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contents IN THIS ISSUE
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Opening Statement MoJ censured as Committee slates interpreter contract New Bill extends parental leave rights Top divorce lawyer offers cohabiting couples ‘no-nups’ Directors warned as report highlights a rise in corporate manslaughter cases Dispute numbers fall as recession fades
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PROPERTY & CONSTRUCTION 8 8 9 9 10 11 13
New helpline aims to help catch property fraudsters How to find the right solution for the injured party RICS: lettings agents should be regulated Prizewinner demonstrates increasing importance of geomatics Special buildings need specialist advice With Chris’s advice, commercial service charges can be fairly determined Compulsory purchase – acquirer or acquired?
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FINANCIAL 14 15
QC told to expect jail over VAT fraud The offence of financial fraud
COMPUTER FORENSICS 16
Serious organised crime – a computer forensics expert’s perspective
LIFESTYLE 41 41
Four legs better! The joys of horse ownership Luxury car sales hit record highs
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EXPERT CLASSIFIED 42 46
Expert witness classified listings Medico-legal classified listings
MEDICAL ISSUES PERSONAL INJURY CLAIMS 17
APIL predicts haemorrhage of personal injury staff
FAMILY ISSUES 18 25
Adoption following care proceedings New rules restrict experts in child care cases
TOXICOLOGY & SUBSTANCE ABUSE 19 21
What price ‘the cat’? Drug Driving
PSYCHIATRIC ISSUES 23
Attention Deficit Disorder in adults
SPEECH & LANGUAGE THERAPY 31
New commissioning arrangements spell change for speech & language therapists
COSMETIC SURGERY 33
Cosmetic surgery responses published
ORTHOPAEDICS 34
The claimant’s perception of what has happened may be misleading
MEDICO LEGAL REPORTING 37 39
Straying outside the boundaries Disability assessment for benefit claims and UK GPs’ conflict of interest
CARDIOLOGY 25 25
SADS campaign saves lives, despite lack of expert agreement on definition Cardiac conference highlights health inequalities
OBSTETRICS & GYNAECOLOGY 27
Failed female sterilisation: establishing liability
DENTISTRY 29
CTMJ dysfunction: its diagnosis and treatment
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Opening Statement WELCOME TO THE FIRST issue of Your Expert Witness of 2013. It looks as though this year is starting on the same foot as last year ended for some of our expert witnesses. Just as they got used to tightening their belts following the reduction in fees and towelled themselves down from a session in the hot tub, along comes Lord McNally and tells them they are no longer required at all. That is in the family court, where the government is trying to reduce the length of time cases take.
There is, however, a potential opening for experts in another sphere of activity. Solicitors Pinsent Mason have reported an almost exponential rise in the number of new prosecutions for corporate manslaughter – 63 cases were initiated last year compared to 45 in 2011. There have, however, been only three convictions since the Act came into force in 2008. However, the firm’s specialist health and safety partner Simon Joyston-Bechal has warned against complacency among high-risk firms: “The three convictions so far are just the tip of an iceberg,” he said, adding: “We can now see from these figures that there are a rapidly growing number of cases in the pipeline.” He argues that the small number of convictions is due to the complexity of such cases, meaning there will be more as time goes on. Others argue that the fact the police are the primary investigators, rather than the HSE, is a major factor. In August last year, Jonathan Grimes, criminal litigation partner at London law firm Kingsley Napley, wrote: “The police teams investigating these cases are invariably drawn from criminal investigation departments diverted, for the duration of the investigation, from their normal role investigating other forms of serious crime. Significantly the police officers involved rarely have any previous experience of fatal accident investigations.” It remains to be seen which of those opinions is borne out.
For those who still find themselves in straitened situations, however, the prospect of acquiring a luxury car to ferry them to and from the family court may seem a distant one. Sales, however, are booming for those two stalwarts Bentley and Rolls Royce, with The US once more proving to be the top market. Still, if we can’t afford a limo just yet, most of us can enjoy the thrill of jointly owning a racehorse. Our new Lifestyle section explains how. On the subject of sport, Fabrice Muamba has thrown himself into the campaign to have defibrillators available at all sports venues. Had the device that saved his life been widely available, many more young lives could have been preserved. There is an online petition to sign.
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MoJ censured as Committee slates interpreter contract THE JUSTICE COMMITTEE OF the House of Commons became the latest high-profile body of MPs to lambast the Ministry of Justice for its appointment of Applied Language Solutions to provide all translation and interpreting services to the court system. According to a report published on the Parliament website on 6 February, the committee found that the MoJ “…pushed ahead with outsourcing court interpreter services despite warnings that the quality of court language services would be reduced”. The chair of the Committee, Sir Alan Beith MP, said: “The Ministry of Justice’s handling of the outsourcing of court interpreting services has been nothing short of shambolic. It did not have an adequate understanding of the needs of courts, it failed to heed warnings from the professionals concerned and it did not put sufficient safeguards in place to prevent interruptions in the provision of quality interpreting services to courts.” According to the MPs, significant concern was revealed in the MoJ’s consultation process that quality standards could be diminished by the imposition of a tiered system to enable a wider pool of interpreters, and by the introduction of lower levels of pay. The Committee also condemned the actions taken by MoJ: the Courts and Tribunals Service (HMCTS) instructed staff not to participate in the Committee’s online consultation. “The Committee considers that the actions of the Ministry in this case may have constituted a contempt of the House, but as it received sufficient evidence from other sources to make a reliable judgement, it has not asked the House to take further action on this matter,” the report states. During the Committee’s inquiry, the chairman of the Magistrates
Association said in evidence that he personally had experience of a Russian interpreter failing to translate evidence given by the defendant. “This person’s job was to interpret, not to decide ‘that’s not important’,” he told the Committee. The report was the latest in a series of highly-critical Sir Alan Beith MP, chair of the findings by MPs, including the Justice Committee Public Accounts Committee. The MoJ’s own Statistical Bulletin also showed substantial failings. Many professional interpreters boycotted the new system and an umbrella body, Professional Interpreters for Justice, was formed by, among others, the Chartered Institute of Interpreters and the National Register of Public Service Interpreters. Representatives met with Justice Minister Helen Grant on 4 December, after which the chair of the Chartered Institute of Linguists, Keith Moffitt declared: “There’s a real risk of the legal interpreting profession collapsing and we are encouraged that the Justice Minister wants to listen and properly engage the profession in the interests of delivering justice. Our members are principled individuals who feel their professional status has been watered down by the absence of quality in this private contract.” q
New Bill extends parental leave rights ON 5 FEBRUARY THE Government published its long-awaited Children and Families Bill, which outlined a number of changes in the adoption and family justice system and provision of childcare. It also proposed significant changes in maternity/paternity leave and flexible working, in particular allowing ‘shared parental leave’. According to a statement by the Department for Business, Innovation and Skills (BIS): “The government will move away from the current old-fashioned and inflexible arrangements and create a new, more equal system which allows both parents to keep a strong link to their workplace.” Tim Chambers, of the Chartered Management Institute, explained: “The Children and Families Bill is set to allow mothers
to finish maternity leave following a two-week period of recovery, after which parents will be able to share out 50 remaining weeks of leave if they wish. “Dads are also set to be given a new right, meaning they will be able to get unpaid time away from work to go to up to two antenatal appointments regarding a newborn. “Meanwhile, people who have a new child that they have adopted are going to be given entitlement to leave and pay at an equivalent level to parents who have a new child by birth.” Introducing the Bill, Business Minister Jo Swinson said: “Current workplace arrangements are old-fashioned and rigid. The Children and Families Bill will bring the way mums and dads balance their lives at work and at home into the 21st century.” q
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Top divorce lawyer Directors warned as report highlights a rise in corporate manslaughter cases offers cohabiting couples ‘no-nups’ ACCORDING TO LAW FIRM Pinsent Masons, there were 63 new corporate manslaughter cases opened in 2012, up from 45 in 2011 and currently there are 56 prosecutions on-going. There’s no doubt that regulators are getting more and more experienced in bringing these type of prosecutions and it’s widely acknowledged that soon, when there is a fatality at work, it will be the norm for a prosecution to be brought. Pat Perry, Executive Chairman of leading health and safety consultants, Perry Scott Nash Associates (pictured), has warned all businesses in the hospitality and licensing sectors to pay due regard to health and safety and to have procedures in place to protect both employees and customers. She said: “Directors of businesses need to remember that the charge of corporate manslaughter can be brought where there has been ‘management failure’ and
THE NUMBER OF COUPLES signing ‘no-nup’ agreements before they move in together is rising sharply, according to Deborah Jeff, Head of Family Law at central London law firm Seddons (above). Some of the contracts are intended to ensure that family wealth or assets brought into a relationship by one partner remain under their control. Deborah explained: “Whilst those who take advice before living together are still in the minority, those who do can take various steps to protect themselves financially. Most people don’t think to take advice or just aren’t aware that there are straight forward steps they can take at the beginning of a relationship to protect themselves should things not work out. This can spare them considerable cost financially and emotionally if the relationship ends. “The cohabitation agreements often follow pressure from parents determined to prevent money given to their children from being wasted by free-spending partners. “They can also cover areas of potential conflict such as who pays household bills and whether the couple will have joint credit cards and bank accounts. “Other common elements of the contracts include stipulating who should take responsibility for loans, what should happen if one partner dies, and whether one partner should be able to buy the other out of their share of property if they split”. q • Figures from the 2011 Census showed 6.5 million people are now in cohabiting relationships.
experience tells us that any fatalities at work are, in the main, the result of management failure. This means that directors, in their role, may find themselves in court and being prosecuted personally. They cannot hide behind the company”. Pat finished by saying: “Directors need to be aware that cutting investment in health and safety, fire safety, food safety and training, is not an option for businesses – the real costs can be too great if things go wrong”. q
Dispute numbers fall as recession fades THE TOTAL NUMBER OF commercial and civil disputes resolved through arbitration, mediation and adjudication fell in the two years to 2011 – from 27,110 in 2009 to 21,260. The fall was attributable to the abating of a surge in disputes in the immediate wake of recession, according to a research report published by the financial services lobby group TheCityUK. According to the report, London and the UK remain well positioned internationally in the conduct of dispute resolution. Announcing the publication of the report, TheCityUK said: “London is the most preferred seat of arbitration and companies are twice as likely to choose English law over any other law. The new Rolls Building in London, opened in 2011, is helping to sustain the UK's reputation as the first choice for business law.” The report, Dispute Resolution in London and the UK, was sponsored by the Law Society, the Bar Council, the Centre for Effective Dispute Resolution (CEDR) and legal consultancy Jomati. In addition to providing a comprehensive gazetteer of organisations acting in the UK to provide dispute resolution, it offers an overview of the alternative dispute resolution forums offered by the UK to international organisations. “Cases involving international parties to a dispute tend to be heard in a number of the specialised courts in the UK, notably the Admiralty Court, Commercial Court, the Technology and Construction Court and Chancery Division,” the report says. “The use of these courts indicates a preference by foreign parties to litigate in the UK. Factors motivating parties to choose one of these specialist courts as the venue for dispute resolution include: specialist judges drawn from the best specialist practitioners in the field, efficiency and speed, consistent decisions, enforceable judgments and preference for London as a location. “These courts also have an important role with respect to arbitration claims, including determining whether an arbitration agreement is valid, determining whether an arbitration tribunal has been properly constituted, seeking the courts’ powers under the Arbitration Act 2006 to support arbitral procedure and challenging an arbitral award.” Those factors have resulted in companies being twice as likely to choose English law over other governing laws for arbitrations. English law was chosen by 40% of companies and New York state law by 17%. The common costs of arbitrations in the rest of Europe are also 18% higher than in the UK, according a 2011 survey of 20 arbitral organisations by the Chartered Institute of Arbitrators. q • Dispute Resolution in London and the UK is the latest in a series of reports on the subject published by TheCityUK. The reports have been published biennially since 2006 and every three years prior to that. www.yourexpertwitness.co.uk
New helpline aims to help catch property fraudsters
A PROPERTY FRAUD LINE has been launched by the Land Registry for homeowners who are concerned that their property might be subject to a fraudulent sale or mortgage. Callers can speak to specially trained staff for practical guidance about what to do next. Properties most vulnerable to registration or mortgage fraud are usually empty, tenanted or mortgage-free. Individuals at a higher risk of fraud include owners who do not live in the property because they live abroad, are buyto-let landlords, are in long-term hospital or residential care or are in a position where a relationship has broken down. Examples of property fraud include situations where a buy-to-let landlord gets a call from a local estate agent saying that one of his rental properties seems to be being marketed for sale or where a relative learns that a property has been ‘stolen’ by a fraudster impersonating the deceased proprietor. Director of legal services at the Land Registry, Alasdair Lewis, said: “Fraud affects all parts of today's society and everyone in it, costing this country an estimated £38bn each year. Government has a zero tolerance to fraud against the public purse, but in order to fight fraud everyone needs to work together. The need for everyone to play their part is just as relevant in the fight against property fraud as in other contexts.” In addition to the new helpline, the Land Registry’s trial of a free restriction for absent owners is being continued. Around 5,000 properties have been protected in this way since the trial began in February 2012. Designed to help prevent forgery, the restriction requires a solicitor or conveyancer to certify they are satisfied that the person selling or mortgaging the property is the true owner. There is no Land Registry fee for homeowners who wish to register this restriction as long as they do not live in the property. Owner occupiers pay a small fee. Land Registry’s Counter-Fraud Unit picked up the top prize in the Fraud Prevention Category at the inaugural Fighting Fraud awards in December. R • The new helpline number is 0300 006 7030 and it is open from 8.30am to 5pm, Monday to Friday.
How to find the right solution for the injured party ASSESSING COMPENSATION IN THE field of personal injury often requires an accurate assessment of the adaptations needed to the victim’s home to accommodate their disability and allow them to live a normal life. Such assessments require the view of an expert in the field, in order for an accurate view to be arrived at. One such expert is James Groux, founder of Building Design Workshop, which specialises primarily in the field of personal injury. Since founding the practice in 1990 James has acted for over 200 clients in the
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design of both new build and adaptation work for many types of disability. Many of these projects have been undertaken by way of James acting as expert witness, giving advice and writing reports for the courts. Building Design Workshop operates throughout the UK and abroad, undertaking a variety of projects – all professionally carried out utilising expert knowledge spanning 23 years in the field. R • To find out more about James and Building Design Workshop, visit www.expertsbdw.com.
James Groux, founder of Building Design Workshop
RICS: lettings agents should be regulated THE RICS HAS CALLED for the compulsory regulation of lettings agents. The professional body representing experts in all areas of the domestic and commercial property sector is calling for the law to be changed to ensure that lettings agents fall under the same scrutiny as agents who sell property. Currently, the institution says, anyone can set up a lettings agency without appropriate qualifications or industry knowledge. Not only does that mean that tenants and landlords are potentially subject to unscrupulous practice with no comeback, but it is also costing the wider economy millions every year. Research shows that, following an initial set-up cost of £45m, the regulation of UK lettings agents and the introduction of professional standards would provide net benefits of over £20m per year. New statutory
requirements would pay for themselves within less than two-and-a-half years, while offering the consumer increased levels of protection. Peter Bolton King, RICS global residential director, said: “RICS has long called for a single regulatory and redress system for lettings agents, which this survey demonstrates is clearly supported by the overwhelming majority of consumers. Until this happens, we recommend that tenants use a lettings agent that is a member of a professional organisation, such as RICS. “These findings demonstrate exactly why the government needs to act, not just to safeguard the thousands of tenants and landlords who fall victim to unscrupulous practice, but also to relieve pressure on the wider economy.” q
Prizewinner demonstrates increasing importance of geomatics ON 11 FEBRUARY THE RICS announced that a former student, based in Dublin, had won an international academic prize in the field of geomatics. Arising out of the burgeoning GPS industry, geomatics is, according to RICS, one of the fastest expanding global markets and a truly worldwide profession. According to the institution: “Driven by technology and maintaining their role in land law and other socio-economic areas, leading chartered surveying firms realise the importance of geomatics, not only to the profession but to the future success of their businesses.” It goes on to quote a 2012 survey, which found that the UK geospacial market alone was worth £1.2bn. As a result of the increasing importance of the field, a geomatics professional group was formed within RICS. The group comprises members who can provide specialist expertise in, among other fields, dispute resolution and expert witness work, land law administration and reform,
project management, research and consultancy. One issue that arises consistently in property disputes is that of the precise geography of the property in question – at its most basic, where exactly does the border of the property lie? Geomatics is enabling that question to be answered with increasing accuracy. q • Further information on the work of the group can be found on the RICS website at www.rics.org.
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Special buildings need specialist advice THE ANNOUNCEMENT IN THE Budget last year that an exemption was to be removed regarding VAT on extensions to listed buildings brought an outcry from those organisations responsible for the maintenance and upkeep of historic and other interesting buildings. The measure sparked a campaign by the Listed Property Owners Club (LPOC) to have the measure overturned – a campaign which LPOC later conceded had ultimately failed. The furore also highlighted how many listed buildings in this country are ordinary homes inhabited by ordinary people. Although LPOC represents many owners and managers of stately homes, its membership largely comprises people who inhabit old houses, cottages, farms and former commercial or agricultural buildings that, for one reason or another, are considered worth preserving. It is those people who are tasked with the upkeep of our heritage, often hedged in by increasingly complex regulations. Expert help is often needed by beleaguered owners, the breadth and extent of which is demonstrated annually at the society’s Listed Property Show at Olympia – this year held on 16-17 February. Exhibitors offer advice on all aspects of owning and maintaining a listed building. There are experts in traditional
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Listed cottage in Rivington, Lancs building techniques, dealing with damp and even energy efficiency within the statutory constraints. In addition to the plethora of practical advice, moreover, the householder can find out where to go for advice on listed building consent, grants and legal advice. There are architects who specialise in extensions for those who are prepared to stump up the VAT and even specialist will writers to ensure the title is passed on properly. As LPOC points out: “Failure to obtain
consent before altering a listed building may result in a fine or even a term of imprisonment. A local authority can also serve an enforcement notice in respect of unauthorised works requiring owners to restore the building to its former state. These notices can also be enforced for works carried out by previous owners.” In such cases, forewarned is forearmed. And if the worse comes to the worse and a court case ensues, many of the specialists offer expert witness services. q
With Chris’s advice, commercial service charges can be fairly determined ONE OF THE MOST common areas of dispute between commercial tenants and their landlords is the service charge on the property. Those disputes can all-too-often end up in the courts – an expensive and unsatisfactory outcome for all concerned. Expert opinion in the subject can, therefore, be invaluable to the parties. That is where Commercial Property Advisors Ltd (CPA) comes in. CPA can devise practical and workable strategies for service charges and advise on how they can best be implemented in collective and individual cases. They can also advise on service charges for new properties, modernise older arrangements and implement interim procedures prior to establishing new agreements. Their services fall into four broad categories: • Development Advice • Management Strategy • Audit and Compliance Review • Dispute (and pre-dispute) Resolution Managing director Chris Edwards has over 40 years experience as a specialist in commercial property management matters. Before establishing Commercial Property Advisors he headed a UK-top 40 real estate consultancy. He is chair of the RICS commercial market professional group and has advised both the Office of the Deputy Prime Minister and Department of Communities and Local Government on a range of commercial property issues. Chris is an accredited mediator and a member of the respective RICS President's panel of independent experts and arbitrators. Inevitably, however, there are times where disputes cannot be settled by negotiation and Chris is frequently called upon to act as an expert witness. He is a member of the Standing Conference for Mediation Advocates and can present one party’s view in a mediation as required. q
Revising at renewal pays dividends CPA WAS APPROACHED BY retail store River Island in respect of a lease renewal of a shop unit which partly fronted the external High Street and also the internal mall of a shopping centre. The lease was up for renewal, with a court hearing due in less than two weeks. River Island felt the apportionment of the service charge did not reflect the partial external nature of the unit and approached CPA for advice. Paula Tucker, estates surveyor at River Island, said that the expertise of CPA meant the matter was resolved without having to revert to the courts. “Not only did CPA resolve the current issue,” she said, “but their advice gave us clear indicators as to what steps to take in future renewals. It is reassuring to feel more clued up and in control of the situation. Their specialist expert advice was an important addition to our case.” Chris Edwards explained: “Lease renewals give owners and occupiers the opportunity to modernise the lease so it reflects both modern best practice and the practical issues on the ground. Issues that may have been wrongly documented for 25 years can be resolved at renewal and neither owner nor occupier should miss this opportunity.” q
Pre-empting a mess in Eton CPA WAS APPROACHED BY the management company of a block of flats in Eton which had recently acquired the freehold from their developer. As freeholder the management company was required to run the service charge for the flats themselves, and was also entitled to recover costs from adjoining owners who either accessed their own property through the development or parked vehicles on the external parts of the development. The secretary of the management company had produced a plan, schedules, service charge allocation and apportionment strategy which CPA was asked to review. The analysis by CPA meant that, in the event of an agreement not being reached with the adjoining owners by negotiation, arbitration could be invoked with the management committee assured that their approach met best practice. Mike Blightman, secretary of the residents association, said: “CPA worked with us to amend some of our existing documentation and to approach the whole situation from a wider viewpoint. Knowing that all the angles had been covered and reviewed by an expert was a real relief to the whole management committee and made the process much simpler and hassle free.” Chris Edwards commented: “It was a real pleasure to review Mike Blightman’s plan. After brief discussions and email exchanges the revised plan meets Best Practice which the management company can enforce.” q www.yourexpertwitness.co.uk
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Compulsory purchase – acquirer or acquired? By TOM ASLIN of Kingston Smith LLP COMPULSORY PURCHASE – THE name says it all! It is when land, with or without buildings, is purchased without the consent of the owner/occupier. Only entities authorised by an Act of Parliament have the power to do this. Therefore, in such cases, the acquirer would be a local authority, a regional development agency or another party, usually governmental, and created by an Act of Parliament. The legislation lays down that such powers have to be in the public interest. It is for this reason that in many cases, although not all, there is a public inquiry before the powers can be confirmed. However, legislation set out in the Land Compensation Act 1973 provides that fair compensation be paid to a former owner or occupier. These statutory elements to compensation, known as basic loss payment and occupier’s loss payment, are statutory amounts over and above the actual values lost. The amounts thereof are dependent on the type and value of the land and buildings in question. In addition to these, the Land Compensation Act 1961 provides, within
Section 5 thereof, for payments to an owner equivalent to the market value of the land and buildings at the date of possession by the acquiring authority. This is provided for under what is frequently referred to as ‘Rule 2’, which is the subsection within Section 5. Subsection 6 of Section 5, known as ‘Rule 6’, provides for compensation to occupiers for the disturbance loss that they may have suffered by reason of the acquisition of the land. This type of loss will include the losses suffered by a business owner occupying the acquired premises, as long as the occupier had a right to occupy, irrespective of any lease or tenancy. It is frequently the case that the owner, and the occupier if different, cannot agree with the acquiring authority as to the level of compensation to be paid. It is here that expert witnesses come into their own. There are two main classes of expert relevant to such compensation claims. The first is naturally a surveyor, who can use his skill and judgment in assessing the market value of the land, buildings, plant, equipment, fixtures etc. In many instances, an expert surveyor will also be appointed by the acquiring authority so that the respective experts can meet, discuss and hopefully resolve differences to reach an agreed settlement. In the event that agreement cannot be reached, the dispute can be referred to the Upper Tribunal (Lands Chamber) where guidelines similar to the Civil Procedure Rules prevail. Where the occupier is a business or trade operator, there may also be a significant element of disturbance suffered by such an occupier. In these cases, the surveyors engaged by the former occupier may well call in an expert forensic accountant to assist in measuring the disturbance loss. This may well lead to forensic accountants being engaged on both sides to follow the same procedure as the expert surveyors. In all cases there is an onus on the occupier to mitigate its losses and thus the compensation. There is a natural assumption that unless the occupier can demonstrate that it was not possible to
relocate the business or trade, then the losses will be assessed on the basis that the occupier could (and should) have relocated, whether it has or not. There is also an unwritten understanding that the concept of relocation should only take place if the cost of such relocation does not result in compensation being more than that payable if the business or trade was totally extinguished. However, acquiring authorities are often prepared to pay more than the total extinguishment compensation in order to preserve jobs or other matters, but this usually does not give rise to additional compensation over and above the extinguishment value of between 10% and 20%. In summary, this is a specialist area which often requires expert evidence from both surveyors and accountants in order to ensure that the proper level of compensation, from both the acquirer’s and acquired’s perspectives, is arrived at. The importance of instructing appropriately qualified and experienced experts is therefore essential. In the next edition of Your Expert Witness, I will set out some case studies to bring out specific points from past cases in this interesting area. q • For further details please contact: Tom Aslin Senior Manager, Kingston Smith LLP Forensic Accounting Services E: taslin@ks.co.uk T: +44 (0)20 7566 3725 David Epstein Consultant, Kingston Smith LLP Forensic Accounting Services E: depstein@ks.co.uk T: +44 (0)20 7566 3726 Kingston Smith LLP Devonshire House, 60 Goswell Road, London EC1M 7AD www.kingstonsmith.co.uk
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QC told to expect jail over VAT fraud A LONDON QC HAS been told to expect a custodial sentence after being convicted of a £600,000 VAT fraud. Rohan Pershad was convicted on 11 February at Blackfriars Crown Court on one count of cheating the public revenue between 1 June 1999 and 24 September 2011. Keri Ashworth-Beaumont, specialist prosecutor from the CPS Central Fraud Division, said: “Rohan Pershad QC failed to pay VAT for a period of 12 years, despite charging his clients that VAT. As a result, he retained an additional private income of £624,579, which should have been paid to HMRC and the public purse. By convicting him today, the jury has concluded that Pershad was
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acting dishonestly and his failure to pay was not simply an error or mistake. “He claimed that his chambers had given the impression that payment of his VAT had been taken care of, but the jury clearly rejected that assertion. Pershad always admitted that he understood the law and the responsibility for meeting his obligations rested on him alone. “The message is clear – paying tax is not an optional extra, in any area of working life, and withholding tax dishonestly may lead to prosecution.” The conviction comes in the wake of a speech by DPP Keir Starmer about the importance of prosecuting tax evasion, which he said costs the British economy £14bn a year in lost revenue. q
The offence of financial fraud by DEREK WILLIAMSON, Forensic Accountant FRAUD COVERS A WIDE range of offences, from manipulation of basic accounting records, through making false insurance claims, to making benefit claims to which one is not entitled. It also includes bribery and corruption. Historically the accounting manipulation was hand written and comprised of making false prime entries or amending those already entered. A common cause of accounting fraud was the misappropriation of cash. This could take the form of failing to ring up cash takings in a retail shop or raising false supplier’s invoices. These actions occurred for a number of reasons: a) Audit findings are deemed to be errors and irregularities b) Internal controls are not enforced or often comprised by higher b) authorities c) Individual’s behaviour significantly changes d) The above is because of a large personal debt or financial b) losses and a drive for personal gain e) Missing documents or only photocopies available f ) Discrepancies in accounting records g) Missing inventory or missing assets h) Excessive credit notes i ) Alterations of documents j ) Transactions occurring out of sync k) An employee having control of a process from start to finish k) with no segregation of duties and no authorities checking k) their actions. Growing areas of fraud are the share scams or boiler room frauds. These are where partners are selling shares to investors in companies which are usually fake or are not trading. These activities are often carried on off shore by phone using a ‘post restaurant’ address in the UK. All too often potential investors fail to carry basic checks on the alleged company or the ‘brokers’ via the internet. Another area of internet fraud is the ‘Ponzi’ or ‘Pyramid scheme.’ Here the investor is offered a higher rate of return then the normal (say at 30% when 10% might be reasonable). The fraudsters then use the investor’s money to pay previous investors to convince them that the scheme is successful. In reality it is a short term fix to create a facade whilst most of the money is stolen. Asset stopping is another way of defrauding creditors and shareholders. Here the director transfers the assets of a company to another at a knock down price, so leaving the original company with large liabilities that cannot be met resulting in the company being liquidated. Share ramping has proven popular over the last few years. This is where the criminals influence the share price of a company and then take advantage of it. This is usually done by bringing a company to the market with false expectations of its profitability. The alternative is to buy shares in the company and then start a rumour that the company is being taken over. When the shares rise in price, they are sold at a profit which is a fraud on the shareholders. q www.yourexpertwitness.co.uk
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Serious organised crime
A computer forensics expert’s perspective Tony Sykes has been instructed in many groundbreaking IT disputes. A burgeoning spin-off from his hands-on approach to IT is a successful Computer Forensics division of IT Group UK Limited. Here he sets out some observations and opinions on the types of defence instructions that are taken on in cases of serious organised crime. MOBILE PHONE FORENSIC ANALYSIS is quite a new technology but is very high profile at the moment. It wasn’t many years ago that I thought it must be possible to undelete a text message on a SIM card and I set about working out how to do it. A rather crude electronic circuit and hours of second guessing the coding resulted in the recovery of my first deleted text. Soon a steady stream of enquiries led to a need to improve the equipment and early commercially available systems were evaluated. Now, less than 10 years later, we have a plethora of different systems made necessary because of the ever changing face of mobile technology. When it comes to instructions from defence lawyers, in cases being investigated by SOCA for example, there are frequently calls for mobile phone attribution assessment and cell-site analysis. In cases of kidnapping and high-jacking, particularly of high value commodities from road haulage firms, cell site analysis and phone attribution have to be compared with other geo-locational data such as SAT NAVs, trackers and other GPS related equipment. High value drug smuggling and distribution cases frequently rely on this type of hi-tech evidence and it is essential that conclusions drawn and opinions derived by prosecution experts are tested and checked for balance and objectivity. Many expert services organisations have the latest equipment and the necessary knowledge of the processes and procedures for securing data from third parties within the requirements of the Regulation of Investigatory Powers Act, the Data Protection Act and the Communications Act. However, in serious drug distribution and money laundering cases for example it is no longer sufficient to complete the analysis of cell site data and other associated electronic information presenting it in tables and maps. This is for two main reasons. Firstly, in such cases there can typically be dozens of mobile phones with tens of thousands of pages of data and conducting a detailed analysis of all that data by traditional methods is simply not possible within the normal measures of budget and proportionality. Secondly, even if such an analysis were to be carried out the results are often simply too complex for even the most technically able jury member or counsel to deal with in the context of a trial. The answer lies in post-processing techniques and software developments that enable trends and patterns to be extracted from the results of cell site analysis and combined with similar analyses of other relevant data. Such techniques exist already in the area of email analysis where specialist developments have enabled a limited number of key forensic experts to present email disclosure, not merely so that it can be searched but so that, for example, the distribution of attachments can be seen in a visual format enabling patterns to be spotted and considered. Applying such post-processing techniques to the large data typically produced by cell site analysis in serious organised crime cases will enable
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much more focussed opinions to be drawn on the whereabouts of key individuals and suspects, thereby testing prosecution evidence much more robustly. q • Tony Sykes, Senior Partner in IT Group, is a Chartered IT Professional and a Chartered Electrical Engineer. He has twenty years experience as an IT and Electrical Engineering Consultant and is an experienced Expert Witness. IT Group provides a broad range of consultancy services including due diligence, business process review, QA audit, insurance assessment, forensic IT / telecoms / electrical systems examination and expert services. www.itgroup-uk.com.
APIL predicts haemorrhage of personal injury staff THE GREAT MAJORITY OF personal injury firms are planning to cut staff numbers in the near future unless the government pulls back from plans to reform civil litigation, according to a report in the Law Society Gazette. It quoted a survey carried out by the Association of Personal Injury Lawyers (APIL) which found that 118 of the 155 firms taking part were planning to cut their workforce this year. According to The Gazette: “The survey formed part of APIL’s full response to government plans to cut fixed fees for low-value personal injury work. The new recoverable costs for RTA claims valued under £10,000 would reduce from £1,200 to £500, whilst there are also fixed fees for claims up £25,000 and employer and public liability claims, which would be dealt with by an electronic portal for the first time.” APIL argued that the government was letting independent advice be eroded to the detriment of the injured person. It also claimed that the government had forgotten or ignored the irreducible minimum amount of work required in all cases.
Law firms would be unable to run successful practices advising claimants on pursuing claims for minor injuries and instead claims management companies would move to running the cases themselves. APIL also claimed the government had no evidence to suggest that a £700 cut in costs would be balanced by firms no longer paying referral fees. Furthermore, more than half of personal injury firms do not pay referral fees and would not see any savings from the ban. “The government continues to draw conclusions about the link between referral fees and lawyers’ costs which are illogical
and flawed,” the response said. Nigel Muers Raby, chairman of claimant lobby group the Consumer Justice Alliance, said: “Lord Dyson, Master of the Rolls and head of civil justice, has said that he does not want the changes to the civil justice system to deny access to justice. However, the government must recognise that any attempt to reduce fixed recoverable costs associated with RTA cases would likely result in such cases becoming commercially unviable, leaving consumers finding themselves unable to find legal support following an accident.” R
Company Profile PERSONAL INJURY CLAIMS, ONCE accepted by a solicitor, can all too often herald the beginning of what could be a potentially lengthy medico-legal process. The instruction of an appropriately qualified medical expert, to examine the client and provide a written report of their findings, is a significant part of this process. Often within these reports experts recommend additional diagnostic procedures, imaging or therapeutic interventions which solicitors are required to arrange. Diagnostic & Rehab Services Ltd can organise all of these imaging needs on a nationwide basis. They are able to source and issue a no obligation quote – within one business day in most cases. It is worth remembering that mismanaged claims cause unnecessary delays in reaching a settlement. Diagnostic and Rehab Services Ltd will work with your clients to provide appointments and venues that suit personal circumstances wherever possible and their belief in offering a bespoke service to all instructing solicitors is the foundation of the business and the key to its efficiency. Diagnostic and Rehab Services Ltd, will arrange all of your medical imaging, medical investigations and therapeutic interventions on a nationwide basis. Furthermore, they will always endeavour to ensure that you receive the results or written reports in a timely manner as part of a commitment to service. R
Diagnostic and Rehab. Services Ltd… ...Bespoke Medical Solutions for Legal Practitioners.
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Adoption
following care proceedings HELPING CHILDREN TO RECOVER from traumatic experiences is a difficult task and we understand the particular challenges faced by carers and parents. We also understand how complicated it is to build relationships for the long-term, working through ups and downs with children who bring their histories with them. It is important to bring together both a child’s and parent’s history in order to begin a new shared experience. We believe that good quality support for adoptive parents and for the professionals working with them is essential and there are several ways we can help:
Placement planning support Where children have been through court proceedings an assessment of their needs may be in place, but if not we are able to provide targeted assessments to guide placement planning or support services. An assessment of a child’s attachment profile can help with placement for adoption, whilst a cognitive assessment may be useful in planning for a foster or educational placement which will best meet a child’s needs.
Support to placement stability We offer consultation services to social workers, other professionals and direct to carers and parents to support them in understanding and working with difficulties in a placement.
Direct therapeutic work Key to recovery from trauma are the relationships children develop within their new placements, but sometimes some extra help is needed to develop happier and healthier ways to interact with others. We can provide direct therapeutic work to help address some of the underlying difficulties which might destabilise caring relationships. The therapies we offer at Psychology Associates for children, young people and their families include: • Dyadic Development Psychotherapy (DDP) • Theraplay • Eye Movement Desensitisation & Reprocessing (EMDR) • Narrative Attachment Therapy • Sensory Attachment Therapy • Cognitive Behavioural Therapy (CBT) • Systemic Family Therapy • Attachment Parenting Therapy You can find out more about the work of Psychology Associates by visiting www.psychologyassociates.org.uk. q
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By Sam Hastings of Psychology Associates
What price ‘the cat’?
By DR M GRAHAM, MBChB, PhD, FRSM, MICR, MFSSoc MEPHEDRONE, OR METHCATH CATHINONE (formerly ‘Legal Highs’), is related to ephedrine. Its street name is Miaow Miaow, Kitty Kat or Cat Food and on the corner it sells for £10 a gram, which is £30 cheaper than ‘coke’ (cocaine). It has taken over the market, not only on price, but on purity as street coke, ‘speed’ or ‘phet’ (amphetamine) ranges from 2% (typical standard) to 30% purity (premiership football standard) whereas Miaow is 100% pure for its street price! The savvy dealers will try and cut it with creatine or soap suds, but with little success and it maintains its purity by its price! The Saturday lottery ticket costs only £1 with chances of winning of 17 million to one. The Euromillions lottery ticket costs £2 and the chances of winning are 47 million to one. Miaow, however, can be bought for just £10 per gram and the chances of winning are 100%! The ‘high’ lasts all night and can affect the personality of the user for up to a week before the next dose, wreaking havoc on young couples’ new fragile relationships! Where the odd ‘spliff’ (cannabis) or a few pints of ‘wife beater’ (cider) were the culprits only a decade or two ago, Miaow, since it was made illegal in 2009, has seen its status rise 100 fold – it is snorted like coke. Unbeknown to the party animal It can be detected in hair, after one sample of use, up to 10 months later. It leaves the potential addict ‘chilled’, mildly disinhibited and potentially subject to abuse and violence by a vociferous, aggressive partner – male or female! If both partners abuse ‘the cat’ it can result in babies being left alone in their cots with wet, soiled nappies for far too long. It can turn submissive females into powerful tyrants and big strong men into weeping babies, when children are the bargaining tool. Especially when the ‘Justice’ system and the Treasury have put all their faith and might behind the mother (who in their eyes can do no wrong). Its detection in the hair of either partner has afforded custody to the other – or to social services if recreational drugs are detected in both parents. Attempts to dye or cut the hair by females has no effect on its detection, providing dilemmas for family courts. Where females were previously gaining custody of the children, the courts have swung to the opposite spectrum and awarded custody against the mother. The ultimate victims are the children. Disruption in continuity of care, rowing parents, social services intervention and untold pressures on supportive grandparents can only serve to destabilise the fabric of society. Both David Cameron’s and Tony Blair’s governments shouted “back to basics” to attain power! Is this now controlled drug really any worse than alcohol in dismantling our youth’s commitment to the upbringing of our children? Only time will tell.
Advocates of domestic violence prevention are banging their heads against a brick wall. They don’t appear to understand that making a drug illegal promotes its status on the drug scene. Today’s kids, just like yesterday’s, like being naughty. In the interim, alcohol (with or without ‘the cat’) will continue to wreck lives and families and still remains uncontrolled, while governments who swore to support young families reap enormous rewards from its sale to them! q REFERENCES • O’Byrne PM et al. Screening of Stimulants Including Designer Drugs in Urine Using a Liquid Chromatography Tandem Mass Spectrometry System. J Anal Toxicol. 2013. • Elie MP et al. Keeping pace with NPS releases: fast GC-MS screening of legal high products. Drug Test Anal. 2013. • den Hollander B et al. Long-term cognitive and neurochemical effects of ‘bath salt’ designer drugs methylone and mephedrone. Pharmacol Biochem Behav. 2013. • Mabbott S et al. 2p or not 2p: tuppence-based SERS for the detection of illicit materials. Analyst. 2013. • Petróczi A et al. New non-randomised model to assess the prevalence of discriminating behaviour: a pilot study on mephedrone. 2011; 6: 20. Subst Abuse Treat Prev Policy.
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Drug Driving Arrests for driving whilst unfit through drugs are on the increase. As an expert witness with wide experience of drug driving cases Matthew Atha, director of the Independent Drug Monitoring Unit, offers some practical advice. ELEMENTS OF DRUG DRIVING offences include proving intoxication, proving impairment and proving that the impairment was due to drug use and not other factors. • Intoxication: Normally proved by showing presence of a drug which could cause impairment within bodily fluid samples. • Impairment: Usually demonstrated by failure of impairment tests and/or medical examination, may be inferred from poor driving behaviour or an at-fault accident • Impairment due to a drug: Rather than another reason such as injury, illness, disability, fatigue, shock or accidents caused by distraction
Blood Tests A blood sample can only be taken where a doctor believes that there is a condition present which may be due to a drug. Delays in taking the sample can be critical as levels of some drugs (e.g. THC and cocaine) drop rapidly whereas others (tranquillisers, opiates, amphetamines) fall more slowly. The forensic evidence needs to show quantifiable levels of active drugs or active metabolites. Tests which show the presence only
of inactive metabolites (e.g. Carboxy-THC or THC-acid for cannabis and benzoylecgonine for cocaine) do not prove the driver to have been ‘under the influence’ and may reflect usage days or weeks previously. There are no ‘legal limits’ but very low levels may be incapable of causing intoxication or can result from passive exposure.
Impairment Testing The standard impairment test consists of 5 sections: • Eye Examination – excessive dilation or constriction of pupils, reddened conjunctivae and/or nystagmus can be symptoms of intoxication – not a test of impairment. • Romberg Test – subject stands with legs apart, eyes closed and head back and asked to estimate 30 seconds – a test of balance and time perception with a pass if within 5 seconds. • Walk and Turn – subject required to take 9 steps along a straight line heel to toe, turn in a designated manner and return to starting position – a test of comprehension, balance and co-ordination. Fail for stepping off line, wrong number of steps or incorrect turn. • One-legged Stand – subject required to raise each leg in turn and count out loud – a test of balance. • Finger to Nose – subject required to stand with head back and eyes closed and touch tip of nose 6 times with end of finger as called by tester – a test of balance, co-ordination and ability to follow instructions. Defendants commonly fail these tests due to not following instructions to the letter – there is currently no caution to that effect given before the test is administered. Also, many FMEs are not native English speakers and can be difficult to understand. Tests are often judged subjectively – a slight wobble may be ignored by one tester but ruled as excessive sway by another, particularly as tests are not conducted ‘blind’ as to the circumstances. It is strongly recommended that impairment tests are always video and audio-recorded as an objective record, so the court can form an independent view of proceedings.
Due to Drug? If the defendant has any underlying medical condition or disability this should be disclosed at the time. How long had he/she been awake? Is he/she unable to understand instructions due to language difficulties?
Effects of Drugs Not all drugs impair driving, some may even improve it. Some drugs improve some aspects of driving whilst impairing others. The effects of different classes of drug can be summarised: Cannabis – no effect on reaction time, but can lead to impaired tracking (e.g. lane discipline) and judgement, driving behaviour typically improves (slower speeds, greater distances between vehicles, fewer risky manoeuvres) and this can outweigh any deficits in performance. Little or no effect on accident risk in experienced users and drivers (unless use excessive). Younger drivers and inexperienced users, particularly females, pose a significantly greater accident risk. Stimulants (amphetamines, cocaine, cathinones) – Low doses tend to improve performance – alertness, reaction times etc – high doses can impair judgement – more risky/aggressive driving behaviour, excessive self-confidence and feelings of invulnerability. Opiates (heroin, codeine, morphine, methadone) – Little effect in experienced or dependent users unless in overdose, but impairment can be found during withdrawal. Depressant effect in naïve users may impair performance. Depressant drugs (alcohol, tranquillisers, barbiturates, ketamine etc) – clear and long-established dose-related performance deficits – slower reactions, drowsiness, impaired judgement and driving behaviour. q • Due to space constraints, this is but a brief introduction to the issues in these cases. For a more detailed review please visit the following page on the IDMU website: http://www.idmu.co.uk/drugdrivingsolsadvice.htm. www.yourexpertwitness.co.uk
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Attention Deficit Disorder in adults By DR JEREMY STIRLING, Consultant Addictions and General Psychiatrist ATTENTION DEFICIT DISORDER (ADD) is a clinical condition that has been recognised in children for many years. It is a neurodevelopmental disorder with a strong genetic predisposition although antenatal factors, such as maternal substance abuse, and later childhood environmental factors may also be important. The main symptoms of the disorder are inattention, poor concentration, distractibility and impulsivity. When marked hyperactivity is present the term ADHD is used. The diagnosis is often made in childhood. It requires symptoms to be present in more than one environment and to have its onset before the age of seven. A key part of diagnosis is distinguishing the presentation from normal levels of boisterous behaviour and distractibility as well as other behavioural disorders of childhood such as conduct disorder. In the past clinicians considered that the disorder would complete its course during adolescence. More recent research suggests that the disorder may often continue partially or in complete form into adulthood. Adults may present as being careless, not paying attention to detail, being easily bored, not able to listen to others, frequently interrupting in conversations, having difficulty following instructions, being restless, irritable, impulsive and poorly organised. It is likely that many adults with ADD get misdiagnosed and acquire other psychiatric diagnoses such as personality disorders or problematic substance misusers. This is particularly the case if a childhood diagnosis was missed. The symptoms of their ADD/ ADHD may wrongly attract these other diagnoses although it is also possible for individuals with ADD/ADHD to have a range of additional psychiatric diagnoses (including personality disorder, drug or alcohol dependence or depression) Why is this of relevance to the legal profession? 1. While most adults with ADD/ADHD do not commit offences they are more likely to have problems with poor impulse control which can be reckless or violent in nature. This includes road traffic offences which are more prevalent in this group. They also have an increased risk of substance abuse and associated criminal behaviours. Indeed, research suggests a high prevalence of ADD/ADHD in the prison population. 2. Impulsive and reckless behaviour from ADD/ADHD may underlie offending behaviour and help give some understanding of the offence. Psychiatric evaluation may be of assistance in determining diagnosis and potential treatability. Such treatment may improve the outcomes of any community orders given by the court. 3. ADD/ADHD may be masked by substance misuse. There is an increased prevalence of substance misuse in those with ADD/ADHD and the symptoms of the disorder may wrongly be wholly attributed to their intoxicated states. Drug intoxication may easily mimic ADD/ ADHD symptoms and only careful assessment can untangle the diagnoses. Adherence to any substance misuse treatment programme directed by a court may be enhanced by treatment of the disorder. 4. Adults with ADD/ADHD are often forgetful and disorganised. They may, as a result, miss important appointments related to their case such as social work assessments and court appearances. They might in addition come across as indifferent or disinterested in the proceedings. This could easily be seen as being poorly motivated or callous when in fact the underlying problem is related to their ADD/ ADHD. Assessment of ADD/ADHD in adults involves careful psychiatric history taking (in particular the childhood developmental history), use of rating scales (such as the CAARS) and gathering of information from key informants such as parents. There is no diagnostic blood test. Treatment can involve a combination of pharmacological (with
such drugs as atomoxetine, methylphenidate and dexamphetamine), psychological (such as cognitive behavioural therapy) and occupational interventions. Paradoxically some of the drug treatments are stimulant in nature (and are controlled drugs) although their effect in those with ADD/ADHD reduces hyperactivity and improves concentration and focus. The long term benefits of these treatments of adult ADHD are not as yet clear and the provision of services for those with ADD/ADHD in the UK is quite variable. The diagnosis still courts some controversy among psychiatrists. This brief outline of adult ADD/ADHD aims to encourage lawyers to be aware of the potential diagnosis in their clients, to consider the ways in which this disorder can underlie offending behaviour and to highlight how treatment can reduce the risk of re-offending. q
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SADS campaign saves lives, despite lack of expert agreement on definition THE TRAGIC CONSEQUENCES OF sudden arrhythmic death syndrome (SADS) have been thrust into the news recently. Many wondered at the miraculous survival and recuperation of footballer Fabrice Muamba, who collapsed during a Premier League game between his Bolton Wanderers team and Tottenham Hotspurs at White Hart Lane last March. As Laura Sharrock of MPH Solicitors points out: “Fortunately for Mr Muamba, a defibrillator was on hand in his case.” Unfortunately, many young people who are struck with the syndrome are in venues that are not so well equipped. Laura Sharrock continued: “Liverpool schoolboy, Oliver King, was not so lucky and he died of sudden cardiac arrest after a swimming lesson.” His parents have launched the Oliver King Foundation to press for defibrillators to be installed in all schools and public places in the country. An e-petition has been launched to try to force a debate in Parliament. Patrice Muamba himself has joined the campaign, participating in the ‘Hearts and Goals’ campaign as well as supporting the Oliver King Foundation in its e-petition push. Despite the recent publicity surrounding
the syndrome, there is still little consistency between medical, pathology and legal experts about what the condition is, according to the organisers of a one-day conference on SAD Cases in the Coroners’ Courts, which took place in Oxford in January.
In the meantime defibrillators are being installed in an increasing number of venues, together with training in their use. q • To sign the e-petition visit http://epetitions. direct.gov.uk/petitions/29399.
Cardiac conference highlights health inequalities
Fabrice Muamba – © wonka
New rules restrict experts in child care cases RESTRICTIONS ON THE USE of experts in family courts came into force on 31 January. It is claimed the new measures will enable child care cases to be dealt with more quickly and effectively, so children and families are spared unnecessary delays and – significantly – the cost to taxpayers is reduced. Family courts are now required to restrict expert evidence to that which is ‘only necessary to resolve the case’ and to approve the questions that are to be put to the expert ‘to ensure they are focused on the determinative issues for the court’. Courts will also have to take account of specified factors before agreeing to expert witness reports. In care cases, those factors include the impact on the welfare of the child, the impact on the timetable for proceedings and whether the evidence which is needed is available from another source such as the local authority. According to the Ministry of Justice, until now multiple reports have been commissioned in many cases which can lead to delays of several weeks. The reports, the MoJ says, are typically commissioned from expert witnesses, for example doctors or specialist psychologists. Family Justice Minister Lord McNally said: “We are taking action to tackle the unacceptable delays in our family courts. The number of expert reports being commissioned at the moment is far beyond what is actually needed to make a considered decision – and is causing delays which can ultimately harm children. “The new rules mean expert evidence will only be used where necessary and reports will be commissioned more sensibly and sparingly.” The changes are the latest steps in the Government’s commitment to ensuring family cases are dealt with within 26 weeks, following a recommendation by the Family Justice Review conducted by David Norgrove. q
THE HUGE INEQUALITIES IN access to healthcare across the European Union were highlighted on 23 January when the European Critical Care Foundation (ECCF) hosted a debate at the European Parliament on improving access to life-saving therapy for acute heart attack patients. Differences in the organisation of healthcare systems, such as emergency transport systems, hospital networks and treatment reimbursement agreements, were identified as major causative factors. The debate, organised in collaboration with the Stent for Life Initiative and Cypriot MEP Antigoni Papadopoulou, brought together EU policy makers, cardiologists, medical researchers, industry partners and other concerned stakeholders. “We need to remember that cardiovascular diseases, which can lead to heart attacks, contribute to more fatalities than all cancers combined,” explained Ms Papadopoulou. “This is a worrying fact – not just because of the burden on health systems it causes, but also for what it means to those of us whose lives can be changed forever when an acute heart attack occurs.” q
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Failed female sterilisation establishing liability By MR ROTIMI A K JAIYESIMI, FRCOG, FWACS, MBA, LL.M (Medical Law) Consultant Obstetrician & Gynaecologist WOMEN OPT TO HAVE a permanent form of contraception when they decide that they have completed their families. Sterilisation is achieved by interruption of the patency of the lumen of the fallopian tubes, with the sole purpose of providing a permanent and irreversible form of contraception. Female sterilisation can be performed by laparoscopic occlusion of both fallopian tubes using occlusive devices such as Filshie clips or Falope rings. Sterilisation by laparoscopic application of Filshie clips to the isthmic region of each fallopian tube is the most common method of female sterilisation in the United Kingdom. Occlusion of the fallopian tubes can also be performed by mini-laparotomy or at caesarean section. Newer approaches to female sterilisation include occlusion of the ostium of each fallopian tube with micro-inserts or silastic plugs using a hysteroscope. One of the advantages of this approach is that it can effectively be used in an outpatient setting, thus avoiding the risks of general anaesthesia and laparoscopic surgery. These advantages notwithstanding, the uptake of hysteroscopic sterilisation in the UK has been slow, partly due to Primary Care Trusts not commissioning the service and also the unwillingness or inability of Acute Trusts to provide the service. Patients may also not be aware of the procedure.
Failure Failure of Filshie clip sterilisation occurs in about 2 to 3 per 1,000 cases at two years, with a lifetime failure rate of 1 in 2001. While permanence of contraception is the aim of the procedure, this cannot always be guaranteed and patients must therefore be made aware of the possibility of failure. The effect of failed sterilisation can be devastating and women tend to seek compensation when it occurs. The Law Courts have made a number of rulings on the issues of compensation for failed sterilisation. To launch a successful claim it is imperative to establish that the cause of failure of the sterilisation was as a result of negligence. This is not always possible as it is known that failed sterilisation could be as a result of natural recanalisation of the lumen of the fallopian tube(s). We are guided by a study that indicates that conception several years after sterilisation tends to indicate that the tubes have regrown naturally. This is not considered
to be negligence. Having said that, a number of cases of failed sterilisation due to negligence do occur many years after the procedure. Failure of sterilisation within 12 months of the sterilisation is considered to be due to errors in the application of the clips2. The latter raises issues of breach of duty of care and liability.
Establishing liability and causation Tort liability applies to those cases where there is a failure to carry out a procedure as a reasonably competent practitioner would have done. Reliance is placed on the Bolam test in defining what constitutes negligence. McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 opined that ‘where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.’ Liability will not be imposed in cases of failed sterilisation unless it can be established that the failure to achieve sterility was due to medical negligence in the performance of the operation, or negligence in imparting the requisite quantum of information. Proof of inappropriately performed sterilisation comes from findings at repeat sterilisation or at caesarean sections. The findings may include wrongful application of the clip or ring to the round ligament or incomplete encompassment of the entire circumference of the fallopian tube. It is good practice to take high quality pictures of these findings at the time of repeat sterilisations prior to the excision of the tubes or reapplication of a set of new occlusive clips. If the tubes have been removed at a repeat sterilisation, histological examination of the excised fallopian tubes may confirm or refute evidence of operator error. If the examination reveals evidence of incomplete occlusion of the lumen of the fallopian tube, this finding may be enough to establish negligence and in effect liability. Liability may also be established if it can be proved that the woman was not informed of the risk of failure of the procedure. It is
therefore of utmost importance that adequate counselling and consenting takes place prior to the procedure being performed and that this is documented in the clinical notes.
Compensation The House of Lords in 2003 ruled in an appeal in Rees v Darlington Memorial Hospital that there should be a conventional award of £15,000 to compensate a woman for the infringement of her right to limit her family size over and above awards for other losses. A cost of £5,000 is awarded for the pain and suffering of pregnancy and labour, and for her loss of earnings during the maternity leave period3.
Minimising the risks of failed sterilisation Female sterilisation is meant to be permanent and irreversible and should not be recommended for women who are uncertain about future child-bearing. It should be done by appropriately skilled personnel and only after adequate counselling and discussions about its intent, the risks involved and all alternative forms of contraception4. q • Mr Rotimi Jaiyesimi is an expert witness in obstetrics and gynaecology. He is the Associate Medical Director for Patient Safety and Consultant Obstetrician & Gynaecologist at Basildon and Thurrock University Hospital, Essex. He can be contacted via email on jaiyesimi@medicalnegligence.org.uk or visit the website www.obs-gyn.org. REFERENCES 1
Royal College of Obstetricians and Gynaecologists
Male and Female Sterilisation Evidence-based Clinical Guideline, Number 4, January 2004. 2
Rajesh Varma and Janesh K. Gupta Predicting
negligence in female sterilization failure using time interval to sterilization failure: analysis of 131 cases. Hum. Reprod. (2007) 22 (9): 2437-2443. 3
Rees (Respondent) v Darlington Memorial Hospital
NHS Trust (Appellants), House of Lords, Session; [2003] UKHL 52, on appeal from: EWCA Civ 88. 4
Jaiyesimi R A K & Eedarapalli P Female
sterilisation. Sexual Health Matters 2001; 2, 42-44.
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TMJ dysfunction its diagnosis and treatment By DR EDWIN BONNER BDS MDent AT THE TURN OF THE century, Temporomandibular (TMJ) dysfunction was thought to account for a loss in productivity of thirty billion dollars and 550 million working days a year in the USA. The TMJ comprises the condyle (head) of the mandible separated from the articular portion of the temporal bone by a disc. Internal derangement of the TMJ is defined as a disruption within the internal aspects of the TMJ in which there is a displacement of the disc from its normal functional relationship with the mandibular condyle and the articular portion of the temporal bone. It is usually treated with nonsurgical methods initially, but should these methods prove unsuccessful they are often followed by surgical methods. Much of the difficulty encountered with the treatment of these cases is attributed to the physician’s inability to diagnose the disorder accurately. To determine TMJ dysfunction, one needs to carry out a detailed physical investigation and one or more of X-ray, CT scan, MRI scan and/or arthro-graphy. No radiological (X-ray) investigation should be requested unless it can be clinically justified. A magnetic resonance image (MRI) scan is a non-invasive procedure using magnetic and radio waves, meaning that there is no exposure to X-rays or any other forms of damaging radiation. MRI shows the soft tissues of the body in great detail and is superior to computerised anatomical tomography (CAT) scans and other forms of X-radiation. CAT scans are useful for evaluation of bony deformities. Arthroscopy is often also employed. Arthroscopic surgery appears to be a safe minimally invasive and effective method for treating internal derangements of the TMJ, and usually fills the void between failed
non-surgical treatment and open surgery. It is associated with fewer complications and a shorter hospital stay. Traumatic injuries to the condyle are common. The diagnosis of a condylar fracture is usually made by physical examination and radiographic (X-ray) studies. A unilateral condylar or subcondylar fracture results in deviation of the jaw towards the side of the fracture when the jaw is opened. If diagnosed early, it can be treated with intermaxillary fixation (IMF). Specialist dentists have the requisite training and knowledge to diagnose and treat TMJ-related problems, and should be the first port of call for someone who has suffered injury. It is only when the problem is in an advanced stage of degeneration that surgery is necessary. Treatment in the first instance is palliative, and improvement can be effected by conservative use of bite splints. q • For further information, contact Dr Edwin Bonner. Email bonner. edwin@gmail.com. Dr Bonner is an experienced expert witness, having prepared more than 2300 personal injury reports in a dental career spanning 45 years.
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New commissioning arrangements spell change for speech & language therapists By MARTIN SAMUEL of Speech Language Therapy Ltd ONE OF THE KEY changes that speech and language therapists are facing in 2013 is how to respond and adapt to the new commissioning arrangements. These are starting to affect therapists in both the NHS and the independent sector. Commissioners are – quite rightly – looking at the design of services currently provided and seeing if they can be provided in different, more efficient ways. In the areas where Speech Language Therapy Ltd operates (adult acquired and degenerative neurological conditions, and adult stammering) there is increasing focus on promoting and maintaining independence, improving a person’s quality of life and ensuring that patients can access their local community. Some new commissioning contracts explicitly target these areas as they use outcomes based commissioning to achieve specific results for their local communities. Opening up services to Any Qualified Provider (AQP) brings new challenges, not least how to market to commissioners and to demonstrate quality services. More attention is being devoted to clinical outcomes i.e. what is the patient’s level of function and can we attribute this to the speech and language therapy provided? Commissioners and patients are also becoming increasingly interested in experience measures as reported by the patients. The focus here is less on the clinical intervention or treatment but on issues such as were they seen in a timely fashion, did the therapist listen to the needs
and wishes of the patient, were joint therapy goals set and reviewed? It is important that any intervention carried out with patients (or with their family and carers) demonstrates clinical effectiveness, but also allows the patients to feel that they were well supported and were fully engaged in the treatment. In common with many health professionals, speech and language therapists (SLTs) sometimes find presenting information to those procuring their services a challenge but they do have the skills to show commissioners how they are already meeting the demands of the new commissioning arrangements. It is important for therapists to gather the evidence from their treatment programmes and present this to the commissioners to show that speech and language therapy works, it is safe, of high quality and supports patients trying to achieve their goals. SLTs have for many years been skilled in using a range of clinical outcome measures to demonstrate the effectiveness of their treatment programmes. Clinical outcome measures have been developed for a range of specific communication and swallowing disorders and these have been part of standard therapy practice with patients. Recently more attention has been placed on goal setting with patients, whereby the areas of treatment are linked to the areas that the patient wishes to work on. Goal based therapy has been shown to be more effective as the patients are more motivated to work on goals which are important to them.
Often the focus, when trying to demonstrate the effectiveness of services, is to use lots of process drive information and data – for example number of patients seen and for how long. Increasingly quality is becoming more important but how is this demonstrable? Feedback from patients – usually in the form of quotations – has been gathered by some services for a while, but now whole patient stories are being obtained to provide a patient’s view of their treatment or of the services they have received. Patient stories are taken by a clinician – not usually the treating clinician – and are often recorded so that comments can be recorded and ordered into themes. Sometimes a group of patient stories can tell commissioners what has happened across a service, or along a whole patient pathway – if patients traditionally move from acute, through inpatient, to community care as in stroke survivors. Speech and language therapy providers also need to ensure that risks are minimised, and that they have effective structures in place to deal with issues when they arise. Reporting structures and safeguarding policies are vital, but therapists must also demonstrate to commissioners that robust supervision arrangements are in place to facilitate clinical discussion of relevant issues. q
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Cosmetic surgery responses published LAST SUMMER SIR BRUCE KEOGH issued a call for evidence in his review of the regulation of cosmetic intervention. On 31 December the responses to that call – which allowed experts in the cosmetic interventions industry and patient groups to contribute to the review – were published by the Department of Health. According to a statement from the Department of Health, while there was a wide range of views on the future regulation of cosmetic interventions, some consistent key messages emerged from respondents. Recurrent themes were: • The current regulatory framework was inconsistent and did not reflect the many changes and innovations in such a fast-growing and dynamic sector. • Training requirements were felt by many to be disproportionately weak compared to the potential risks of a procedure and more specialised training was welcomed. • Dermal fillers and intense pulsed light and laser procedures were highlighted by many as an area where there was insufficient legislation to protect the public. Many respondents were concerned about the lack of data being collected on implants, procedures, adverse incidents and outcomes and the view was that the review was timely and an important part of restoring public trust in the cosmetic interventions sector following the issues with PIP breast implants. Suggestions that respondents wanted to see implemented included: • Banning free consultations for cosmetic surgery so that people don’t feel obliged to go through with surgical procedures. • Ensuring consultations are with a medical professional, not a sales adviser.
• Imposing tighter restrictions on advertising, including banning ‘two-for-one’, time-limited deals and cosmetic surgery as competition prizes. • Requiring a two-stage written consent for surgery so people have time to reflect before making a decision. • Providing better information for patients, including photos of expected bruising and scarring, and more detail on the risks associated with surgery. The publication was welcomed by the British Association of Aesthetic Plastic Surgeons (BAAPS), which said it had argued for many of the recommendations over a period of years. Its president, Rajiv Grover said: “Whilst we are delighted that the majority of the public agrees with what we have been saying for years – namely, that this largely unregulated sector leaves vulnerable people open to being taken advantage of through aggressive sales
techniques – so far there is still a major, gaping loophole that has clearly not been addressed fully. “In particular, the call for a ‘medical professional’ rather than ‘a salesperson’ to hold the initial consultation with prospective patients is a dangerously broad and inadequate definition. Unequivocally, the only person holding a consultation with a patient should be the surgeon who will be performing the procedure. Otherwise, the ‘professional’ could still be, for example, a nurse working on commission for practitioners based either here or even abroad. “Recognised medico-legally, informed consent is essential for patient safety and only the surgeon carrying out the actual operation should be involved in the process. Achieving anything less at the end of this exercise would make a mockery of the review, if not an outright sham.” q
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The claimant’s perception of what has happened may be misleading by MR IAN FORSTER MBBS FRCS FRCS(Ed), Consultant Orthopaedic Surgeon HERE ARE TWO INTERESTING cases which proceeded initially on the basis of the claimant’s statement. There is no doubt that the two people involved in these claims were both adamant about what they believe had happened – and their views were certainly accepted and assessed initially. In both cases, however, the claims have been discontinued.
Case one The first case concerns a lady who at the time of her surgery was aged 56. She had suffered from arthritis in the knee for some years and indeed had undergone an arthroscopy and a number of injections. Because of her continuing pain a perfectly reasonable decision was made to perform a knee replacement. The notes indicated that the operation was carried out by a registrar, but supervised directly by the consultant, and showed nothing untoward had happened in the operation. The patient did, however, have considerable pain. The physiotherapist examined her some two days after the procedure – a peroneal nerve palsy was diagnosed and a foot drop splint was applied. That day, which happened to be a Sunday, she was seen by the consultant on the ward who assessed her. The notes indicate that he felt everything was going fine although he did note the neurological deficit. The lady herself recalls that consultation very well. She is adamant that the surgeon told her that he had cut the nerve, for which he apologised. The patient’s husband, who was present, was not quite so adamant but the lady maintained her view throughout that she was told directly that the nerve had been cut. There was very little recovery from this drop foot despite continuing physiotherapy and splintage. She had nerve conduction studies carried out. There were concerns about this case from the very beginning as it is very difficult to cut the popliteal nerve. The anatomy of the popliteal nerve is quite variable but it starts from the sciatic nerve at the centre of the back of the thigh and just above the knee this splits off into its two branches. The popliteal comes laterally towards the outside of the knee and then goes round behind the hamstring muscles and the fibula head and down the lateral side of the knee. It is therefore very difficult to actually cut the nerve in a total knee replacement operation. For this reason I was concerned about the possibility of a cut nerve from the beginning and mentioned so in my report.
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Damage to the nerves around the knee is not uncommon following knee replacement and the consent form should normally contain a statement that this has been explained to the patient, particularly when the knee is in valgus or knock knee position, as the tight scar tissue on the outside of the knee is stretched when the knee is straightened at the time of replacement and the nerve can become damaged. That is a much more likely a series of events for nerve injury than a direct cutting with a knife. The knee was straight and was not deformed pre-op. There are other reasons why the nerve damage could have occurred away from the area of the operation. For instance people who have had back pain and sciatica previously can develop a nerve lesion after such surgery. Indeed, I had a case where following an arthroscopic procedure a popliteal nerve lesion occurred when there was clearly no injury to the area whatsoever. Again this produced a letter of claim, which was fortunately dismissed quite easily, but it still is a worrying time for both surgeon and patient. The registrar was traced and gave the view that no injury had occurred at the time of the procedure. He had, after all, been the operating surgeon. The consultant, who had been a locum, was eventually traced to the United States and likewise denied that he said anything about cutting the nerve and that the nerve was indeed not cut. Thereafter the claim was discontinued.
Case two The second case is of a young commercial pilot, 42 years of age at the time he was seen. He, like many commercial pilots, had been in the RAF. He was an extremely physical person, and was doing triathlons, but he had pain in the knee after running. He was reviewed and had an MRI scan which was rather inconsistent and did not show any specific lesion. Arthroscopy was carried out in October 2008 which showed a possible meniscus flap tear. There was grade 3-4 chondral damage to the trochlear groove. The rest of the knee was quite reasonable, except for two small areas in the femoral condyle, and it was initially decided that these should be left alone. His symptoms soon completely settled, however by March 2009 there was further deterioration and a further scan was carried out. It was decided he should have a micro fracture or osteochondral grafting. He was told that this would need a six week period of non weight bearing. A further arthroscopy noted that he had a 2 cm by 3 cm full thickness articular cartilage lesion of the medial femoral condyle. A micro fracture and debridement of the area was carried out – a similar treatment to the chondral damage in the trochlear. Four weeks afterwards he had five days of pleuritic pain and was admitted and found to have a deep vein thrombosis (DVT) and pulmonary embolus (PE). He was anti coagulated, as would be normal, including Warfarin and this was advised for six months. Because he was a commercial pilot and on Warfarin for six months he was unable to work for that period. This was the reason for his concern and his investigation into the possibility of damages. One of the problems was that the claimant believed he had been told the operation had taken an hour and a half, which was particularly long. He had investigated the incident in great detail and already got out the NICE guidelines for prophylaxis against possible DVT. The risk of a possible DVT after arthroscopy is very varied, depending on which report you read, with a range from 6% to 18%. One of the reasons why the figure is so variable is that they are often asymptomatic and the diagnosis can be missed. The true rate is probably unknown.
Over the last few years venous thrombo embolism, which involves DVT and PE, has become very topical within the orthopaedic world, particularly in knee and hip surgery. NICE have produced a number of guidelines many of which were disputed because it was felt that the side effects of the anticoagulation outweighed the possible risk from the DVT. Over many years we have used Aspirin prophylactically, however this has been shown not to be effective and now one is expected to use something chemically a bit more proven such as low molecular Heparin. Patient activity is, of course, one of the best ways to reduce the risk of thrombosis and stockings have been shown to be very successful. The eventual consensus of opinion from NICE was that if there is an operation lasting more than one hour on the leg then prophylaxis should be considered by whatever means. The timing of the operation is from the induction of anaesthetic actually in the anaesthetic room to coming off the table. Clearly in
this case, if the patient’s operation had lasted for an hour and a half, it would have been outside the hour and could have been considered for prophylaxis, though I am not sure that many orthopaedic surgeons would have done that. I think it very unlikely that orthopaedic surgeons would have considered prophylaxis necessarily before the operation but if the operation had gone on longer than expected then it might have been considered. This was obviously the point the claimant was making in that he could have gone to work for an extra six months and therefore not suffered the financial consequences of his operation. Unfortunately, further notes from the hospital appeared later which showed the operation actually taking three quarters of an hour. It was clear there was no case that could sensibly be answered and the claim was discontinued. Generally, I think its important to take note of the claimant’s views but one has to be careful to weigh up all the odds. q
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Straying outside the
boundaries
by DR ANTHONY CLARKE, BSc MB BS FRCP Consultant in Rheumatology and Rehabilitation, Bath AT PRESENT I AM preparing a medical report for the Court relating to a road traffic accident allegedly resulting in a significant back injury. As is often the case, I find myself preparing a report late in the litigation process and have available to me a number of reports prepared by other experts. The first in this case was by a surgeon who, in his review of the past medical notes, devoted four and a half pages to the psychiatric history. His final conclusion was that the claimant’s symptoms were entirely physical, even though all the other experts (including his treating doctors) could find no evidence of a significant pathological or anatomical abnormality, and the psychological reports point to severe depression and a chronic pain syndrome. Why review the psychiatric notes (in more detail than the past locomotor incidents, for instance), when clearly you do not have the expertise to interpret the significance of the past psychiatric history? This set me thinking about other examples I have seen of experts straying outside their area(s) of expertise and the consequences of that. The most common things I see in reports are psychiatric opinions, especially over the past couple of years in relation to post-traumatic stress syndrome, but also opinions relating to the causation of pain which appear to have no cognisance of the present evidence-based thinking on the nature of pain and pain behaviour. As far as the witness box is concerned, on three occasions I have seen very senior doctors give opinions on matters on which they were not capable of giving an expert opinion. Each time the witness was challenged and had to admit lack of expertise. Not surprisingly, the Court appeared to take a sceptical view of the rest of the evidence of those individuals. The newly issued Guidance for the Instruction of Experts to give Evidence in Civil Claims1 makes a number of issues clear, including
saying that experts should indicate without delay where particular questions or issues fall outside their expertise. More importantly, experts must not express an opinion outside the scope of their field. Of course, there will be occasions when a specialist in one field has specific experience that allows him or her to offer an opinion in a domain normally seen as ‘belonging’ to another speciality. Thus if an interventional anaesthetist is working with a multidisciplinary team, which includes a psychological input dealing with chronic pain, then he or she is entitled to comment on the negative effects of clinical depression on pain perception. This is the one issue in pain recognised by all clinicians in the field. However, that anaesthetist would be well advised not to offer an expert opinion on the diagnosis, severity or prognosis of depression, but defer to a psychiatrist or a clinical psychologist. The expert must remember that at some point he or she may undergo hostile cross-examination, under oath, in the witness box. Before signing their report, the expert should be certain that everything in their opinion is defensible. Questions to ask oneself include, “Does this opinion reflect my personal knowledge of the subject matter being tested?” and “Is the matter controversial and, if so, have I explained to the Court why I have adopted my opinion?” The role of the expert is to assist the Court, not to make it more difficult to arrive at a fair decision. q REFERENCE 1
Guidance for the Instruction of Experts to give Evidence in Civil Claims (2012) www.judiciary.gov.uk/resourses
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Expert Profile Mr. Sanjiv Jari Consultant Trauma & Orthopaedic Surgeon Bsc (Hons), MBChB, FRCS (Eng), FRCS (Tr & Orth) Orthopaedic & Trauma Services Ltd www.oatsltd.com info@oatsltd.com MR JARI IS A Consultant Trauma & Orthopaedic Surgeon at Hope Hospital, Salford and also an Honorary Clinical Lecturer in Orthopaedic & Trauma Surgery at the University of Manchester. He has been preparing medical reports since 1996 and undertakes between 600-800 reports per year. He receives instructions for reports on RTA injuries ranging from low velocity impact cases to multiple injury, high value, multi track cases. He also prepares reports on trips, falls, slips and workplace injuries and has an increasing number of instructions on clinical negligence cases. Mr Jari is also prepared to undertake home visits and prison visits. Costs are based on his hourly rate as per agreed terms and conditions. He is a member of the UK Register of Expert Witnesses, The Association of Personal Injury Lawyers (where he is a 1st tier APIL member) and the Manchester & District Medico-Legal Society. He has also successfully completed Cert MR parts 1 and 2 together with the Bond Solon Certificate Civil Procedure Rules for Expert Witnesses. Current waiting time is around 1-3 weeks for an appointment with a report turn around time of 3-5 working days. Orthopaedic & Trauma Services is also able to offer a complete service for solicitors including arranging medical imaging or treatments. q • Please contact Allison Ellis on 0161 445 9885 for further information.
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Disability assessment for benefit claims and UK GPs’ conflict of interest By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP POLITICS, ECONOMICS AND LAW are as important in patient care as medicine. It is my experience that some academics believe that health professionals should not consider the above three disciplines. Some may recognise law but might consider that politics, economics and religion are taboos. In fact, politics is a science dealing objectively with realities. Disability assessment, management and financial support need input from all four disciplines – politics, economics, law and medicine.
What is the issue in disability assessment? It has been recognised by the British Government that the financial cost of care for disabled people and social welfare benefits is very high. It needs to be trimmed down fairly and gently. There are genuinely disabled people, fake disabled people and many grades in between. Similarly, there are legal and illegal immigrants. Some industrial employers employ independent occupational physicians, who examine the employees for fitness for appropriate work. These occupational physicians may not have any conflict of interest as they are employed as doctors. As their fees and salaries are high, they may not be employed by Social Security and Disability Assessment Authorities. In good faith, they take a cheaper and easier option. They ask the patients to go to their own GPs for assessment of disability, sickness, driving, housing, child abuse and a host of other physical, psychological and social conditions. Does every GP who examines to assess his/her patients for disability have a conflict of interest? This is a fundamental question which requires evaluation.
Why every GP has a conflict of Interest? Principal GPs, who run General Medical Services (GMS), are self employed doctors. For this reason their contracts of service are cheaper for the NHS than if they were employed directly by them. Salaried or Locum GPs are employed by these GP Principals or by the Primary Care Trusts. Every Principal GP’s income depends upon how many patients there are on his or her list. Some GPs earn more, some would earn less. In my opinion, every Principal GP is likely to face a dilemma of conflict of interest because: • Every GP is required by law to be efficient, factual, truthful and impartial in writing a report or a certificate – as if he/she were a Loco Magistrate. • Every GP is advised by the General Medical Council and Royal College of General Practitioners to provide the highest quality of care and support to each patient in every way. Indeed, GPs in the UK try their best to do just that. • Every GP’s fee is paid by the patient or the requesting authority or the NHS. • A GP is usually obliged to give or disclose the report to the patient. Computer records make access to a disability assessment report easy. Only in exceptional cases, such as crime, would the report be hidden from the patient. • If the report is in favour of the patient, he or she would stay on that GP’s list. However, if the report is against the patient, who would lose benefits, the patient would be angry with the doctor. He or she may leave the GP’s practice. In Asian, black and catholic communities the family bond is strong and the whole family may leave that GP’s practice. Such a GP has no one to turn to in order to compensate for a big financial loss. There is no government resource or insurance available. Just imagine the financial loss and shock.
How every medical expert also has a conflict of interest? As an expert witness in medical issues such as disability a medical expert also has not only a financial and moral conflict but also a legal conflict of interest. Every practising doctor, GP or non GP, has been taught by their educational and regulatory bodies that their duty is only to their patient. However, Civil Procedure Rule Part 35.3 requires that every expert’s overriding duty is to the Court. It clearly states that it is the duty of an expert to help the court on the matters within his or her expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid. These conflicts of interest are complex and need to be understood and resolved.
How can there be a fair play? Politics is a science dealing with realities. Indeed, both patients and doctors are important in medicine and politics. The concept of a ‘Fair Society’ can only be successful if politicians and parliament protect all disabled persons and provide for their care, welfare and financial needs. We can only solve problems if we can talk about them calmly. Therefore, I propose we talk about this issue and reach a fair deal. Parliament could consider ways of removing the conflicts of interest of GPs who may have to assess their patients with disabilities. These measures may include: • GPs being asked for a medical records summary related to the disability and being appropriately paid for it with no loss of income to them. • Disability assessments should possibly be carried out by newly created Salaried Disability Physicians, similar to Occupational Physicians, who assess fitness for occupations. Disabled people may or may not have occupations. Moreover, there should be some mechanism for appeals as fair play is essential. • These independent Salaried Disability Physicians may be based in local Polyclinics, Day Centres or Health Centres which have recently been established in many localities. • In the meantime, if a GP loses a family from his/her list because of an accurate assessment there should be some payment to compensate for the financial loss. Everything changes with time. The National Health Service, national or local finances and politics are changing. Parliament has passed a new bill about benefits for eligible people and litigation about benefits is likely to increase. These days, it is appropriate to revisit the disability assessment issues in House of Commons committees and in Local Council Working Parties. q • Dr Qureshi is an expert witness in cultural, religious and ethnic issues in litigation and also in GP clinical negligence. He is also the author of ‘Transcultural Medicine’ and can be contacted via email at drbashirqureshi@hotmail.com. www.yourexpertwitness.co.uk
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Four legs better! The joys of horse ownership Life’s not all work for the legal fraternity. In this new ‘lifestyle’ section we look at some ways of spending precious leisure time – and that hard-earned cash!
REBEKAH BROOKS GOT INTO trouble for borrowing one from the PM, Dame Judi Dench played one of her most memorable scenes on one and waxes lyrical about owning one – and millions are won and lost betting on them! Horses are the ultimate pet of the rich and famous and riding them is a highly popular activity. Despite recent grizzly news stories about what happens to them after their careers are over, racehorse ownership is also a growing sport in itself. There are a number of ways of becoming the proud owner of a racing thoroughbred. For the rich and daring there is outright ownership – all four legs are yours, as is all the expense of housing, feeding, vets’ bills, transport etc, etc. Then there are various types of joint ownership. According to the British Horseracing Authority there are four routes to co-ownership: • Company ownership – where the parties are shareholders in a company that owns the horse. • Joint ownership – where all the owners are equal. • Leasing – which can be for one race or for the horse’s racing career. • A racing partnership – which itself can take various forms. Whatever the route to ownership, the thrill of watching YOUR horse crossing the finishing line at one of the country’s major racing venues is one that is becoming increasingly popular. R • To find out more visit www.britishhorseracing.com.
Luxury car sales hit record highs DESPITE THE ECONOMIC WOES that beset the world, the market segment that is a traditional marker of international success – the luxury car market – is booming. And one of the biggest beneficiaries of that boom is the UK, with both Rolls Royce and Bentley chalking up record global sales last year. Bentley’s growth hit 22% as deliveries to customers increased to 8,510 cars, maintaining its position as the leading manufacturer of luxury vehicles in the world. Meanwhile, Rolls Royce revealed a third consecutive record sales year, with 3,575 cars sold globally – the best sales result in the marque’s 108-year history. The US was the top market for both companies. In the case of Rolls Royce that position was regained from China. The Chinese market remains an increasingly significant one, however, with
Bentley increasing its sales there by 23%. Unsurprisingly, a buoyant European market was led by Russia, with the traditional Western Europe economies still in the doldrums. The Middle East remained another strong market for both manufacturers. Bentley capped the year with the announcement that its Continental GT V8 model (pictured) had been named winner of the prestigious Middle East Motor Award in the Premium Luxury Coupe category. The award is judged by 17 highly regarded automotive journalists from 10 countries that collaboratively represent the Middle Eastern automobile industry. Bentley even managed a modest 7% increase in UK sales last year. With the increase in employment prospects among lawyers in the City, maybe that is a trend that is set to continue. R
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AVIATION
BOUNDARY DISPUTES
BUILDING, PROPERTY & CONSTRUCTION
CCTV/VIDEO/IMAGE ANALYSIS
COMPUTER & MOBILE FORENSICS
ELECTRICAL CONSULTANTS
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EMPLOYMENT CONSULTANTS
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