hold. The conference will take place on 25th September at the Church House Conference Centre in Westminster. We have already sold a quarter of the delegate places so it is important that you book early this year. As you know the conference is not just for the membership – please do invite colleagues and associates who may be interested in entering expert work – we would be thrilled to meet with them to discuss the opportunities available.

Highlights of the day will include addresses from: Sir Vivian Arthur Ramsey one of the architects of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act) has openly declared he would “change Jackson if necessary” He will address the EWI Conference and provide his perspective on the successes and failures of the implementation of the Jackson Reforms. Ramsey was keen to emphasise there were always going to be ‘transitional provisions’ which would delay full implementation by up to a year. “One of the concerns was the time which would be taken in dealing with case and costs management in the initial Costs and Case Management hearing,” said Ramsey.’ (Law Society Gazette 2013).

Topics for the day will include: Access to justice Cuts to legal aid New ‘expert guidance’ International expert evidence Expert Meetings Mediation Improving your T&Cs SJE Session Understand your obligations and increase your earning potential Best practice advice

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Our own Chair, Sir Anthony Hooper has spoken out against the cuts to legal aid. The former Court of Appeal Judge has challenged the government’s proposed changes in England and Wales. Sir Anthony Hooper said the plans intended to save £200m a year – “risked destroying a system of fair justice that was the envy of the world.” (as interviewed on BBC Radio 4 4th June 2013)

Throughout 2014 the EWI have been working on an international project the goals of which are two-fold. Firstly to source work for EWI experts overseas in order to expand their repertoire and expert experience in differing jurisdictions. Secondly, our aim is to recruit more experts from abroad. The Institute already has members in Australia, South Africa, the USA and throughout Europe but our vision doesn’t end there. As part of this scheme our newest Governor and renowned financial expert Dr Thomas Walford will lead an international expert evidence panel session as part of the conference. The panel will feature; US Attorney Alan M. Anderson, FCIArb, Phillip Mead (Pan European Organisation of Personal Injury Lawyers), Dr Carol Ludington (US Damages Expert and President of Ludington Ltd) and Professor Rachel Mulheron of Queen Mary University.

Senior Court Judge Mr Justice Coulson who sits on the Rule Committee, will give a view from the bench and evaluate the somewhat bumpy road encountered in the first two years of the Jackson Reforms. Lord Daniel Brennan QC – senior associate at Matrix Chambers and an original Governor of the EWI back in 1996, Lord Brennan will address the issue of central concern which is whether experts are fit for purpose during these tumultuous legal times.

One of the final and most important sessions of the day will feature an update from District Judge Suzanne Burn and Ms Amanda Stevens, who together will provide an update on the ‘New Guidance for Experts’ as drafted by the Civil Procedure Rule Committee.

Professor Adrian Zuckerman – one of the main contributors to the Jackson reforms is an authority on the principles of practice of civil procedure. In his session he will reflect ‘new legislation, case law and developments, especially those following from the Jackson Report and the numerous changes to the Civil Procedure Rules and Practice Directions’. He will explore ‘how judges exercise their extensive case management powers and what this means for the conduct of litigation’.

The day culminates with a fabulous 3-course meal including a very special dinner address from Dr Harry Brunjes who always enlivens the room with his interactive dinner lectures. Delegates in attendance will include experts of all professions, solicitors, barristers and members of the judiciary. This year we anticipate over 150 delegates. Each year we also welcome a number of members of the press to review the successes of the day. This year we are proud to confirm support from the following organisations who will be exhibiting at our conference ; Lexis Nexis, JS Publications, Professional Solutions, The Grange Hotels, Your Expert Witness (DMM Online), The Papworth Trust and others to be confirmed shortly.

Mike Napier will chair a dynamic panel session which will feature Mr Justice Ramsey and Mr Justice Coulson as they postulate how the legal landscape will evolve in the months ahead. David Marshall (The Law Society) – Mr Marshall will be presenting an update from the perspective of the Law Society having attended the Civil Justice Council’s review day on the Jackson Reforms. An issue of central concern to all experts is the eternal problem with remuneration. This year the EWI have run pilot courses on how to revise your terms and conditions of engagement. These courses have been highly successfull and hopefully eased the burden many experts experience when chasing outstanding invoices. EWI Fellow and experienced expert Dr Bob Goodall will chair an afternoon panel session entitled ‘Getting Paid Post Jackson’, which will provide you with top tips on how to tighten up your T&Cs and relieve administrative burdens which may be monopolising your precious time. Dr Goodall will be joined by John Mead (Technical Claims Director at the NHSLA) and Steven Green (Head of Costs at Irwin Mitchell) whose wisdom and experience will provide practical advice and guidance for getting paid promptly and painlessly.

EXPERT WITNESS JOURNAL

We look forward to seeing you at the conference. Please contact us if you have any queries relating to the event. Annual Conference: £225 (member) £255 (non-member) £80 (student) Annual Conference and Dinner: £285 (member) £315 (non-member) Half Day (am/pm including lunch): £125 (member) £145 (non-member) £60 (student) Book Now: E: events@ewi.org.uk T: 0207 405 5854 W: www.ewi.org.uk

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The Expert Witness Institute Annual Conference 2014 Expert Witnesses - Fit for purpose?

Expert meetings New â&#x20AC;&#x2DC;expert guidanceâ&#x20AC;&#x2122; Best practice advice Improving your T&Cs International expert evidence Single joint expert guidance Understand your obligations and increase your earning potential! CONFIRMED C ONFIRMED SPEAKERS SPEAKERS IN INCLUDE: C UDE: CL The H The Hon. on. M Mrr JJustice ustice R Ramsey amsey Q QC C Lord Daniel Brennan QC L ord D aniel B ren nnan Q C Thee H Hon. Mrr JJustice Coulson Th on. M ustice i C oulson Professor Adrian Zuckerman (University off O Oxford) P rofeessor A drian Z uckerman (U n versity o ni xfford) d Michael Napier CBE QC M ichael N apier CB C EQ C Thee R Rt. Hon. Hooper Th tt. H on. SSir ir Anthony Anthony H ooperr (NHSLA) JJohn ohn Mead Mead (NH SLA) Tim Wallis (Mediator) T im W allis (M edi d ator) Alan Attorney) A lan Anderson Anderson (US ( A ttorney) Carol Ludington (CPA, CFF, CLP, ACIArb) C arol L udingt g on (CP PA A, CFF F, CLP P, A CIArb) David D avid Marshall Marshall (The ( e Law (Th Law Society) Society))

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25th September September 201 2014, 4, Westminster Wes e tminster Early B Early Bird ird Dis Discount coun u t : Book Book before beffore 31st 311st M May ay 2014 tto o ssecure ecur u e a 10% discount discount XXXFXJPSHVLtFWFOUT!FXJPSHVLt X XXF  XJPSHVLttFWFOUT!FXJPSHVLt EXPERT WITNESS JOURNAL

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The new GS 300h delivers 223 din hp, yet emits just 109 g/km of CO2. CO2 combined (g/km) 109 Combined mpg (l/100km) 60.1 (4.7) Acceleration 0-62 mph (s) 9.2 Maximum Speed mph 118

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A 2.5-litre direct injection petrol engine is mated with a second-generation Lexus Hybrid Drive to produce a EXPERT WITNESS JOURNAL

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CSA are members of the Association of Noise Consultants of which two of our experts are former Chairmen. Our firm is not part of a multi-disciplinary environmental or engineering consultancy – we are specialist acousticians with a range of super specialisations within the fields of acoustics, noise and vibration. Environmental noise: Community noise; Sports noise; music, planning inquiries; skateboard & clay pigeon shooting noise; underwater acoustics; motorsport. Transportation noise: Prediction & expert evidence on aircraft noise; Railway noise and vibration; Road traffic noise. Architectural & building acoustics: building services noise; airborne & impact sound insulation; forensic building acoustic investigations; room acoustics; performance venues; speech intelligibility. Workplace & industrial noise: Occupational hearing damage assessments & evidence; control of plant noise & vibration. Vibration damage to structures. Criminal Prosecutions Forensic acoustic reports in relation to audibility and intelligibility of speech or other sounds. Our experts Alan Saunders BSc (Hons) CSci.CPhys.FIOA Email: asaunders@clarkesaunders.com Matt Sugden BEng (Hons) MIOA Email: msugden@clarkesaunders.com Ed Clarke BEng (Hons) MIOA Email: eclarke@clarkesaunders.com Dan Saunders BA (Hons) MIOA Email: dsaunders@clarkesaunders.com

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The Expert Witness  

Issue 8

The Expert Witness  

Issue 8