Your Expert Witness Issue 27

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 9 McNally announces family expert standards 9 Independence plan stresses justice and proposes Supreme Court 9 Online child abusers targeted at summit chaired by PM FINANCE 10 New pensions guidance welcomed 10 Pension fraud is on the increase, warns regulator 11 Prison contract announcement delayed following tagging investigations 13 Hypocrisy, fraud and tyranny 14 Charities must take precautions against financial wrongdoing MARITIME LAW 15 Union calls for accident law reform 15 EU must act to prevent further tragedies at sea

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CULTURAL ISSUES 16 Spitting in public is a cultural conflict, not a crime EMPLOYMENT LAW 17 What happens when sub-contractors claim self-employed status is a sham?

BUILDING & PROPERTY 18 How to be a successful landlord and avoid legal pitfalls 18 Prosecution highlights growing problem 19 An expert witness?

TREES & FORESTRY 20 What’s a tree worth?

ANIMAL & VETERINARY ISSUES 21 Penalties to increase for dog attacks 22 Assessing certification

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EXPERT CLASSIFIED 51 Expert Witness classified listings 55 Medico-legal classified listings

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MEDICAL ISSUES 25 Medical Notes

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NEWS 27 Francis Report: Govt responds with promise of openness 27 Non-specialists flood into medical negligence practice EAR INJURY ISSUES 28 Beyond tympanic membrane perforations: The prevention of litigation CARDIOLOGY 29 New US statin guidelines come under fire PAIN 31 Is Complex Regional Pain Syndrome the new whiplash injury?

ORTHOPAEDICS 33 The Patella – a cause of many and confusing symptoms 34 Leading expert believes it’s time to regain control in whiplash arena 34 Diploma can be a help

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SPEECH & LANGUAGE THERAPY 35 SLT restored to Warrington teenagers after ombudsmen investigate 36 Standards published on how to help communication 36 Everyone has a right to be heard 37 Meeting patient expectations DENTAL & MAXILLOFACIAL ISSUES 38 New standards for dentists are welcomed – but still room for improvement 38 To prove negligence – appoint an experienced dental practitioner 39 Getting to the root of the problem 41 Cutting-edge technology helps rebuild face 41 Support for special needs dentists is ‘ebbing away’, says BDA 43 Your dental expert witness

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ASSESSING PSYCHOLOGICAL TRAUMA 45 Surgeons can suffer trauma, too 45 PTSD risk in small children can now be assessed quickly and accurately PLASTIC SURGERY 47 New body will boost research into implant safety DNA 48 49 49

DNA Testing – who should I instruct?

Researchers derive DNA profile from a single hair New technology allows rapid DNA analysis

MEDICAL PHOTOGRAPHY 50 Professional photography can make or break a case www.yourexpertwitness.co.uk

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Opening Statement ‹ THE SNP AS THE Scottish Government has now announced its ‘blueprint’ for an independent Scotland

as a kind of manifesto for a ‘yes’ vote in next year’s referendum. Most of the White Paper comprised a kind of wish-list for improving living conditions.

There was, however, a section on Justice, Security and Home Affairs, dealing with areas of crime policy and policing, and the new country’s relationship with the EU. The section also contains a commitment to developing ‘closer relationships with EU and NATO agencies engaged in cyber security’. The current Inner House of the Court of Session and the High Court of Justiciary sitting as the Court of Criminal Appeal in Edinburgh would become the Supreme Court.

• In England and Wales the new standards for expert witnesses in the family courts were announced by Lord McNally. He chose the annual Bond Solon Expert Witness conference to make the announcement, venturing into what could have become a lion’s den. However, it turned out not to be the case, with an interviewer from Bond Solon offering Lord McNally numerous opportunities to express his admiration for the work of experts and His Lordship grasping them.

The fact is that the number of unnecessary and extraneous expert reports in the family courts has been falling rapidly as parties and their legal advisors recognise the necessity for speeding up the process in the interests of the children involved.

• Periodically the issue of spitting raises its head in public debate. On 26 November the former Conservative Chief Whip at the centre of the so-called ‘Plebgate’ affair, Andrew Mitchell, said in a press conference he had been spat at in the street over the incident – one of the worst insults imaginable and mentioned above losing his job.

Footballers have been berated for spitting at opponents and there is revulsion on the part of many as the cameras train onto players clearing their breathing tubes following a bout of exertion – more recently because of the risk of spreading infection.

In Eastern cultures, however, expectoration as a means of clearing the throat is considered acceptable and even preferable to using a tissue or handkerchief. Our regular contributor on cross-cultural affairs, Dr Bashir Qureshi, discusses the issue in depth.

Mr Mitchell, meanwhile, remained in the news when his appeal against a decision to limit his recoverable legal expenses in a libel action against The Sun was dismissed. The limitation was applied by the High Court after Mr Mitchell’s legal team failed to submit their budget in the time limit ordered by the court – the first time the Jackson reforms of litigation costs has been applied. It seems it isn’t just the police that have got it in for Mr Mitchell.

• The housing market continues to dominate the headlines in the construction industry, with figures showing a boom in the buy-to-let market. Becoming a landlord, either as a career or on the side, is an increasingly attractive option for those with capital. There are a number of legal pitfalls, as outlined by Carolyn Uphill of the National Landlords’ Association on the BBC Moneybox programme.

There are also an almost equal number of professional experts eager to take the weight off the new or part-time landlord’s shoulders and, of course, wallet. There is even a trade association composed entirely of people who compile inventories and carry out inspections for the purpose of determining bond returns.

• In the building industry itself there is pressure on the traditional relationship between developer and sub-contractor. The strain has become evident with the recession in the industry. Whereas the self-employed status of subbies was hitherto mutually beneficial, there is a growing tendency for those suddenly finding themselves bereft of work to seek to nail the developer for employed worker status with all the, albeit one-off, benefits that brings. It’s getting near Christmas and turkeys – those not crippled with MRSA – are registering to vote. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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McNally announces family expert standards ‹ ON 8 NOVEMBER the Ministry of Justice

announced the anticipated national standards for expert witnesses in family courts. The announcement was made by Minister of State Lord McNally at Bond Solon’s Annual Expert Witness Conference and formed the joint response by the MoJ and the Family Justice Council to the consultation that has been taking place on the Family Justice Review.

Lord McNally told the conference: “Expert witnesses have a vital role to play in many of these sorts of cases making complex issues understandable to lawyers, judges and juries. You play an important part in the administration of justice.

“The Family Justice Review also recommended that agreed quality standards should be developed for expert witnesses in the family courts. My officials have been working with the Family Justice Council, experts groups and other interested parties to develop those quality standards.

These standards were recently subject to consultation. I am pleased to say that, today, we are launching the joint Ministry of Justice and Family Justice Council response to the consultation.”

The standards were outlined in more detail at a specialist session at the conference and it is anticipated they will be implemented next April.

Lord McNally told an interviewer at the conference that some elements of the justice system would be recognised by Dickens or even Shakespeare and that reform to make the system more efficient was essential.

“If we can make the system more efficient, we can make it better for those that get involved in the law, and also those who work and deliver a service in the law,” he said.

“Experts who anticipate the changes and work with them will survive and prosper.”

The standards, said Lord McNally, will help to ensure that experts providing evidence to the family courts in proceedings relating to children have a recognised level of qualifications, skills and experience consistent with the provision of good quality advice to the court. R

Independence plan stresses justice and proposes Supreme Court ‹ UNDER PLANS ANNOUNCED FOR an independent Scotland on 26 November, the Inner

House of the Court of Session and the High Court of Justiciary sitting as the Court of Criminal Appeal will collectively constitute Scotland's Supreme Court.

The White Paper took the justice system as one of its key themes, stressing the fact that the Scottish system is already distinct. It said: “The existing independence of Scotland's legal and justice systems ensures a strong starting point for our independent country. Successive Scottish governments have legislated to ensure that we keep up-to-date with the requirements of a modern justice system. These reforms demonstrate the value of taking decisions here in Scotland, as well as highlighting the barriers that exist as part of the current constitutional arrangements.

“Justice is one of the fundamental responsibilities of government: to provide safety, security and fairness to the citizens of the country. Our justice system provides the foundation for delivering the kind of nation Scotland should be – a thriving and successful European country, reflecting shared values of fairness and opportunity, and promoting prosperity and social cohesion.” R

Online child abusers targeted at summit chaired by PM ‹ ON 18 NOVEMBER Prime Minister David Cameron met with the internet search engines, Internet

Service Providers, Facebook’s European boss Joanna Shields, the National Crime Agency (NCA), Internet Watch Foundation (IWF) and the NSPCC in Downing Street to discuss how to rid the internet of child abuse.

Those attending agreed action to block child abuse search results worldwide, to help people search the internet safely and to continue to work to bring offenders to justice along with a series of further steps to help remove child abuse from the internet.

Google and Microsoft have introduced changes to their search engines to prevent any images, videos or pathways to child abuse being returned from blacklist search terms used by paedophiles. They have also implemented clear warning messages which appear whenever people use blacklist child abuse search terms, telling people of the consequences of their actions and pointing them to charities – such as stopitnow.org.uk – who can help.

Google and Microsoft both welcomed the national database of child abuse images being set up by the Government from next year. Google has also developed and agreed to share new technology that allows duplicate copies of videos of child abuse on the open web to be identified and removed.

Both companies agreed to take part in a joint work programme between the search engines, IWF and the Child Exploitation and Online Protection Centre (CEOP) to tackle the problem of peer-to-peer networks – the so-called ‘dark internet’ – which will establish a new reporting process to remove pathways to child sexual abuse. They have also made changes to their auto-completion features to prevent suggestions that lead people to child abuse searches.

The Prime Minister made clear that he would consider whether further powers were needed for the police and National Crime Agency to help investigate and prosecute offenders.

NCA Director General Keith Bristow commented: “Today's initiative is a real step forward, but the focus now rightly shifts towards more cunning and determined offenders who use the hidden internet and peer to peer networks. By bringing CEOP into the NCA this year, we are maximising our investigative capabilities and the specialist support, for example cyber expertise, which is available to all our operations.” R www.yourexpertwitness.co.uk

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New pensions guidance welcomed ‹ THE PENSIONS ADVISORY practice of accountancy giant KPMG

has welcomed the Pensions Regulator’s decision to release new guidance on asset-backed contributions to pension schemes (ABCs), but has noted that it is unlikely to herald a change in approach as many welladvised trustee boards already reach the standards outlined.

The guidance, published on 19 November, follows a period over which ABC solutions have become an increasingly common way for companies to provide financial support to their defined benefit pension schemes, according to the pensions advisors.

ABCs, also known as asset-backed funding for pension schemes, are where a sponsoring employer uses business assets to secure cash which is then paid to the pension scheme. According to KPMG’s research on asset-backed funding from publically available data on transactions to date, there have been over £6bn worth of assets placed into these structures since they were first adopted in the late 2000s.

KPMG’s pensions practice has advised on over 40 completed or on-going ABC implementations. David Fripp, a partner in the practice, commented: “We are seeing ever increasing client interest in assetbacked contributions, from both smaller companies and larger organisations, so the guidance is timely.”

Referring to views within the industry that the regulator had fundamental objections to ABCs, he added: “The guidance dispels a number of myths about the regulator’s views of ABCs and acknowledges that they are becoming more mainstream. This guidance should help sponsors who are looking to take proposals to scheme trustees.

“The guidance on process broadly reflects our current experience

of working with well advised trustee boards. We do not envisage a sea change in practice, but the guidance may promote a more methodical approach in some areas.”

However, according to Fripp the guidance is not a panacea. Raising a note of caution for users of the guidance, he said: “There are some areas where we see scope for confusion because the guidance is necessarily generic in nature. Each ABC can be very different, and the regulator has been unable to capture all of the nuances that may exist, so sponsors will still need to clearly set out the specific benefits of their proposal for trustees to review.” q

Pension fraud is on the increase, warns regulator ‹ THE PENSIONS REGULATOR is warning against increasing

instances of so-called ‘pension liberation’ fraud. On its website it explains what the fraud is.

The advice states: “Pension liberation, also known as ‘pension loans’ and ‘pension scams’, is a transfer of a scheme member's pension savings to an arrangement that will allow them to access their funds before the age of 55. But accessing pension savings before the minimum pension age is only possible in rare cases, like terminal illness. This activity can be fraudulent where individuals are not informed, or are misled, as to the consequences of entering into one of these schemes.

“Pension liberation can result in tax charges and penalties of more than half the value of a member’s pension savings, and those being targeted are usually not being told about the potential tax implications. This is in addition to high charges, typically 20-30% for entering into one of these arrangements, and high-risk investments for the remaining pension savings.” q

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Prison contract announcement delayed following tagging investigations ‹ THE MINISTRY OF JUSTICE

announced on 22 November that it was delaying the announcement of who had won contracts to run five prisons in the North of England ‘for operational reasons’.

Two of the bidders for the contract – Serco and G4S – are subject to investigations by the Serious Fraud Office and accountants PwC in relation to contracts for the tagging of offenders, while Serco is currently cooperating in an inquiry into a contract to deliver prisoners to court.

The prisons, in Northumberland and South Yorkshire, will remain under the aegis of the Prison Service.

The Financial Times quotes MP Keith Vaz, chair of the Commons Home Affairs committee, as saying he was “very surprised” at the decision, adding: “If the government is concerned the public will not have confidence in the companies they have chosen, perhaps now is the time to reconsider their decision.”

In a statement issued on 22 November, Serco Group said: “We understand that the urgent need for change at these prisons

MP Keith Vaz is quoted as being very surprised at the MOJ’s decision means that the typical six-month period of mobilisation and transition to the private sector would not be in the best operational interest of the prisons.”

Its acting CEO Ed Casey commented: “From meetings with the UK Government it is clear that the operational needs of the prisons will be best served by the

necessary changes being implemented without further delay. We are also continuing to make good progress across the various audits, reviews and our proposed corporate renewal programme within the timing previously communicated

by Government.”

The announcement follows news that the company’s UK and Europe chief executive, Jeremy Stafford, had stepped down “to pursue other opportunities outside Serco”.

The tagging investigation follows allegations the MoJ was billed for tagging and tracking of offenders who had moved abroad, gone into prison or even died.

In June 2013 G4S engaged law firm Linklaters LLP to perform an independent review, which was followed by a number of changes in senior personnel.

More recently the group’s chief executive Ashley Almanza said in a statement: “The way in which this contract was managed was not consistent with our values or our approach to dealing with customers. Simply put, it was unacceptable and we have apologised to the Ministry of Justice.” q

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Hypocrisy, fraud and tyranny

by BEN LEANDRO, Manager, Forensic Accounting Services, Kingston Smith LLP

‹ IT IS AN unfortunate fact of life that there will always be a

criminal element in society. Villains will always exist and there will always be somebody looking to steal, cheat and lie. This is a sad but true indictment of what is inherent within human nature.

Therefore, with this in mind, the risk of fraud will be forever present.

However, just because we have criminals at large in our world, this is not of itself a reason for fraud. The real reason why fraud occurs is because we allow it to. We can all be guilty of being too trusting, letting the wool be pulled over our eyes, becoming complacent or just being too close to be able to see what is actually happening. It is from these fertile conditions that fraud is allowed to grow.

Beware of the loyal servant!

The last person that we ever suspect is the angelic, long serving, loyal servant. In a recent case, we were instructed to investigate a fraud that was perpetrated by an individual that had all these perceived attributes, yet our findings demonstrated that this impression could not have been further from the truth.

The individual in question was the second longest serving member of staff, held in the highest regard by each and every member of the senior management team. As the sole accounts clerk, the individual had full access to the accounting ledgers, reconciled every control account and knew the financial systems and processes inside out. It is also true that this person never fell sick and only ever took long weekends (albeit to exotic locations).

It was only because the individual went on maternity leave that the fraud was eventually discovered.

In the aftermath of uncovering the fraud, there was a resounding feeling amongst management of ‘how could this have happened?’ followed by a certain amount of introspection and reflection.

However, the important question remained, ’what do we need to do to prevent this from happening again?’

Our fraud investigation and the subsequent report of our findings identified a complete lack of controls around the areas in which the culprit had operated. There was no segregation of duties between handling cash and access to the accounting system, which ultimately enabled the perpetrator to misappropriate monies and then conceal this with fictitious entries on the accounting ledger.

Management had failed to put in place adequate controls on the basis that the financial systems were being operated by a trusted individual.

Practising what you preach This case certainly demonstrates a lack of controls in allowing a fraud to occur. However, from our experience, it is equally as common to have the controls in place but fail to ensure these are implemented.

One investigation in which I was involved centred on a fraud occurring within a bank. On examination of certain employee expense forms it became apparent that the expenses being claimed had not in fact been incurred. In some instances, the ‘receipts’ were nothing more than handwritten expense slips purchased from a stationery shop. In other instances, hotel booking confirmation forms were being submitted in support of overnight stay claims – the bookings were in fact subsequently cancelled.

Our investigation involved quantifying the fraud being committed, but also focused on the systems and controls in place, following which we provided recommendations to the board of directors. We discovered that although the organisation ostensibly had a control environment in place, with designated persons reviewing and processing the expenses with instructions to reject expenses that did not meet certain criteria, the actual operation of the expenses review was entirely inadequate.

Our recommendations included training to be provided to those reviewing expenses, second person spot checks on reviewed expenses and for a periodic in-house audit of the expenses process.

The lessons to be learned It is important that we realise fraud is a fact of life and that no organisation is immune to it. The task in hand, however, is to ensure that appropriate safeguards are designed and effectively implemented in order to sufficiently mitigate the risk of fraud.

Our role as forensic accountants, when investigating fraud, can be wide ranging and will be specific to the nature of the case.

However, more often than not, in addition to unravelling the fraud and quantifying the losses incurred, an important element of our work, which provides real value to the organisation, is to conduct a detailed review of the systems in place and provide recommendations on how to prevent reoccurrence.

In the words of Frederick William Robertson: “There are three things in the world that deserve no mercy – hypocrisy, fraud and tyranny”. As forensic accountants we certainly have a part to play in combatting one out of these three evils. q www.yourexpertwitness.co.uk

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Charities must take precautions against financial wrongdoing ‹ ONE OF THE side issues of the scandal

surrounding former Co-op Bank chairman Paul Flowers was the allegation that emerged regarding expenses claimed while running a drugs charity based in Manchester, although in that case the Charity Commission found there had been no evidence of fraud of ‘bad faith’. The affair does, however, raise questions regarding the prevalence of financial mismanagement and wrongdoing in the running of charities.

According to the Charity Commission: “Understanding where a charity may be vulnerable to fraud must be an integral part of any charity's risk management approach and trustees must be satisfied that they have controls in place to manage these risks.”

The annual report by the National Fraud Authority – the Annual Fraud Indicator – included a sample of charities with incomes of over £100,000 and found just under one in 10 had suffered some kind of fraud, of which a quarter reported insider-enabled fraud. In

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November four individuals were arrested by Gwent Police in Wales over the running of a music charity for young people.

Charities are not unique in being the victims of fraud, as the Charity Commission points out, but the “nature of the relationship which charities have with the public makes the prevention and detection of fraud particularly important”.

In its response to the publication of the Annual Fraud Indicator in June, the chief executive of the Charity Commission Sam Younger said: “The Annual Fraud Indicator highlights that fraud

is an issue across all sectors, and charities are no exception. Whilst smaller charities may sometimes feel this is not an issue they need to worry about, trustees have a responsibility to ensure proportionate anti-fraud measures are put in place. It’s worrying that almost a quarter of those who have been victims of fraud have suffered insider-enabled fraud, and this is a timely reminder that it does happen and it’s not always outsiders who are the culprits. Trustees, staff and volunteers are the people on the ground who could help stop the opportunities for fraudsters by putting some financial risk measures in place. There should be a culture of counter fraud and risk management created by the trustees and, in larger charities, senior management, who should lead by example in adhering to the charity’s internal financial controls and good practice.”

In order to help those running charities, the commission publishes a number of documents on the issue. They are available from www. charitycommission.gov.uk. q

Union calls for accident law reform ‹ A TRADE UNION is calling for reform

of the Fatal Accident Inquiry process following a trial in which the owners of a tug which sank on the River Clyde were fined £1.7m. Svitzer Marine Ltd was handed the fine on 13 November for its culpability in the fatal sinking of the Flying Phantom near Clydebank in December 2007.

Three crew members perished when the tug capsized in thick fog conditions after running aground while towing a cargo vessel. Svitzer had previously admitted breaching the Health and Safety at Work Act (1974) through its failure to provide its employees with proper safety procedures for the towing of marine vessels in challenging and poor conditions.

Despite nearly six years having elapsed since the sinking, no Fatal Accident Inquiry has taken place because port operator Clydeport continues to plead not guilty to contravening safety laws and will appear before the High Court in Edinburgh in December. The inquiry cannot take place until the court process has been exhausted.

The Scottish secretary of the UNITE union, Pat Rafferty, said: “By the letter of the law justice was served on Svitzer Marine for their role in the preventable

deaths of three crewmen but today’s judgement reinforces our view that the law is not working for the people it should serve to protect.

“Lord Turnbull said himself that he felt restricted by statute in that he could only impose a fine, noting that it does nothing to help the families of the deceased.

“It is scandalous they have had to wait six long years for this outcome, yet no Fatal Accident Inquiry has taken place, no individual within Svitzer Marine will bear any responsibility for its safety failings and any findings from this process that could improve workplace safety and prevent future fatalities cannot be legally enforced.

“We need to radically change the Fatal Accident Inquiry process – something the Scottish Government can do now by fast-tracking the FAI reform proposals made by Patricia Ferguson MSP – and Corporate Manslaughter legislation should be strengthened to ensure that culpability for workplace fatalities is placed on individual directors within the negligent company itself.”

The lawyer representing the families of the three crewmen,

Andrew Henderson from Thompsons Solicitors, also criticised the fact that no FAI had yet been held.

He said: “Although the conclusion of criminal action against Switzer is welcome, it is extremely worrying that, almost six years on from the tragic deaths of three men in the course of their employment, there has been no Fatal Accident Inquiry held into those deaths. How can lessons be learned and similar tragedies prevented without such an investigation taking place in court?” q

EU must act to prevent further tragedies at sea ‹ THE EU AND ITS member states must do more to prevent further

loss of life at sea, the European Parliament said in a resolution adopted during a plenary session on 23 October.

MEPs expressed deep sadness and regret at the tragic loss of life off Lampedusa in Sicily, once again pointing to the need for member states to abide by their international sea-rescue obligations in order to save the lives of people in danger.

“Lampedusa should be a turning point for Europe,” the Parliament said, adding that “the only way of preventing another tragedy is to adopt a coordinated approach based on solidarity and responsibility, with the support of common instruments.”

MEPs also stressed that the relocation of asylum seekers “is one of the most concrete forms of solidarity and responsibility-sharing.”

The Parliament also backed European Commission proposals to deploy a search-and-rescue operation from Cyprus to Spain and described its intention to establish a task force on migratory flows in the Mediterranean as “a first step towards a more ambitious approach”.

The statement was issued just days before the European Council Summit, at which the issue was overshadowed by the row over US bugging of Chancellor Merkel and relegated to a couple of paragraphs at the end of the Statement of Conclusions. The council did, however, set up a task force to report in December.

The document said: “The European Council expresses its deep sadness at the recent and dramatic death of hundreds of people in the

Mediterranean which shocked all Europeans.

Based on the imperative of prevention and protection and guided by the principle of solidarity and fair sharing of responsibility, determined action should be taken in order to prevent the loss of lives at sea and to ensure that such human tragedies do not happen again.” q

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Spitting in public

is a cultural conflict, not a crime

By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon. FRSPH, Hon. MAPHA-USA • Expert Witness in Cultural, Religious & Ethnic Issues in Litigation

‹ SPITTING IN PUBLIC by people, in the streets or on the roadside,

is an eastern cultural conditioned reflex. A spontaneous feeling of hate towards those who do this is a western cultural reaction of disgust.

It is important to consider such actions and reactions objectively, as both may be right or wrong. Spitting openly is an eastern custom of ethnic Asians and Africans, especially for the poor visitors who were born abroad. Spitting in a pocket handkerchief is a western custom of Europeans, even the poor. Why? Moreover, how can we prevent the problems caused by these two different customs?

In Asian and African countries, hot weather prevails all the year round. When out and walking about, people have to wear loose, light clothes which can hold air to keep them cool. Everyone wears a long shirt with one or two pockets. Some wear baggy trousers with no pockets. Others wear a ‘Tahmad’ (akin to a Scottish kilt) with no pockets. Only women carry handbags. Generally, people have only two small pockets – one for a wallet and the other for keys. The sun and dust allergy cause more nasal and throat discharge. Poor people spit on the roadside, which is very hot due to intense sunshine, and the spit evaporates in seconds. Everyone does it, so nobody minds. Obviously, the people have not had western schooling and so would not be aware of the western reaction of disgust.

In European countries, cold weather dominates. People wear more heavy clothes which have many pockets. Their jackets have five or six pockets and their trousers two or four. Mainly women carry handbags.

Even the poor are well off enough to purchase pocket handkerchiefs.

Nasal and pharyngeal discharge is minimal - people in the main have a clean nose and rarely happen to spit. When they do they catch it in a handkerchief and pocket it, until they get home to dispose of it or wash it. Some people carry their handkerchief in their hands if they are suffering from allergic rhinitis (nasal discharge).

Understandably, westerners consider the eastern habit of spitting as filthy whereas easterners frown upon the western habit of pocketing the spit for a long time. The spread of Tuberculosis, which is common in Asia and Africa, is seen as a potential hazard by westerners.

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Realistically, the human body has immunity and infections would result more often if the bacteria was airborne.

I read that an English magistrate fined an easterner £80 for spitting.

I believe that most westerners would have been delighted by this, but many easterners would have felt aggrieved. They would have expected a simple warning on the first occasion, followed by health education, and to be fined only on their second act of spitting as a lesson to non-compliers. Westerners have had western school education and easterners have not. This case needed mitigation akin to – it was not an intentional murder but an unintentional manslaughter. Legally, how can everyone be treated as the same?

We can prevent unacceptable habits either by punishment or by mutual health education in our multicultural society – a society which has resulted due to worldwide economic reasons. A glass can be half full or half empty – take your pick. q

What happens when sub-contractors claim their self-employed status is a sham?

By ANDREW WILSON, consultant director of THSP

‹ IMAGINE THE SITUATION – J, a ‘self-

employed’ electrician, has worked for ABC Services Ltd for five years consecutively, other than for the odd week or two when on holiday or ill. In that time J has worked on a number of sites for ABC and has always completed the work himself.

When he has been unable to work, ie on holiday or ill, then ABC have typically not engaged anyone else but used their inhouse electricians to do the work. When the work is available J has always done the work himself. Although J is registered through the CIS Scheme as a self-employed operative, they do not always provide records such as invoices or timesheets.

Here is the sting. After five years of reasonably consistent work provided by ABC to J, the opportunities for new work become fewer and subsequently J is not given any work for a substantial period of time. ABC are under the belief that they have to make sure their employed operatives are kept busy. One evening J is talking about the predicament to a friend who suggests he may be entitled to some money from ABC under something called a ‘worker’ status.

The next day J calls ACAS and the Citizens Advice Bureau. They both suggest ‘J’ appears to look like the definition of a ‘worker’ under section 230(3) of the Employment Rights Act 1996. So, what does this mean? Well, J could be entitled to similar statutory rights as an employee.

Potentially, this could amount to five years’ worth of holidays, pay at the national minimum wage, the right to be fairly dismissed, protection from less favourable treatment and whistle-blowing and redundancy pay, among a number of other rights. Is this what ABC Services intended when they first gave work to J some five years ago? Probably not.

There has been great Parliamentary reform recently in terms of employment rights, but there have been no such discussions in terms of status. With more and more case law building the case for the ‘worker’, business owners will be well advised to review the manner in which they engage self-employed operatives.

It is not uncommon to find some form of contractual arrangement in place.

However, the authoritative case law that is coming from upon high is scrutinising the relationship in practice and not necessarily the proposed intent contained within an agreement. There may well be provision in an agreement where there is ‘no mutual obligation to accept or provide work’ and there may also be opportunity to provide a ‘substitute if unavailable and unwilling to undertake the work’ but the test comes of what happens in reality and if the arrangement is effectively a sham.

In today’s litigious world don’t think the worker needs to prove they have to work under a sham contract for a specific period

of time. There are no ‘two-year windows’ of continuous employment needed to claim holidays or the national minimum wage, as defined in Regulation 2 of the Working Time Regulations 1998 and section 54 of the National Minimum Wage Act 1998 respectively. Equally, the protection from discrimination and whistle-blowing exists from the outset!

So what are the options? Taking the worker on as an employee is not always seen as a viable option. After all, the reason for taking on a self-employed operative in the first instance was often to avoid employment liabilities and offer greater flexibility. Therefore some legal protection and distance should be sought, namely through an agency or bureau or by engaging legally formed companies to undertake the task.

The construction sector is, as with many other industries, built up and dependent on flexible labour models. Will the decisions in recent case law change the way selfemployed operatives are engaged? With the so called claims culture still firmly out there, business owners are well advised to consider their liabilities with self-employed contractors, operatives and consultants. q • THSP can help businesses understand their risks and then put pragmatic solutions in place. For more information tel 08456 122144 or visit www.thsp.co.uk. www.yourexpertwitness.co.uk

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How to be a successful landlord and avoid legal pitfalls ‹ AFTER APPEARING AS A guest on BBC Radio 4’s Money Box Live

show recently, National Landlords Association (NLA) chairman, Carolyn Uphill said first time prospective landlords shouldn’t be put off entering the buy to let market, despite the somewhat negative press the industry receives and the possible hidden financial pitfalls.

“At the end of the day it’s a business and landlords should know what they need to do to make that business succeed,” she said. “Before starting out, I advise you to research thoroughly, understand the market and what sort of tenant you’re aiming the business at and finally, to make sure you seek out the best advice possible.

“I strongly advise joining a trade association like the NLA before investing a substantial amount of money. With the NLA’s new Effective Letting campaign you’ve got a better chance of getting it right first time.

“If you don’t want to manage your property, there are good agents out there, but you must make sure the agent is member of a professional body like UKALA before taking that route. However, it’s important to fully understand your legal obligations as you will still be responsible for certain things even if you use an agent, for example making the home fit for habitation, ensuring there are no category-one hazards which can cause injury and that gas safety appliances are properly tested and in working order. You must also make sure that the property’s Energy Performance Certificate is up to date before you rent.

“Finally, and most importantly, being a successful landlord requires effective communication, which in turn can help to reduce missed payments and voids that can have severe financial implications. With all tenancies, it’s important to establish a good, professional relationship from the start.

“It is also essential that you set out fair terms in your tenancy agreement

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and that both landlord and tenant understand their obligations throughout the tenancy. If you get this right, then the tenancy is likely to run smoothly.” q • For more information about the NLA, including the new Effective Letting campaign, visit www.landlords.org.uk.

Prosecution highlights growing problem ‹ THE RECENT CASE of a Reading landlord, who was fined £12,000

for failing to maintain a rental property, is just one example of the growing problem of dangerous properties that are putting tenants at risk, according to the Association of Independent Inventory Clerks (AIIC).

On 23 October Ravinder Singh Takhar was prosecuted under the Housing Act and Local Government (Miscellaneous Provisions) Act for failing to comply with regulations in respect of managing HMOs (homes in multiple occupation) and one of failing to provide information in respect of a property.

According to the AIIC, the most common dangers found in properties are severe damp and mould, bare wiring, broken windows, wardrobes and cupboards not securely fixed to the wall, unserviced and faulty boilers, damaged and leaning brick walls and an absence of smoke alarms.

The association’s chair Pat Barber commented: “It is an unfortunate truth in the UK that many disadvantaged tenants are put in danger by unscrupulous landlords who exploit their vulnerability. Some of these tenants have to live in properties full of dangerous hazards which put their safety at risk.

“In one property, during an end of tenancy check out inspection, the inventory clerk discovered a completely overgrown garden pond which was so hidden, she almost fell into it. The garden shed was so dilapidated that it leant at an alarming angle and could have collapsed at any time. It was impossible to open the door to reach any gardening equipment and also posed a serious safety hazard to the tenants.

“Many families and young children are at risk from negligent landlords, all of whom have a ‘duty of care’ and as such should be making regular visits to properties – every three months – to check health and safety.”

The AIIC has published recommended time scales for landlords to respond to a request for repairs. Depending on the problem, some need to be treated more urgently than others. q

An expert witness?

By DAVID ENSOM of Hall and Ensom

‹ I HAVE BEEN PROVIDING expert witness

reports for more than fifteen years but remain wary of the term ‘expert’. To me, the title implies a greater level of knowledge and experience than one’s peers and conjures up an image of a learned, intense individual, imperiously peering over his or her spectacles – and with perhaps just the right number of grey hairs!

Of course, I fully appreciate that from the perspective of the courts, an expert is somebody with knowledge in a particular field who can assist the court in understanding the issues in a dispute. I’ve obtained a qualification in expert witness services and enjoy the work, but I still find it hard to regard myself as anything other than an experienced chartered building surveyor.

Over the years, I’ve been asked to report on a wide variety of alleged examples of defective construction work, inadequate design and poor quality survey reports. For the most part, what seems to have been missing from the armoury of the builder, architect or surveyor at the centre of the case is a basic dose of common sense, allied to an ability to think through a construction detail or visible building defect.

I’ve seen too many survey reports that have either missed defects or failed to demonstrate

A whole host of defects on a re-roofing project (above) and (below) hidden under a floor and more complicated than necessary

an analytical approach to the survey itself. I believe that anybody with reasonable powers of observation and who spent a few hours looking methodically around a property would spot most of the defects – the client is expecting some analysis of these defects and reasoned professional advice. Overlooking the removal of chimney breasts, high ground levels, weakness in old timber frames, rotten windows, questionable electrics – all have been missed in reports I have seen.

Surveyors need to be ‘house detectives’ and work out why they are seeing a defect, what the cause might be and whether various defects might be connected. The report should explain to a purchaser what has caused the defect and what the implications are. So many reports fail to demonstrate a basic analytical approach.

Yet even when a surveyor has undertaken the inspection with care, the report itself may be inadequate. The language can be so technical, or written in such obscure terminology, as to be largely incomprehensible to a lay reader. I have read reports with language so archaic as to obscure the meaning, and with conclusions that contradict the findings described in the body of the report.

When it comes to building design, architects have an obvious flair, but why are basic aspects of construction so often missed?

Building components move, especially green oak frames, and gaps open up. Frost and low temperatures cause harm to many materials and are entirely foreseeable.

Beautifully designed interiors with completely inaccessible plumbing, causing excessive damage when a leak occurs, are not fit for purpose. So materials and workmanship need to be appropriately specified. The Building Regulations require supporting steelwork to be protected against fire, and yet I’ve seen it missed altogether in a brand new office building signed off by both the architect and Building Control.

Despite such shortcomings, at least architects and surveyors are subject to training, qualifications and professional standards.

However, there are no barriers to entry to the building trades and anybody can call himself a ‘builder’. The list of builders’ defects I’ve seen make dire reading. Examples which stick in the memory include a tiled roof laid almost flat and which inevitably leaked; beautiful oak framing crudely screwed together ‘just in case’

Traditional materials incorrectly detailed and installed the traditionally designed pegged joints weren’t strong enough; windows fitted the wrong way round; and a soil pipe not connected to the drains and discharging sewage into the void beneath the sitting room floor.

The clients of the industry are not entirely blame free either. They seem all too ready to accept the lowest price from the least professional builder. Saving money on design fees, seeking quotations from builders with no checks on reputation and experience, accepting the lowest price despite a completely inadequate description of the work covered and then suing the builder when the work is not up to their expected standard or ‘incomplete’ in some way. And, of course, they expect the expert’s report to back their assertions.

None of this is highly technical. I have reported on complex defects requiring careful analysis, research, consideration of opposing views and opinions, followed by the drafting of a carefully worded report. But most of the disputes I have dealt with relate to what seem to me to be relatively simple defects in professional standards or building work, which could so easily have been avoided.

It sounds simple, but it takes experience along with clarity of thought and expression to identify and explain the issues in a dispute.

That’s expertise – and that’s what makes a good expert witness. q

David Ensom BSc MRICS

Tel: 01256 889851 E: david@hallandensom.co.uk

Kestrel Court, Vyne Road, Sherborne St John, Basingstoke RG24 9HJ

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What’s a tree worth?

By MARK CHESTER of Cedarwood Tree Care

‹ WHEN I FIRST BECAME aware that amenity trees could have a

value, I was intrigued, so I am not surprised when clients call for advice and say they were unaware this is possible. There are different ways to value a tree, depending on the circumstances, and to assess whether a claim is reasonable.

The traditional valuation for trees has been for timber, which remains. For amenity trees, it can depend on whether a tree has been irreparably damaged and needs to be replaced, for which one set of calculations exist. It may not be appropriate, or desirable, to replace a tree, in which case the calculation is one of compensation. If the presence of a tree is restricting the development potential of a site, the value can rise sharply. And whilst one of the parties may have suffered considerably from the experience, any settlement needs to be reasonable and proportionate.

Having experience in quality control of tree work, I can assess whether pruning has been detrimental, and if a claim is spurious. One case I investigated involved the defendant clearing some boundary conifers to tidy his garden, the work having been verbally agreed with the neighbour. Fortunately, he took photographs prior to doing the work. A change of circumstances resulted in the neighbour’s widow pursuing a claim for compensation when she realised the trees had been on her land, presenting a quotation for substantial replacement

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trees in support. The defendant was willing to settle, but found the fivefigure claim rather steep. I soon found that the quotation was no longer valid, the supplier was unable to fulfil the order and the crane required to move the trees in to position was unable to physically access the site.

I then identified several suppliers able to provide suitable replacement trees at a more proportionate cost and applied the Replacement Valuation Method to realistically value what were, in essence, some modest conifers. I guided the defendant during mediation and equipped him to resolve the claim.

Appreciating what merits best practice, I was able to guide one client who instructed ‘professional’ contractors to prune her tree. Whilst her brief was vague, it was typical of the lay client and informed guidance was required. The resulting work was poor and I was able to inform her as she pursued options for compensation. However, with a separate claim for damage to a mature Cherry tree, where the pruning was of a professional standard, I advised the defendants not to settle.

Where trees may be an asset to a development, there is benefit in emphasising this. It can also be used during negotiations to ensure that a high standard of landscaping and replacement planting is undertaken when tree removals are approved. In the context of development, a case in Chester was recently reported. A landlord, seeking to maximise profits from some apartments with the creation of a parking bay, instructed contractors to begin ground works and demolish a boundary wall – even though this would damage a Yew tree within the garden which was subject to a Tree Preservation Order.

Following a successful prosecution under the Proceeds of Crime Act, the judge applied the legilsation in calculating the fine. In addition to costs and a fine for breaching the TPO, the defendant was fined £12,000 in relation to the parking space – this was based on the value of the parking space being between £11,000 and £12,800. The total fine amounted to £28,000.

In one case where I acted, utility contractors cut away one-third of a mature, but still quite young, Yew tree in the claimant’s back garden.

The instruction to prune to two metres clear was misunderstood to be from the trunk, not the overhead line. The defendants offered several nursery trees in compensation, when a semi-mature replacement Yew, smaller than the material removed, costs about £10,000.

It is important to be proportionate when pursuing a claim. Whilst one may wish to make the other side ‘pay’ for what they have done, especially if anguish has been experienced, this is not something the courts tend to allocate much value to. q

Penalties to increase for ‹ THE GOVERNMENT IS proposing to

increase the maximum penalties for dog owners whose animals are dangerously out of control, according to an announcement made by the Department for the Environment, Food and Rural Affairs. The decision follows a consultation during the summer.

Current penalties stand at two years’ imprisonment and/or an unlimited fine for aggravated attacks. The changes, announced on 29 October, will see the penalties increased to: • Fourteen years imprisonment if a person dies as a result of a dog attack • Five years imprisonment if a person is injured by a dog attack • Three years’ imprisonment if an assistance dog either dies or is injured by a dog attack In coming to the decision the Government has taken into account the responses to the consultation and the need for maximum penalties to be proportionate to the offence.

They have also compared the current maximum penalty with the maximum penalties for other offences.

Animal Welfare Minister Lord de Mauley said: “It is right that the punishments for those who allow their dog to kill or injure people

dog attacks

or assistance dogs are proportionate to the horrendous impact dog attacks can have.

“We’re toughening up laws to ensure that anyone who owns a dangerous dog can be brought to justice, regardless of where an attack takes place. We’re also giving local authorities and the police new powers to nip issues in the bud and take action before a dog attack takes place.”

The increase in the maximum penalty for a

dog attack on an assistance dog, such as a guide dog, reflects the devastating effect such an attack has on the assisted person. As now, each of the offences could also be punishable by an unlimited fine instead of, or in addition to, imprisonment. An amendment to the Dangerous Dogs Act to effect these changes will be tabled for consideration during Lords Committee Stage of the Anti-social Behaviour, Crime and Policing Bill. q

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Assessing certification

By PAUL ROGER of Veterinary Consultancy Services

‚ WHEN AND HOW do you decide that

you have a case that needs to progress to court for resolution? What indicators are there that you have a suitable and applicable argument and that alternative dispute resolution has been exhausted?

Would a review of the evidence base help?

Who can provide that review and direct your team to the expertise needed to resolve your client’s problem?

It is clear that many issues involving animals and their husbandry, treatment or use require expert familiarity with the particular species and systems involved.

Whilst legal analysis of a case may appear straightforward, the complexity and the

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direction of the evidence base may need the interpretation and placement that can only be given by those with an expertise in the field.

An understanding of the duties and requirements placed on the expert does not necessarily constitute an understanding of the technical issues or delivery of the evidence base.

Analysis of this evidence base by independent experts gives a level of review and understanding of the precise issues involved and their interpretation.

For example, veterinary certification has a very thorough definition from the Royal College of Veterinary Surgeons (the RCVS is the body responsible for registering all

TABLE 1

The 12 principles of certification RCVS Code of Professional Conduct for Veterinary Surgeons 1. A veterinarian should be asked to certify only those matters which are within his own knowledge, can be ascertained by him personally or are the subject of a supporting certificate from another veterinarian who does have personal knowledge of the matters in question and is authorised to provide such a supporting document. Matters not within the knowledge of a veterinarian and not the subject of such a supporting certificate but known to other persons, eg the farmer, the breeder or the truck driver, should be the subject of a declaration by those persons only.

practising veterinary surgeons in the UK and is responsible for professional standards) and this is based on a twelve point plan.

Any veterinary certificate must be able to be scrutinised to the level required by this analysis. These points are shown in Table 1.

This has particular significance where the clinical status of an animal is attested and, as can be seen from the guidelines, this must be within the veterinary surgeon’s knowledge in order for a statement to be signed (thus certifying the status of the animal) and the veterinary surgeon cannot rely on reported evidence from a third party, whoever that is and however reliable the veterinary surgeon considers their assessment to be.

Equally, guidelines have been published by both the RCVS and the British Veterinary Association (the BVA is the representative body for the profession representing over 13,500 veterinary surgeons and providing support through regional membership and specialist interest associations) on the duties and responsibilities of the veterinary surgeon as a witness, which complement those duties outlined and expected through the criminal courts or under civil directions.

These guidelines give clear and succinct messages on what constitutes expertise from the professional’s viewpoint although, when in court, the only attribution of expert status may be given by the court.

These nuances need to be considered when assessing the evidence base provided by the client. Our company specialises in directing the client to the appropriate area of expertise and towards a clarity of comprehension. Our directors, each with their own specialist area, are happy to discuss your requirements and are situated at various rural locations throughout the UK with our major contact point in the capital. R

2. Neither a veterinarian nor any person described in Principle 1 above should be requested or required to sign anything relating to matters which cannot be verified by the signatory.

3. Veterinarians should not issue a certificate which might raise questions of a possible conflict of interest eg in relation to their own animals.

4. All certificates should be written in terms which are as simple and easy to understand as possible.

5. Certificates should not use words or phrases which are capable of more than one interpretation.

6. Certificates should be: a. b.

produced on one sheet of paper or, where more than one page is required, in such a form that any two or more pages are part of an integrated whole and indivisible; given a unique number, with records being retained by the issuing authority of the persons to whom certificates bearing particular numbers were supplied.

7. Certificates should be written in the language of the veterinarian signing them, and accompanied by an official translation of the certificate into a language of the country of ultimate destination.

8. Certificates should identify animals individually except in cases where this is impractical, eg day old chicks.

9. Certificates should not require a veterinarian to certify that there has been compliance with the law of the European Union or a third country unless the provisions of the law are set out clearly on the certificate or have been provided to him by the issuing authority.

10. Where appropriate, notes for guidance should be provided to the certifying veterinarian by the issuing authority indicating the extent of the enquiries he is expected to make, the examinations he is required to carry out, or to clarify any details of the certificate which may require further interpretation.

11. Certificates should always be issued and presented in the original. Photocopies are not acceptable. Provided that: a. b.

a copy of the certificate (clearly marked ‘COPY’) should always be provided to the authority by whom the certificates were issued - see Principle 6 above; and where, for any good and sufficient reason (such as damage in transit) a duplicate certificate is authorised and supplied by the issuing authority, this must be clearly marked ‘duplicate’ before issue.

12. When signing a certificate, a veterinarian should ensure that: a. b. c. d. e.

he signs, stamps and completes any manuscript portions in a colour of ink which does not readily photocopy, ie a colour other than black; the certificate contains no deletions or alterations, other than those which are indicated on the face of the certificate to be permissible, and subject to such changes being initialled and stamped by the certifying veterinarian; the certificate bears not only his signature but also, in clear lettering, his name, qualifications and address and (where appropriate) his official or practice stamps; the certificate bears the date on which the certificate was signed and issued and (where appropriate) the time for which the certificate will remain valid; no portion of the certificate is left blank, so that it could subsequently be completed by some person other than the certifying veterinarian.

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Company Profile

‚ PERSONAL INJURY CLAIMS, ONCE accepted by a

solicitor, can all too often herald the beginning of what could be a potentially lengthy medico-legal process. The instruction of an appropriately qualified medical expert, to examine the client and provide a written report of their findings, is a significant part of this process. Often within these reports experts recommend additional diagnostic procedures, imaging or therapeutic interventions which solicitors are required to arrange. Diagnostic & Rehab Services Ltd can organise all of these imaging needs on a nationwide basis. They are able to source and issue a no obligation quote – within one business day in most cases. It is worth remembering that mismanaged claims cause unnecessary delays in reaching a settlement.

Diagnostic and Rehab Services Ltd will work with your clients to provide appointments and venues that suit personal circumstances wherever possible and their belief in offering a bespoke service to all instructing solicitors is the foundation of the business and the key to its efficiency.

Diagnostic and Rehab Services Ltd, will arrange all of your medical imaging, medical investigations and therapeutic interventions on a nationwide basis. Furthermore, they will always endeavour to ensure that you receive the results or written reports in a timely manner as part of a commitment to service. q

Diagnostic and Rehab. Services Ltd‌ ...Bespoke Medical Solutions for Legal Practitioners.

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MEDICAL NOTES ‹ THE FALLOUT FROM THE Mid-Staffs scandal continues to reverberate around the health service. Sir Bruce

Keogh’s report has resulted in hospital trusts being placed into special measures, while the Francis Report has elicited a final response from the Government.

Predictably, the emphasis has been on legislative and administrative efforts to improve transparency, enforce standards and recruit the best people for the top jobs. Health Secretary Jeremy Hunt has promised, in a message to NHS staff, to protect whistleblowers. It remains to be seen how effective such measures will be in dispelling what has been described as a climate of fear which has been prevalent in the NHS in recent years.

There are also a number of measures to protect vulnerable people, both in hospital and following discharge. They include a new care certificate and provision of a named clinician. The headline-grabber was the proposal to introduce a criminal offence of wilful neglect.

When all precautions fail, as they inevitably will, the process of litigation will loom. That prospect has attracted a new and burgeoning cohort of lawyers, not all of whom are sufficiently versed in the intricacies of the clinical negligence process. That, at least, is the view of some who are experts in the field.

Where the duty of care to provide appropriate services can break down is when the process is not joined-up. Such was the case with the provision of speech and language therapy in Warrington. Warrington Borough Council left the provision to the NHS trust in existence at the time. The trust withdrew the service for financial reasons, but didn’t tell the council, leaving at least 15 autistic teenagers without the service to which they were entitled. Fortunately the youngsters had the Local Government Ombudsman and the Parliamentary and Health Services Ombudsman to fight their corner.

The other medico-legal issue that has been much in the news recently has been whiplash. The background, of course, has been the outcry from the insurance industry, echoed by the Prime Minister, about the number and level of claims, with the subsequent indignation on the part of personal injury lawyers at the impugning of claimants’ honesty.

One group that has not hitherto been consulted on the issue has been the orthopaedic surgeons, who are the people who specialise in the treatment of the injury. A note of sanity has been introduced into the debate by a leading member of the British Orthopaedic Association, writing in its journal and which we have reported on at some length.

Soon, however, the major players in the PI sector could be the rheumatologists and neurologists, as cases of complex regional pain syndrome (CRPS) appear to have rocketed recently. Dr Anthony Clarke, an expert in the area, suggests there are a number of reasons for the increase which focus more on reporting of cases than on the actual number. One of Dr Clarke’s targets is the legal process. He postulates that CRPS may be about to become the ‘new whiplash’.

Plastic surgery also continues to command attention, with a new research body being set up jointly by the BAAPS and The Healing Foundation. Its first project will be to raise awareness of breast implant safety issues.

Plastic surgery is carried out for other purposes than vanity or other aesthetic reasons. Many patients have suffered major injury or had cancer treatment. The same applies to reconstructive surgery, particularly on the face. New 3D imaging processes are now helping maxfax surgeons to rebuild faces with greater safety and precision than ever before. A case in point was carried out recently by experts in Tooting.

While the 3D technology employed in such work is very specialised, the use of imagery in medical cases is widespread. Much restorative work is recorded for clinical purposes and the same techniques in photography are much in demand in the medico-legal arena. Proper medical images taken by a professional clinical photographer are a distinct advantage in bringing a successful clinical negligence case and more and more practitioners are offering their services. q

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Francis Report:

Govt responds with promise of openness ‹ THE GOVERNMENT HAS published a full response to the 290

recommendations made by Robert Francis, following the public inquiry into the failings at Mid Staffordshire NHS Foundation Trust. It follows an initial response published in February, which included the introduction of a new hospital inspection regime and legislation for a duty of candour on NHS organisations so they have to be open with families and patients when things go wrong.

Actions on safety and openness, which are being implemented by the Department of Health, include: • Transparent, monthly reporting of ward-by-ward staffing levels and other safety measures • Quarterly reporting of complaints data and lessons learned by trusts, along with better reporting of safety incidents • A statutory duty of candour on providers and a professional duty of candour on individuals, through changes to professional codes • A new national patient safety programme across England to spread best practice and build safety skills across the country and 5,000 patient safety ‘fellows’ will be trained and appointed in five years • Trusts to be liable if they have not been open with a patient • A dedicated hospital safety website to be developed for the public Other actions include a new criminal offence of wilful neglect, with a government intention to legislate so that those responsible for the worst failures in care are held accountable. There will also be a new ‘fit and proper person’ test, to act as a barring scheme for senior managers.

All vulnerable older people will have a named accountable clinician for out-of-hospital care and a new care certificate will ensure that healthcare assistants and social care support workers have the right fundamental training and skills.

A new fast-track leadership programme is being introduced to recruit clinicians and external talent to the top jobs in the NHS in England.

Health Secretary Jeremy Hunt said on publication of the response on

19 November: “Today’s measures are a blueprint for restoring trust in the NHS, reinforcing professional pride in NHS frontline staff and above all giving confidence to patients. I want every patient in every hospital to have confidence that they will be given the best and safest care and the way to do that is to be completely open and transparent.”

Mr Hunt later published a ‘personal message’ to all NHS staff in which he said: “For all staff, I also need to make sure your bosses encourage rather than discourage you from speaking out if you become aware that any patient is not receiving the safe and compassionate care they deserve. So for the first time hospitals everywhere will have an incentive to report suspected harm quickly and openly, or risk losing some of their protection against successful litigation claims.” q

Health Secretary Jeremy Hunt

Non-specialists flood into medical negligence practice ‹ LEGAL DIRECTORY Chambers & Partners, published in October,

reports that there has been a tenfold increase in the past 12 months in the number of law firms now providing advice on clinical negligence claims. That, according to some experts, is a worrying trend, as many of those will be non-specialist lawyers who are not qualified to give the appropriate guidance on this complex area of law.

As a growing number of injured patients take the legal route to secure justice and a growing number of non-specialist lawyers enter this area of law, care needs to be taken to appoint the right specialist in order to help secure the right outcome.

Trevor Ward, head of medical negligence at north west firm Linder Myers, said: “Clinical negligence is a very complex area of law and progressing claims involves lengthy investigations using independent medical experts to help secure not only justice for the victims and their families, but also to ensure the right amount of compensation is settled to cover essential costs such as lifetime care needs or necessary home adaptations for the more seriously injured.

“Many, if not all, non-specialists turning their hand to clinical negligence will not have the level of expertise required to filter out the cases that are highly unlikely to win, which is extremely important from the victim’s perspective from the outset. Established relationships with the best independent medical experts are also vital as, without them, cases cannot be proved.

“The significant rise in the number of lawyers who are starting to dabble in this specialist area who are not qualified in clinical negligence

is a result of recent changes to regulation making other areas of practice less attractive to some firms.”

The NHS has seen an 80% increase in the number of negligence claims made against trusts since 2008, according to recent media reports. The Keogh Review highlighted 14 trusts which had been found to be delivering poor patient care and safety, with many placed under ‘special measures’ as a result. q

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Beyond tympanic membrane perforations: The prevention of medico-legal litigation

By DR M R GRAHAM, MBChB, PhD, FRSM, MICR, MFSSoc & PROFESSOR PETER EVANS, MD, FRCP

‹ FROM 1970-1976 19 cases of middle ear burns due to incandescent

foreign bodies in metal welding were treated conservatively or surgically with antromastoidectomy or myringoplasty (ear-drum repair) (Jarzebski, 1979).

The effects can be significant – burns, tympanic membrane perforation, chronic otorrhoea, fullness, tinnitus and vertigo, round window perforation with damage to the cochlea, idiopathic deafness (Eleftheriadou et al., 2007) and facial nerve paralysis have been reported (Panosian and Dutcher, 1994). None of the subjects were using ear protection at the time. The use of ear protection is powerfully advocated during welding operations that place the ear at risk.

Retained metallic debri in the context of a new (Robertson and Morris, 2011; Keogh and Portmann, 1994) or persistent tympanic membrane perforation from a welding injury that occurred more than 30 years ago have been identified (Simons and Eibling, 2005). Trans-tympanic facial nerve injuries in welders have also been reported (Panosian and Dutcher, 1994 [2]) resulting in facial paralysis and hearing loss (Stage and Vinding, 1986).

Welding bead injuries tend to heal very badly (Mertens et al., 1991) and REFERENCES Eleftheriadou A, Chalastras T, Kyrmizakis D, Sfetsos S, Dagalakis K, Kandiloros D. Metallic foreign body in middle ear: an unusual cause of hearing loss. Head Face Med. 2007 May 16;3:23.

Frenkiel S, Alberti PW. Traumatic thermal injuries of the middle ear. J Otolaryngol. 1977 Feb;6(1):17-22.

Jarzebski J. Thermal injuries of the middle ear in welders. Med Pr. 1979;30(6):457-60.

Keogh IJ, Portmann D. Drop weld thermal injuries to the middle ear. Rev Laryngol Otol Rhinol (Bord). 2009;130(4-5):317-9 Kupisz K, Klatka J, Hryciuk-Umer E, Klonowski S. Injuries of the middle ear with a welding spark. Ann Univ Mariae Curie Sklodowska Med. 2000;55:401-4.

Mertens J, Bubmann M, Reker U: Schweissperleverletzungen des Ohres Beobachtungen am eigenen Krankengut.(German). Laryngo-Rhino-Otologie 1991, 70(8):405-408.

Panosian MS, Dutcher PO Jr. Transtympanic facial nerve injury in welders.

Occup Med (Lond). 1994 May;44(2):99-101.

Robertson MW, Morris DP. Welding injury to the ear: looking beyond the perforation. J Otolaryngol Head Neck Surg. 2011 Apr;40(2):E15-8.

Simons J, Eibling D: Tympanic Membrane Perforation and Retained Metal Slag after a Welding Injury. Otolaryngol Head Neck Surg 2005, 133:635-636.

Stage J, Vinding T: Metal spark perforation of the tympanic membrane with deafness and facial paralysis. J Laryng Otol. 1986, 100(6):699-700.

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Coronal computerised tomogram of a metallic foreign body in the middle ear recurrent perforations after tympanoplasty are frequent (Frenkel and Alberti, 1977).

One current subject experienced a perforated tympanic membrane and the subjective feeling of swallowing a foreign body, following such an incident of MIG welding, where the perforation was caused by molten slag above 5,000 degrees centigrade, which can burn through any soft tissue.

Extensive investigations including X-Radiology, computerised tomography (CT) scanning and magnetic resonance imaging (MRI) are mandatory to prevent medico-legal negligence if patients are still suffering with symptoms which can be attributed to the index accident. In this instance, symptoms have persisted for two years and investigations are ongoing to identify if the foreign body is the cause of the subject’s morbidity of neck fullness within the region of penetration. q

New US statin guidelines come under fire ‹ NEW GUIDELINES PUBLISHED IN the US on the use of

cholesterol-lowering statins to reduce the risk of heart attack and stroke have been criticised by two Harvard Medical School professors, only days after being released.

A ‘risk calculator’ that formed part of the guidelines issued jointly by the American Heart Association (AHA) and the American College of Cardiologists (ACC), aims to identify patients with a more-than 7.5% chance of heart attack or stroke. However, according to the two professors, the calculator overestimates the risk by a factor of around 100%.

Cardiologist Prof Paul Ridker and his colleague Prof Nancy Cook, a biostatistician, inputted data from three real-life studies of patient groups into the calculator and compared the results with the actual figures. They estimated the calculator overestimated the risk by between 75% and 150%. Their results were published in the UK in The Lancet in November.

The AHA and the ACC, however, mounted a robust defence of the guidelines, claiming Ridker and Cook had used data from very low-risk groups.

One of the authors, Dr Donald Lloyd-Jones of the Northwestern Feinberg School of Medicine, said: “Doctors Ridker and Cook applied our risk calculator to highly selected low-risk groups who had very low vascular disease event rates. It would be a surprise if the calculator did not overestimate risk in these low risk groups that are not representative of the US population.”

According to the AHA, the risk calculator is used to determine the 10-year risk for heart attack and stroke and is recommended as a tool to help clinicians evaluate people aged 40-79.

There was further criticism of the use of a 7.5% risk as a baseline for consideration of statins. Another Harvard cardiologist, Dr John Abramson, has argued that statins are of little use to people with a 10-year risk of heart attack or stroke below 20%.

Quoted in the Los Angeles Times, he said: “There is overtreatment that’s been built into the risk calculator, and this is a warning sign about the overtreatment that’s built into the guidelines themselves. There aren’t brakes being put on the enthusiasm and overreaching of the experts. There are statin believers and

when you hear these experts talk, they’re talking emotionally, not scientifically.”

The report’s authors, however, argue the guidelines are not prescriptive. Dr Neil Stone, Professor of Medicine at the Northwestern Feinberg School of Medicine and chair of the committee that wrote the cholesterol guideline, said the calculator can’t pinpoint every person precisely. “Some people may need statins even if their risk scores are low because of other factors,” he said.

“We didn’t specify that that number gives you an automatic prescription,” said Dr Stone. “Risk assessment is the start of the process, not the end.” q

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Is Complex Regional Pain Syndrome the new whiplash injury?

By DR ANTHONY CLARKE, Consultant in Rheumatology & Rehabilitation, Bath

‹ IT WAS ONLY IN January 2012 that I wrote an article for Your Expert

Witness on Complex Regional Pain Syndrome (CRPS) pointing out that it was an uncommon but serious disabling disorder which carried a poor prognosis unless treated early and vigorously. Yet in the short time since writing this, those of us who provide expert evidence for the courts on chronic pain have been inundated with requests for opinions on patients complaining of CRPS. So, what is going on?

Enter some of the usual suspects. The first is the innate need for humans to classify and put things in pigeon holes. In medicine we have ‘lumpers’ and ‘splitters’. The lumpers like to widen diagnostic groups to keep things simple, while splitters want to ensure each group is as homogenous as possible to ensure purity of diagnosis.

Both approaches have their problems. Lumped groups often contain significant numbers of patients which, with increased scientific knowledge, prove to have something else wrong with them. The splitters groups often exclude patients who perform in every way as those within the group, including response to treatment, but lack the full diagnostic criteria. Just in case you think this is all a bit academic and petty, in these days of shrinking budgets and more expensive but more effective treatments, the pigeon hole you end up in can mean the difference between life and death.

Many conditions have no specific diagnostic test or tests and a wide range of signs and symptoms, including CRPS. This is particularly difficult when designing clinical research. It is important to ensure that the patients are suffering from the condition when entered into a trial but also that as many eligible patients as possible are recruited. To overcome this lumper/splitter problem the usual method is to set up an international working group of the great and the good in the particular field. They sit around a big table, having been invited by the host who amazingly usually comes from a centre such as Miami, St Moritz, or in the case of CRPS, Budapest. There then emerge diagnostic criteria. Usually there is the requirement for a diagnosis to be made for the patient to have a number of positives from three separate lists – symptoms, signs and tests.

There is a major problem with the Budapest criteria. CRPS is now the preferred term for a condition that has had a number of synonyms in the past, including Sudek’s atrophy, sympathetic reflex dystrophy and algodystrophy. These three names clearly indicate that there are objective physical signs as part of the condition. However, using the Budapest criteria, the diagnosis can be made on subjective criteria alone, as I explain below.

This then opened the floodgates for claimants.

The second usual suspect is the internet. Typing CRPS into Google produces 1,300,000 sites! Many of these sites give very clear descriptions of the typical signs and symptoms used in the Budapest criteria, especially allodynia, intense pain felt when the skin overlying the affected site is lightly brushed. This used to be a very reliable sign for neurogenic pain as it is outside common experience and counter-intuitive. Claimants shave their affected arm or leg to mimic the retarded hair growth seen in CRPS. They report colour and temperature change in the affected area and these reports are accepted by naïve or inexperienced clinicians as firm signs, not symptoms.

Some internet sites may also give incorrect information about prognosis and treatments available, usually giving the worst case scenario. One of the effects of this can be to reinforce the claimant’s belief that they will remain permanently disabled and therefore seriously interfere with rehabilitation efforts.

The next suspect has to be the clinician who has little experience of CRPS in any of its forms. It is all too easy to apply the label to a patient who is not getting better after an injury, especially after fractures with immobilisation.

Professor Roger Atkins, who was on the Royal College of Physicians

working party on CRPS, points out that after such injuries there are physiological changes during the healing process which are identical to CRPS, but which resolve.

A number of the claimants I see with so-called CRPS fit into this category. Because disabling CRPS is still relatively rare, the number of clinicians who are familiar with it and can differentiate between this condition and other pain syndromes is relatively small.

It is with some trepidation, of course, that I finally mention the legal profession. Perhaps it would more tactful to say ‘the legal process’. The adversarial system at the heart of English law has stood the test of time. At its best it allows for a rigorous and independent assessment of a claim. The Woolf reforms, enacted in 1997, aimed to simplify litigation and make it fairer (and quicker) for all parties. For the expert witness that meant narrowing the issues of disagreement to achieve those aims. Amongst other things, single expert witnesses were appointed to advise the Court, but within months of this happening the use of the single expert has been reduced in personal injury claims to minor, peripheral issues. We were back to the adversarial system.

Inevitably costs rose, and not surprisingly, we are now faced with the Jackson reforms, aimed at reducing litigation costs. Which brings us to whiplash injury. It has been common knowledge in orthopaedic circles for the last 25 years that the average rear-end shunt at traffic lights or at a roundabout, in a vehicle with belts and head restraints, will produce little or no long-term damage – and yet claims continue to pour in. What is more, there continued to be medical reports that supported the claimants, almost despite the contemporaneous medical notes and the scientific papers. One of the results of the Jackson reforms is the imposition of fixed costs for fast track claims. This effectively removes high charging experts from simple whiplash cases.

It is now becoming clear that CRPS is an excellent substitute for whiplash, as inevitably such claims are of sufficient value to be above the fast track limit. It is important therefore that courts, legal advisors, insurers, medical experts and the wider medical community understand that just because a claimant has features that satisfy the Budapest criteria, it does not mean that he or she has the type of disorder that will lead to significant disability. Apart from anything else, telling someone that they have CRPS may well lead to significant long-term illness behaviour. That is in no one’s best interest. q

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Expert Profile Professor Sanjiv Jari Consultant Trauma & Orthopaedic Surgeon Bsc (Hons), MBChB, FRCS (Eng), FRCS (Tr & Orth) Orthopaedic & Trauma Services Ltd www.oatsltd.com info@oatsltd.com

‹ PROFESSOR JARI IS A Consultant Trauma & Orthopaedic Surgeon

at Hope Hospital, Salford and also an Honorary Clinical Lecturer in Orthopaedic & Trauma Surgery at the University of Manchester. He has been preparing medical reports since 1996 and undertakes between 600800 reports per year. He receives instructions for reports on RTA injuries ranging from low velocity impact cases to multiple injury, high value, multi track cases. He also prepares reports on trips, falls, slips and workplace injuries and has an increasing number of instructions on clinical negligence cases.

Professor Jari is also prepared to undertake home visits and prison visits.

Costs are based on his hourly rate as per agreed terms and conditions.

He is a member of the UK Register of Expert Witnesses, The Association of Personal Injury Lawyers (where he is a 1st tier APIL member) and the Manchester & District Medico-Legal Society. He has also successfully completed Cert MR parts 1 and 2 together with the Bond Solon Certificate Civil Procedure Rules for Expert Witnesses.

Current waiting time is around 1-3 weeks for an appointment with a report turn around time of 3-5 working days.

Orthopaedic & Trauma Services is also able to offer a complete service for solicitors including arranging medical imaging or treatments. q • Please contact Allison Ellis on 0161 445 9885 for further information.

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The Patella a cause of many and confusing symptoms

by IAN W FORSTER Consultant Orthopaedic Surgeon

‹ THE PATELLO-FEMORAL JOINT is a common cause of pain,

especially in young girls. The anatomy of the joint means that it is always under muscle pull from all directions as it is not captive within the joint. The patella rides in front of the knee. Unlike other joints the connection between the patella and femur depends on how the joint has developed during growth.

The patella rides in a groove in the femur whose shape can be flat or deeply grooved. This will of course greatly affect the stability of the joint. When we stand, the hips are further apart than our knees. This means alignment of the femur to the tibia is not straight and that there is always a substantial force displacing the patella to the outside.

Displacement and dislocation of the patella is therefore common and a cause of pain.

Examination of the knee by a knee expert usually shows any malalignment, the prescence of fluid showing injury/inflammation and the position of the patella during knee flexion. This would show if the patella remains in the femoral groove on flexion and whether, when pushed, the patella is capable of being dislocated and is therefore unstable.

Such conditions are commonly seen in GP surgeries and A & E departments. The treatment would be Xray splintage and referral on for specialist treatment.

Pain from the kneecap is usually felt right in the front of the knee and comes on after running or other high impact sport. It is less likely after cycling or swimming and low impact exercises are advised to treat and prevent such pain.

The patello-femoral joint is thought to have a finite limit to the amount of stress it can take. This was shown by Scott Dye many years ago.

This stress is a multiple of the force applied and the time it is applied, whether on one occasion or repeatedly. The difficulty is that this limit is extremely variable and not predictable. The result is that over time the articular cartilage deteriorates and wears. The condition is usually described as Chondromalacia Patella.

The damage to the articular cartilage can range from slight softening to complete full thickness loss. Clearly, the greater the damage the worse the long term prognosis but symptoms don’t corelate with the degree of damage. Often there can be considerable symptoms but little in the way of loss of cartilage.

The treatment of CMP (chondromalacia patella) starts with an accurate and careful assessment to find the cause of the pain. The possibility of malalignment and patella maltracking makes a great difference to the treatment.

After assessment, by either a physio or orthopaedic surgeon, treatment would be by physio to realign the patella. This would include improving the inside muscles (vastus medialis obliquus). In any knee disorder the outer muscles (vastus lateralis) are so much stronger that with loss of knee function the medial muscles degrade rapidly and always need work to bring them up to scratch.

This would correct some maltracking but to complete the recovery

stretching the tight lateral structures and taping the patella into a more normal position are required. This is a slow process taking three months plus. Exercise, such as cycling, might be advised but not running, which should be avoided for the time being. Conservative treatment like this should always be tried first. If not successful then referral on for possible surgery should be considered.

Before surgery a further examination/assessment should be carried out. After this Xrays will usually be taken. Three views are necessary – AP standing (from the front) Lateral (from the side) and a Skyline view. The latter is a view of the patello-femoral from below to show shape and alignment of the joint. Usually an MRI scan will be taken, which includes a series of images especially for the PF joint.

After all investigations, and possibly further physio, surgery may be advised. Arthroscopy can assess the knee also for degree of damage and alignment of the patella. If the patella is held too far laterally the outer (lateral) tissues can be released.

This often causes swelling and major bruising for up to six weeks which can be interpreted by patients as a surgical failure and they often seek legal advice if this happens. Patients should be advised of this possibility prior to surgery. Pain can continue and such a procedure may precipitate a Chronic Pain Syndrome. This is also an area where legal advice is regularly requested.

If the patella is unstable or a lateral release doesn’t work there are a number of realignment procedures which can be helpful. All of these procedures need an extensive and long rehabilitation.

Results of trimming of the articular cartilage and realignment surgery are very variable. Consent involves detailed counselling over several occasions. Recovery is often prolonged. There is the problem of neuropathic pain or Complex Regional Pain Syndrome which most commonly occurs after patella surgery. This causes severe continuing pain after surgery which is not caused by the surgery (except indirectly) and is difficult to treat.

The continuing pain after surgery is a regular cause of medico legal action. An expert needs to look in detail into all aspects of such a case.

Areas of dispute would include whether an accurate assessment was carried out, whether sufficient non operative treatment was undertaken and whether the correct surgery was carried out.

When pain continues after surgery it is tempting to repeat the MRI and do another arthroscopy. However if this is done too soon after surgery (within 3-6 months) or too often this could become a cause of complaint.

Generalised joint hypermobility can be a cause of failure of surgery.

It is important to rule out inflammatory arthritis as a cause although this would be rare. Generalised widespread pain from a cause such as fibromyalgia can have a huge effect on the result of knee surgery.

Such a condition and pre-existing neuropathic pain (CRPS) would make a surgeon very reluctant to operate. He or she would continue conservative management for as long as possible. Under such circumstances there is a high risk that the patient may be worse and have a smaller chance of improvement. Detailed and well documented counselling is required.

The outcome of operating on the patella is very difficult to predict.

It is often a cause of medico legal action. This is best avoided by careful and well documented assessment, by detailed and documented councelling and excellent surgery and rehab. It is important to be sure to convey the limitations of treatment. q www.yourexpertwitness.co.uk

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Leading orthopaedic expert believes it’s time to regain control in whiplash arena ‹ ONE OF THE BRANCHES of medicine whose expert witnesses have more experience than most of

the changes in the legal landscape is orthopaedics.

The major battle that has been waged over the issue of whiplash in motor claims has been carried on publicly mainly between the insurance industry and personal injury lawyers – with politicians sniping from the sidelines – but the experts who have to assess the existence and extent of whiplash injury are the orthopaedic experts. Or at least that is what used to happen.

Writing in the Journal of Trauma and Orthopaedics – a publication launched in June by the British Orthopaedic Association (BOA) – Michael A Foy, the chairman of its medicolegal committee, says: “With the advent of the Woolf reforms, medical agencies and moves to speed up the litigation process and reduce costs, reports are usually provided by GPs, sometimes working solely in medicolegal practice.”

In the article, Whiplash: What’s Going On?, Mr Foy reports an opinion among leading members of the BAO that the orthopaedic surgeon has lost influence in the area of expert reporting in the past 15 years or so.

Now, with the proposals to appoint ‘panels’ to assess the level of injury in such cases, Mr Foy argues that there is an opportunity to regain control.

Citing the consultation document, he writes: “In Section 41 a National Accreditation Scheme with standards proposed by the Government has been suggested. A certifying body would be appointed by public tender to run such a scheme.”

He makes the suggestion that the BAO could retake control of the area of expert reporting by tendering to run the accreditation scheme itself.

He concludes: “If the recommendations for ‘medical panels’ are implemented we need to decide whether to proceed passively as we have done over the last few years or whether, as an organisation, the BAO should become more proactive and push to be intimately involved with the accreditation process.” q • To read the article in full visit www.boa.ac.uk/Publications/Pages/JTO-Full-Issue.aspx.

Diploma can be a help ‹ IN THE EXPERIENCE OF Richard Scott-Watson, director of West

Midlands based RSW Medico-Legal Ltd, having the Diploma in Disability Assessment Medicine (DDAM) can help in assessing the disability that arises when there is either a complex series of injuries or when an injury interacts with another medical condition either already present or one that may occur in the future. “This can be a very important area for the claimant and the defendant, especially at times where a significant level of disability was present prior to the index accident, but is often overlooked,” he said.

An experienced expert witness, Richard has been reporting on orthopaedic trauma since 1990 completing over 17,000 medico-legal reports in that time and currently seeing about one thousand claimants per year. The majority of his instructions inevitably arise from a claimant’s solicitors but a significant minority come from insurance companies direct or via defendantinstructed solicitors. He gathers all the information for his reports via detailed interviews with claimants rather than simply having them complete questionnaires.

“I would always consider that to provide a report the contemporaneous notes are required,” he commented. “Indeed it is difficult to see how Part 35 rules can be complied with if these are not part of the report.”

The majority of Richard’s work is in Road Traffic Accident claims with a substantial minority in knee and shoulder injuries as well as other fractures and multiple trauma. His court experience has amounted to two to three cases per year throughout the last 23 years.

Richard is convinced of the importance of on-going training, having undertaken a significant number of courses including recently completing the five day Cardiff University/Bond Solon Expert Witness training programme.

With clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford RSW Medico-Legal cover claimants from Cornwall to the Wirral and from Leicestershire to Berkshire – indeed their most distant client was from Australia! Home and prison visits can also usually be accommodated. q

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SLT restored to Warrington teenagers after ombudsmen investigate ‹ AN INVESTIGATION HAS FOUND that 15 autistic teenagers

were denied the speech and language therapy they needed for three years. The joint investigation by the Local Government Ombudsman (LGO) and the Parliamentary and Health Services Ombudsman (PHSO) into Warrington Borough Council and the then NHS Warrington, has led to speech and language therapy being restored to young people in the area.

The issue was brought to light when the parents of one of the teenagers contacted the ombudsmen in 2011, after discovering their son had not been receiving the specialist therapy since 2009. That therapy was part of his statement of special educational needs and the council had a legal duty to make sure the support was provided.

The council had procured the service from what was then NHS Warrington and until 2009 the teenager received specialist therapy three times a year, with teachers at his special ‘designated provision’ unit using the therapist’s report to inform their teaching. However, because of financial constraints, NHS Warrington stopped providing the service to teenagers with autistic spectrum disorders (ASD) in late 2009, without informing either the families or the council.

It was not till the couple contacted Warrington Borough Council in September 2010 that the council was made aware that the service had not been provided. Officers had thought the service was delayed because of staffing problems at NHS Warrington. When the council wrote to the family, it wrongly told them that speech and language therapy was a health provision and not its responsibility.

In a linked investigation, carried out independently by the LGO, another teenager was denied speech and language therapy for three years. Because of the lack of support, the boy’s family paid for private therapy sessions until the end of July 2012.

In that family’s case Warrington BC has agreed to offer the family £5,000 to acknowledge its failure.

The council will also pay an additional £750 to the teenager for the disruption to his education and the lack of support.

Dr Jane Martin, Local Government Ombudsman, said: “The situation in Warrington Dr Jane Martin, Local is not an isolated case and I Government Ombudsman am aware of similar situations across the country. This failure to provide what is written in a child’s statement – and in particular speech and language therapy – is all too common a cause for complaint to me.

“Councils need to understand that they are ultimately responsible for ensuring that a child receives the educational provision set out in their statement. If they need to procure a service to meet that need, they are still responsible for that provision.”

Following the investigation, the council has agreed to create an action plan to establish how many young people have speech and language therapy written into their statements. It will fund therapy from a qualified therapist for all children with ASD who have that support written into their statements. q

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Standards published on how to help communication ‹ THE ROYAL COLLEGE OF Speech and Language Therapists

(RCSLT) has published a document detailing the reasonable adjustments to communication that individuals with learning disability and/or autism should expect in specialist hospital and residential settings.

Good communication underpins the achievement of good outcomes in those settings, says the RCSLT. However, most people with learning disabilities have some speech, language and communication difficulties, which can be hidden or overlooked. Everyone needs to know what good communication support ‘looks like’ and what reasonable adjustments they can expect.

Failure to make reasonable adjustments to meet communication needs will mean people with learning disabilities will continue to be vulnerable to a range of risks. Those risks include the continuing failure to design, commission and provide best practice services, alongside continuing health inequalities faced by individuals, in contravention of legal responsibilities.

To help providers of specialist hospital and residential services, the RCSLT recommends five good practice standards around speech, language and communication. They are: • There should be a detailed description of how best to communicate with individuals.

• Services should demonstrate how they support individuals with communication needs to be involved with decisions about their care and their services.

• Staff should value and use competently the best approaches to communication with each individual they support.

• Services should create opportunities, relationships and environments that make individuals want to communicate.

• Individuals should be supported to understand and express their needs in relation to their health and wellbeing.

The document, Five good communication standards, is available to download from the RCSLT website at www.rcslt.org. q

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Everyone has a right to be heard ‹ JANET O’KEEFE QUALIFIED AS a speech and language

therapist in 1985. Her specialisms include children with hearing impairment, autism and adults recovering from trauma. Janet passionately believes that everyone has a right to be heard.

She is an effective tribunal witness, with considerable success of giving oral and written evidence. Declining education budgets and growing demand for additional support makes it harder for parents to achieve the resources they need for children with special educational needs. Janet is a trusted champion and powerful ally to this cause.

A member of the Expert Witness Institute, Janet is an experienced and confident expert witness. She understands the complex emotional, as well as physical, effect of trauma on communication skills. This makes her court presentation both compelling and convincing. q

Meeting patient expectations

By MARTIN SAMUEL of Speech Language Therapy Ltd

‹ AS IN ANY profession there are

similarities between the patients we treat, which can allow us to group patients by diagnosis or by presentation. One of the difficulties we have as allied health professionals is how we can meet patient expectations. This is becoming more of an issue – and not just for speech and language therapists – as patients are becoming more informed about their condition and are often demanding or expecting more from the therapists who treat them, irrespective of whether they are seen by publicly funded institutions or privately.

Patients, including those who often have quite pronounced communication difficulties, are wanting to know what we can do to help, how long we will see them for and what is their prognosis. However they also increasingly want to know if we will be using specific

treatment programmes, which may or may not be appropriate for that individual patient. There is a wealth of information that is very easy for patients to access.

At Speech Language Therapy Limited we are often having to have discussions with patients and families as to why a given therapy is or isn’t suitable for a patient. This can be due to where the patient is on their pathway after an acute event such as a stroke (inpatient, rehabilitation unit, community service etc.) or it could be because the treatment is only for a certain age group. Patients may also have experienced previous therapy which they did not find useful and might not want to try again, even though all the clinical evidence points to this being the most suitable treatment.

Clinicians should view it as a very positive move that patients or their family and friends are researching about their disorder. It can help the patients to become or stay motivated which is a very important determining factor in their recovery or ongoing management of their difficulty. Therapists should not view this as a threat to their practice or knowledge, but should actively engage in the conversation about how best to progress treatment and recovery. This is also an opportunity to meet

and help influence the patient’s expectations – in a positive way – so that treatment is more effective.

Clinicians do sometimes need to manage what can be called unrealistic expectations that either the patient of their family have. However this use of phrase can be an unhelpful way to think about treatment, because is it unrealistic for a patient to want to recover to their premorbid status? Often a patient’s expectations might simply be to get better from where they are, and the skill of the therapist is to be able to frame this wish or desire into a meaningful goal that can be identified, worked on and achieved.

Expectations are also closely related to hope and motivation, and these are key issues when patients are adhering to therapy programmes which can often take weeks or months.

Obviously therapists should use their skills and experience so that they are not providing the patient with false hope, or agreeing to expectations which are in all likelihood not going to be achieved.

Conversations about expectations and recovery with therapists are only going to increase as patients become more knowledgeable about all aspects of their disorder and speech and language therapists are well placed to meet this challenge in the constantly changing health environment. q

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New standards for dentists are welcomed – but still room for improvement, say lawyers ‹ NEW STANDARDS FOR the dental

profession came into force on 30 September.

Issued by the General Dental Council (GDC), it is claimed they will put a much stronger focus on patients’ expectations and entitlements.

The document, Standards for the Dental Team, replaces the previous guidance, Standards for Dental Professionals.

There are nine key principles. Dentists must: • Put patients’ interests first • Communicate effectively with patients • Obtain valid consent • Maintain and protect patients’ information • Have a clear and effective complaints • procedure • Work with colleagues in a way that serves • the interests of patients • Maintain, develop and work within their • professional knowledge and skills • Raise concerns if patients are at risk • Make sure their personal behaviour • maintains patients’ confidence.

GDC chief executive Evlynne Gilvarry said: “Patients have told us clearly what they expect when they seek dental treatment. The new

standards reflect those expectations and guide the dental profession in meeting them.”

The standards are supplemented by a number of guidance documents on specific issues, including that of professional indemnity. That was broadly welcomed by leading UK dental litigation firm The Dental Law Partnership. However, its managing director Chris Dean, a trained dentist himself, said the more explicit guidelines did not go far enough.

“They now say you must have appropriate insurance and indemnity in place to make sure patients can pursue compensation and are given better direction, but it’s not enough,” he said.

“Until patients themselves can check whether or not a dentist is insured at the time of treatment, and by which insurance company, the protection afforded by the change in the professional code is illusory.

“The GDC says it will require dentists to provide insurance information to the GDC. We think that the government should make insurance for dentists a matter of public record and let the public see it – just as employers must make their liability insurance details public.

“After all, why should a dentist have to tell his employees about his insurance for them – to protect from an accident at work – but not have to tell his patients about the insurance for them.

“This is a still a serious loophole which puts thousands of dental patients at risk every year in the UK.” R

To prove negligence – appoint an experienced dental practitioner

By DR JOSEPH FELL B.D.S. (U.Glas)

‹ AS ALMOST 90% OF dental treatment in the UK is carried out in

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

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

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

Can an experienced general dental practitioner help in cases like these?

Yes, as he/she understands the regulations, standards and guidelines in practice at the time. R

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Getting to the root of the problem Dentist and expert witness Toby Talbot argues that regrettably, government policy has been a major factor in increasing his workload.

‹ MEDICO-LEGAL CASES INVOLVING dentistry have been rising

exponentially over the last 20 years and we now rank second in the world after Israel. In fact, a dental practitioner in the UK is now four times more likely to face civil action than a dentist in New York.

I was fortunate enough to work in the US in the early 80’s and then return to the UK to watch things unravel. Our profession is failing to live up to patient expectations and as a consequence we are increasingly being held to account. There are several contributing factors that have led to this more litigious culture, and they are largely a consequence of government policy.

Firstly, the new dental contract, conceived by the Department of Health for general dental practitioners providing care under the NHS, isn’t financially viable if you apply it literally. The contract now pays a practitioner the same if a tooth is extracted, or if the tooth is preserved with complex root canal treatment. The former may take as little as 10 minutes, the latter 3-4 hours of treatment time. As a result, there has been a 40% increase in extractions, particularly in children.

After 35 years in practice, I still require an hour to conduct a consultation and examination of a patient when I first see them. The NHS dentist is now expected to do the same and include x-rays, oral hygiene instruction, dietary advice and carry out a scaling, all for £18.50. Assuming the clinician needs to see 7-8 patients per hour to cover costs, this leaves 7 minutes for an initial assessment. This inevitably means missed diagnoses and errors with treatment planning, and thus legal action.

I believe that NHS dentistry has actually held back the development of good practice that has led to a loss of skills and the need for practitioners to cut corners. The rise of Mixed Dental Practices, where both NHS and private services are delivered, only makes the situation worse.

Quite rightly, the public will wonder why on earth the profession signed up to such an agreement. Regrettably, the profession is represented by the British Dental Association (BDA), which has always had a cosy, and some might argue unhealthy relationship with the Department of Health. It can’t help when senior members of the Association are referred for annual honours for their support of government policies and the Chief Dental Officer might be seen as a career politician, cautious about supporting his colleagues at the coalface lest he rock the party boat.

Secondly, the advent of recognised ‘specialties’, endorsed by the General Dental Council, has resulted in an explosion of Specialist Practitioners on the high street that were previously only found in the University and Hospital sectors.

Whereas maxillo-facial surgeons and orthodontists have been around for over 50 years, you will now find: restorative dentists who rebuild/restore teeth, prosthodontists who replace lost teeth, periodontists who treat gum disease and endodontists who provide root canal treatments.

Furthermore, as dental research has progressed, ‘implantology’ now allows teeth that have been lost to be fixed to the jaw with greater predictability. What comes with these sophisticated treatment options is greatly elevated expectations from the recipients. Patients have never paid more for their dental treatment and, quite understandably, they expect a lot more for their money. And what happens when they don’t get it? Legal action.

I’ve worked in the public hospital and university sectors, general practice and the private sector. I’ve been a medicolegal expert witness for 35 years and have observed a huge increase in civil actions as a result of the above changes in UK dentistry. I believe the general public is getting a raw deal from the public sector, and cynics will say this has been centrally orchestrated to encourage the private sector to unburden the public purse, much in the same way that optician services have largely become privatised on the quiet.

Of course it hardly needs to be said that the comments and views expressed in this article are mine and not necessarily shared by the profession, but I would welcome an open debate and, ironically, a future with less work as an expert witness. R

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Cutting-edge technology helps rebuild face ‹ PIONEERING 3D IMAGERY has been used at St George’s

Hospital in Tooting to remove an aggressive tumour from the face of a pensioner and then allow maxillofacial surgeons to rebuild her face.

The surgical team had to remove a large portion of the woman’s jaw, her left eye and numerous teeth before beginning the painstaking work of reconstructing her face using innovative computer technology to rebuild the damaged area.

The technology involves electronically scanning the opposite side of her face to build a 3D profile that surgeons can then replicate along with the use of a CT scan.

It meant her undergoing a ten-hour operation at the hospital's specialist maxillofacial unit, which specialises in reconstructive surgery including facial trauma, deformity and head and neck cancer.

The amazing operation included taking a portion of bone from her leg to reconstruct her jaw and a number of tissue grafts where arteries and veins had to be painstakingly re-connected using micro surgery.

Mr Kavin Andi, one of two surgeons involved in the operation, said: “It's always satisfying to see a procedure go well and return people to their home environment so they can get on with their lives.”

Dr Andi, who was supported in theatre by a team of more than ten clinicians and nurses, said the use of 3D imaging meant much of the preparatory work was carried out ‘virtually’ on a computer, so he knew exactly what needed to be done before going into surgery.

He added: “We are lucky at St George's because we are a world leader in this field of work. The 3D imaging means I can look at the tumour from different angles and take the necessary measurements including how and where bone is removed and re-sculpted.” R

Support for special needs dentists is ‘ebbing away’, says BDA ‹ THE ABILITY OF NHS salaried primary care dental services to

maintain standards of care for patients is coming under increasing pressure, according to research published by the British Dental Association (BDA) in September. It refers to the service provided to people who, for a variety of reasons, find it difficult or impossible to obtain dental care in the general dental service.

The report, The State of Salaried Primary Care Dentistry in 2013, identifies increasing waiting times for appointments for both initial assessments and treatment, less time being made available for each appointment and inadequate staffing as some of the challenges facing salaried dental services.

In all, 60% of the salaried services dentists across the UK who participated in the research reported that patients were waiting longer for initial assessment appointments. Even more, nearly three-quarters, said patients were being forced to wait longer for treatment appointments. The result of these waits was that, for a third of the salaried services surveyed, patients were not being recalled within the periods set out in the NICE guideline.

Issues were also identified with the appointments available. More than 60% of those surveyed said that they were coming under pressure to complete appointments more quickly – a particular issue with the patient cohort salaried dentists serve because of the time it often requires to provide care for them. Staffing issues were also highlighted, with more than a third of those surveyed reporting that the service they worked in had inadequate staff to complete the work required of it.

Dr Peter Bateman, chair of the BDA’s Salaried Dentists Committee, said: “Dentists working in salaried care have chosen a career devoted to treating patients with special needs, many of whom would face obstacles accessing dentistry without salaried services. These dentists want to provide timely, high-quality care in appropriate settings, supported by adequate staff. This research suggests that, for many, the support they need is ebbing away.”

He added: “Vulnerable patient groups may look like an easy target for cutbacks, but salaried dentists are very clear that the erosion of resources for the essential care they provide is not acceptable and must be addressed.” R www.yourexpertwitness.co.uk

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Your dental expert witness

profiling Dr Paul Tipton ‹

DR. PAUL TIPTON has extensive experience as an expert witness in cases involving dental negligence as well as personal injuries sustained to teeth and supporting structures. Having developed a high level of expertise in the medico-legal field, dealing with such cases from a legal report and treatment perspective, he is able to act in cases relating to: • Prosthodontics • Dental Implants • Cosmetic Dentistry • Aesthetic Dentistry • Temporomandibular Joint (TMJ) • Restorative Dentistry • Tooth Loss • Dental Bridgework • Dental Veneers Dr Tipton gained his Masters Degree after two years study at the Eastman Dental Hospital and London University graduating with an MSc in Conservative Dentistry.

The following year he began teaching the new MSc in Restorative Dentistry at Manchester University and now runs his own Restorative, Cosmetic and Implant courses from his Tipton Training Academies in Leeds, Manchester, London and Liverpool.

The experience Dr Tipton has in dentistry means he is THE Dental Expert Witness.

He is a founding member of the Academy of Expert Witnesses, a member of the British Academy of Experts, the Expert Witness Institute and the Association of Personal Injury Lawyers as well as being a Fellow of the Royal Society of Medicine.

In 1992 D Tipton was awarded the D.G.D.P. from the Royal College of Surgeons and appointed a member of the BDA Independent Practice Committee. In 1999 he was awarded Specialist status in Prosthodontics from the General Dental Council. He regularly lectures at home and abroad and is renowned for his one-year Restorative and Cosmetic Dentistry and Implantology courses, where over 2,500 dentists have graduated during the last 20 years, and for his numerous articles on Implantology and Cosmetic and Restorative dentistry.

He is on the editorial board of Private Dentistry magazine and Restorative and Aesthetic Practice and was a founding member of the British Academy of Aesthetic Dentistry and the British Academy of Cosmetic Dentistry. He is currently President of the British Academy of Restorative Dentistry (BARD).

“

Dr Tipton now runs his own Restorative, Cosmetic and Implant courses from his Tipton Training Academies in Leeds, Manchester, London and Liverpool.

Over this time Dr Tipton has represented many patients as their dental expert witness receiving numerous plaudits for his work.

Monic Bhakri of Attwood Solicitors was certainly impressed. “We instructed Dr Tipton with regards to a personal injury matter which involved complex issues involving the restructuring of the tooth as a result of an accident, " she said. “With his specialist expertise he provided us with a thorough indepth analysis of the claimant’s injuries and the solution to resolve the severely damaged tooth. Dr Tipton was concise and efficient and provided us with a thorough dental report. I would most certainly recommend him in the future for such cases involving complex dental injuries.”

Problems with jaw joints can also lead to personal injury claims, including those relating to whiplash which is the most common head and neck injury in vehicle accidents without a direct head impact. Whiplash injury affects the temperomandibular joint (TMJ) in around a third of cases, many of which go unreported to the solicitor as symptoms are not initially

”

linked to the accident. If untreated, whiplash injury can lead to osteo-arthritis and other jaw joints problems in later life. Dr Tipton can also act in these cases and advises that all whiplash injury affecting the neck should also be screened for TMJ injuries.

As a leading specialist in the field of dentistry, Dr Tipton is committed to delivering expert witness advice - whether acting for the defendant or the claimant - in a timely, professional and concise manner.

Communication is paramount throughout the entire process in order that he can provide the courts with clear, accurate reports to assist them with their decisions. Although based in Manchester, Dr Tipton also works out of London and is available for all cases across the UK and Ireland. q • To speak to one of Dr Tipton’s team for further information or to enlist his service please call 0161 348 7843 or 0161 348 7844 or you can email enquiries@drpaultipton. co.uk. Dr Tipton’s personal website has a lot more information on his experience – please visit www.drpaultipton.co.uk/expert-witness. www.yourexpertwitness.co.uk

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Surgeons can suffer trauma, too ‹ A PODCAST FROM the British Journal of Surgery has touched on the psychological effects on surgeons when things go wrong in the operating theatre. Research psychologist Dr Anna Pinto, a graduate member of the British Psychological Society which reported the story, took part in a discussion on the subject with two prominent surgeons, with particular reference to pretreatment and post-treatment decisions for cancer.

She outlined her research, which involved 27 in-depth, personal interviews with NHS surgeons and detailed that while these professionals may be perceived as aloof and unaffected by adverse occurrences and outcomes, this is actually not the case.

Indeed, she told the BJS's Wendy Barnaby, they may feel anxiety, disappointment and anger that could make them more risk-averse and conservative with their decision-making in future – something that could in turn affect patients later.

Dr Pinto said more institutional support could be the answer, suggesting a mentoring scheme might help young surgeons to share their problems and improve their psychological wellbeing.

“Incidents of medical harm and their implications for healthcare professionals’ wellbeing are a new topic for psychologists and an area of increasing importance,” she added. q

PTSD risk in small children can now be assessed quickly and accurately ‹ IT IS NOW WELL documented that small children can suffer from

post-traumatic stress disorders after a serious accident. A new test, devised by scientists from the University of Zurich and the University Children’s Hospital Zurich enables children with an increased risk to be identified in the space of a few days, thus helping to treat traumatized small children at an early stage.

Around one in 10 children suffer from a post-traumatic stress disorder a year after a road accident or burn injury, reliving aspects of the traumatic experience in the form of flashbacks or nightmares. In doing so, young children keep replaying the stressful memories while avoiding anything that might remind them of the accident in any way.

As a result of this constant alertness to threatening memories, the children can develop sleeping disorders, concentration problems or aggressive behaviour.

Assessing the risk of illness accurately The researchers from the University of Zurich and the University Children’s Hospital Zurich have devised and evaluated a systematic questionnaire which can be used to identify pre-school children with an increased risk of long-term post-traumatic disorders within a few days of an accident. For the first time it is now possible for first responders such as paediatricians, nursing staff or emergency psychologists to assess small children accurately with regard to their risk of illness.

“Children with an increased risk can thus be identified early and referred to an emergency psychologist for treatment,” explained Professor Markus Landolt, who led the research project. “This prevents an acute stress response from developing into chronic mental illness that causes the child to suffer and spells a lengthy and expensive course of treatment.”

For the study, Professor Landolt’s doctoral student Didier Kramer interviewed a total of 134 parents of two to six-year-old children seven days after a road accident or burn injury. The screening instrument used comprised 21 questions on changes in the child’s behaviour after the accident and recorded a high degree of accuracy. The study found that 85% of the children examined who suffered from a post-traumatic

stress disorder after six months had already been identified correctly a week after the accident with the aid of the questionnaire.

Professor Landolt is now planning an app for smartphones in collaboration with IT scientists: “This app will enable the screening to be conducted even more easily and quickly, and above all implemented broadly,” he said. q

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New body will boost research into implant safety ‹ A NEW BODY set up to boost research into cosmetic surgery is

asking implant manufacturers to contribute the equivalent of ‘£1 per device’ towards funding research into breast implant safety.

The National Institute of Aesthetic Research (www.niar.org.uk) is a joint initiative by the British Association of Aesthetic Plastic Surgeons (www.baaps.org.uk) and the Healing Foundation (www.thehealingfoundation.org.uk). It was founded in October in response to Sir Bruce Keogh’s Report on the Review of Cosmetic Interventions in which he lamented the ‘…insufficient research on the effectiveness and risks of many cosmetic procedures’ and is aimed at addressing the sector’s ‘data vacuum’.

According to a statement by the BAAPS, despite the recent scandal involving Poly Implant Prosthèse (PIP) implants, breast augmentation continues to be the most popular cosmetic surgery procedure.

Thus, one of the NIAR’s first priorities is the establishment of the Breast Implant Safety Campaign, aimed at improving all aspects of breast implant safety, treatment and aftercare.

In November NIAR announced that its founding partners in the initiative are Nagor, the UK’s only manufacturer of implants, and Eurosurgical, distributors for South America’s largest manufacturer Silimed.

NIAR’s areas of enquiry may include: • An improved understanding of the psychosocial factors behind women seeking breast enhancement surgery • Providing independent analysis and comment on data which will come from the Breast Implant Register that the Government has recommended • Promoting clinical research into the safety and efficacy of surgical techniques in breast implant surgery • Analysing existing data on breast surgery to provide evidence-based advice for surgeons which may help to define best practice • Scientific research into the causes of capsular contracture following breast implants • Longer-term scientific research into implant design and technology for the prospects of developing implants with more favourable interface characteristics with the breast.

According to consultant plastic surgeon and BAAPS president Rajiv Grover: “In a sector often derided for its unbridled expansion, unrestricted marketing and unrealistic claims, NIAR will play an important role in examining clinical evidence and analysing outcomes, to truly separate fact from fiction. Sir Bruce Keogh’s findings confirm that the cosmetic sector urgently requires detailed scrutiny and the institute will be the first to explore the evidence base for cosmetic treatments, with a view to providing information on efficacy and best practice.”

Brendan Eley, chief executive of the Healing Foundation, added: “The public may be surprised to know that, while there are on-going, systematic investigations into healthcare treatments and policy, such as the Cochrane Reviews, this has never before taken place in the area of cosmetic surgery. At the Healing Foundation we are delighted to launch the National Institute of Aesthetic Research in conjunction with the BAAPS, with the backing of our corporate partners, to help the profession, as well as the public, make sense of a sector where the objectives of business and medicine are known to regularly collide.”

All research undertaken by the Healing Foundation under the auspices of the NIAR is subject to the charity’s existing, stringent processes of research management. The Healing Foundation is a registered charity and a member of the Association of Medical Research Charities (AMRC). q www.yourexpertwitness.co.uk

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DNA Testing

who should I instruct?

Legal practitioners are now facing a growing selection of DNA testing companies, so what verification and assurance is there that a company will produce accurate results, operate strict working procedures and abide by UK laws and regulations? The sensitivity of DNA results heightens the need to ensure that we use only the best, so what is it that we should be looking for? YOUR EXPERT WITNESS spoke to DR THOMAS HAIZEL, director of Norwich based Anglia DNA Services.

‹ ACCREDITATION IS A MEANS of assessing the technical

competence and integrity of a business. Its purpose is to provide the public with the reassurance and confidence that those they are dealing with follow stringent regulations and quality check procedures.

Accreditation by the UK Accreditation Service to the ISO: 17025 International Standard for paternity, maternity, family relationship and sibling testing is seen as the Gold Standard in DNA Testing. It is the sole national accreditation body recognised by government to assess, against internationally agreed standards, organisations that provide certification, testing, inspection and calibration services.

Dr Haizel told Your Expert Witness: “Anglia DNA Services maintains this accreditation and are subject to annual inspections to ensure that standards remain. As can be imagined, the possible impact upon learning the results of a DNA test can be life changing for the individuals involved, so it is essential that DNA tests are carried out under strict quality controls – ensuring that results are accurate and no mistakes are made! In addition, we have been accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under Section 20 of the Family Law Reform Act 1969.

“Many other companies will work in collaboration with an accredited laboratory to give the allure of holding this accreditation themselves.

In reality, samples are often sent abroad as far away as the United States for analysis. One only has to imagine the potential risks of loss or contamination of sending DNA samples thousands of miles away.

“Here at Anglia DNA, we are committed to working to the highest standards in client care and laboratory procedures from start to finish. Our Norwich Research Park is world-renowned, we conduct all laboratory analysis on-site and use the expertise of our very own molecular geneticists for the expert witness service we provide in court.”

Solicitors and professionals wishing to gain an understanding of the use of DNA testing in cases involving paternity and other family relationship issues may wish to enquire about Anglia DNA’s CPD course The Use of DNA Testing in Legal Practice. q • For further information on the CDP course and the range of services available from Anglia DNA visit www.angliadna.co.uk.

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Dr Thomas Haizel, director of Anglia DNA Services

Researchers derive DNA profile from a

single hair

‹ IN THE 60 YEARS since Watson and Crick first described the

structure of DNA there has been a steady advance in the ability of scientists to identify individuals from DNA samples and its increasing use as evidence in criminal cases.

One of the major drawbacks, however, has been the amount of material needed to derive usable evidence. Because the standard

New technology allows rapid DNA analysis ‹ THE WORLD OF DNA

profiling for forensic purposes was revolutionised in October last year when GE Healthcare Life Sciences announced the launch of a Rapid DNA Analysis system pioneered by US firm NetBio. The system, known as DNAscan, enables law enforcement agencies to process DNA samples in the police station or forensic laboratory and generate results in 84 minutes, accelerating the criminal investigation process considerably. It enables the elimination of innocent parties rapidly, as well as enabling the identification of suspects. The system can be used by non-specialist personnel and requires no laboratory or refrigeration facilities.

Dr James Schumm, a vice president at NetBio, commented: “DNA analysis has revolutionised the field of forensics over the past two decades and partnering with GE Healthcare has the potential to accelerate the pace of this revolution by launching DNAscan Rapid DNA Analysis System to provide law enforcement agencies and forensic laboratories with faster results.” R

profiling method involves extracting and then copying the DNA, much is lost and therefore large samples are needed.

In June, however, a team from Flinders University in Adelaide, Australia, published a paper in the journal Forensic Science, Medicine and Pathology in which they described how they successfully achieved the ‘amplification’ of a DNA profile from a single human hair, which could pave the way for profiles to be attained using tiny samples from crime scenes.

The team, led by Professor Adrian Linacre, used so-called ‘free’ DNA found in hair and sweat and amplified it directly, without extracting it from a cell.

Prof Linacre and his colleagues succeeded in producing full DNA profiles from all 30 of the anagen, or growing, hairs and six of the 30 telogen, or resting, hairs they analysed. A further four of the telogen hairs also produced enough of a result to be uploaded to the Australian National DNA Database.

In the abstract to the article, Successful direct amplification of nuclear markers from a single hair follicle, they wrote: “Current practice for many laboratories is that a single hair may not be subjected to DNA testing as there is little chance of success, hence this 100% success rate from anagen hairs is a significant advancement.

“For the first time in the field of human identification, single hairs can be analysed with confidence that a meaningful DNA profile will be generated and the data accepted by the criminal justice system.” R

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Professional photography in negligence or injury claims can make or break a case ‹ RECENT YEARS HAVE SEEN a steady increase in the number

and value of claims for damages for personal injury, both for medical negligence and for accidents in the world at large. Evidence offered has become more and more precise and the accurate representation of the injury has become increasingly important.

Medico-legal photography is widely used in expert medical reports in clinical negligence or personal injury cases. Interestingly, photographs can also be produced and used prior to a report and may obviate the need for one. That saves time and money for all the parties and may save court time.

Naturally, the quality of the photography plays a large part in the effectiveness of the evidence. Hitherto, professional clinical photography has almost always been carried out for the NHS as part of a trust’s work. Recently, however, a number of professionals have been offering their expertise on a freelance basis. Alternatively, for personal injury and even clinical negligence cases, a number of trust photography departments offer their services on a commercial basis.

One such, Medical Illustration Bradford, describes its work thus: “Professional, high-quality clinical photographs provide an objective record of injuries, scars or deformities and can demonstrate the real effects on victims. Video can show the dynamic aspects of injury and the effects on day-to-day living of the injured party and their family.

“Injuries may be caused by road traffic accidents, assaults, medical negligence or industrial accidents. The effects of these injuries can be wide-ranging and may include deformities and scarring, functional disability and the inability to return to work.”

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All practitioners stress the importance of using professional clinical photographers. As freelance photographer Giles Arbon – principal of gamedia – says: “Undertaking your own photography or relying on general photographers or other healthcare professionals such as radiographers or nurses is not good practice. These professionals, although trained in their own fields, would not have the training or understanding of clinical photography to be relied on for an accurate or legally robust service. A professional clinical photographer will always produce work that would stand up to cross examination with the necessary audit trails to all images.”

The body which oversees the profession, as well as video and other clinical illustrative media, is the Council for the Accreditation of Medical Illustration Practitioners (CAMIP). The main thrust of the work of CAMIP-registered photographers is to provide clinical photography for the use of medical professionals in diagnosis and treatment. However, those same photographers working to the same standards are often available to be retained in medico-legal or personal injury cases.

CAMIP quotes Sir Donald Irvine, chairman of the Picker Institute Europe, the body that carries out patient surveys on behalf of the NHS. Sir Donald said: “If I am a patient I don’t want to have to worry whether the care is up to scratch as well as having the natural worries that go with the illness in the first place. And I don’t expect that my relatives should have those either, on my behalf.”

To that end, CAMIP is one of the bodies that oversees the quality standards of those undertaking illustrative work of all kinds in the NHS. Its website, www.camip.org.uk, says: “Objective, comparative photography is an essential aid to diagnosis and the progress of treatment. A clinical photographer, videographer or medical artist working in close proximity to patients in a medical or surgical environment should be knowledgeable about infection control, sensitive to each patient’s individual needs and trained in the safeguarding of children and vulnerable adults.

“They should be skilled in the techniques for making accurate clinical records for the assessment of disease and treatment. These roles require a high degree of professionalism and patients deserve to know that those carrying out this work meet the high standards they would expect.” q

AVIATION

BUILDING, PROPERTY & CONSTRUCTION

CCTV/VIDEO/IMAGE ANALYSIS

CHARTERED FINANCIAL PLANNERS

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COMPUTER & MOBILE FORENSICS

FINGERPRINT EXPERTS

ELECTRICAL CONSULTANTS

FORENSIC SCIENCE

EMPLOYMENT CONSULTANTS

FORENSIC SERVICES

FINANCIAL SERVICES HANDWRITING ANALYSIS

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HIGHWAY LAW

TREE CARE

VEHICLE & ROAD TRAFFIC ISSUES

HORTICULTURAL ISSUES

METALLURGISTS

METEOROLOGICAL CONSULTANTS

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VOICE/SOUND TRANSCRIPTION & ANALYSIS

WEB DESIGN

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WOOD & TIMBER

MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY

CARDIOLOGISTS

DENTAL EXPERTS

ANAESTHESIA

BREAST SURGERY

FORENSIC MEDICINE

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GASTROENTEROLOGY

NEURODEVELOPMENTAL PAEDIATRICIANS

GENERAL PRACTITIONERS

NEUROSURGEONS

GENERAL SURGEONS

GENETICS

OBSTETRICS & GYNAECOLOGY

LIVER SURGEONS

MEDICAL PHOTOGRAPHY

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ONCOLOGISTS

OPHTHALMIC SURGEONS

ORAL & MAXILLOFACIAL SURGEONS PAIN MANAGEMENT

ORTHOPAEDIC SURGEONS

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PATHOLOGY

PSYCHOLOGISTS

PHYSICIANS

PHYSIOTHERAPISTS

PLASTIC SURGEONS RADIOLOGY

REHABILITATION

PSYCHIATRISTS

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SPEECH & LANGUAGE THERAPISTS

UROLOGISTS SPORTING INJURIES

TOXICOLOGY CONSULTANTS

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