contents IN THIS ISSUE 7
NEWS 8 Employment law shake-up comes into force 8 Disputes over deposits waning since protection introduced 9 Hard hats the subject of updated regulation 10 Family court experts face MoJ crackdown 10 Cybercrime affects nearly half of small businesses TRANSLATION & INTERPRETING 11 Court interpreter fiasco shouldn’t overshadow other translation needs ROAD TRAFFIC ACCIDENTS 13 Damaged vehicles hold the key 14 Special traffic courts will speed up justice 14 When is a road not a road? 15 PI lawyers hit back at whiplash ‘myth and hyperbole’
FINANCIAL ISSUES 16 Forum discusses financial crime developments 17 Commercial fraud cases 19 Compulsory purchase calculation of extinguishment claims TREES & FORESTRY 20 Extra funding will help tackle oak moth 21 Tree Preservation Orders and the expert witness ANIMAL WELFARE 22 Legislation affecting animals 25 Dog control measures raise two cheers from vets EXPERT CLASSIFIED 51 Expert Witness classified listings 55 Medico-legal classified listings
Legal Roadshow is just the ticket for a boost to circulation – Your Expert Witness at the Law 2013 Legal Services Roadshow 4
MEDICAL ISSUES 29 Medical Notes
NEWS 30 New advice to the medical expert witness ORTHOPAEDICS 31 Younger knee replacement patients are less happy with the outcome 31 Research hopes to prevent arthritis after knee injury 33 Air embolism – a preventable disastrous complication 34 The importance of MRI scanning PLASTIC SURGERY 35 The PIP scandal rumbles on SPEECH & LANGUAGE THERAPY 36 MPs call for action on communication difficulty in children 36 Solicitors urged to learn British Sign Language 37 Establishing realistic goals in speech and language therapy
CARDIOLOGY 39 Bystander coronary artery disease in accident victims – the expert cardiologist’s dilemma MAXILLOFACIAL ISSUES 41 Jaw death link to osteoporosis drug ‘rare’ CULTURAL ISSUES IN MEDICINE 42 Transcultural issues in medical consultations in Britain PSYCHOLOGICAL TRAUMA 43 Children with PTSD benefit from therapy 44 Research suggests ‘panic’ is too strong a word 44 Dilemma for victims 45 Assessing psychological trauma
TOXICOLOGY 46 Drink ‘tagging’ pilot given thumbs-up 46 UEFA announces crackdown on drug cheats PHYSIOTHERAPY 47 Why choose a physiotherapist expert? 48 Expert physios have own association 48 Expert assessment can be vital for future care 49 Paralympic success follows physiotherapy 49 The importance of specialist assessments in serious injury cases
Your Expert Witness
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Opening Statement ‹ WHEN IS AN EXPERT not an expert? When they appear in the family court, it seems. In the last
Opening Statement we covered the story that Justice Minister Lord McNally was gunning for the number of expert witnesses giving evidence in cases involving children. Now proposals have been put out for consultation to introduce standards for the quality of experts qualified to give evidence in such cases. Announcing the move, Lord McNally said: “Poor quality expert evidence can lead to unacceptable delays for children and their families. By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings. We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly. It is an opportunity we cannot afford to miss.” The standards are intended to speed up and improve the working of the family courts. It is, of course, purely co-incidental that the move will save money. One move to save money in the delivery of justice that has backfired has been the contract the MoJ made with Capita to provide interpreters and translators to the courts and tribunal system. The new system has been criticised, as was the way the contract was awarded, and a coalition of professional organisations have boycotted the scheme. Most recently, the Professional Interpreters for Justice have rejected an improved pay and conditions package, insisting the contract be scrapped. Access for justice for people in a language other than English has been highlighted by the Royal Association for Deaf people Law Centre, which has called on solicitors to learn British Sign Language to communicate with deaf clients directly. Research carried out by the centre found that 85% of deaf people prefer to receive advice directly rather than via an interpreter. Speeding up justice for traffic accident victims is behind the introduction of special fast-track courts for low-level traffic offences that are uncontested – meaning more serious cases will be dealt with sooner. A common consequence of traffic accidents is the celebrated whiplash injury. Derided by the insurance industry and politicians as often being fraudulent, the Association of Personal Injury Lawyers has obtained information showing instances have declined to a five-year low. And with the introduction of new arrangements for dealing with compensation claims, it could be that expert opinion in such cases could be on the decrease, too. Expert analysis will always be needed, however, in the sphere of cybercrime and other sophisticated financial offences. Figures from the Federation of Small Businesses showed nearly half of its members suffered some kind of cybercrime incident last year, costing an estimated £785m in losses. If that figure is extrapolated to the total number of SMEs in this country the cost is staggering – into the billions. That is one of the reasons a number of governments have set up the Financial Action Task Force to investigate international financial wrongdoing. Finally, more of you will be reading this column than was previously the case, as a result of successful attendances by the Your Expert Witness circulation team at The LAW 2013 Roadshow events at Birmingham in February and Manchester in May. The events, organised by the SOLICITORS group, combine continuous professional development conferences with an exhibition of services and are attended by over 1,000 legal profesionals. The LAW 2013 Roadshow will soon be at a venue near you. q
Ian Wild, Director of Business Development Your Expert Witness
Employment law shake-up comes into force ‹ ON 25 APRIL THE Enterprise and Regulatory Reform Bill 2012-
13 (ERRB) received Royal Assent and became the Enterprise and Regulatory Reform Act. In an explanatory release, solicitors Pinsent Mason said: “The Act introduces a number of significant employment reforms which include the reform of compromise agreements – including renaming them as 'settlement agreements’ and making pre-termination negotiations inadmissible in unfair dismissal proceedings. This reform is expected to come into force in summer 2013, along with a cap on unfair dismissal compensation (also introduced through the ERRB), which is to be the lower of 12 month's gross pay or the existing limit of £74,200.” Announcing the passing into law of the Act, the Department for Business, Innovation and Skills said it will: “…create a better employment tribunal system by encouraging parties to come together to settle their dispute before an employment tribunal claim is lodged, through the Advisory, Conciliation and Arbitration Service’s early conciliation and greater use of settlement agreements.” It also closes a loophole in whistleblowing protections which will only allow individuals to blow the whistle in matters of public interest. That prevents workers from making a whistleblowing claim at an employment tribunal for purely private matters such as problems with their own individual contract. It will also introduce greater protection for individuals from harassment when they blow the whistle at work. q
Disputes over deposits waning since protection introduced ‹ THE PROPORTION OF DISPUTES over tenants’ deposits in
England and Wales is just over 1%, according to official figures released by the Department for Communities and Local Government and quoted by award-winning deposit protection scheme my|deposits. The figures show that of the 7,052,255 deposits that have been protected since the introduction of the legislation in 2007, only 91,802 have ended up requiring formal dispute adjudication – just 1.3%. All tenancy deposit protection (TDP) schemes are required to provide a free and impartial service to landlords and tenants who are unable to reach an agreement over the return of tenancy deposits. The figures were calculated by combining information provided by all three TDP schemes that operate in England and Wales – my| deposits, The Deposit Protection Service and The Dispute Service. Furthermore, a total of 10,657 complaints about deposit protection (as distinct from disputes) and the service provided have been made to all three schemes since 2007 – which equates to just under 1,800 complaints a year. Eddie Hooker, chief executive of my|deposits, said: “TDP was introduced to protect the tenant’s money, so it’s extremely encouraging to learn that only 1% of tenants experience issues over the return of their deposit which they cannot sort out without the help of the schemes. “It’s good news for tenants, as it shows the vast majority are happy with the return of their deposit at the end of the tenancy. It also shows that the relationship between landlord/agent and tenant is improving. “We’ve worked hard over the last six years to improve our disputes processes and this was recognised when we picked up the award for Excellence in Alternative Dispute Resolution from the Centre for Effective Dispute Resolution last year. “We also put a lot of effort into educating both members and tenants about how to avoid deposit disputes and it looks like this is paying off too. Negotiation is key and with our support around a third of initial deposit problems avoid formal adjudication altogether.” q
Hard hats the subject of updated regulation ‹ Measures relating to the use of head protection on construction sites are
among a raft of changes to health and safety legislation which came into force in April. The Health and Safety (Miscellaneous Repeals, Revocations and Amendments) Regulations 2013 repeal one act and revoke 12 instruments, plus a related provision in the Factories Act 1961. These measures are being removed because they have either been overtaken by more up-to-date regulations, are redundant or do not deliver the intended benefits. According to the Health and Safety Executive (HSE): “These changes do not compromise essential health and safety protections. The aim is to make the legislative framework simpler and clearer. This work is part of wider reforms to help employers understand quickly and easily what they need to do to manage workplace risks.” Action being taken to raise awareness of the changes will involve site safety experts from HSE working with the construction industry – in particular small contractors – to ensure that it understands the continuing need for employers to provide hard hats and ensure they are worn on construction sites. “Hard hats remain vital in protecting construction workers from head injuries,” says the HSE in its announcement regarding the changes. “Employers will need to comply with the requirements of the Personal Protective Equipment Regulations 1992, which have been amended so that they cover the provision and use of head protection on construction sites, thus maintaining the level of legal protection when the Construction (Head Protection) Regulations are revoked.” q
Family court experts face MoJ crackdown ‹ THE MINISTRY OF JUSTICE (MoJ)
has announced national standards aimed at raising the quality of experts in family courts. The ministry says it is in order to “…get rid of time-consuming evidence which adds little value in helping judges reach a decision”. It is the latest in a series of reforms which are designed to improve and speed up the family justice system. The MoJ says the standards will mean evidence provided in a family court can only be given by qualified, experienced and recognised professionals. In a statement the MoJ said: “For far too long there has been an increasing trend in England and Wales for expert witnesses to provide unnecessary and costly evidence – in the form of further written statements, clarifications and additional court appearances. This can cause major delays in
child care cases and in the worst examples this has led to cases being forced to start again. “Under the new plans experts who are wellqualified and experienced will continue to provide their valuable service in advising the family courts – but the so-called experts who provide evidence which is simply not up to scratch will be driven out.” Justice Minister Lord McNally (pictured) said: “Poor quality expert evidence can lead to unacceptable delays for children and their families. By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings. “We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly. It is an opportunity we cannot afford to miss.” q
Cybercrime affects nearly half of small businesses ‹ RESEARCH PUBLISHED ON 21 May by the Federation of Small
Businesses (FSB) shows that online crime and fraud costs its members around £785m per year. According to the report, 41% of FSB members have been a victim of cybercrime in the past 12 months, putting the average cost at around
£4,000 per business. Around three in 10 members have been a victim of fraud, typically by a customer or client (13%) or through ‘card not present' fraud (10%). For the first time, the FSB has looked at the impact that online crime has on a business. The most common threat is virus infections, which 20% of respondents said they have fallen victim to. A further 8% have been a victim of hacking and 5% suffered security breaches. The report also found that almost 20% of FSB members have not taken any steps to protect themselves from a cybercrime. However, 36% of respondents said they regularly install security patches to protect themselves from fraud and almost six in 10 members regularly update their virus scanning software to minimise their exposure to online crime. The FSB’s national policy chairman Mike Cherry said: “Cybercrime poses a real and growing threat for small firms and it isn't something that should be ignored. Many businesses will be taking steps to protect themselves but the cost of crime can act as a barrier to growth. For example, many businesses will not embrace new technology as they fear the repercussions and do not believe they will get adequate protection from crime. While we want to see clear action from the Government and the wider public sector, there are also clear actions that businesses can take to help themselves.” q
Court interpreter fiasco shouldn’t overshadow other translation needs ‹ IN MAY THE UMBRELLA organisation for interpreter
organisations, known as Professional Interpreters for Justice (PIJ), announced its members had rejected the amended terms for work in courts and tribunals under the outsourced contract with Capita. The effect is that members of those organisations within the umbrella – including the Chartered Institute of Linguists and the Institute of Translation and Interpreting – are effectively boycotting the scheme. According to a statement issued by PIJ: “Incidences of interpreter ‘no shows’ and poor quality interpreting at courts and police stations across the UK continue on a daily basis. They include the postponement of a hearing in a quadruple murder case at Nottingham Crown Court on 10 May when a Mandarin interpreter booked for the defendant didn’t arrive, prompting High Court Judge Justice Julian Flaux to label the outsourcing company ‘an absolute disgrace’ and Northampton North MP Michael Ellis to say it showed the service was ‘out of control’.” The statement says the Ministry of Justice’s own statistical report about the contract does not report on the large number of interpreting assignments being arranged directly by court clerks who bypass Capita because they are frustrated with the system. The furore over the outsourcing contract – decried as a shambles by the Commons Justice Committee – has tended to overshadow the myriad occasions where professional interpreting and translation services are required in circumstances other than the court or tribunal system. Increasing globalisation of the economy plus the expansion of the EU have led to a burgeoning of the circumstances where professional translation services are required: from medical examinations to report writing to drawing up contracts. More and more often, either British or other EU nationals resident in the UK may be purchasing property or goods and services abroad. In those circumstances a precise translation of the official and legal documentation is crucial. The Institute of Translation and Interpreting (ITI) publishes handy guides for those needing to purchase translation or interpreting services. The first important message to be gained is: don’t try to do it yourself. The second is that translation should always be done into the translator’s native language. The ITI guide Translation: getting it right says: “If you want your catalogue translated into German and Russian, the work should be done by a native German speaker and a native Russian speaker. Native English-speakers translate from foreign languages into English. As a translation buyer, you may not be aware of this, but a translator who flouts this basic rule is likely to be ignorant of other important quality issues as well.” An added caveat is
that for complex legal or commercial work the translator must have the technical accuracy in their own language. As the ITI’s advice for non-linguists says, the first and possibly most important step is to realise that a professional expert is needed. q
Damaged vehicles hold the key by NIK ELLIS, Managing Director, Laird Assessors
‹ WHEN YOU HEAR TWO versions of a car crash it makes you wonder
about history. It’s quite rare that witnesses, even independent ones, will give the same account of an accident. So how does an expert witness determine what happened, who was at fault and how fast were they driving? An accident reconstruction works backwards from the aftermath of the accident to discover what was happening prior to the accident. The ideal situation is to have the scene secured immediately after the accident so that it can be forensically examined, photographed, scanned and measured. However, in litigation it is often several days, if not months, after the accident has occurred before experts are instructed, and so the scene has been well cleared of any scrapes, tyre marks, debris and other evidence. The damaged vehicles, therefore, give us our greatest chance to uncover how the accident occurred. The damage to the vehicle can give us several vital clues. The direction, or directions in a dynamic collision, in which the impact occurred is important. This is a skill derived from experience in vehicle body repair, as it is the job of a body repairer to undo the damaged caused during the impact. In practice this means that a panel beater must determine the correct angle in which to pull the damage on a jig system thus reversing the direction in which the metals have been pushed. In other words he pulls the car in an opposite direction to the impact. This skill is imperative for the accident investigator to perfect, thus preventing inaccurate assumptions. Examination of the vehicle can also reveal the magnitude of the impact, based on the depth of penetration and size of the impact. Again the skill of an experienced engineer will determine whether a panel that might appear undamaged to a lay person may have been touched without leaving contact marks, or alternatively pushed inwards but rebounded back to what appears like the original position. This latter situation often fools the inexperienced into suggesting there has been no impact – but there will be tell-tale signs, such as stretching at the edges of a panel (not necessarily where the impact occurred) that only an expert will notice.
The last few years have presented two major challenges to the accident investigator. Traditionally cars have been made of steel, but today’s vehicles have a heavy use of plastics, carbon-fibre, aluminium as well as high and ultra-high strength steels. The crash repair industry relies on professional research from the Motor Insurance Repair Research Centre, commonly known as Thatcham, for detailed and specialist information on how the materials not only react when damaged but how they are meant to be repaired to a correct and safe standard. The second complication is the exponential growth in technology. All modern vehicles are fitted with a plethora of active and passive safety equipment such as autonomous braking systems sensing and limiting collisions, pre-brake tensioning, seat position optimisation, pedestrian detection, dynamic and active traction, suspension and drive train settings. It is essential that the engineer has a full working knowledge of what these systems do, how they work and more importantly what affect they will have on a vehicle prior to a collision. Gone are the days when you could crash a couple of old bangers from the 90’s to determine how today’s vehicles react prior to and during a collision. Significant accident repair experience coupled with current and ongoing training on contemporary vehicle repair techniques is the only way an expert can begin to determine how an accident occurred with any degree of precision. It is this complete technical knowledge that allows an automotive engineer to provide not only an independent and accurate report, but to be able to support the contents with confidence all the way through to the courtroom. q
Special traffic courts will speed up justice ‹ JUSTICE MINISTER DAMIAN GREEN has announced the
setting up of dedicated ‘traffic courts’ to deal with low-level road traffic offences. Local areas are being urged to work with the judiciary to set up the courts as part of proposals to reduce delays and focus more on serious and contested cases. Mr Green said: “Enforcing traffic laws is hugely important for road safety and saving lives. However, these cases take nearly six months on average from offence to completion, despite the fact that over 90% of cases result in a guilty plea or are proved in absence – this is simply unacceptable. “The justice system must respond more quickly and effectively to the needs of victims, witnesses and local communities and these dedicated courts will enable magistrates to better organise their work and drive greater efficiency.” There are around half a million summary motoring cases heard every year including speeding, traffic light and document offences. A pilot scheme for special courts has been running in nine areas. The ACPO lead for criminal justice, Chief Constable Chris Eyre, said: “We have implemented this new procedure to traffic cases with great
success in nine police forces, radically simplifying and speeding up the process. “This is only implemented when there is a guilty plea or where the case against a defendant is not contested. Effective first hearings have significantly reduced the amount of adjournments and a single court can deal with up to 160 cases a day.” q
When is a road not a road? ‹ THERE MAY HAVE BEEN general hilarity about the yellow
lines painted by council workers in an alleyway that is too narrow for a car to drive down, but confusion over when a street is not a street can lead to serious repercussions. An example in point is where councils may fail to prevent motor traffic from using what has been previously designated a bridleway or cycle track. According to highway law expert Jenny Trevor, in a report on such a situation: “…the fact that the council confirms that vehicular use is not being prevented, when the council’s own records show [the lane] to be a public bridleway, means that they are in breach of their statutory duty – this is a staggering admission.” In the case of cycle tracks, local councils have had powers to construct them since 1980. q
PI lawyers hit back at whiplash ‘myth and hyperbole’
‹ FIGURES OBTAINED UNDER A Freedom of Information
request from the Department of Work and Pensions show that claims for whiplash in Britain fell last year to a five-year low. The information was obtained by the Association of Personal Injury Lawyers (APIL) and forms part of its evidence to a Transport Committee inquiry into the issue. The figure for 2012/13 is 488,281, compared to 547,405 for 2011/12. APIL’s president Matthew Stockwell commented: “Considering the congested state of the UK’s roads, the impact of improvements in car design and the compulsory use of seatbelts, it is no great mystery that there are significantly more whiplash injuries than catastrophic injuries and deaths from car accidents, and this is surely something we should welcome.” The evidence submitted by APIL to the inquiry points out that a report from the World Bank shows that the UK has 79% more vehicles per kilometre of road compared with the European average. That is higher than Germany or The Netherlands and almost twice the number in France. “One of the key purposes of car insurance premiums is precisely to ensure proper cover for such injuries,” said Mr Stockwell. “What is more ominous is that a report published only last month shows that 29% of our premiums is used to pay for repair costs and replacement vehicles, which is an aspect of claims which the Office of Fair Trading has already branded ‘dysfunctional’. “This, combined with insurers’ staffing and overhead costs, accounts for more than half of the average premium, and this is where the real mischief lies.” He continued: “This debate has been mired in myth and hyperbole for far too long. Whiplash injuries are real, they are painful, and independent research has found that around one in five sufferers have symptoms lasting more than a year. That’s the reality. The fact that the Transport Committee is now taking a hard look at some of the myths is extremely welcome.” Mr Stockwell’s remarks came less than a month after the BBC was forced to admit that claims made by an insurance industry spokesman regarding the prevalence of ‘staged’ collisions were not checked. The assertion – that one in seven personal injury claims following RTAs result from staged accidents and cost the insurance industry £392m per year – was disputed by a solicitor and resulted in an apology from the BBC. The solicitor, Peter Todd of Hodge, Jones & Allen, told the
Law Society Gazette: “As a solicitor who has acted for victims of personal injury accidents for 20 years I have dealt with thousands of cases but I have never encountered a case in which the opponent even alleged that the injury arose out of a staged collision, let alone proved it to be true.” q
Forum discusses financial crime developments ‹ ON 26 APRIL THE intergovernmental Financial Action Task
Force (FATF) organised a meeting of the Private Sector Consultative Forum to discuss key aspects of the revised framework for anti-money laundering and countering the financing of terrorism (AML/CFT) and to seek input and feedback. The meeting was chaired by FATF President Mr Bjørn Aamo.
The Private Sector Consultative Forum consists of representatives of the financial sector and other businesses and professions subject to AML/CFT obligations as well as of civil society. The meeting provided an opportunity for FATF to update the members of the forum about recent activities and developments, such as the adoption of the FATF methodology, and to hear about issues of concern or interest to the private sector. Among the issues discussed were: • Dialogue on data protection and privacy rules and their effect on the implementation of AML/CFT measures • The risk-based approach, focusing on the identification of challenges met by the private sector in applying a risk-based approach, in particular in relation to the identification of risks • Good practices in identifying beneficial owners • Guidance for a risk-based approach to prepaid cards, mobile payment services and internet-based payment services • Guidance on politically exposed persons The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system. q
Commercial fraud cases by DEREK WILLIAMSON, Forensic Accountant at Goddards Chartered Accountants
‹ IT IS SUPRISING HOW rarely people look behind the obvious
and ask the awkward questions. I dealt with a case of fraud where the accounts clerk managed all the finances for a business which operated from four sites. She was such a nice person, visiting every branch daily to collect the cash and bank it. She was so kind and even allowed the staff and the partners to stay for free at her villa in Puerto Banus in Marbella. Everyone, including the partners (and possibly the auditors), were fooled by her apparent willingness to assist and ‘put herself out’. No alarm bells rang over the daily visits to the branches and visits to the bank. No one checked to see if any accounting procedures or controls were missing. Not suprisingly she defrauded the business of some £2 million over 10 years. She was found guilty, but unfortunately it did not stop there. HM Revenue & Customs sued for under declarations of VAT on these scams and the senior partner suffered a fatal heart attack. In another case, the accounts clerk for a travel agency was accused of fraud and I was asked to defend her. On checking the allegation, I found that the controls over cash had been non existent. When I asked to visit the travel agency, the finance director fiercely opposed my visit, alleging that the procedures manual that he had supplied was adequate. The Judge agreed with me and insisted that I be allowed to visit the firm and carry out tests on the old and new procedures. When carrying out my tests, I found that not only did the revised procedures still allow for fraud, but more importantly, that fraud was still continuing despite the sacking and prosecution of the accounts clerk. The finance director disappeared on a one way ticket to Rio and the case against the accounts clerk collapsed. Another case involved a large timber importer whose accounts clerk was allegedly raising false suppliers invoices. The prosecution was being assisted by a major accounting firm who put a couple of university graduates onto the case. They had gone for the obvious apparent frauds, without checking the movement of the timbers from import off ship through to delivery to customers. Unfortunately for them, these were smoke screens and I was able to show the jury that the goods were genuine, had been received and sold to customers who had paid for the goods.
As a result my client was clearly not guilty of the charges laid against him. Had the university graduates delved deeper they would have found that behind the smoke screen the clerk had ‘robbed Peter to pay Paul’ and so was guilty of fraud, but had not been charged with the correct offences. R
Compulsory purchase calculation of extinguishment claims By TOM ASLIN, Partner, Kingston Smith LLP
‹ IN MY LAST ARTICLE I set out the
basis for compensation, under Section 5, Rule 6 of the Land Compensation Act 1961, for businesses with an interest in land that has been subject to a compulsory purchase order. It is in such cases that a forensic accountant may be called upon to act as an expert witness in valuing the loss arising to the business as a result of either its relocation or extinguishment. In order to demonstrate extinguishment, the claimant will need to satisfy the acquiring authority, and ultimately the Upper Tribunal (Lands Chamber) if the claim proceeds to that stage, that it was not possible to relocate to alternative premises. In such claims, a value needs to be arrived at for the entire business, and there have been some interesting precedents set in this area by judgments made by the Upper Tribunal (Lands Chamber). The first such case I will examine concerns the valuation of a branch of a privately owned national chain of opticians, Optical Express, which had been extinguished as a result of a compulsory purchase order1. Both parties had agreed that the branch should be valued on an earnings multiple basis, that is the application of a suitable multiplier to expected maintainable earnings, to arrive at a capitalised earnings figure. However, the parties disagreed, inter alia, as to the earnings multiplier which should be used. One party had applied a multiple to EBITDA (earnings before interest, tax, depreciation and amortisation), whilst the other had used a P/E (price to earnings) multiple, which uses the after tax net profit figure as the multiplicand. Both parties had derived their multiples from publicly available EBITDA or P/E ratios of listed companies they considered were comparable to Optical Express, after the deduction of a discount to reflect the different risk profiles of private and public companies. The Tribunal held that both types of multiplier should arrive at the same value, providing appropriate adjustments are made in deriving an EBITDA multiple from a P/E ratio, or vice versa. In the end, the Tribunal preferred the EBITDA multipliers because the
companies from which they had been derived were more representative, notwithstanding that they were from outside the UK. The Tribunal also applied a discount of 40% to this multiplier to account for the fact that Optical Express was privately owned, and a control premium of 15% because the Claimant had control of the branch, unlike listed companies’ prices, which are based on the price of a single share, and therefore do not convey control. This resulted in an EBITDA multiple of 7.59, which was applied to the branch’s EBITDA to calculate its value. However, the discounts applied by the Tribunal in Optical Express have not remained set in stone, demonstrating the importance for each case to be judged on its own merits. In another matter heard before the Tribunal, a retailer called Contraband Discount Stores, which sold domestic products at discount prices through its three stores, had claimed the extinguishment value of one of these stores2. In this case, the Member adopted the Claimant’s approach of using a P/E ratio, as it had the advantage of being supported by published P/E ratios of listed companies. However, rather than applying a 40% discount to the P/E ratio, a 35% discount was instead adopted, to account for the difference between Contraband and that part of the quoted sector from which the listed P/Es had been taken. So far as the control premium was concerned, the Member was of the opinion that this should be small, but higher than that used in Optical Express, as Contraband was part of a local business and so did not suffer the constraints brought by being part of a national chain. This resulted in a P/E multiplier of 9.59, which was used to value the Claimant’s lost store. In a recent case in which we were involved, where we acted for the Acquiring Authority, a company called Solartrack plc had made an extinguishment claim3. This claim was made on the basis that the company’s trend of reducing turnover and profits was caused solely by the impact of the threatened compulsory acquisition. However, in reviewing the accounts, and
based on our understanding of the business following detailed investigation, we were of the view that this trend was not a result of the compulsory purchase order, but rather a fundamental weakness in the business itself. The Tribunal accepted this argument and made an award on the basis that the business would have failed in any event, and should have closed long before the date came for possession. The above cases illustrate the impact of developing case law in this area, over and above the legislative requirements for compensation, and also the need for properly reasoned arguments, supported by reliable expert and factual evidence, when valuing a business. There is no doubt that over the coming months and years there will be further developments in this interesting area. q • For further details please contact: Tom Aslin Partner, Kingston Smith LLP Forensic Accounting Services E: email@example.com T: +44 (0)20 7566 3725 David Epstein Consultant, Kingston Smith LLP Forensic Accounting Services E: firstname.lastname@example.org T: +44 (0)20 7566 3726 Kingston Smith LLP Devonshire House, 60 Goswell Road, London EC1M 7AD www.kingstonsmith.co.uk REFERENCES 1
Optical Express (Southern) Ltd v Birmingham
City Council 2
Susan Crowley & Ian Ronald George Jarvis (t/a
Contraband Discount Stores) v Liverpool PSDA Ltd & Liverpool City Council 3
Solartrack plc v The London Development
Extra funding will help tackle oak moth ‹ ENVIRONMENT MINISTER LORD DE MAULEY has
announced additional funding of £1.5m for a project to protect oak trees from a destructive moth. The project aims to combat the oak processionary moth – or OPM – by allowing plant health experts to treat oak trees in and around areas where the caterpillars are currently nesting. At the moment only trees that have already been infected are treated, so it is hoped that this will prevent the caterpillars from spreading any further. Announcing the extra funding Lord de Mauley said: “Tree health is a priority for us and this pest not only affects our trees but can also cause skin irritation in people and animals. The additional funding will allow us see if a wider programme of spraying is effective in destroying these pests.” The pilot project will examine the impact of wider spraying on the spread and control of the moth and will be monitored for its effectiveness. It will also ensure that trees with less visible signs of infestation are treated. The results will be considered when developing future strategies in dealing with tree pests. Sue Ireland, chair of the London OPM Advisory Group said: “We are delighted with this significant opportunity for a more focussed control of OPM. Our green spaces are precious and landowners,
local authorities, government and the public must grasp this opportunity and work together to protect them for the enjoyment of future generations, and to protect human and animal health.” The oak processionary moth has been present in the UK since 2006 and is currently present only in some areas of London and at one site in west Berkshire. The caterpillars of the moth (pictured) damage the trees by feeding on the leaves and the resulting leaflessness can leave the trees vulnerable to other pests and diseases. The caterpillars make tennis ball-sized nests in trees. If people spot these they should not attempt to remove the nests but report them to their local authority or the Forestry Commission. In a statement the Department for the Environment, Food and Rural Affairs stated: “Defra is continuing to tackle tree pests and diseases, including Chalara, and research is being undertaken to look at diseases present in Europe, but which are not present in the UK. “To tackle tree disease the Government has commissioned a plant health task force that will look at further ways to prevent pests and diseases from entering the country in the future and has allocated £8m for research into diseases that could affect our trees. Some 250,000 ash saplings have been planted to monitor for genetic resistance to Chalara and research has been commissioned to investigate genetic resistance in a laboratory setting.” q
Tree Preservation Orders and the expert witness By MARK CHESTER of Cedarwood Tree Care
‹ TREE PRESERVATION ORDERS HAVE been a feature of the
landscape since their inclusion in the Town & Country Planning Act 1947. They convey a level of protection on specified trees and woodlands and are administered by Local Planning Authorities, who have the powers of enforcement. Recent cutbacks in local authority budgets, with the resulting loss of expertise, and changes to the regulations, passed in 2012, may need the expert to be more informed in order to represent clients. I have been working with TPOs for the past 13 years, both as a local government tree officer and an arboricultural consultant in private practice. I have successfully enforced breaches of orders and witnessed poor administration due to lack of understanding and appreciation. It is a concern when those participating have not experienced the process before and are unaware of key principles. It is therefore increasingly beneficial for those within the legal profession to either understand the process or know where to turn to when a client is in need of informed guidance. The process begins when a new TPO is made. This is a legal document placing a charge on the land. There is a period of six weeks after making a new TPO when those affected can raise any issues, concerns and objections to the document. After this period the TPO is usually ‘confirmed’, after which it is difficult to change. Getting the detail correct is important. In one case I have worked on, a stream passing through a garden on a woodland edge was taken as the boundary between the garden and woodland. The document was confirmed. Today, woodland is becoming established in the garden beyond the stream, which was lawn. When a local authority decides to enforce an alleged breach of a TPO, this can be because of unauthorised work or unlawful destruction. The latter is harder to prove. With the former, the case must be registered with the court within six months of it occurring. With the latter, those seeking to prosecute need to demonstrate that a healthy tree has been destroyed. The mere evidence of a stump may not be sufficient to support such a prosecution. Where multiple charges are being brought against a defendant, they need to be particularised, sufficient to enable the defence to view the evidence. It is surprising that this does not always happen, but I have personally experienced its absence. In addition, the local authority needs to fully investigate the case, which includes interviewing all relevant parties. Again, this may seem obvious. However, in one case I was
involved with recently, the person with the chainsaw was questioned, whilst the owner, without a chainsaw but still potentially implicated, seemed to be out of the picture. I regularly talk to owners of trees subject to TPOs, who have been refused permission to prune or fell. They are clearly disappointed by the decision. When I ask if they appealed, I often find that this option has not been pursued. Sometimes, it is a justified outcome. However, I have found spurious reasons for refusing permission. These have included the potential impact of proposed works on ecology, such as dormouse habitation. Whilst dormice are a protected species, their protection is not covered by the TPO legislation. I mentioned that changes to the regulations may affect your client. Many do not appreciate that, whilst the level of protection for trees within a Conservation Area is lower than that for a tree subject to a TPO, the consequences for not providing notification are potentially the same as breaching the TPO. One of the major changes with the 2012 Regulations concerns exempt work. Previously, work was exempt if the tree was dead, dying or dangerous. This is vague wording, and prosecutions failed when defendants, who had felled a tree with dead branches, successfully argued it was exempt. The new regulations state that only the specific material which is dead, dying or dangerous, may be removed. Therefore, only the individual branches are exempt, not the entire tree. In addition, where a tree, or part of it, is deemed to be dangerous, only work sufficient to make it safe is permitted, until agreement is reached with the local authority that further work is justifiable. It is not always appreciated that merely helping someone work on a protected tree (by holding the ladder they are standing on or simply agreeing to let a neighbour prune boundary trees) can leave an individual vulnerable to prosecution. Being reassured by the property owner that a tree is not protected is no defence. Working with protected trees can be complex, and enforcement action, whether being pursued or defended, is often a stressful and challenging process. Having an experienced, informed expert guiding your team can help to make the journey smoother, and a successful outcome more attainable. q • Mark Chester is the Executive Director of the Consulting Arborist Society and a Cardiff University Expert Witness practicing with Cedarwood Tree Care.
Legislation affecting animals
by PAUL ROGER of Veterinary Consultancy Services Ltd
‹ LEGISLATION AFFECTING ANIMALS IS
a complex area of law and can involve civil and criminal arenas. Seeking expert advice is often difficult and can be complicated by the plethora of post-nominal qualifications and the experience put forward to support the expert’s status. This is particularly evident in the area of animal welfare legislation which reflects a pragmatic approach to dealing with animals kept for different reasons and in different ways. The courts often choose to recognise expertise on a relatively ad hoc assessment, plainly failing to recognise post-graduate training and experience along with professional and peer-review evidence of expertise. Welfare assessment provides an objective structured approach to establishing the welfare status of an individual animal and may, in some cases, be extended to include a group of animals. The basis for welfare assessment is through consideration of animal needs derived from the Five Freedoms ethical framework and now enshrined in statutory law under the Animal Welfare Act (2006) 9:2, where the needs are clearly enumerated. Where the AWA (2006) is applied, challenge may occur due to the continuing use of terms which are ethically woolly in their definition or which fail to accurately pinpoint critical issues. These terms, and the conditions to which they can be applied, often form the major basis for adversarial challenge in criminal courts where AWA (2006) is being used. It is therefore necessary to consider these issues thoughtfully and thoroughly and to have opinion from specialists in the field who can analyse and interpret the initial forensic clinical evidence gathered and provide a detached and
objective opinion as to the interpretation of these facts. Differential management of kept animals can sometimes be explained and justified but there may be some inconsistencies. It is unsatisfactory to rely on witnesses who provide the factual base for the charges and then add expert opinion evidence as they are unlikely to be impartial in their interpretation or their attitude to those charged. There is also a potential mine-field for those wishing to instruct specialists to produce expert reports in recognising the peer reviewed qualifications and the experience necessary to gain recognition from professional bodies – in the UK, the Royal College of Veterinary Surgeons (RCVS) and in Europe, the European Board of Veterinary Specialisation (EBVS). The recognition of specialist status is only given where the qualification and experience are recognised through quality controlled and peer reviewed evidence bases. Due to the vagaries of the system, independent advice on where to seek further information or guidance can be difficult and the
use of a company of proven experts offering an internal peer review of expert opinion may be helpful. Currently there are very few organisations offering this service to the readership of this publication. The variety and speed of development in all branches of science have increased exponentially in the last 25 years. This applies to clinical sciences as well as to the development of new ideas about how we approach the management of health and welfare in all species with which we have close contact. We recognise your need for effective high quality expertise, advice, training and support. We can provide this across a wide range of sectors not only from within VCS Ltd but also through a network of animal health and welfare experts covering the application of science, biotechnology and management strategies to improve the health and welfare of a wide range of animals used for meat, milk and fibre production, as companions, for sporting purposes or for research. This company has developed from the recognition by a group of veterinary surgeons, all of whom act independently as experts in their own fields, for the need to benchmark their delivery and thereby improve the effectiveness and quality of their advice. VCS Ltd will ensure best practice by acting as an independent review body for sourcing, supplying and quality assurance of the required advice. VCS Ltd includes recognised specialists of the Royal College of Veterinary Surgeons (RCVS) and the European Board of Veterinary Specialisation (EBVS) in bovine health and production,
sheep health and production, laboratory animal science/medicine and experts in animal welfare science, ethics and law. We have the knowledge and skills to provide veterinary, scientific and technical services to improve the development and delivery of health and welfare strategies, policies and practices. Our wide experience ranges from the provision of practical on-farm training to the development of effective programmes for companies as well as national and international organisations. Our key personnel offer a range of expertise: Roger Blowey has a wealth of practical experience from agricultural practice and has been awarded the fellowship of the Royal College of Veterinary Surgeons. He is also recognised as a veterinary specialist in bovine health and production by the RCVS. Peter Jinman was also in agricultural practice and has further experience and qualifications in arbitration. He is particularly interested in policy development as a former president of both the BVA and the RCVS and he is currently chair of the Farm Animal Welfare Committee. He was awarded the OBE in 2006. David Pritchard recently retired from Defra as the Senior Veterinary Consultant â€“ Animal Welfare and has a wealth of experience in research and development, education and policy development. He has been extensively involved in the European Union with
developments in animal welfare science and its application to policy and law. Paul Roger has been recognised as a specialist in sheep health and production for 20 years and is also a diplomate of the European College of Animal Welfare and Behavioural Medicine. He is currently president of the European College of Small Ruminant Health Management and carries out consultancy work across the UK and beyond. Sarah Wolfensohn has a particular interest in laboratory animals and is a diplomate of the European College of Laboratory Animal Medicine as well as a recognised specialist in this area. She is also a diplomate in the European College of Animal Welfare and Behavioural Medicine. Sarah has been awarded the OBE for services to animal welfare. We provide analysis and expert opinion relating to the application of veterinary science, welfare standards, legislation and welfare research. This includes the investigation of insurance cases, advice on the preparation of legal cases, expert witness screening and provision and testimony where appropriate. A particular strength we bring to this sector is our independence. The group offers its services in the UK, other parts of Europe and beyond and is pleased to offer an initial assessment of your requirements. q
Dog control measures raise two cheers from vets ‹ A NUMBER OF VETERINARY associations have welcomed
the call from the Commons Environment, Food and Rural Affairs Select Committee (EfraCom) for the Government to include measures such as Dog Control Notices into the Dangerous Dogs (Amendment) Bill. Evidence to the committee from the British Veterinary Association (BVA) and British Small Animal Veterinary Association (BSAVA), as well as a number of key dog welfare organisations and enforcers, reiterated the call for consolidated legislation on dog control including strong preventive measures. BVA President Peter Jones said: “We are delighted that this cross-party group of MPs has given such strong support for more preventive measures. We all support the proposed changes to the Dangerous Dogs Act but they simply don’t go far enough. “Instead of making more mistakes with hastily made legislation we are asking the Government to think again and reconsider introducing Dog Control Notices. DCNs have already been introduced in Scotland and have the support of veterinary surgeons, dog welfare organisations and enforcers, as well as many parliamentarians.” Professor Michael Day, President of BSAVA, added: “EfraCom has clearly listened to the contributions made by BVA and BSAVA in this report. There are challenges remaining to make sure that any amendments to the Act are effectively enforced, and so we are glad to see that EfraCom recognises how vital it is that dog warden and enforcement services are properly resourced by local authorities.” The measures, outlined in The Queen’s Speech, included the strengthening of the law regarding irresponsible dog ownership to cover attacks on private land and make dog attacks on assistance dogs an aggravated offence.
The latter measure was welcomed by the assistance dog charity Guide Dogs. James White, the campaign manager concerned with the issue of dog attacks, said in a statement: “We are absolutely delighted to hear that the law will be changed to make an attack on a guide dog as serious as an attack on a person in the eyes of the law. Our incredible animals need to be allowed to do their life-changing work safely and free from fear of attack. With an average of eight attacks on guide dogs happening every month, the Government must act quickly to bring this new law into force as swiftly as possible.” The extension of the law to include private property follows the tragedy where a teenager from Wigan was mauled to death in the home of the dog’s owner. Police were powerless to act following the attack. What is novel about the proposals is the change of emphasis to that of responsible dog ownership, rather than the nature of the particular breed. The Kennel Club said in response to the measures: “The Kennel Club supports the general principles cited of encouraging responsible dog ownership and strengthening the law for tackling dogs that are dangerously out of control, and hopes to see improved measures to more effectively break patterns of bad behaviour and tackle the other end of the lead – the owners themselves.” Its secretary Caroline Kisko commented “The introduction of measures such as penalties for keepers of dogs who allow them to harm lawful visitors to their home is a positive step in curbing irresponsible dog ownership and encouraging better control of dogs.” q
Dog attacks on assistance dogs are to become an aggravated offence
Legal Roadshow is just the ticket for a boost to circulation
Above: Holiday Inn, Birmingham in February
‹ In May the Lowry Hotel in Manchester
saw the return of the popular conference and networking event organised by the SOLICITORS group – the LAW 2013 Roadshow. It was home turf for Your Expert Witness – members of the magazine’s staff were on hand to introduce those amongst the estimated 1,000 or so legal professionals in attendance still unfamiliar with the title to the range of news and special features the journal has to offer. The LAW 2013 Roadshow combines continuous professional development conferences for legal professionals with an exhibition of services on offer. The popularity of the exhibition led to a welcome boost in circulation for Your Expert Witness, while new friends were made and old acquaintances renewed. The two days of concentrated activity meant the many experts who advertise in Your Expert Witness saw their services promoted to an even wider readership among solicitors than previously.
Director of business development Ian Wild was enthusiastic about the results. “It was certainly a worthwhile event. We generated a lot of interest in the publication and added value for our advertisers,” he said. “We will certainly be attending further events this year to promote the magazine to an even wider audience.” The event was one of a series of roadshows around the country. The 2013 series launched in Birmingham in February, where Ian and his colleagues saw similar success. The roadshows, however, are just one element in the whole range of events and services on offer from the SOLICITORS group – the largest collection of law firms in England and Wales and organisers of the profession’s largest legal conferences and training exhibitions across the UK. It claims a membership of 22,000 likeminded professionals and offers training services and the profession’s largest buying group.
Law firms join either as an associate or full member. Associate membership is free of charge and the full membership fee is set according to the size of the firm. Among the range of services available to the legal profession, in addition to the CPD training events throughout the country, are DVDs and CDs on a full range of CPD topics, online training modules and inhouse courses. There is also a range of directories featuring experts in all areas of law. The latest innovation from the group is a news channel available on You Tube: tsglegal.tv. Because the SOLICITORS group has a large number of law firms in membership it is able to partner with suppliers of all kinds to the legal profession to generate special offers and discounts for its members. Everything from insurance to stationery and from accounts software to property searches is available at a special rate from the group’s preferred suppliers. q
PRIZE DRAW WINNER Charlotte Fisher, Chair of Warwickshire Law Society Young Lawyers Group, receiving a bottle of champagne from Director of Business Development Ian Wild on behalf of Prize Draw Winner Jodi Darkins. Jodi, a fellow committee member of the group, is a litigation solicitor at the Coventry office of Astlers Kelley Solicitors and also won a year’s subscription to Your Expert Witness.
This page: Lowry Hotel, Manchester in May
The LAW 2013 Roadshow of conferences and networking events reaches some of the UKâ€™s busiest legal communities. It continues this year with events at: O
For further information visit www.thesolicitorsgroup.co.uk
MEDICAL NOTES ‹ IT IS INEVITABLE THAT any publication dedicated to the work of expert witnesses will focus to an
extent on the medical professionals that are called upon to give expert opinion in every conceivable type of court case. In the civil sphere, medical experts are called upon to assess injury following accidents or other misadventures in order for compensation to be assessed. In medical negligence cases – either in court or in the disciplinary tribunals of the GMC – they are called upon to offer a judgement on the conduct of their peers. In criminal cases they may be commenting on the likely cause of injury and whether it could have been inflicted deliberately. So the following pages will be bringing forward some of the stories recently in the news in the medicolegal field, as well as informing the legal profession on some of the specialisms at their disposal from those offering expert services. The family courts have been experiencing a number of changes in the way expert opinion is delivered. One innovation that has been hailed a success is the use of an electronic ankle ‘tag’ to monitor alcohol consumption. A number of parents, in cases where alcohol was a factor in custody issues, wore the device for three months and the results are currently being evaluated. Testing for substances other than alcohol will be more rigorous in European football next season following an announcement by UEFA of a tougher anti-doping regime. A more uplifting sports story – this time from last year – was the success of the British Paralympians in London 2012. Many had come back from horrific injuries to rebuild their lives and excel at their sport. In some cases it was with the benefit of advances in orthopaedic medicine, often funded by research charities such as Arthritis Research UK. In other cases the dedication of professional physiotherapists has enabled them to reach their goals, as in the case of sailors John Robertson and Alexandra Rickham. Indeed, physiotherapists are often the most appropriate health care professionals to treat soft-tissue injury and can, in many cases, also offer more appropriate expert witness evidence than a GP or orthopaedic surgeon, as detailed in the new guidance on appointing experts. Sadly, some medical advances carry side effects that can be damaging in themselves. A recent report indicates that a small number of women treated for osteoporosis with the bisphosphonate drug alendronic acid have developed osteonecrosis in the jaw. This ‘dying’ of the bone in the jaw is potentially disastrous if not treated promptly. Thankfully the numbers of such cases is small and the risks slight. At other times the ill effects of medical treatment can be the result of wrongdoing. The scandal surrounding PIP breast implants has resulted in a lengthy trial, with a verdict due in December, and in this country there has been an investigation by a panel of experts led by Sir Bruce Keogh. Many disagree with the findings, however, and there have been calls for much tighter regulation, particularly from aesthetic plastic surgeons themselves. The psychological trauma caused by crime can wreck lives, and when that crime is perpetrated against children in the form of sexual abuse there is disbelief and revulsion among the whole population. In addition to the rash of cases emerging concerning highprofile celebrities, there is what appears to be a widespread network of abuse around the country – from Rochdale to Kent. There is some evidence that children suffering from PTSD can benefit from treatments for the condition. q
New advice to the medical expert witness by DR ANTHONY CLARKE, BSc MB BS FRCP Consultant in Rheumatology and Rehabilitation, Bath
‹ THE GENERAL MEDICAL COUNCIL (GMC) has published the
latest edition of Good Medical Practice which came into effect this April. It supersedes the last edition, produced in 2006. The series only started in 1995, at a time when attitudes to the overall professional performance of doctors, as opposed to single acts of misdemeanour, or ill-health, were coming under ever closer public and political scrutiny. In 1997 the GMC introduced its Performance Procedures using Good Medical Practice as the guidebook for both the doctor and the assessors. Both the Procedures and Good Medical Practice have moved on in the last 18 years, based on experience and circumstances. That experience, from the GMC’s point of view, has been the rigour of the legal scrutiny that pertains at medical tribunals. The circumstances include Dr Harold Shipman, Wakefield and the MMR scandal as well as Mid-Staffordshire. There is a major innovation in the new publication, or more precisely in the parallel electronic material. There are a number of pages relating to specific areas of medical practice and their relationship to the wider society, including one entitled ‘Acting as a witness in legal proceedings’. Like the other areas, such as the use of social media, financial matters and personal belief, this page relies on the general advice contained within Good Medical Practice, coupled with links to other invaluable sources, both legal and medical. So what advice is being given? The approach starts by outlining six principals from Good Medical Practice that are important to the doctor in this area – • The doctor must be familiar with relevant guidelines and developments • The doctor must keep up to date with the law, GMC guidance and other regulations • The doctor must recognise and work within the limits of his or her competence • The doctor must be honest and trustworthy when giving evidence • The doctor must co-operate with formal inquiries and complaints procedures, while following guidance on confidentiality • The doctor must make clear his or her limits of competence and knowledge when giving evidence Interestingly, the guidance makes it clear that doctors have to be honest and trustworthy when acting as witnesses of fact in a non-medical capacity. This, of course, assumes the basic premise that members of the medical profession should be seen as being unimpeachable in their daily lives, particularly if it is clear to the casual observer that the individual is medically qualified. When it comes to the generality of acting as a medical witness, the doctor is reminded that the profession has an important role in the justice system and the guidance goes on to say that the doctor’s overriding duty is to the court. It means that the doctor must be impartial and not allow his or her personal views about a person to affect the evidence or advice given. The solicitors reading this article will be pleased to read that doctors are required by this guidance to co-operate with the court process, including case management, meeting timescales for producing reports and going to conferences, meetings or court hearings. I suppose I should add a personal caveat, that the legal demands should be reasonable, especially if the doctor is engaged in full-time NHS practice. We next read that any report or evidence given must be accurate, which means checking that accuracy, and that all relevant information is included. Lastly, there is an exhortation to use language that is accessible to the non-doctor, with explanation of abbreviations and jargon. There
is a suggestion that diagrams with explanatory labels may be useful. There are then two paragraphs about the duties of witnesses of fact, before we see a substantial portion relating to expert witnesses. The first point that is made is that the expert witness is entitled to see all the evidence, including statements and reports from other parties, before forming and providing an opinion for the court. The doctor is instructed to understand the questions he or she is being asked to answer. If the instructions are unclear and cannot be clarified, the instructions should be declined. For me, we then come to the most important paragraph, in which it states that the doctor must only give expert testimony and opinions about issues that are within their professional competence or knowledge. If a question is asked outside the area of expertise, then the doctor should refuse to answer or make it absolutely clear that the answer is outside the doctor’s competence. The doctor is then told to be objective and unbiased and, if there is a range of opinion, the range should be summarised and an explanation given as to why the doctor has arrived at his or her opinion. If an opinion is qualified, this should be made clear. The doctor is told to explain the limits of any opinion if they have not had the opportunity to consult or examine a person. I would add, as an aside, that I personally would not enter the witness box without seeing the person on whom I am providing an opinion, unless they are totally unavailable, such as a deceased patient in a negligence case, or totally outside the jurisdiction of the court, something which has only happened to me twice in 40 years of medico-legal practice. There is then a very interesting paragraph relating to what the doctor should do if he or she has to change his opinion, basically saying that a change of opinion must be widely promulgated with all those involved in the case. The next paragraph states that the doctor must respect the skills and contributions of other professionals in the case. There are then a number of paragraphs relating to confidentiality, the need to be properly trained (or experienced) and the importance of keeping proper notes and records of what the doctor does in his or her role as an expert witness. Finally, there is a paragraph on conflicts of interest, including involvement with a material person in the case or having a personal interest in the case. As a rheumatologist, particularly in the early days of my medico-legal practice, I was faced with instructions relating to colleagues who were well-known to me. My decision had to be, could I offer unbiased evidence, when the likelihood was that no other expert would be able to advise the claimant. Of course, as this guidance makes clear, in the end, as is often the case in litigation, it has to be a matter for the court to decide. The 2013 edition of Good Medical Practice offers very robust and sensible advice to those of us who are engaged in medico-legal work as expert witnesses, as well as those who frequently are witnesses of fact, such as forensic pathologists. I would suggest that practically everywhere in this article where the word ‘doctor’ appears it could be replaced by ‘consulting engineer’, ‘forensic accountant’ or ‘case manager’, to name but a few. q
Younger knee replacement patients are less happy with the outcome ‹
PEOPLE UNDER THE AGE of 55 who undergo knee replacement surgery are less satisfied with the outcome of the operation than those aged 65 to 85, even though they gain greater improvement. That was the conclusion of a research project funded by Arthritis Research UK and published in the Journal of Bone and Joint Surgery. The research, carried out by an orthopaedic team at the University of Oxford’s Nuffield Orthopaedic Centre also revealed that older patients have better function before knee replacement surgery than patients under 65, but that both groups have similar outcomes. Increasing numbers of younger people have knee replacement surgery and the aim of the study was to discover how successful the operation is in those under 55. “Clearly, expectations are higher in younger people. They expect to have a completely normal knee after the operation and be able to do all the sports and activities they did prior to surgery, and that’s not always the case,” explained lead researcher David Beard, professor of musculoskeletal science at the Nuffield Orthopaedic Centre. “Older people tend to be are less active, and hence happier with the outcome. “Twenty years ago people having knee replacements were aged over 70, but that profile has now changed, with much younger people saying they A GRANT OF £185,000 has been awarded to specialist would have the surgery now and have an improved quality of life, and worry registrar Nicholas Smith at University Hospitals of Coventry and about the future later. Warwickshire for research that could have major implications for “The message from our study is that, according to the patient recorded people who develop osteoarthritis due to injury, and for whom there outcome measure scoring system that is widely used, the operation is is currently very little effective treatment. effective in people of all ages.” Mr Smith aims to find out if a type of operation called a meniscal The team used data from more than 2,000 knee replacement patients from transplant, which replaces part of the knee joint that acts as a shock four centres in the Oxford area for their study. q absorber, could cut the this risk of developing osteoarthritis, which is 14 times higher among those with knee injuries than in the general population. Meniscal tears are the most common form of knee injury, often occurring as a result of sport, leading to pain, swelling and locking of the knee. Currently surgeons regularly perform an operation called meniscectomy to trim or remove the torn cartilage. This can be effective at reducing pain but is known to increase the risk of osteoarthritis in the longer term. Now Mr Smith is investigating whether meniscal transplant surgery, which has been performed by surgeon Tim Spalding in Coventry for several years, reduces the risk of developing osteoarthritis by restoring the ‘shock absorber’ back into the knee joint. “The meniscus acts as a shock absorber for the knee and spreads the load across the weight-bearing areas,” explained Mr Smith, who has been awarded a three-year clinical research fellowship from Arthritis Research UK to carry out the project. q
Research hopes to prevent arthritis after knee injury ‹
Air embolism: A preventable disastrous complication by IAN W FORSTER Consultant Orthopaedic Surgeon
‹ JOINTS, IN PARTICULAR THE knee, are liable to damage from
trauma. As well as injury to menisci and ligaments, the surface lining cartilage of the joint can also be damaged. Articular cartilage defects, particularly after trauma, pose a problem since, if small, they may heal spontaneously or after surgery such as microfracture – but rarely do they heal with true articular cartilage. Articular cartilage grafting using stem cells has been advancing since there is the potential for true cartilage healing with Type II collagen. Where the defect does not heal it usually extends and eventually causes arthritis. Techniques to repair such defects have been sought for many years and I describe a case below where such a procedure was complicated by air embolism. AMIC (Autologous Matrix-Induced Chondrogenesis) is a new development in cartilage grafting. Instead of taking cells at a preliminary arthroscopy, after debridement of the defect, the base of the defect is stimulated to produce chondroblasts which adhere to a chondroglide membrane which has been placed over the defect. Thus the need for an initial arthroscopy is removed. A part of all operations inducing chondrogenesis is the need to dry the defect before grafting. A number of ways have been described to achieve this. Compressed air blown directly into the defect has not been described before. Here the surgeon used an apparatus called Quixil which is designed to deliver fibrin to form a clot to stop bleeding. One way of administering the fibrin is as a spray form, 10cm plus, using compressed air. In this case the surgeon used it close to the knee surface through the arthroscope injecting air only. Although he did have a vent in order to disperse excess air this was ineffective as he was so close to the area being dried (probably a few mm only). A 42 year old man had had pain in his right knee for 12 to 18 months. An arthroscopy in 2007 showed an osteochondral defect of around 1cm square. It was debrided. He did not improve and didn’t want to modify his activities and so was referred to a regional centre for cartilage grafting. The MRI showed a 2cm defect. It was decided to perform a debridement and chondroglide patch of the area in order to promote cartilage healing as part of an AMIC procedure. The operation was carried out in October 2009. The defect was confirmed and debrided. A 2cm incision was made anteromedially to act as a vent. After debridement, the tourniquet was let down in order to view any bleeding spots. In order to dry the surface of the defect, air was blown into it using the compressor provided with the Quixil apparatus attached to a green needle (FG19) close to the defect. No active ingredient was used, only air. The compressor was set to one bar and a foot peddle controlled the flow of air. This was applied intermittently over a period of five minutes. The chondroglide membrane was cut to size and inserted. Shortly after this the patient was noted to be ‘unwell’ and air embolism was diagnosed and resuscitation attempted. Approximately 50 ml of air was aspirated from the femoral vein and 20 ml from the jugular vein. Resuscitation was not successful. At post mortem there was no evidence of injury to the veins of the joint capsule or other soft tissue.There was a Medial Femoral Condyle defect of 1cm diameter and a pseudocyst under this area. Thus it was most likely that air had entered the circulation through channels and veins in the femoral condyle. The videos taken at the time of surgery showed that debridement had gone through the subchondral bone layer of the femoral condyle and that the air had probably been injected directly into this area where there would be small fragile veins. The Quixil information sheet gives information as to the use of the device. Quixil, in this formulation, mixes two syringes to make fibrin which is sprayed over an area which requires haemostasis. It is generally used in open
wounds such as joint replacements from a distance of at least 10cm (Quixil summary of product characteristics). The compressor is not intended to be used without the active Quixil (fibrin). In a letter from the manufacturers, Johnson and Johnson, it is stated that in laparoscopic surgery the minimal distance can be 4 cm, but to my knowledge there is no record of its use in arthroscopy. Air embolism during arthroscopy has been recorded before. Habegger et al describe a case where a patient died following a diagnostic arthroscopy when air was injected by syringe to inflate the joint and it leaked out through an unsuspected fracture in the medial femoral condyle. Madry et al, in a review article on subchondral bone, noted that the the subchondral bone was highly vascular and that there were channels directly through the bone into these vessels. It is thus risky to inject air directly into such a defect from close quarters, as even with a vent the pressure of the air’s injection is likely to bypass the vent and go straight into the bone and adjacent vessels. In this instance a technique was used which was not supported by the manufacturers but the surgeon thought it would be beneficial for the patient. Bench testing of the apparatus after the event confirmed that 300ml of air could easily pass through in this way. Medical innovation has always been encouraged, indeed a bill is currently going through Parliament. The MDU suggests that appropriate safeguards should be in place and that the patient fully understands. However, this would not include a surgeon developing a technique without discussion with the manufacturer or his hospital’s ethics committee. Most hospitals have a Medical Devices Management Policy. Surgeons have always developed an ‘individual’ approach to operating – I remember my general surgical boss using self-retaining retractors made from bits of Spitfire! I myself regularly used a spoon to protect the neuro vascular bundle when drilling across the tibia from front to back. There is an interesting letter in the Surgeon Journal by George on the use of nonorthopaedic devices for orthopaedic procedures. Such ‘off-label’ use has to be very careful. Full consent is needed and there have been MDA Alerts in these cases. Modification of techniques, and in particular, devices needs to be considered carefully. Before undertaking any such change a surgeon should discuss the matter with the manufacturers, the hospital’s devices committee and colleagues. When he/she has this approval then the patient can be approached, fully discussing the risks and benefits. In this case the trust accepted liability shortly before the inquest. The case was eventually settled for more than £1,000,000. q
The importance of MRI scanning By DR M R GRAHAM, MBChB, PhD, FRSM, MICR, MFSSoc
‹ A 54 YEAR OLD white caucasian male
suffered a low impact (less than 5 mph) road traffic accident, receiving injuries to his right arm and left leg. He was in a public house car park and was approached by an acquaintance in his car, which was crawling at walking pace. He communicated with the third party who accidentally took his foot off the brake. The car surged forward and collided with the victim, hitting him in the left knee and in his defence the victim attempted to fend off the collision with his extended right arm. CCTV evidence supported the claim of the victim. The third party admitted liability and the third party insurance company agreed reimbursement for investigations and interventive management. The victim suffered pain and swelling in his left knee and pain in his right elbow extensor region. Clinical examination of right elbow revealed tenderness on palpation of the right extensor tendon region and pain on resisted extension of the right elbow consistent with extensor tendonitis (Tennis elbow). Clinical examination of the left knee revealed a small joint effusion (swollen joint) tenderness along medial and lateral joint lines in the region of the medial and lateral menisci (cartilages). The usual NHS investigations for RTA injuries are X-Rays, to exclude any fractures. Magnetic resonance imaging (MRI) scans are not done acutely or as routine in the NHS. Following this accident the third party insurers agreed to a private MRI scan investigation to exclude any soft tissue injuries. X-Radiology was performed, but demonstrated no bony injury and no significant abnormality in either joint. MRI scans demonstrated a completely different picture. An MRI scan of the right elbow region demonstrated a partial thickness tear of the common flexor tendon overlying the lateral epicondyle.
The MRI scan of left knee demonstrated minor bone bruising within the left lateral femoral condyle, secondary to trauma and a linear signal within the body of the medial meniscus consistent with a horizontal tear and a small free-edge radial tear through the body of the lateral meniscus. The results of these MRI scans most certainly altered not only the management of these injuries but also the third party liability and compensation to the victim. Important points to note are that X-Radiology has it’s place, but MRI scanning should be used more frequently to diagnose soft tissue injuries. Normal management of the injuries following diagnosis with X-Rays in the NHS could be non-steroidal anti-inflammatory medication (eg ibuprofen) and simple analgesia (eg paracetamol) as well as rest. Management of the injuries following diagnosis with private MRI scans could be the oral treatment above, including glutamine (the most abundant free amino-acid in human blood) but also with intensive private physiotherapy. The outcome of this therapy will determine if surgical arthroscopic intervention is required. Following more technologically advanced investigations the victim’s compensation for injuries incurred should be quadrupled. q REFERENCES • Kim JR et al. (2012). Traumatic and non-traumatic isolated horizontal meniscal tears of the knee in patients less than 40 years of age. Eur J Orthop Surg Traumatol. • Matsubara H et al. (2012). New suture method for radial tears of the meniscus: biomechanical analysis of cross-suture and double horizontal suture techniques using cyclic load testing. Am J Sports Med. 40(2):414-8. • Newsholme P. (2001). Why is L-glutamine metabolism important to cells of the immune system in health, postinjury, surgery or infection? The Journal of nutrition 131 (9): 2515-2522. • Pujol N et al. (2012). Clinical outcomes of open meniscal repair of horizontal meniscal tears in young patients. Knee Surg Sports Traumatol Arthrosc. • Sung JH et al. (2013). Meniscal extrusion and spontaneous osteonecrosis with root tear of medial meniscus: comparison with horizontal tear. Arthroscopy. 29(4):726-32.
The PIP scandal rumbles on ‹ PIP BREAST IMPLANTS CONTINUE to be a cause for concern
among the medical profession – and in particular among plastic surgeons. An article in the May issue of the Journal of the Royal Society of Medicine describes the scandal as a “process of quality control that failed to safeguard women from the health risks”. The authors wrote: “In light of the current on-going review into cosmetic surgery which is also being led by Sir Bruce Keogh, it is vital that such failings are identified and tightened to ensure such a scandal is not repeated.” In reference to the report by Sir Bruce Keogh’s expert group, they continued: “The expert group dismissed tests carried out by the French authorities that suggested PIP implants could cause skin irritation in rabbits and instead accepted subsequent tests commissioned by the Australian authorities without gaining independent or any further validation.” In response, the British Association of Aesthetic Plastic Surgeons (BAAPS) reiterated its view that there continue to remain ‘unanswered questions’ about the controversial devices. Its president, consultant plastic surgeon Rajiv Grover, stated: “Whilst the article in question is entirely an opinion piece and not presenting any new data, at the BAAPS we do agree – as we have said before – that there remain unanswered questions regarding the possible effects of these chemical compounds. We reiterate our call for analysis to be conducted on collected samples taken ‘in vivo’ rather than off-theshelf, as it would also be advantageous to examine what impact body temperature and conditions have on them. It was only change occurring in implants inside the body, which triggered a recall of soya bean (trilucent) implants years ago. “Women who had or still have PIPs and the surgeons removing
them know that more research is needed to explain what they are seeing and experiencing. At the BAAPS we have remained constant in our view – these defective devices have no place within the human body. The whole sector, and in particular the patients affected, deserve thorough answers. “In light of the recent Keogh review we also take the opportunity to express the hope that systems, such as the implant registry and improved regulation, are soon put into place to help prevent any such tragedy from ever happening again.” q
MPs call for action on communication difficulty in children ‹ A cross-party group of MPs and peers has called for action to tackle
the speech, language and communication needs of socially disadvantaged children. The All Party Parliamentary Group on Speech and Language Difficulties has conducted an inquiry into the links between communication difficulties and social disadvantage. In a report published in February the group calls for a comprehensive programme of training for relevant practitioners, better systems for monitoring and responding to the development of children’s communication and targeted additional support to improve the communication environments of children living in socially deprived areas. Lord Ramsbotham, chair of the group, said: “Effective collaboration between services is crucial. We need a national framework for local education, health and social care services that covers all children with communication difficulties and reflects the recommendations in this report.” The Better Communication Research Programme, a three year research programme funded by the Department for Education, reported in December that pupils entitled to free school meals and living in more deprived neighbourhoods were more than twice as likely to be identified as having speech, language and communication needs. The committee’s report says that communication difficulties have a knock-on effect on school readiness, literacy and school performance and put children at risk of a wide range of long-term consequences in terms of literacy, mental health and employment. Kamini Gadhok, Chief Executive of the Royal College of Speech and
Solicitors urged to learn BSL ‹ Research has highlighted the need for solicitors to learn
British Sign Language (BSL) so that deaf people have the same access to legal advice as their hearing counterparts. The research, published in May to coincide with Deaf Awareness Week, found that 85% of deaf people prefer to receive advice directly from a legal adviser using BSL rather than indirectly through a BSL interpreter. The research, carried out by the Royal Association for Deaf people (RAD) Deaf Law Centre, led to the creation of a website encouraging interested professionals to learn five BSL phrases a day. It is hoped that firms using the scheme will go on to allow solicitors to be fully trained in BSL. RAD Deaf Law Centre head Rob Wilks said: “Legal advice from a solicitor who uses BSL is vital in order for deaf people to be able to fully understand what can be a very complex legal language – talking person to person rather than through a third party. “At the centre we use webcam portals so that a deaf person anywhere in the country can receive legal advice from a solicitor who uses BSL.” q
Language Therapists, which provides the secretariat for the All Party Parliamentary Group, said: “This report demonstrates the importance of good communication skills to children’s life chances and comes at a critical time in the passage of the Children and Families Bill through parliament.” q
Establishing realistic goals in speech and language therapy By MARTIN SAMUEL of Speech Language Therapy Ltd
‹ ONE OF THE MOST important issues
affecting speech and language therapists – as well as other professional groups – is how to ensure the therapy they are providing has a beneficial effect on their patients? There are several ways to help predict a patient’s performance in speech and language therapy: the severity of the impairment, pre-morbid ability, choosing the most appropriate evidence based therapy, the ability of family, carers and friends to help, the environmental and social factors and patient compliance with the programme. The focus of this article is with the last element – how do we maximise patient compliance? Speech Language Therapy Ltd work with teenagers and adults only, and this discussion around goal based therapy is applicable to these client groups. There has been lots of research into how therapists can promote effective attendance to therapy programmes, and the evidence points to the use of personal goal based therapy for patients. In practice this means that patients are much more likely to work towards goals that are relevant for them and that they have had a role in deciding. The age when the therapist knew what was best for the patient has disappeared and will not be returning. This does not mean however that the patient is left to choose entirely for themselves without the help or guidance of the therapist, but rather that the speech and language therapist’s role has changed and they now facilitate the patient in choosing what to work on during therapy. The goal – or the target – of therapy is: what does the patient want to achieve? Many
patients, especially but not exclusively the elderly, find the notion of goal based therapy difficulty to grasp. When the topic is initially raised a common response is: “I want to get better” or “I want to get back to how I used to be”. Obviously for many patients – especially those with neurological difficulties such as stroke, head injury, Parkinson’s disease or motor neurone disease – this will not be possible due to the nature of the impairment. Some patients may also have unrealistic expectations, for example a patient with a stammer who I recently worked with wanted to never stammer again. The skill required of the speech and language therapist in these situations is to identify what is likely to be achievable and to then frame these discussions, taking account of the patient’s wishes and preferences, into realistic goals that the patient is able to work towards. Examples of initial goals developed with a patient who stammered are: • Not to use avoidances (ums, ers, changing words) when speaking with my family – achieve in two weeks. • To learn how to use in-block modification with my family – achieve in two weeks. • To say what I want to say in face to face speaking situations and not using any avoidances – achieve in six weeks. The discussion around identifying goals should occur early on in therapy, often before assessment is completed. This helps to get the patient thinking that they are integral to the therapy process and not just passively participating. Often patients will want to discuss possible goals with their family and carers and speech and language therapists should support this where possible.
Many patients seen by speech and language therapists have difficulties with some aspect of communication (as opposed to swallowing difficulties). This can mean that they either have difficulties getting their message across or understanding spoken or written communication. Such difficulties can make identifying therapy goals harder, however speech and language therapists are able to simplify language, or find alternative avenues to enable the information to be understood and communicated. Goals and choices can be communicated using symbols, pictures, key words, gestures, writing or by helping the patient to access their words more easily using specific cueing techniques. Some patients may need and benefit from having goals discussed with their family, friends or carers. The benefits of goal based therapy – including those described already – are that they: • Encourage patient compliance with therapy. • Provide a framework whereby several short terms goals can work towards a bigger, more long term aim. • Make therapy relevant to the patient and their environment. • Encourage joint working amongst professionals as goals frequently have several component parts such as mobility, cognition and communication. • Help to facilitate and plan discharge from therapy. • Help patients and their family/carers to recognise the progress they have made. • Promote independence in our patients by working towards things the patient wants to achieve. q
Bystander coronary artery disease in accident victims The expert cardiologist’s dilemma By DR DUNCAN S DYMOND MD FRCP FACC FESC, Consultant Cardiologist and Cardiff University-Bond Solon Expert Witness
‹ WHEN AN APPARENTLY HEALTHY person tragically dies in
a motor vehicle or industrial accident, issues of compensation for the victim’s family inevitably arise. Post mortem examinations may reveal narrowing of the coronary arteries, which the pathologists may describe as severe. If they are found in all three major coronary vessels, the victim will often be labelled as suffering from severe triple vessel coronary disease, a diagnosis which in life may lead to the need for coronary artery bypass surgery. Even though there may be no dispute about liability, unexpected autopsy findings may lead to disputes about the deceased’s life expectancy or ability to work to retirement age had the accident not occurred, and therefore disputes arise over quantum. The expert cardiologist is asked to deal with these issues and aid the court in assessing life expectancy, which is a task fraught with difficulty. In the absence of a crystal ball no expert can predict what life expectancy would have been in any given symptom free individual, but there are some guiding principles that can help. The first is to recognise that the presence of disease in the coronary arteries does not necessarily mean that it would ever have manifested itself clinically in life. Post mortem examinations on people in their seventies, eighties and nineties will reveal a high prevalence of diseased arteries in those who have succumbed to other diseases, and who had never experienced a cardiac problem in life. This is known as ‘innocent bystander’ coronary disease which had no effect on life expectancy in these elderly people. Some of them may have been treated in life for diabetes, high blood pressure or elevated cholesterol, but some may not have been. The second principle is that the pathologist’s assessment of the degree of narrowing in a post mortem artery may be totally different from how that narrowing may have looked when the artery had blood flowing through it in life. This is because the appearances of a collapsed, empty artery may lead to an overestimate of the impact of the fatty deposits or plaques on the diameter of the artery. The expanded artery may have looked much less narrow, and there are several publications proving this. So what looks like severe three vessel disease to a pathologist may have been milder on an angiogram had it been performed in lifetime. Thirdly, we know that heart attacks do not usually occur with severe plaques, even if they cause marked narrowing. These plaques are often stable and do not suddenly occlude the artery, although they may grow slowly. Attacks occur when a small cholesterol-rich plaque ruptures and suddenly forms a blood clot. These are known as vulnerable plaques, and may be undetectable on angiography or even by a pathologist. Plaque rupture can occur completely unheralded and be fatal. The expert cardiologist will read through the medical notes and assess the risk profile such as smoking, high blood pressure, diabetes, family history or obesity, and whether any symptoms were recorded during life or any hospital appointments. He will also check for the effects of treatment – i.e. are blood pressure readings
and cholesterol measurements normal? Your expert will use all the data to provide the court with what ultimately is a ‘best guess’ on what the future might have brought. No matter how scientific we try to be in these cases, there will always be an element of ‘stargazing’ and where joint expert reports are required it is often difficult and time consuming to arrive at a consensus. q
Jaw death link to osteoporosis drug ‘rare’ ‹ A REPORT HAS BEEN published on the condition known
as avascular necrosis of the jaw – in which the bone of the jaw ‘dies’ because of a lack of oxygen. It followed a national study and included bisphosphonate-related osteonecrosis of the jaw (BRONJ), where the condition is related to the taking of bisphosphonate drugs, usually for the treatment of osteoporosis or cancer. According to an article by the British Association of Oral and Maxillofacial Surgeons (BAOMS), the two year project, which is the first of its kind: “…allows patients and healthcare professionals to get a better understanding of the likely rates of BRONJ”. The BAOMS clinical lead in the study, Professor Simon Rogers, said: “Although the data need to be interpreted with caution, the report would suggest that there are around 600 cases of BRONJ each year in the UK, and around 400 of these are related to oral bisphosphonates. Considering how commonly bisphosphonates are prescribed for conditions such as osteoporosis, these results should serve to reassure the public given the relatively small number of cases of BRONJ each year. Further data and research is required.” Among post-menopausal woman with osteoporosis who are treated with bisphosphonate drugs, the report suggests that between 1 in 1,260 and 1 in 4,420 per year will develop the condition. If that is true, again the condition could at worst be described as ‘rare’. An article published in the American Chemical Society’s journal Medicinal Chemistry Letters has drawn parallels between bisphosphonate drugs and pyrophosphoric acid, which is thought to have caused so-called ‘phossy jaw’ in match workers in the 19th century. Both BRONJ and ‘phossy jaw’ are associated with instances of atypical fractures of the femur. The article, Using Medicinal Chemistry To Solve An Old Medical
Mystery, states: “The 19th century industrial match industry diseases, which caused so much political and public concern, were also a necrosis of the bones of the jaw and a tendency of the midfemoral shaft of long-time workers to snap with negligible trauma. The modern BRONJ was recognised very quickly to be analogous to the industrial disease, which had become known as ‘phossy jaw’.” It goes on to say: “…the remarkable similarity of the two rare and extremely uncommon sets of disease associated with the bisphosphonate medications and the exposure of the match workers strongly suggest a common cause.” q
Transcultural issues in medical consultations in Britain By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP
‹ London is well placed in the world to study ‘Transcultural Encounters’
in doctor-patient consultations, because both the medical practitioners and patients come from many cultural, religious, non-religious and ethnic/ racial backgrounds. Cultural customs, religious beliefs and racial factors influence medical consultations as much as do the age, gender and social class of both the doctor and the patient. Under The Human Rights Act 1998, Article 9; Freedom of Thought, Conscience and Religion and The Race Relations Act 1976 and also The Equality Act 2010 the mention of a person’s culture, religion or race, with respect, is legal. We can solve conflicts only if we can calmly talk about them. I am describing the following two real cases, both of which have transcultural issues, with the aim of helping to remove cross-cultural misunderstandings. I hope that this contribution will improve transcultural understanding and be helpful for fair play in many medical consultations in GP practices and hospitals worldwide. CASE 1. A doctor’s gender is chosen by an Asian Sikh male patient and it is not based on prejudice. An elderly male Asian British Sikh patient refused to see a young female Asian British Sikh doctor, who owned the practice, and insisted instead on seeing a male Asian British Muslim doctor who was a locum GP. Of course, he would have seen any male doctor. He had a fungal dermatitis (rash) in his groins and genitalia. It was culturally and religiously unacceptable for him to expose his genitalia to a woman, even a doctor. I plead to doctors to please consider every patient’s needs objectively and suggest some key points: Secular, agnostic and atheist patients – especially younger males or females – generally do not mind seeing a doctor of either gender. Devoutly religious Muslims, Hindus, Sikhs, Buddhists, Jews and Christian patients prefer, or even insist, on seeing a doctor of the same gender, especially if they have genital or private problems where examination is required. This is a religious custom and failing to respect it results in a feeling of guilt. Traditionally, gender segregation is a religious custom for survival reasons. Every doctor should use a chaperone, of the patient’s gender, when examining the patient on a couch, especially when it involves the genital areas of a patient from the opposite sex. This would help the doctor in the case of a complaint or litigation by the patient – and such incidents are on the increase. CASE 2. Crying for help – a black Christian woman patient, and a cultural factor. A black Christian woman aged 24 came to see a locum GP. She told him that she had been suffering from a dull ache and bloating in her abdomen, along with constipation alternating with diarrhoea, for six weeks. She had seen two regular GPs who diagnosed her with irritable bowel syndrome and prescribed medication. The problem got worse and the patient dreamt that she was in her Baptist church, dead and being received by angels. She cried and begged the locum GP to save her life as she did not want to die. The secular doctor called a receptionist to chaperone him and examined her abdomen. There was no mass but it was swollen, as if filled with gas, and only slight discomfort was felt by the patient when he pressed. The doctor could not diagnose but did not think it was irritable bowel syndrome. To make a diagnosis he ordered a full scan of the abdomen and made an appointment for her to see a regular doctor when the results arrived. Four weeks later, when the locum GP went back to that practice, a regular doctor took him to his consulting room to show him the patient’s
notes on his computer. He said: “Thank you for saving my patient’s life, the scan showed an enlarged ovary with cancer, in the abdomen. She was referred to a consultant gynaecologist straight away and the tumour was removed immediately. It was lucky for her that it was in the first stage and she will be followed up for five years.” The transcultural points in this case are: Culturally, English patients are stoic by their upbringing whereas black and other eastern patients are not. For them, crying is one form of communication. It is my observation that a European doctor may not be familiar with this innocent cultural difference. Secular doctors cannot perceive the relevance of dreams and spiritual dimensions. When I read my very first book on biology, it stated: “We do not know what the soul is and this book deals with the body of an animal as we dissect it.” This fact is equally applicable to a human body. Finally, I emphasise that cultural, religious and ethnic issues are as important in medical diagnosis and treatment as a patient’s age, gender and social class. I wish this fact could be taught in our medical schools. q • Dr Qureshi is an expert witness in cultural, religious and ethnic issues in litigation and also in GP clinical negligence. He is the author of ‘Transcultural Medicine’ and can be contacted via email at email@example.com.
Children with PTSD benefit from therapy ‹ PSYCHOLOGICAL THERAPIES MAY BENEFIT children suffering from post-traumatic
stress disorder (PTSD), according to research published in Australia. The research was published in the Cochrane Library as part of a first systematic review of the mental health condition in young people. It was led by Donna Gillies of the Western Sydney Local Health District in Westmead, Australia. The review looked at 14 studies of 758 children aged between three and 18 years old who are sufferers of PTSD due to natural disasters, violence, road accidents or sex abuse. Children who were given psychological therapies showed significant improvements, while their levels of anxiety, depression and PTSD were reduced. Dr Gillies stated: “There is fair evidence for the effectiveness of psychological therapies, particularly cognitive behavioural therapy, in treating PTSD in children.” Chartered Psychologist Trisha McCaffrey commented: “All the children in these studies were already suffering from PTSD, and it seems that all these interventions were more effective than controls. This is encouraging with such a disparate range of traumas, with presumably some one-off events and others happening over extended periods of time. “The initial reaction of most adults when a child or children are involved in a traumatic incident is to firstly make them safe and secondly to shield them from further trauma. This can lead to great anxiety if children have been kept in ignorance of an understanding of what has happened. This is especially pertinent in the case of natural disasters or domestic violence where even adults report their distress at lack of information.” q
Research suggests ‘panic’ is too strong a word ‹ NEW RESEARCH PUBLISHED IN the Journal of Community and
Applied Social Psychology, concludes that the term ‘panic’ should not be used to describe behaviour in emergencies. The study suggests it is too loaded and does not accurately describe what actually happens in such situations. Dr Chris Cocking, senior lecturer at the University of Brighton’s School of Nursing and Midwifery, and John Drury, senior lecturer at the University of Sussex’s School of Psychology and a member of the British Psychological Society, analysed four survivors’ accounts of the disaster during the FA Cup semi-final match between Liverpool and Nottingham Forest at Hillsborough in 1989. The survivors interviewed were Liverpool fans who were caught up in the crush. Researchers investigated how the survivors used the term ‘panic’.
While the word was used frequently, more detailed analysis showed that their accounts did not match the classic criteria for ‘mass panic’: uncontrolled emotion and selfish behaviour. Furthermore, participants also referred to ‘orderly’ behaviour and co-operation, even when the threat of death was present. The research was part of a larger study which rejected the notion of ‘mass panic’, suggesting instead that people often come together psychologically in emergencies, and the resultant shared identity is the basis for co-operation among survivors. q
Dilemma for victims ‹ THE NAMING OF MORE and more showbusiness personalities in
accusations of sexual abuse in the 1970s and 80s has posed a dilemma for those who may have been their victims, according to specialist abuse lawyer Alan Collins. Do they come forward and make their allegations public or do they continue to live with their secret and get on with their lives as best they can. Mr Collins, who is representing 43 victims of disgraced DJ Jimmy Savile and has been contacted by a number of people alleging abuse at care homes in North Wales, said: “The problem with the latter course is that sexual abuse is like a time-bomb ticking away inside, ready to explode at any time in the future. “Many professionals, including psychiatrists and abuse workers, advise that coming forward to speak of their experiences is the best way to move forward. Victims also say that going through the process of reporting the crime and seeing it through is cathartic. The experience of speaking out may be painful in reawakening old and appalling memories but it may be the best course.” q
Assessing psychological trauma by JOANNA BEAZLEY RICHARDS MSc, of Wealden Psychology Institute
‹ PSYCHOLOGICAL TRAUMA IS THE unique individual experience of
an event, or enduring conditions, in which the individual's ability to integrate his/her emotional experience is overwhelmed or when the individual experiences (subjectively) a threat to life, bodily integrity or sanity. (Pearlman & Saakvitne, 1995) 1 A traumatic event or situation results in psychological trauma when it overwhelms the individual's perceived ability to cope and leaves that person fearing death, annihilation, mutilation, psychosis or a threat to a loved one. Traumatic experiences often involve a threat to life or safety, but any situation that leaves us feeling overwhelmed and alone can be traumatic, even if it doesn’t involve physical harm. It’s not the objective facts that determine whether an event is traumatic, but our subjective emotional experience of the event. The more frightened and helpless we feel, the more likely we are to be traumatised. (Herman, 1992)2 An event is more likely to result in symptoms of psychological trauma if: • It happened unexpectedly. • We were unprepared for it. • We felt powerless to prevent it. • It happened repeatedly. • Someone was intentionally cruel. • It happened in childhood Emotional and psychological trauma can be caused by single-blow, onetime events such as a horrible accident, a natural disaster or a violent attack. Trauma can also stem from ongoing, relentless stress such as domestic violence, living next to an abusive or threatening neighbour, being bullied or struggling with debt. Some overlooked causes of psychological trauma include: • Falls or sports injuries • Surgery • An auto accident • Losing one’s job • A humiliating or deeply disappointing experience • The discovery that someone is being deceived or betrayed • Psychological symptoms of trauma include: • Shock, denial or disbelief • Anger, irritability or mood swings • Guilt, shame or self-blame • Feeling sad or hopeless • Confusion, difficulty concentrating • Anxiety and fear • Withdrawing from others • Feeling disconnected or numb Physical symptoms of trauma include: • Insomnia or nightmares • Being startled easily • Racing heartbeat • Aches and pains • Fatigue • Difficulty concentrating • Edginess and agitation • Muscle tension • Sweating
the past into the present is one of the main problems confronting the trauma survivor. Often referred to as re-experiencing, this is the key to many of the psychological symptoms and psychiatric disorders that result from traumatic experiences. This intrusion may present as distressing intrusive memories, flashbacks, nightmares or overwhelming emotional states. Post-Traumatic Stress Disorder (PTSD) is the most severe form of emotional and psychological trauma. Its primary symptoms include reexperiencing, avoiding things that remind them of the traumatic event and living in a constant state of ‘red alert’. PTSD is the only diagnostic category in the Diagnostic and Statistical Manual that is based on aetiology. In order for a person to be diagnosed with PTSD there had to be a traumatic event. Because most diagnoses are descriptive and not explanatory, they focus on symptoms or behaviours without a context. They do not explain how or why a person may have developed those behaviours (e.g. to cope with traumatic stress). One of the best-documented research findings in the field of trauma is the dose-response relationship. The higher the dose of trauma, the more potentially damaging the effects; the greater the stressor, the more likely the development of PTSD. When conducting an assessment of the person in relation to whether or not they have been traumatised by a particular event or set of events, we must establish whether their psychological difficulties were present before those events, or whether it is probable that the difficulties arose because they experienced the events in question. One way that we at Wealden Psychology Institute establish this is by very close observation of the physiological responses shown by the person when relating the traumatic events, as well as conducting a number of psychometric tests designed to establish levels of traumatisation and others to establish whether or not the person may be faking or exaggerating their symptoms. q • For further information visit www.wealdeninstitute.co.uk. REFERENCES 1
Laurie Anne Pearlman and Karen W. Saakvitne. Trauma and the Therapist.
• New York: Norton, 1995.
When we meet traumatised people for assessment, in most cases the traumatic event is over, but the person's reaction to it is not. The intrusion of
Herman, Judith Lewis. Trauma and Recovery, London: Pandora, 1992
Drink ‘tagging’ pilot given thumbs-up ‹ IN MARCH THE TRIAL of a novel continuous alcohol testing
device by parents in child care cases was concluded. The pilot, which began in November, was hailed as a success. The SCRAMx ankle bracelet, marketed by testing experts Concateno, was trialled with a number of parents involved in child protection cases at the Family Drug and Alcohol Court (FDAC) where alcohol was a factor. It was used to arrive at a series of evidence-based recommendations over child custody and parental rehabilitation regimes. Judge Nicholas Crichton of FDAC commented: “A major challenge in family law and child protection cases is establishing and testing precise alcohol consumption and abstinence patterns. SCRAMx provides the authorities with the information necessary to make decisions in such cases, gives individuals a better opportunity to prove sobriety and has undoubtedly proven indispensable
in this pilot. Most importantly, it has helped FDAC to make recommendations to safeguard vulnerable children and, in some cases, reunite families when sobriety has been proven to be established and maintained.” Dr Claire George, laboratory director at Concateno, said: “We know that behind every test is a life, and more than 700,000 children in the UK are living with adults who exhibit dangerous drinking habits. For the first time in this country, SCRAMx is giving a continuous picture of on-going alcohol consumption to determine whether an individual is sober at any one time. This is invaluable information when trying to make informed treatment decisions.” q
UEFA announces crackdown on drug cheats ‹ ON 23 MAY FOOTBALL’S European governing body UEFA
announced new measures to improve the image of the game, including a new anti-doping initiative. The initiative involved the launch of a research study to retrospectively measure the steroid profiles of the nearly 900 players who have participated in UEFA competitions since 2008. The aim of the study, says UEFA, will be to identify the potential prevalence of steroid use across European football by using data from previous doping controls. The study will be collective and anonymous and its findings would thus not result in any player incurring an anti-doping rule violation. Based on the study's results, a steroids biological profiling passport programme may be considered for future implementation within the UEFA anti-doping programme. Furthermore, the UEFA Executive Committee decided to introduce some blood tests in UEFA competitions as from the 2013/14 season, in addition to the standard urine tests. Until now, blood tests were only conducted at the final tournament of the UEFA European Championship. The announcement was made at UEFA’s committee meeting in London before the Champions League final at Wembley. The body had been criticised back in February for not doing enough to counter doping – in particular so-called blood doping – by the president of the World Anti-Doping Agency John Fahey. q
Why choose a physiotherapist expert? by ROSEMARY QUINN of Rose White Services Ltd
‹ THE REGULAR PROCEDURE WHEN making a claim for personal injury is to consult a doctor – either a GP or an orthopaedic consultant – for examination and assessment of the nature and severity of the injury. The report he/she writes will be used as evidence for the court or insurers deciding the value of the claim. The proposed new CJC experts protocol includes a section (2.2) on the appointment of experts: ‘2.2.1 Before experts are formally instructed or the court’s permission to appoint named experts is sought, the following should be established: 126.96.36.199 That they have the appropriate expertise and experience for the particular instruction’ Courts require ‘appropriate’ experts to be instructed and I would argue that in many personal injury situations – and particularly where damage is mostly to the soft tissues of the body – a physiotherapist is the most appropriate health professional for this role. Whiplash injuries, lifting injuries, lower back pain, muscle strains, epicondylitis, tendinitis, carpal tunnel syndrome and work-related upper limb disorders are examples of conditions with which clinical physiotherapists are very familiar. There is a growing acknowledgment of the need for a biopsychosocial assessment and this is the approach traditionally taken by a physiotherapist. Social history, status, mental and emotional states, working situation and lifestyle can all contribute to how the client reacts to and copes with symptoms. Physiotherapists are trained to use a combination of standard biomechanical tests, detailed palpation, observation and analysis of functional movements to produce an overall assessment. This diagnostic skill is particularly helpful in the case of soft tissue injuries – where damage is largely invisible in X-rays and scans. Even nerve conduction tests are of little value when assessing damage to nerves subjected to mechanical stress. When considering issues of quantum and future costs, it is essential that a lawyer receives the whole picture: the exact nature of the injury, details of treatment, likelihood and timing of full recovery, lifestyle implications and an indication of future care costs.
will often accompany a patient in to the home and workplace to observe and assess the impact of a client’s environment on his/her injury. These same analytical skills can be utilised in other legal situations as in the following case: Mrs B was secretly videoed by an insurance company while shopping. A physiotherapist was able to identify how the client had become so used to coping with her injuries that she avoided a lot of the normal, potentially painful actions employed by other women when shopping – e.g. standing upright with arms by her side most of the time, avoiding heavy or bulky items, loading carrier bags lightly and using both hands to carry each bag. In 2010, the Civil Procedure Rules Committee satisfied themselves that physiotherapists registered with the Health Care and Professions Council should be regarded as medical experts who can be instructed by legal representatives and insurers in low value personal injury claims. Many solicitors are denying their clients access to the most appropriate expertise and wisdom available from physiotherapists because they use medical reporting agencies. For some reason, these agencies and many insurance companies do not include physiotherapist experts on their database. This is a reality that needs addressing. q • Please contact Rosemary Quinn on firstname.lastname@example.org to find out more about a thorough, comprehensive medico-legal report which offers precise, detailed evidence for your clients and is good value for money. A list of chartered physiotherapist experts is available from http:// www.mlacp.org.uk/directory/
Exact nature of the injury Physiotherapists are used to palpating and testing specific structures within the body to diagnose exactly what is damaged. If the injury is work relevant, a physiotherapist can help in differentiating between whether the client’s condition is constitutional and aggravated by work or trauma, or has been caused by work or trauma.
Details of treatment Medication may be prescribed by doctors, but unless surgery is required, the main treatment will be rehabilitative physiotherapy. The “hands-on” nature of the patient-therapist relationship, plus the inevitably regular patient contact which doctors do not experience, gives physiotherapists an enormous advantage when it comes to describing treatment.
Likelihood and timing of recovery A physiotherapist will have a wealth of knowledge and experience relating to the rate, likelihood and completeness of recovery. They see clients from the point of injury through to recovery and can provide the necessary detail to allow the lawyer to fully calculate quantum.
Lifestyle implications An experienced clinical physiotherapist possesses an unrivalled knowledge and comprehension of how the body works under normal conditions and when coping with a disability or injury. Physiotherapists www.yourexpertwitness.co.uk
Expert physios have own association ‹ One of the few professional associations
in the medical sphere to have formed a specific section dealing with medico-legal issues is the Chartered Society of Physiotherapy. The Medico Legal Association of Chartered Physiotherapists (MLACP) ‘exists to define and promote the highest standards of medico-legal
practice amongst members of the Chartered Society of Physiotherapy’. It comprises a group of chartered physiotherapists who can provide expert reports and expert witness statements for the court. It also maintains a directory of experts in the many areas of practice, from acupuncture to sports injuries.
That reflects the fact that many personal injury cases involve soft tissue injury. In those cases a chartered physiotherapist may be a more appropriate source of expert opinion than a general practitioner or indeed an orthopaedic surgeon, whose area of expertise is mainly concerned with fractures.
Expert assessment can be vital for future care ‹ OVER THE PAST NINE years of acting as a care and
occupational therapy expert, Jean Phillips, Assistant Director of Wiltshire based HFH Consulting, has frequently been surprised by the resistance to the instruction of expert physiotherapists. Jean specialises in acquired brain injury and has, in fact, found that in the cases where expert physiotherapists are instructed their assessment is vital in informing future care. According to Jean: “The reliance on medical experts, in catastrophic injury cases, to provide prognosis regarding future
mobility leads to guarded recommendations, in my experience. Where there is invariably a gap in their knowledge is with regards to current therapy techniques and in particular the potential use of assistive technology to improve function.” HFH consulting are actively involved in the analysis of the factors which inform long term care provision in catastrophic injury cases and are currently undertaking independent research into the over provision of care for clients with manual handling needs. q
To that end a secondary function of the MLACP is to ‘…promote public and inter-professional awareness of the scope of medico-legal work undertaken by physiotherapists. It also facilitates initial and on-going training in medico-legal affairs to its members.’ That training includes a number of seminars and conferences. For example, in October there will be a oneday seminar on whiplash at the prestigious Outer Temple Chambers. The seminar is designed to be of interest to physiotherapists and solicitors dealing with whiplash associated disorders. The legal issues and ramifications of the recent Ministry of Justice reforms will be discussed by a consultant solicitor and a barrister. Briefings have recently been published on the Jackson reforms. q • For more information visit www.mlacp.org.uk.
The importance of specialist assessments in serious injury cases CHILDREN AND ADULTS WITH serious injuries have many clinical needs which need assessing by specialists from a variety of ﬁelds, as soon as possible in the course of a claim.
Wheelchairs, seating and 24 hour postural care Gail Russell, Occupational Therapist, has specialised in assessing for wheelchairs, seating and postural management for 15 years, both within the NHS and privately. She assesses clients with serious and complex disabilities and works with them to identify the most appropriate interventions to maximise postural symmetry and enhance comfort and function. Says Gail: “People with limited movement often adopt sustained postures for long periods of time which can often be destructive. Having access to the correct equipment in a timely manner is therefore crucial in managing a client’s posture and limiting the development of secondary complications such as contractures and pressure ulcers”. • For further information visit www.wheelchairtherapists.co.uk, call 07881 958613 or email email@example.com.
Paralympic success follows physiotherapy ‹ Two cases where chartered
physiotherapists were able to help with rehabilitation from serious injury resulted in success at the 2012 Paralympic Games. John Robertson was 22 years old when he was involved in a motorcycling accident which left him with a T8 lesion of the spine. John is now a double world sailing champion and finished fifth at London 2012 with team mates Stephen Thomas and Hannah Stodel. Alexandra Rickham was just 13 when she had a shallow diving accident while holidaying in Jamaica, resulting in C5/6 Tetraplegia. With the help of her physiotherapist Alexandra picked up a bronze medal at the London 2012 Paralympics, to add to the four world championships she has previously won for sailing. Lily Devine is lead physiotherapist for sailing at the English Institute of Sport and worked with John and Alexandra in the build-up to the Paralympics. She explained: “By the time we see people they’ve usually been well looked after by the NHS and have been told that doing sport could be good for them. “Much of the work physiotherapists do is about getting people in the right frame of mind to perform their best. Our aim is to maximise abilities and minimise the disabilities.” q
Elizabeth Hallows, Chartered Physiotherapist, has specialised in assessing for manual handling solutions for 15 years and has been writing expert reports for six years. She works with clients who need help to move, recommending methods and equipment to maximise their potential and life experience, whilst also keeping their carers safe. According to Elizabeth: “The right equipment can enable people with even profound disabilities to access all life has to offer. For example, an adapted sledge and a manual lifting sling enabled one young girl affected by cerebral palsy to play in the snow with her siblings. More routinely, working with a grandfather supporting his grandson, an in-bed slide system made rolling for personal care much easier.” • For further information visit www.elizabethhallows.co.uk, call 01625 268734 or email firstname.lastname@example.org .
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