contents IN THIS ISSUE 7
NEWS 8 Silk Commission recommends devolution of Welsh justice system 9 Grayling announces final package of legal aid reforms 10 New rules will allow easier confiscation of criminal assets 10 Scottish Justice Committee expresses doubts on removal of need for corroboration INFORMATION TECHNOLOGY 11 Labour calls for an attack on cybercrime – with safeguards 11 Police and academics join forces to combat ‘worldwide crime wave’ 12 ‘Disruptive technology’ will allow computers to perform human tasks 12 Beware the humble photocopier 13 Ransomware: the new wave of cybercrime sweeping Europe 13 SRA warns against scam emails ACCIDENT INVESTIGATION 14 Conference focuses on collisions in the urban environment 14 Ban for ‘look, no hands!’ driver 14 Is your traffic case as straightforward as you think? 15 Changing places improves cyclists’ awareness of HGV blind spots 15 Traffic court roll-out aims to free up magistrates’ court time
BUILDING & PROPERTY 16 Property experts help children to learn legal skills 17 Project managers held negligent for failing to obtain contract 17 Seminars will boost surveyors’ expertise on building defects EMPLOYMENT LAW 18 New TUPE regulations now in force 18 Spring sees changes to employment law 19 How can two opponents, from different cultures, both be right... and avoid a tribunal or court case? FINANCE 20 FCA commissions RBS report 20 Regulator publishes final rules for credit companies
ANIMAL & VETERINARY ISSUES 21 RSPCA calls for halt to badger cull 22 How to select veterinary expertise and formulate fair and equitable delivery of the expert report TREES & FORESTRY 24 Woodland Trust increases support for landowners to plant trees 25 Tree preservation orders and when to enforce them
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MEDICAL ISSUES 27 Medical Notes
NEWS 29 Regulator gets thumbs-up from watchdog 29 Sorry shouldn’t be the hardest word 29 Standards agency seeks expert in food allergy CLINICAL NEGLIGENCE & MEDICAL MALPRACTICE 31 Clinical negligence cases require experts’ attention 33 Ombudsman upholds family’s complaints against health trust 33 CQC accused of ‘blind spot’ over patient safety alerts 35 Assessing and treating the psychological effects of medical accidents or negligence PSYCHOLOGICAL ISSUES 37 Witnesses of crime need help to remember 38 UK soldiers have better mental health 38 Dementia moves up the health agenda DNA 39
37 DNA through the decades
VASCULAR PROBLEMS 41 Leg arteries and limb ischaemia OBSTETRICS & GYNAECOLOGY 43 Maternity claims account for one third of negligence bill 45 Royal College publishes new guide on review process 45 Many miscarriages are preventable, study finds PAIN 47 48 48 49
Fibromyalgia where are we in 2014? Physios warn of consequences of cuts to senior posts Orthopaedics body criticises reductions in replacements The role of the expert physiotherapist
DENTAL & MAXILLOFACIAL ISSUES 50 Dental profession voices on-going issues with contract pilots 51 Mouth cancer sufferers wait longest to present 51 Illegal tooth whitener prosecuted
EXPERT CLASSIFIED 52 Expert Witness classified listings 55 Medico-legal classified listings
Opening Statement ‹ THIS PAST MONTH HAS seen reform of the legal system taken a stage further. Not only did Justice
Minister Chris Grayling announce the final changes to the criminal legal aid system, the Silk Commission produced its stage two report recommending devolution of policing and some elements of the justice system in Wales. That follows the laying before the Scottish Parliament of the Criminal Justice (Scotland) Bill and the Courts Reform (Scotland) Bill at the beginning of February. The response to the legal aid announcement was a second ‘not-strike’ by lawyers on 7 March. Following the announcement of the action the CPS engaged in a bout of sabre-rattling and a veiled threat to those who downed tools. Commentators on the Law Society Gazette site were quick to accuse the writer of the letter of blackmail. The threat had little effect as lawyers attended ‘training sessions’ in the major cities, as well as a mass meeting in London, treating us all again to the sight of barristers in full court dress waving placards. A further tactic has been the declining of so-called ‘returns’, briefs sent back by another barrister who cannot carry out the work because another trial has overrun. • Elsewhere, experts in employment law were sifting their way through the nitty-gritty of a number of changes that are coming into force between now and the summer. Changes to the TUPE rules, employment tribunal hearings and flexible working will be exercising employers and employees alike. The main change is the requirement for people making a claim to the Employment Tribunal to first register it with ACAS, the employment arbitration service. They will then be offered conciliation. A second change is the power of the tribunal to impose penalties on employers whose treatment of claimants is deemed to have had aggravating features. In some cases, perceived reasons for either a dismissal or a claim of discrimination may be simply a difference in cultural attitudes. Our regular contributor Dr Bashir Qureshi explains. • Cyber security remains in the news, with initiative after initiative attempting to keep up with the pace of change. The latest scourge to be identified by Europol is known as ransomware, whereby the criminal disables a computer by infecting it and demands a ransom to free it. It is expected that such activity will mushroom in the coming few years. A major policy speech by Labour’s Shadow Home Secretary Yvette Cooper called for new powers to be given to the police and security services to combat the threat of cybercrime. She also warned that safeguards to the way data is handled need to be strengthened at the same time. Even the Solicitors’ Regulation Authority is not immune. Emails purporting to emanate from the SRA arrived at solicitors’ practices claiming to carry information regarding complaints. It is thought they were a so-called ‘phishing’ expedition and the Law Society Gazette has reported that the SRA has admitted it is powerless to prevent such scams. • Road deaths have mercifully been on the decrease over the years, but there is one area which is causing increasing concern – that is the rise in collisions between cyclists and heavy goods vehicles. The popularity of cycling, particularly in the cities, and the tendency among cyclists to ‘undertake’ trucks, coupled with a lack of appreciation of the substantial blind spots there are, have led to the problem coming more to the fore. That is why the issue of Collision Investigation in the Urban Environment is the theme of the international conference of the Institute of Traffic Accident Investigators. According to the Institute, much of the focus of an investigation is to ‘reconstruct events preceding and during an incident’. That often involves calculating the speed of the participants, a process explained in some detail in this issue. q
Ian Wild, Director of Business Development Your Expert Witness
Silk Commission recommends devolution of Welsh justice system ‹ POLICING AND THE justice system
– in particular the youth justice system – were two of the areas of administration in Wales which have been recommended for devolution in the second report of the Commission on Devolution in Wales – known as the Silk Commission – published on 3 March. The report, Empowerment and Responsibility: Legislative Powers to Strengthen Wales proposes a phased timetable for implementation of over 60 recommendations in a variety of areas of government over 10 years, including a Wales Bill in the next Parliament. Included are: • Devolving most aspects of policing ensuring effective co-operation continues • A phased approach to the devolution of the justice system – devolving the youth justice system immediately with a feasibility study for the devolution of prisons and probation to follow • Completion and implementation of a review of other aspects of the justice system by 2025
The Executive Summary of the report states: “We received a great deal of evidence on policing and justice matters. Policing and justice are currently nondevolved, with the exception of some tribunals.” On the issue of policing, it says: “Devolution would create a better alignment between policies for tackling crime and its causes. It would bring accountability for policy and funding into alignment and would facilitate policing policies better attuned to the circumstances of Wales. “We conclude that policing should be devolved. However responsibilities in relation to the National Crime Agency should remain non-devolved, as should powers in respect of arrest, interrogation and charging of suspects, until and unless criminal law is devolved.” The commission is less clear cut in respect of the justice system, stating: “We believe that there is not a broad consensus in favour of wholesale devolution of the justice system at the present time. However the youth justice system should
be devolved, given its close links with local government and other devolved functions.” It continues: “There is also a case for further administrative devolution in the courts system and judiciary, particularly as the volume of Welsh law develops, and the case for legislative devolution should be reviewed within 10 years. We would expect a debate to develop in the future about how far a distinctive Welsh legal system might emerge over time.” A number of other recommendations regarding the justice system include the creation of a Welsh Criminal Justice Board and the various divisions of the High Court sitting in Wales regularly to hear cases arising in Wales. The commission chairman, Paul Silk, said: “At a time when constitutional issues are high on the agenda in the United Kingdom, we have agreed recommendations that will provide a stable and well-founded devolution settlement fit for the future. It will give Wales a lasting settlement that allows political decisions to be made in a democratic and accountable manner.” q
Grayling announces final package of legal aid reforms
‹ ON 27 FEBRUARY THE government unveiled its final package of
reforms to the legal aid system following what it described as ‘extensive consultation’. The Ministry of Justice announcement described the measures as being designed to make legal aid ‘more sustainable and cost-effective for taxpayers’. Justice Secretary Chris Grayling also announced a range of measures aimed at supporting lawyers through a ‘period of transition and modernisation’. As anticipated, a review is to be undertaken to identify ways of streamlining court processes. In particular, it will look at ways to reduce to a minimum the number of pre-trial hearings which require advocates to travel to and attend court, for example by dealing with the issues via email or on the telephone. Chris Grayling said: “As everybody knows, this Government is dealing with an unprecedented financial challenge and I have no choice but to look for the savings I have to make across the full range of the Ministry of Justice’s work. I cannot exempt legal aid from this but that doesn’t mean I don’t understand how challenging these reductions will be. “Legal aid is a vital part of our justice system, but we must ensure it is sustainable for those who need it, for those who provide legal services as part of it and for the taxpayer, who ultimately pays for it. “I have genuine respect for the quality services provided by the independent criminal Bar and solicitors. I have spoken at length with solicitors and barristers about these reforms and listened closely to their views. “Today’s publication reflects many of the changes asked for. It does mean fee reductions but it also includes a series of measures to ease their effect on lawyers, including a range of support and assistance requested by The Law Society. I also want to make clear today that this Government will not seek further savings from criminal legal aid.” The package of support and advice designed to help lawyers was accompanied by a commitment that the MoJ will review the effects a year after changes have been implemented. The full package includes: • Providing specialist help and guidance on where further financial help could be available to lawyers who need access to finance to help restructure their businesses • Paying more appropriate fees to lawyers if the prosecution drop the case. Currently, if a case is halted due to the prosecution offering no evidence, lawyers whose clients choose to have a case heard in the Crown Court when it was also suitable for the Magistrates’ Court are paid fixed fees at a similar level to those paid in the Magistrates’ Court • Introducing interim payments to help with lawyers’ cash flow in long trials. Currently, lawyers in trials that last more than 10 days have to wait too long in some instances for fees to be paid, as bills are submitted at the end of a trial • Providing support to solicitors preparing for the new tender process,
including establishing a business partnering network to offer information and guidance for practitioners seeking help with regard to restructuring their business • Building on existing plans to use digital technology to increase the efficiency of courts by ensuring lawyers waiting to participate in trials are able to work remotely – for example by using free wi-fi and having access to power sockets. The government also published its response to the Joint Committee on Human Rights. The MoJ statement said: “Following careful consideration of their report and recommendations it has been decided to make some further exemptions to the Residence Test.” q Image – Chatham House© www.chathamhouse.org
New rules will allow easier confiscation of criminal assets ‹ RULES TO MAKE it easier for national
authorities to trace, freeze, manage and confiscate criminals' assets across the EU were backed by the Civil Liberties Committee on 25 February, endorsing an informal Parliament/ Council deal struck on 27 November. “Today, less than 1% of the proceeds of crimes such as drug trafficking, counterfeiting, human trafficking and small arms smuggling are frozen and confiscated. Most of this ‘dirty money’ is laundered and channelled into the legal economy. The new directive will enable national authorities quickly to identify and trace such assets in order to freeze, manage and confiscate them consistently across the EU,” said Parliament’s rapporteur Monica Luisa Macovei (EPP, RO).
Confiscating assets The directive requires member states to enable the confiscation of criminal assets following a final conviction. It would also enable the authorities to confiscate assets even if the suspect or accused person is ill or has flown, for instance through in absentia proceedings. Furthermore, a joint declaration by Parliament and Council asks the European Commission to study the feasibility of introducing ‘nonconviction based confiscation’. Extended confiscation powers would be possible where, based on specific facts and available evidence, such as that the value of the
property is disproportionate to the lawful income of the convicted person, a court is satisfied that the property in question has derived from criminal conduct. The agreement would allow member states to confiscate assets acquired through similar crimes inter alia in cases of active and passive corruption in the private sector, active and passive corruption involving officials of EU institutions or of the member states, participation in a criminal organisation, child pornography or cybercriminality. The agreed text also includes a revision clause enabling the Commission to add new offences to the list of those to which extended confiscation may apply. Confiscation from third parties would be permitted where the acquiring third party knew, or should have known, that the purpose of the transfer or acquisition was to avoid confiscation,
based on concrete facts and circumstances, including that the transfer was carried out for free or in exchange for an amount significantly lower than the market value.
Safeguarding fundamental rights The text provides for specific safeguards and judicial remedies to protect the fundamental rights of the persons affected and of crime victims. Member states would be required to consider taking measures allowing the use of confiscated property for public interest or social purposes, says the agreed directive. Once approved, member states will have 30 months to transpose the directive into their national laws. Ireland will take part in these arrangements, while the UK and Denmark will not. q
Scottish Justice Committee expresses doubts on removal of need for corroboration ‹ THE SCOTTISH PARLIAMENT’S Justice Committee has
said it is not convinced that the case has been made to abolish the requirement for corroboration in the Criminal Justice (Scotland) Bill. On balance, it has recommended that the Cabinet Secretary for Justice considers removing the provisions, according to its Stage 1 report, published on 6 February. The Justice Committee has noted that the Cabinet Secretary has undertaken to instigate a review to consider additional safeguards, but has stated that it requires more detailed information. In a statement issued on 6 February, the Committee says: “The Justice Committee agreed that, if the general requirement for the removal of corroboration continues to be considered, this should only happen after an independent review of what other reforms may be needed to ensure that the criminal justice system as a whole contains appropriate checks and balances.” Its Convener, Christine Grahame MSP, said: “This Bill includes major reforms of the criminal justice system, including police powers of arrest and holding suspects in custody. In the main, the Bill has not been contentious. However, the proposal to abolish the corroboration requirement is a reform which has divided opinion on the Committee. “The Committee could not reach agreement on whether removing
such a significant and integral part of the criminal justice system would improve ‘access to justice’ for victims of sexual offences in a meaningful way or indeed secure more convictions. Some therefore asked the Cabinet Secretary to consider removing the relevant sections on corroboration from the Bill. Others felt that the case had been proved. “We have serious concerns regarding the prosecution and conviction rates of sexual offences, rape and domestic abuse. We therefore ask the Scottish Government to take necessary steps to address these public attitudes. “Some Committee members do not believe, in the event that the requirement for corroboration is removed, that concerns relating to the need for further reform can be explored properly during the passage of the Bill and are therefore calling on the Scottish Government to provide much more information on its plans to review additional safeguards before the Stage 1 debate expected later this month. We have requested more detailed explanation following the Cabinet Secretary’s letter of 4 February. “While we commend the Scottish Government’s aim to improve the Scottish criminal justice system with this Bill, there are clearly significant hurdles that must be overcome before we actually get that new, improved system.” q
Labour calls for an attack on cybercrime – with safeguards ‹ IN A MAJOR SPEECH at
the headquarters of think tank Demos on 3 March, Shadow Home Secretary Yvette Cooper called for a major police and government campaign against cybercrime, with police and other agencies being given powers to fight the epidemic. However, she also called for new safeguards on the way information is used by the authorities. Ms Cooper said: “This digital revolution brings liberation, but also new challenges. Alongside the wonderful opportunities for communication, knowledge and business come new forms of abuse and crime. And alongside the explosion in access to knowledge come new questions about data storage, privacy and access. Attitudes are changing too. Public debate, corporate practice, the law and government policy are all struggling to keep up with the pace of change. “In the face of growing online crime and abuse, and the use of online communications by criminals and extremists, the police, intelligence and security agencies need to be able to operate more effectively against online crime and abuse to keep us safe. But for them to do so, we also need stronger safeguards and limits to protect our privacy and sustain confidence in their vital work. The oversight and legal frameworks are now out of date. And there are difficult wider challenges about privacy, data and the private sector, and how we protect British citizens’ interests in a global internet where everyone follows different rules.” She identified three main areas where cybercrime is a growing threat and should be tackled: fraud, cyber attacks and child abuse. “In future the police will need to do more not less to tackle online
fraud. Currently there is no serious strategy, and fragmented forces lack the skills or organisational structure to be effective following up a fraud against a victim in Yorkshire, perpetrated by a gang elsewhere in the UK, or even the world. “The Security Service and GCHQ will need to do more, not less, to tackle the growing numbers of cyber-attacks. That means building on their work with major public and private sector organisations to ensure they are resilient against hacking or a major onslaught online. “And far more still needs to be done to tackle online child abuse and the way a growing market for disturbed images is driving abuse of children worldwide. The Child Exploitation and Online Protection Unit do vital and valuable work. But even though the notifications of child pornography online are growing, the number of arrests has dropped significantly rather than increased since they were merged into the National Crime Agency.” On safeguards, Ms Cooper called for a number of initiatives, including strengthening the Intelligence and Security Committee of Parliament. A chair from the Opposition benches would ensure it is not ‘viewed as an extension of the Government’. Finally, she turned to the international nature of cyberspace and to the increasing use of data by the private sector. “But the debate has barely started on what the ethical framework should be for private sector data use – how customers privacy should be protected, who the data should belong to and how to ensure power is not abused.” q
Police and academics join forces to combat ‘worldwide crime wave’ ‹ FIVE POLICE FORCES are set to
join with academics from Bournemouth University to produce a strategy to tackle cybercrime – described as the ‘largest worldwide crime wave’. Avon and Somerset, Devon and Cornwall, Dorset, Wiltshire and Gloucestershire police will work with researchers from the Bournemouth University Cyber Security Unit to develop a long-term strategy. According to a report in the newsletter Police Oracle, the Community Cyber Crime Initiative will create a two-year strategy in accordance with the Home Office’s
cybercrime policy, in collaboration with the South West Regional Organised Crime Unit. The report quotes the cyber security unit’s chief, Dr Christopher Richardson, who said: “This partnership is a win-win situation for both the university and the forces involved as it promotes a strategic knowledge transfer. “We at the university have the time to research this area and policing needs a strong evidence base to help with cyber security. There are a lot of things in this space that the police need help with. “We have a lot of students who are looking for voluntary work who can volunteer with the
police. We also have the ability to develop specialist training packages for officers focusing on topical problems. “We can give a better holistic view of what is going on in this space, and offer a different perspective.” David Lewis, Assistant Chief Constable at Dorset Police, told the publication: “We are building excellent relationships with the subject matter experts at Bournemouth University, their students and businesses to better protect our communities and bring those responsible for cybercrime to justice.” q www.yourexpertwitness.co.uk
‘Disruptive technology’ will allow computers to perform human tasks ‹ THE NEXT ERA of disruptive technology
will come from cognitive computing, as the use of smart machines becomes more of a reality, according to a ‘white paper’ from the British Computer Society – now known as BCS, The Chartered Institute for IT. The document, Cognitive Computing, is the second in the ‘riding the next wave’ series of white papers. Adam Thilthorpe, Director of Professionalism at BCS, says: “Cognitive computing will have both positive and negative consequences, with machines able to perform tasks that were previously done by
people. In recent years we’ve already seen the increased use of smart machines and over time these will be used to make health diagnoses, react to financial markets and aid performance in production processes. However, business relies on human judgement and conscience and this will be especially pertinent as machines become more intelligent and are able to process data independently.” The other documents in the series include the overview Ubiquitous Computing, which was published in January 2014, Augmented Reality and 3D Printing. This is the first paper
to provide an in-depth look at one of the technologies and examines the benefits of using cognitive computing in business, which include improving consistency and efficiency. Adam Thilthorpe continued: “This may be disruptive technology but it also offers opportunities, with organisations looking for IT professionals who are able to design the cognitive systems of the future. These skills are in short supply and therefore it is important that CIOs consider developing the right people, who have a strong grasp of the business they are working in, to ensure these systems are relevant.” q
Beware the humble photocopier ‹ IT GROUP UK LTD has found the humble photocopier to be a
potential source of evidence in the search for electronic documents. These machines can be examined forensically for inappropriate copying of confidential documents. Since around 2002 most multifunction photocopiers and printers have contained PC-style hard drives which store the documents that are
copied, scanned and printed. They also store data in DRAM memory, as used in conventional computers. Moreover, these machines often track usage, retaining the date, time and sometimes user details for feeding through to billing software (whether that is in use or not). Commonly, they are also used across office networks and, therefore, the network servers are storing details of their use. Famously, this arrived as a real security issue when leased machines went out of contract and were re-sold, only to find that they contained confidential data. However, over time manufacturers have provided a level of security to their printers, which can include encryption and, most commonly, overwriting of the data. However, these features are often supplied as optional extras and need to be properly set up. This is why many copier suppliers and data destroyers continue to offer to remove data from your copier’s hard drive at end of life. So, the modern copier provides another source of data for potential examination in cases where there has been inappropriate use of a client’s confidential information. Drawings, contracts and lists etc may have been simply photocopied, but the user may not be aware that the photocopier is holding a record of its use and an image of the document. q • IT Group provides a broad range of consultancy services including Expert Witness, eDisclosure, Forensic Document & Data Recovery, Insurance Assessment, Forensic IT/telecoms/Electrical systems examination. Visit www.itgroup-uk.com.
Ransomware: the new wave of cybercrime sweeping Europe ‹ ON 4 FEBRUARY the European
Cybercrime Centre (EC3) at Europol in The Hague published its Threat Assessment on Police Ransomware – a class of computer malware that has seen exponential growth in the EU over the past two years. The result of a joint initiative between EC3 and the Dutch National High-Tech Crime Unit, the report aims to increase awareness of ransomware and also identify opportunities for international law enforcement intervention and operational coordination. Police ransomware is a type of online fraud used by criminals to extort money through the deployment of malicious software, or malware. The malware disables the functionality of victims’ computers and displays a message demanding the payment of a ransom to regain access to their machines. The ransomware messages purport to be from law enforcement agencies and accuse the victim of carrying out online activities such as illegal file-sharing, accessing child abuse material or visiting terrorist websites. The criminals use real law enforcement agency logos to lend authority to their messages and coerce victims into paying ransoms to unlock their computers. Although the exact number of victims of police ransomware in the EU is difficult to assess, it is estimated that millions of computers have been infected and tens of
thousands of citizens have paid ransom demands. It is a multimillion-euro business for the criminals involved. These cybercriminal activities are facilitated by underground online forums that provide the ransomware source-code, infrastructure for distribution of the malware and money laundering services for ‘cashing out’ the illicit proceeds gained, through online prepaid solutions and virtual currencies. Ransomware ‘kits’ mean that attacks can be easily deployed and are no longer restricted to the technically savvy. New forms of ransomware are emerging – such as cryptolocker – which may have even
SRA warns against scam emails ‹ THE SOLICITORS REGULATION AUTHORITY has issued a warning following reports
that firms of solicitors have received email messages purporting to come from the SRA, some of which refer to pending investigations. The messages do not originate from the SRA, which says it is possible they contain a virus. The SRA has advised firms not to open any message attachments. The scam messages originate from an email address that does not end in the official @sra.org.uk. The warning states: “If you receive an email message of this kind, please forward it to firstname.lastname@example.org. Then, delete it. If you have opened an attachment to a message of this kind, you should report it to your bank and IT provider.” The report carries an example of the scam email, sent to a solicitors’ firm on 24 February. The message says the SRA has received a complaint and is shortly to begin an investigation. The message carries the name of a firm, an SRA identification number and a postal address. Quoted in the Law Society Gazette, Andrew Garbutt, the SRA director of risk, said: “This scam shows that the risks we are identifying are very real with genuine consequences, and that all firms should make themselves aware of the issues, assess how they could affect them and take steps to mitigate them.” q
more impact on individuals and businesses as they risk permanent loss of their data and files. Cybercriminals will expand their pool of victims by addressing new markets, targeting different operating systems and devices. The distribution of ransomware actors and infrastructure across many legal jurisdictions complicates police investigations and therefore improved cooperation and information exchange between law enforcement authorities and private partners is essential in the fight against this cybercrime phenomenon. The report makes a number of recommendations: • Keep operating systems and software up • to date at all times • Make sure anti-virus software is active and • also kept up to date • Check carefully before opening • attachments • Most importantly, make regular computer • backups and store them somewhere safe, • preferably offline • Report the incident to your local police • Call an expert to remove the malware. Troels Oerting, head of EC3, said: “Malware attacks in the form of ransomware will unfortunately increase. It is a ‘cash cow’ for criminal enterprises, easy to use and difficult for victims to protect against. All kinds of innocent users are potential victims of this crime – not just mainstream users but also businesses and public services. EC3 will continue to assist EU member states’ law enforcement agencies in combating this crime and tracing the criminal proceeds. In the meantime we all need to increase awareness among all internet users to avoid further impact. A number of guidelines need to be observed – one is to ensure that you’re always backed-up.” q www.yourexpertwitness.co.uk
Conference focuses on collisions in the urban environment ‹ THE 11TH INTERNATIONAL
Conference of the Institute of Traffic Accident Investigators will be held at St John’s Hotel in Solihull, West Midlands, from 5-6 April.
The overriding theme of the conference will be Collision Investigation in the Urban Environment. According to the abstract for the
Ban for ‘look, no hands!’ driver ‹ A MOTORIST HAS BEEN BANNED from driving for a year after he was caught driving
with both hands behind his head. Richard Newton from Whitby was captured by North Yorkshire Police’s mobile safety camera travelling at 62mph on the A171 near Scaling Dam reservoir at around 6.20pm on Friday 9 August 2013. He was filmed as he drove past the safety camera van with both hands on his head and continued along the road for around 25 seconds driving at between 60-63mph. The road is a two-way ‘A’ road with a solid white line on the side he was driving on. A number of vehicles passed him on the opposite side of the road. Newton was found guilty at Scarborough Magistrates’ Court of dangerous driving. In addition to the ban, he was ordered to carry out 100 hours of unpaid work in the community and was fined £625 with a £60 surcharge. Dave Brown, who heads North Yorkshire Police’s mobile safety camera team, said: “This case demonstrates two things – one is the sheer stupidity of some people who put others in danger and the other is the ability of our safety cameras to capture a range of offences. “This is yet another case which shows that these cameras are about safety and not just speeding. We will take action against all manner of offences to ensure we keep our roads as safe as possible for everyone.” q
conference: “While we have seen the number of people being killed and seriously injured in road traffic collisions declining, pedestrian and pedal cyclist casualties have been increasing. In particular, collisions between cyclists and large vehicles have received considerable attention in the media. “The primary aim of much collision investigation is to reconstruct the events preceding and during an incident. However, it is a field that can make a significant contribution to road safety issues. By using what we learn from collisions, with support from specialists in fields such as human behaviour, vehicle design, mechanics and road design and management we are able to design better road environments and vehicles and to target road user education. “The urban environment is a hugely complex place which is required to deliver on many different levels, such as economic well-being, sustainability, mobility, health, safety and security.” q • For more information or to book a place visit www.itai.org.
Is your traffic case as straightforward as you think? ‹ IN MANY CASES, the ‘offending’ driver is prosecuted on the basis
of the prosecution’s point of view and their expert’s opinion. But are they right, or is there another point of view or possible mitigation? According to Vikki Allen of Emmerson Forensic, the case is not always straightforward. She explains: “In a recent case, the collision and subsequent death of one of the drivers was put down to our client being on the wrong side of the road at the time of impact. However, whilst our expert was able to confirm that they were on the wrong side of the road, there was far more to the investigation than that. “Consideration of the damage to the two vehicles suggested that, although the victim’s vehicle was pushed backwards in the crash, suggesting that our client was travelling at excessive speed, consideration of the road way and images from CCTV cameras showed that our client’s vehicle was travelling within the speed limit and that the victim’s vehicle was the one exceeding the speed limit by a considerable margin. “Furthermore, the victim was not wearing a seat belt – had they been doing so, they would not have sustained such serious injuries and the outcome could have been very different.” The investigation of road traffic incidents is often complex and may involve a number of different areas of expertise – from collision dynamics, vehicle examinations, consideration of road and weather conditions, examinations of mobile phones, vehicle computers, CCTV footage and so on. Vikki feels instructing solicitors should bear this in mind when appointing an expert. “Do your clients a favour and utilise the services of companies with an established reputation and the broad range of areas of expertise that such investigations warrant”, she said. q
Changing places improves cyclists’ awareness of HGV blind spots ‹ ALMOST EVERY CYCLIST who got
behind the wheel of a heavy goods vehicle at the London Bike Show said that they intend to change the way they cycle because of the experience. More than 850 cyclists took part in the Exchanging Places trial run by Crossrail and the Metropolitan Police Service, which allowed them to see the road from a lorry driver’s point of view. The event allowed cyclists to get a better understanding of what drivers can and cannot see. Most were unaware of the size of blind spots from inside the driver’s cab. Chief Superintendent Sultan Taylor, of the Met Safer Transport Command, said: “Exchanging Places is an award-winning programme which addresses the most common cause of serious injury and death to cyclists: collisions involving a heavy goods vehicle. We’re very grateful to Crossrail and to the London Bike Show for giving us the opportunity to speak to many people and pass on our tips. Our feedback shows that everyone who took part will recommend our programme to their friends
A screenshot from the Exchanging Places film – courtesy of Youtube and that’s a great endorsement. I’d encourage anyone who couldn’t make it to the show to watch our YouTube video.” Steve Hails, Health and Safety Director at Crossrail, said: “The Exchanging Places programme is an important way of engaging with cyclists to raise awareness of the hazards when sharing the roads with HGVs. These
events complement Crossrail’s lorry driver training programme, which also ensures that drivers on the project are aware of vulnerable road users.” The Mayor of London recently announced that lorries without safety equipment to protect cyclists and pedestrians will be banned from London. q
Traffic court roll-out aims to free up magistrates’ court time ‹ IN DECEMBER THE Ministry of Justice reported that 29
dedicated traffic courts had so-far been established. The ministry reiterated that, subject to judicial agreement to list all low-level traffic cases together, such courts are being established across the country. The move will mean low-level traffic offences – such as speeding, traffic-light and document offences – can all be dealt with at one local magistrates’ court. In a dedicated traffic court up to 100 cases can be dealt with in a single session, which reduces unnecessary delays and allows local magistrates’ courts to focus on more serious offences. The government vision is for dedicated traffic courts in all 42 police-force areas. Justice Minister Damian Green said: “The safety of the general public is paramount and we take road safety very seriously, which is why we have recently increased the sentence for causing serious injury by dangerous driving to five years imprisonment. “However, low-level traffic offences such as speeding can take up to six months from offence to completion, which is a huge drain on the smooth running of the criminal justice system and takes focus away from more serious offences. This is simply unacceptable. “We want all areas to have a dedicated traffic court and we are on track to reach this target. Traffic courts from West Yorkshire to Sussex have shown how effective and efficient this process can be.” According to the MoJ, in a traditional court sitting an average of 35 cases may be listed in a day, which could include traffic cases alongside other cases such as assault, shoplifting and domestic cases, among others. A dedicated traffic court reduces unnecessary delays and allows local magistrates’ courts to focus on more serious offences which really make a difference to communities, victims and witnesses.
In West Yorkshire, Bradford has the highest number of uninsured cars of any town in the UK. Every year courts in the region deal with over 1,400 of these types of offences, which could take an average of six or seven months. However, since the introduction of traffic courts, together with the use of a civilian document checker, these cases now take an average of four months and a higher proportion of cases are resolved at first hearing, meaning that courts have more time to deal with more serious cases. Together with police-led prosecutions, this means that prosecutors are able to focus their resources on more serious cases, providing efficient justice for victims and witnesses. Criminal justice agencies are being encouraged to work together so that traffic courts are rolled out across all areas by April this year. q
Property experts help children to learn legal skills ‹ A COMPETITION THAT GIVES
primary pupils in Scotland the opportunity to take part in a mock legal case before a real sheriff in a courtroom was given a boost by an Edinburgh property management company that specialises in expert witness services in property matters. Ross and Liddell funded the School Mock Court Case Project as part of its bursary programme. More than 1,200 children from across Edinburgh, the Lothians, Glasgow, the West of Scotland and Tayside have taken part this year. The final took place in March. For the competition, the children had to prepare for the case. The pupils took on different roles, including lawyers, witnesses and journalists. Participating schools also received personal tutoring sessions from advocates and solicitors, who taught the children how to draft a summons and present a case in court. Blair Minchin, paralegal at Edinburgh company Chamberlain McBain, which organised the competition, said: “The School Mock
Court Case Project gave senior primary pupils the opportunity to take part in something completely different and develop and learn new skills. “The competition has grown considerably in the past few years and is sponsored by a range of law firms and businesses. This support from Ross and Liddell was invaluable and we were extremely grateful to be a recipient of the 2013 bursary programme.” Irene Devenny, managing director at Ross and Liddell, said: “It’s fantastic that the School Mock Court Project has gone from strength to strength in the last few years.” “It’s a unique and interesting competition that allows the children to do something different and learn new, vital skills that will benefit them in the future. We are thrilled to offer our support to the project and we wish all the pupils luck.” Ross and Liddell’s bursary programme is now in its third year and was launched to provide support to organisations that make a vital difference in their community. q
Project managers held negligent for failing to obtain contract ‹ A RECENT CASE involving the
Trustees of Ampleforth Abbey Trust v Turner and Townsend Project Management Limited  (TTPM) has been described as ‘…a cautionary tale for project managers advising clients regarding contractual arrangements, which highlights the possible pitfalls of letters of intent’ by commentators at law firm Boyes Turner. In the case in point the project manager was judged to have failed to act as ‘coordinator and guardian of the client’s interests’ in allowing a project to continue to conclusion on the basis of letters of intent. The claim arose when a project to construct accommodation buildings at Ampleforth College in North Yorkshire was completed a lot later than originally Ampleforth from the air
Seminars will boost surveyors’ expertise on building defects ‹ A NUMBER OF SEMINARS ARE being offered by the Royal Institution of Chartered
Surveyors to its members on the complex subject of building defects. On 6 June the RICS headquarters on London’s Parliament Square will be the venue for Building Defects: Methodology and Approach, which will offer a practical, step-by-step approach to dealing with defects. According to the introduction, understanding why buildings have gone wrong is part of the process of getting buildings right at the start. The seminar will take a practical approach to the subject and examine the properties of common materials and the various agencies of decay. The session will cover: • Building defects – typical problems in various building types: what and where to look • Undertaken initial due diligence • Understanding the form and construction material used for renovation • Anticipating and resolving problems arising during the construction period • Engaging with and delivering value for the client. The seminar will be followed on 26 June by Legal Issues surrounding Building Defects, which will take place at the offices of MacRoberts LLP in Edinburgh. Billed as ‘guidance from the surveyor and lawyer’s perspective’, it will offer insight into all the issues arising from building defects and how to deal with them, to ensure compliance. Case law, together with the building surveyor’s perspective, will help identify and deal with problem buildings. There will be an in-depth discussion of the liabilities and the expert’s point of view as to why the defect exists, touching upon the surveyor’s role as an expert witness in court. Issues covered will be: • Building contracts • What is a defect? • Legal responsibility for defects and issues when investigating defects • Recovery of losses and issues when rectifying defects • Insurance, prescription, leases and collateral warranties • Landlord and tenant obligations. Both sessions form part of the RICS CPD series and are open to non-members. The cost is £30.00 plus VAT. More information is available from www.Rics.org/uk/training-events/ conferences-seminars/cpd-series-events. q
anticipated. Contractor Kier sought extensions of time and additional payments for prolongation of the works. The Trust sought liquidated damages of £750,000 for the delay. The parties agreed to mediate their dispute and as a result agreed that Kier would not receive any additional payments and the Trust would not receive any liquidated damages. The entire works had been completed pursuant to a series of letters of intent issued by the Trust but prepared by TTPM, which had been appointed as project manager. The intended building contract referred to in the letters of intent was not executed until after the works had been completed and on terms agreed at mediation. The Trust issued proceedings against TTPM claiming damages for professional negligence. The judge concluded that TTPM owed a duty to the Trust to exercise reasonable skill and care in procuring an executed building contract from Kier. It had breached that duty by failing to exercise sufficient focus on the matters holding up execution of the contract or to exert sufficient pressure on Kier to finalise the contract. That breach had caused loss to the Trust. In terms of damages, the judge thought that if there had been a contract then the Trust would have been able to negotiate a settlement worth £340,000 more than the settlement it was able to achieve without a contract. The judge awarded the Trust damages of £226,667, although TTPM was allowed to recover £37,167 for unpaid fees. q www.yourexpertwitness.co.uk
New TUPE regulations now in force ‹ ON 31 JANUARY new rules came into
force affecting the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), which protect the employment terms and conditions of employees who are transferred from one organisation to another during the transfer of a business. Under the new regulations: • Businesses will now be able to renegotiate terms and conditions in collective agreements one year after a transfer has taken place, provided that the overall change is no less favourable • Micro businesses (those with 10 or fewer employees) will be able to inform and consult employees directly when there are no existing appropriate representatives. Under existing TUPE regulations businesses usually have to inform, and sometimes also consult, employee representatives such as trade unions representatives. In many micro businesses there are often no representatives, which means that they have to be specifically elected for this purpose. • The new employer will be able to engage in pre-redundancy consultation with employees, with the consent of the old employer • Contractual changes will be permitted for economic, technical or organisational reasons with the agreement of the employee and or where a contractual right of variation exists The regulations also clarify the existing law in a number of areas: • In cases where employees’ terms and
Employment Relations Minister Jenny Willott conditions are provided for in collective agreements, only the terms and conditions in the collective agreements that are in place before the date of transfer will apply. Any future changes will not bind the new employer, unless it has taken part in the bargaining process that brought about the changes • The test for service provision changes will make clear that activities carried out after the change in provider must be fundamentally the same as those carried out by the previous person who has ceased to carry them out. This means that if businesses radically change the way
they provide services, then that change is unlikely to be subject to the TUPE regulations Employment Relations Minister Jenny Willott said: “When a business is transferred from one company to another we want to make sure that TUPE continues to provide appropriate levels of employee protection, whilst making the process as smooth as possible for the businesses involved. “Making these changes will give businesses more clarity about conducting transfers and provide them with the tools to create new opportunities in the UK labour market, whilst protecting fairness for all.” R
Spring sees changes to employment law ‹ IN APRIL A RAFT of changes to employment law will come into
force. In particular, before lodging a claim to the Employment Tribunal, all claimants will need to notify Acas first, where conciliation will be offered. If conciliation is unsuccessful within a set period the claimant can proceed to lodge a tribunal claim. Also from April, the Employment Tribunal will have the power to order an employer who has lost a case to pay a financial penalty to the Secretary of State of between £100 and £5,000. The penalty will be imposed where the employer has breached any of the worker’s rights and the breach has one or more aggravating features. According to a guest blogger on the Law Donut of the Consortium of Enterprise Agencies: “If the tribunal decides to exercise its discretion to make such an award, the amount of the penalty will be 50% of any financial award. The penalty will be subject to a minimum threshold of £100 and an upper ceiling of £5,000. Where a non-financial award is
made, the tribunal will be able to apply a monetary value. Employers will qualify for a reduction of 50% if they pay the penalty within 21 days.” The Government proposes to extend the right to request flexible working to all employees – currently that only applies to parents or carers – and remove the current statutory procedure for considering requests. Instead employers will have a duty to consider all requests in a reasonable manner, although they will have the right to refuse requests on business grounds. Later in the spring the government proposes to offer a system of flexible parental leave, allowing parents to choose how they share the care of their child during the first year after birth. Mothers will still take at least the initial two week following the birth, however, following that they can choose to end the maternity leave and the parents can opt to share the remaining leave as flexible parental leave. R
How can two opponents, from different cultures, both be right... and avoid a tribunal or court case? By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon. FRSPH, Hon. MAPHA-USA Expert Witness in cultural, religious and ethnic issues in litigation
‹ A GLASS OF WATER can be perceived as ‘half full’ by a person
from one cultural, religious and ethnic background and as ‘half empty’ by someone from a totally different background. The key to fair play is to show the same respect to every person’s culture, religion and ethnicity (race) as one does to age, gender and social class in Britain. This attitude is essential when preparing an Expert Witness full report or short statement. The example below illustrates how showing mutual respect and cultural understanding, with objectivity, can avoid a possible race discrimination tribunal or court case. In an Asian area of London, a high caste Hindu Indian male GP, with altruistic attitudes, employed a white Christian Syrian refugee woman teacher as a receptionist in his practice. The refugee teacher spoke English perfectly and was very willing to help patients, who were mainly Asian British and some of whom spoke only Indian languages. The refugee receptionist complained that the staff and patients did not communicate with her and were racists. The doctor employer noted that it was a tense situation and there was an impasse. He realised that the best way to help her was to terminate her employment with a good redundancy package. The Syrian refugee teacher made an official complaint to the Primary Care Trust manager alleging ‘racial discrimination’. As a locum GP, I worked one session in that practice and dealt with the refugee receptionist. I was officially asked by the doctor employer to give a statement describing what I witnessed and the following is an account of my visit. As I arrived in surgery, I saw both the white receptionist and an Indian British receptionist at the reception desk. There was a queue of nine patients to see the Indian British receptionist, all of whom also looked Indian British. There was one white British man waiting to see the Syrian receptionist. I thought that it may have been a language problem or simply a familiarity issue in that birds of a feather flock together – eagles fly with eagles, sparrows with sparrows and doves with doves. However, it could have been innocently misunderstood as racism. Nevertheless, they were all there to seek medical help without any ethnic preferences. Later, I was seeing a patient who needed a few days sickness leave and could not find a blank sick note certificate book on the table. I rang the reception desk, the Syrian receptionist answered and told me that she would bring a sick note book. Five minutes passed and I rang again. This time the Indian British receptionist replied – she brought a sick note book and I issued a certificate to the patient. Ten minutes later, while I was seeing another patient, the Syrian receptionist brought a blood test forms book. She asked me to fill it in so that she could give it to the patient who she thought may still be waiting outside for it. She was being very helpful. I thanked her and carried on seeing the new patient. I thought that, as she was a new receptionist, it may simply be that she needed training to distinguish between a sick note book and a blood test forms book. She did not know that a doctor can only issue a sick note whilst seeing that patient because necessary information has to be mutually agreed. However, there was also a cultural issue – she could not
say “I do not know” or “What do you mean?” because these comments are only English customs. In other cultures, especially those of Eastern countries, one can be told off for saying “I do not know” and it is rude to ask the question “What do you mean?”, especially to seniors. People just make a guess which has a 50/50 chance of being right or wrong! Finally, after I finished my surgery, I went inside the reception office to say goodbye to the staff and asked if there was anything else which I needed to do before leaving. I was surprised to see the Syrian receptionist crying. She told me me, in confidence, that the other staff did not speak to her and that she worked in silence. The patients, especially the Indian British, ignored her and just saw the other receptionist. She said they were all racists and that she had experienced the same thing whilst working as an English teacher in Syria where there was religious discrimination. She did not know what to do. I consoled her and advised her to discuss the matter with the employer doctor. The Syrian receptionist reported the situation to the Primary Care Trust manager, who was an English person with mediation skills and knowledge of local GP surgeries. The manager received my statement and discussed it with me by phone. All three of them later had an amicable meeting and understood each other’s point of view. They agreed that it was a matter of employing an untrained receptionist in a multi cultural surgery in London, in good faith, and not a clear cut case of racial discrimination. The case was prevented from going to a tribunal or to court. Legal aid was liberally given in those days and so that money was saved. The Syrian Christian lady did not want to be trained as a GP receptionist as it was not her vocation. She applied for a job in a local school and both the GP and the Primary Care Trust manager gave her good references. She got a job as an English teacher in a multi ethnic school and lived happily thereafter. q
FCA commissions RBS report ‹ IN JANUARY THE Financial Conduct Authority (FCA)
appointed Promontory Financial Group and Mazars to conduct an independent skilled persons report under section 166 of the Financial Services and Markets Act (FSMA) 2000. The report will examine Royal Bank of Scotland’s (RBS) treatment of business customers in financial difficulty and consider allegations of poor practice set out in the report by Dr Lawrence Tomlinson and referenced in Sir Andrew Large’s report. The first stage of the review will consider RBS’ treatment of a sample of customers referred to its Global Restructuring Group. This will include some cases where customers have already raised concerns with Dr Tomlinson, the Department of Business, Innovation and Skills or the FCA.
The review will also consider whether any poor practices identified are widespread and systematic. If this is the case, the second stage of the review will identify the root cause of these issues and make recommendations to address any shortcomings identified. The FCA expects to publish the outcomes from the review in Q3 2014. Whilst commercial lending is not a regulated activity under FSMA, if the findings reveal issues which come within the FCA’s remit, it has said it will consider further regulatory measures. q
Regulator publishes final rules for credit companies ‹ THE FINANCIAL CONDUCT AUTHORITY (FCA) has
confirmed the final rules that will govern the £200bn-a-year consumer credit market, which includes approximately 50,000 firms, from 1 April. The new rules will result in changes to how payday lenders and debt management companies treat their customers, including mandatory affordability checks for payday borrowers and giving the FCA the power to ban any misleading adverts from payday lenders. Martin Wheatley, the FCA’s chief executive, said: “Millions of consumers access some form of credit each day, from paying for everyday goods by credit to taking out a payday loan. We want to be sure that the market works well when people need it – whether that’s for one day, one month or longer. “Our new rules will help us to protect consumers and give us strong new powers to tackle any firm found to be overstepping the line.” The FCA says it will take a tough approach to consumer credit, with stronger powers to clamp down on poor practice than the previous Office of Fair Trading regime. Supervision of firms will be ‘hands on’ and the authority will closely monitor how providers treat their customers, in particular those operating in higher risk sectors such as credit cards, debt management and payday loans. The rule changes will give consumers additional protection from rogue practices and put the onus on credit providers to ensure that they treat customers fairly at all times, the FCA said. The biggest changes come for payday lenders and debt management companies. Consumer credit providers will need to ensure that they give customers the right information to make informed choices, that their services meet consumer needs and that people in difficulty are treated fairly. Firms that do higher risk business and pose a potentially greater risk to consumers will face an intense and hands on supervisory experience, while a robust authorisation gateway will ensure that any firm or individual authorised to do consumer credit business is fit and proper, and that firms have suitable and sustainable business models. Dedicated supervision and enforcement teams will crack down on poor practice, money laundering and unauthorised business. Firms that break the rules may face detailed investigations and tough fines. FCA regulation will apply to any firm or individual offering overdrafts, credit cards and personal loans, selling goods and services on credit, offering goods for hire, or providing debt counselling or debt adjusting services to consumers. q
RSPCA calls for halt to badger cull
‹ THE RSPCA IS CALLING for plans to roll the culling of badgers
out further to be dropped following reports that the pilot cull has been proved to be inhumane as well as ineffective. The Independent Expert Panel report shows pilot culls in Gloucestershire and Somerset proved once and for all that the badger cull is not the answer to the problems of bovine TB in cattle, according to the charity. The RSPCA has always warned against the free-shooting method used during the cull and reports that up to 18% of badgers took more than five minutes to die are shocking and distressing. These results illustrate the fact the badger cull is not only ineffective at controlling the spread of bovine TB but also inhumane, the RSPCA says. Both pilot culls also failed to reach the 70% target which scientists said was necessary to have any chance of reducing bovine TB in cattle. The RSPCA has long campaigned against plans for a widespread badger cull for both scientific and welfare reasons and says the failure of the culls undeniably support this. RSPCA head of public affairs David Bowles said: “Secretary of State Owen Paterson and Defra set up the culls and the fact they have failed on two out of the three tests just proves what a disaster the culls have been. They must now listen to the experts and drop any further ludicrous plans for it to be rolled out further. “Wales saw a 24% drop in bovine TB last year and that was due to vaccination programs and effective biosecurity. “We would urge the Government to also focus on more effective ways of controlling bovine TB such as vaccination programmes in both badgers and cattle as well as improving biosecurity. “Surely the wider roll out of this cull has no grounds for support and we will continue to campaign against it until it is stopped.” q
Wales saw a 24% drop in bovine TB last year and that was due to vaccination programs and effective biosecurity
How to select veterinary expertise and formulate fair and equitable delivery of the expert report By PAUL ROGER of Veterinary Consultancy Services
‹ HAVING USED MY LAST three articles in Your Expert Witness
to outline specialisation and some of the professional guidance which both veterinary surgeons and the legal profession need to consider in the provision of expert witness services, this final piece will concentrate on expert selection and its pitfalls. The selection of experts is always a difficult decision as the expert needs to be a relevant match to the evidence being considered as well as providing the expertise needed by the court for an understanding of the technical issues involved. This may initially necessitate using a general veterinarian to firstly understand the case and then to assist in finding the relevant specialist. This is often a difficult decision to make for instructing solicitors, as the delivery of expert evidence can be critical to the court’s understanding of the technical issues before it and may be the difference to a tribunal in discovering the justice or probity of a case. Sometimes the most expert academic is not the best communicator
on the subject or the optimal expert witness as their knowledge may be very deep but narrow and not particularly relevant to everyday experience or the general level of the case. There are useful guidelines for the court to consider in granting expert status to a witness such as in the case of the Ikarian Reefer. In this case, Cresswell J summarised the duties of experts (the Ikarian Reefer 1993 2 LILR 68, 81-82). “Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
An expert witness should make it clear when a particular question or issue falls outside his expertise. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. If the expert cannot assert that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report, or for any other reason, such change of view should be communicated (though legal representatives) to the other side without delay and (where appropriate) to the court. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, they must be provided to the opposite party at the same time as the exchange of reports.” A more recent case further clarified the role of the expert witness (Toulmin HHJ in Anglo Group plc v Winther Brown & Co. Ltd. 2000) “An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independent assistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. This applies as much to the initial meetings of experts as to evidence at trial. An expert witness should never assume the role of an advocate. The expert’s evidence should normally be confined to technical matters on which the court will be assisted by receiving an explanation, or to evidence of common professional practice. The expert witness should not give evidence or opinions as to what the expert himself would have done in similar circumstances or otherwise seek to usurp the role of the judge. He should co-operate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place in context any peripheral issues. He should co-operate with the other expert(s) in attending without prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely areas of disagreement to be set out in the joint statement of experts ordered by the court. The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider
material facts which could detract from his concluded opinion. An expert witness should make it clear when a particular question or issue falls outside his expertise. Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly. An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information or has considered the opinion of the other expert. He should do so at the earliest opportunity.” Where the duties and composition of an expert are clearly expounded, selection may be straight forward. However, these qualities are not always obvious in the selection of veterinary clinical experts and it may be that those with the highest formal qualifications may not have sufficient clinical or relevant experience, thus leading to a lack of balance in the expertise being offered to the court. It is in these circumstances that an adviser with a general overview of the speciality may become invaluable in signposting or short listing potential experts for consideration. This is part of the reason for the establishment of Veterinary Consultancy Services – to help deliver the quality and direction needed in expert witness reports and to endeavour to avoid the pitfalls highlighted above by case law. This is also of importance to the expert witness as they themselves may no longer be immune from action. R
Woodland Trust increases support for landowners to plant trees ‹ THE WOODLAND TRUST IS increasing the support it offers
to landowners who wish to plant trees, with more funding now available for a wider range of planting projects, including hedgerow planting. The Trust is now offering assistance to those who wish to plant hedgerows to connect existing woodland, as well as to those who are planning larger or denser woodland planting projects. The Trust will also help landowners plant at higher densities than it has previously been able to – up to 1,600 trees per hectare. It will also pay up to 60% of the cost of planting if landowners plant the trees themselves or 50% for schemes where the trees will be planted by contractors. With uncertainty still surrounding Government funding for tree-planting for the next two years due to CAP reform, this increase in planting support is much needed. John Tucker, Director of Woodland Creation at the Woodland Trust, said: “Here in the UK we know we’re far behind our European neighbours in the woodland stakes – we have just 13% woodland cover compared to a continental average of 44%. “We also know exactly what benefits trees can offer us in terms of natural flood defences, habitat for wildlife, a source of sustainable fuel, and natural fencing and shelter on farmland. For these reasons and more, we need to plant trees, and that’s why we’re putting extra resources and energy into helping people to create woods and hedges on their land.” With severe weather events becoming more regular, the Trust is encouraging landowners to use woods, shelterbelts and hedges to help protect their land from storm damage, water erosion and to improve local water quality. Research shows that trees increase water infiltration by up to 60 times, meaning less surface water flooding. Riverside trees stabilise banks to reduce erosion and silting, and harmful chemicals, pollutants, soil particles and fertilisers can be intercepted and filtered by trees planted along watercourses. By planting in flood catchments and upstream areas, landowners can also help reduce local flood risk. Planting needn't involve losing productive land, says the Trust, which can help people plant blocks
of woodland, hedges connecting existing woodland, cover strips or shelterbelts. The total area of new woodland should add up to at least half a hectare, although smaller schemes will be considered on merit if they link existing woodland or benefit water. Funding is now available for new hedgerows which will link existing woodland – hedges must be at least 100m and no longer than 250m, unless new woodland is also created, with a total limit of 750 metres for any individual scheme. q • For more information about what help is available call the Trust on 08452 935 689, email email@example.com or visit www.woodlandtrust.org.uk/plant-trees.
Former Environment Minister Lord Rooker recently called for a programme of turning upland pasture into woodland – known as ‘rewilding’ – following an article in The Guardian by environmental journalist George Monbiot. Experts have, however, espoused the idea for many years. In 2004 scientists at the Centre for Ecology and Hydrology in Bangor discovered ‘entirely unexpected’ levels of water absorption by trees. Current Environment Secretary Owen Paterson has expressed himself interested in the process, while the Chartered Institute of Water and Environmental Management has called for a programme of upstream catchment.
Tree preservation orders and when to enforce them By MARK CHESTER of Cedarwood Tree Care
‹ TREE PRESERVATION ORDERS HAVE been part of the legal
and landscape scene since their introduction as part of the Town & Country Planning Act of 1947. They protect specific trees from pruning or felling without the consent of the relevant local planning authority. Where there is unauthorised work, the local authority can pursue enforcement action, including prosecution. My experience working for a local authority, advising other authorities on how to proceed, and more recently as an expert witness representing clients facing enforcement action, has led me to appreciate the importance of deciding how to enforce a breach and the avoidable pitfalls that an inexperienced enforcement team can face. When a tree has been damaged by poor pruning, or felled, there is often the desire to prosecute. Whilst there are occasions where this is the best outcome, it is sensible to seek the guidance of an impartial person. One case I successfully prosecuted involved poor pruning of several trees, where sensitive works had been approved. The defendant pleaded guilty and was fined and ordered to pay costs, which covered some of the council’s involvement. The fine went to HM Treasury, and the trees remained in their damaged state. An alternative could have been for the defendant to replace the damaged trees to with younger specimens, unaffected by poor works. However, in a high profile case last year, the Proceeds of Crime Act was used in the successful prosecution of a landlord whose attempts to construct a parking space in the front garden of his property caused so much damage to a protected tree that it needed to be felled. The fine issued included an allowance of £12,000 for the value of the parking space the landlord created. Tree Preservation Orders are important legal documents. They need to be accurate and correct. Finding errors on new orders, I have been told ‘It was correct on the council’s mapping system’. Sorry, but this is not good enough. The mapping system is not the legal document; it is the hard copy issued. Inaccurate boundaries can include trees not
intended for protection. I have experienced the challenges of trying to change such errors, which is so much harder later on. Where trees are included in groups, the description (called the First Schedule) needs to say what is covered, by species and number. Not including this detail is, again, not good enough. ‘Group of beech trees’ is insufficient. One historic prosecution famously failed due to lack of detail. A copse of eight mature oak trees (with a ninth oak sapling alongside) were protected as a ‘Group of 8 oaks’. Despite one of the mature specimen being felled, eight oaks remained, and the prosecution failed. Adding the word ‘mature’ (‘group of eight mature oak trees’) would have made it clear which trees were included. It can be frustrating to see enforcement action via a prosecution fail, especially when this is avoidable. It is also exasperating to seen action proceeding that has little chance of succeeding. To add to this challenging situation, the regulations changed in 2012, with exemptions more carefully defined. Many are unaware of this. Informed input can make a real difference. q
MEDICAL NOTES ‹ THE MEDICAL PROFESSION HAS seldom been in the news as it has in recent times – unfortunately, in many
cases for all the wrong reasons. The succession of scandals involving NHS trusts has shaken faith and belief among many people. There have been the Francis Report and the Keogh Report. Latest of all, the affair at Morecambe Bay seems to be never ending. There has also been a precipitous rise in the number of claims for clinical negligence. Such a rise was predicted by the NHS Litigation Authority, which foresaw a rush to get claims in before the withdrawal of legal aid for most cases last April. That is not the whole story, though. Patients do demand more of a service that it appears they are prepared to pay less for. And there are also more lawyers prepared to take up the cudgels on their behalf. Part of the reason is thought to be the very reforms that have led to the legal aid pot being shrunk. Personal injury firms are turning to medical negligence as a way of balancing the books, some say. For the expert, the belt has also tightened, with rates being cut, particularly in London. Medical claims will always need experts to verify or rebuff them, and the NHS LA is tenacious (some would say overly so) in defending claims. The important thing is to make sure the lawyer representing a claimant has the skills to appoint the right expert. A less regarded element of the effect of clinical negligence and malpractice is the psychological trauma experienced. It is a very real part of the hurt suffered. • One area of practice that gives rise to more claims than most for negligence is maternity. Rocketing claims in that area have led to the NHS putting aside no less than £700 for each birth to cover possible litigation. It is a figure described as ‘scandalous’ by MP Margaret Hodge, chair of the Commons Public Accounts Committee. Claims arising from maternity are also of the highest value because they affect both mother and child. The result is a massive bill – £482m for the year 2012/3. Despite that, however, maternity services were generally praised by the National Audit Office for providing ‘good outcomes and positive experiences for most women’. • The NAO was also happy with the performance of Monitor, the organisation that regulates NHS foundation trusts. Monitor was established in 2004 and has since had its remit extended. The NAO said Monitor has ‘generally been effective in helping trusts in difficulty to improve’. • When things do go wrong, however, it is important for the trust to issue a prompt apology, according to the NHS Litigation Authority. It is not an admission of legal liability, says the authority, but simply an expression of regret. There should also be an independent investigation. So says the Parliamentary and Health Service Ombudsman. • Dementia has become a top priority in the medical sphere, with the Prime Minister spearheading a Challenge on Dementia to diagnose two thirds of cases by March next year. Health Secretary Jeremy Hunt described as ‘totally unacceptable’ the fact that the time taken for an assessment varies from six weeks to nearly six months. • Problems remembering accurately affect everybody to a greater or lesser extent, however. Witnesses of crime, in particular, have been found to have unreliable memories of the event – known as eyewitness memory. It is an issue close to the heart of one expert from London’s South Bank University, who was herself a witness to a bank robbery. She describes her experience and the way she reacted. q
â€š 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 â€“ 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 Ltdâ€Ś ...Bespoke Medical Solutions for Legal Practitioners. 28 28
Regulator gets thumbs-up from watchdog ‹ THE HEALTH SECTOR REGULATOR Monitor has achieved value for money in regulating NHS foundation trusts and has generally been effective in helping trusts in difficulty to improve, according to the National Audit Office. Monitor was created in 2004 as the independent regulator for NHS foundation trusts and its remit has now been expanded with significant, new high-profile responsibilities, including that of ensuring continuity of services for patients. Its traditional role of regulating NHS foundation trusts is becoming more challenging as the NHS efficiency drive puts trusts under increasing financial pressure. At the same time, the focus on care quality and effective regulation is greater than ever in the wake of the problems at Mid Staffordshire NHS Foundation Trust. Few NHS foundation trusts have got into difficulty soon after being authorised, indicating that Monitor’s assessment decisions have been sound. Just three trusts have breached their regulatory conditions within 12 months of being authorised. The NAO report warns, however, that the growth in risk in the foundation trust sector may put unsustainable pressure on Monitor’s capacity to regulate trusts in difficulty or to maintain continuity of services. An all-time high of 25 trusts were in breach of their regulatory conditions at 31 December 2013. q
Sorry shouldn’t be the hardest word ‹ SAYING SORRY WHEN things go wrong is vital for the
patient, their families and carers, as well as to support learning and improve safety. Of those that have suffered harm as a result of their
Standards agency seeks expert in food allergy ‹ A SPECIALIST ADVISER IS being sought by the Food Standards Agency for a food allergy and intolerance research programme. The agency is looking for a PhD with expertise and experience in the area of analytical flow cytometry to provide independent advice to its Food Allergy and Intolerance Branch. The Food Allergy and Intolerance Branch is responsible for all aspects of UK government policy on food allergy and food intolerance, except diagnosis and clinical management. Scientific evidence gathering projects concerning food allergy and intolerance are commissioned under the food allergy and intolerance research programme, which aims to investigate the causes and mechanisms underlying food allergy and intolerance. In order to obtain an external perspective, the programme often appoints specialist advisers to provide independent, expert, scientific and technical advice on FSA-funded research projects. Advisers may also assist in monitoring and checking the quality and standing of the research being carried out. The specialist adviser will play a critical role in helping the FSA to ensure that a research project funded under the current programme of work uses robust and rigorous mechanisms to monitor the conduct of analytical flow cytometry. q
healthcare, 50% wanted an apology and explanation. Patients, their families and carers should receive a meaningful apology – one that is a sincere expression of sorrow or regret for the harm that has occurred. The NHS Litigation Authority has always encouraged trusts to issue a verbal apology to patients as soon as staff are aware that an incident has occurred. A written apology, which clearly states the healthcare organisation is sorry for the suffering and distress resulting from the incident, must also be given. Saying sorry is not an admission of legal liability, says the Litigation Authority – it is the right thing to do. Healthcare professionals should explain that new information may emerge as an investigation is undertaken, and that patients, their families and carers will be kept up to date with the progress of an investigation. It is important that all healthcare organisations create an environment in which members of staff are encouraged to report patient safety incidents. Staff should feel supported throughout the investigation process because they too may have been traumatised by being involved. q
Clinical negligence cases require experts’ attention ‹ ONE OF THE MOST specialised areas of expert witness
work is that of clinical negligence. The spotlight has been focused on the issue in recent months by a series of high-profile scandals involving poor care and sometimes outright neglect and criminality at a number of NHS trusts and private care facilities. There has also been a substantial upsurge in the number of claims of clinical negligence being brought against the NHS – up 66% in the past four years and by nearly 11% during 2012/13 alone. That was the last year for which legal aid was available for clinical negligence claims, apart from the very small number of exceptions outlined in the Jackson reforms. Those same reforms, and their effect on the funding of personal injury cases, have also resulted in a large increase in the number of non-specialist firms turning to the clinical negligence field, according to a number of specialists. Writing in the legal directory Chambers & Partners, Lisa Jordan of Irwin Mitchell LLP quotes figures showing a tenfold increase in the number of firms looking to set up or expand clinical negligence departments. She counsels caution on that front, not least because of the difficulty in bringing a successful prosecution. In addition, the specialist nature of the work often requires several experts to advise on different aspects of the same case. That fact is echoed by the Society of Medical Negligence Lawyers, which states: “…the ‘Bolam Test’ means that a case cannot succeed without medical experts being paid to give expert evidence for injured patients on whether there was substandard care in their treatment. Since often there is a concatenation of mistakes by different types of doctors, expert evidence must be
obtained on this from many different types of medical experts.” Furthermore, says the society, the need to prove ‘causation’, without which a case cannot succeed even with substandard care proven, may mean that another expert or experts is needed. Trevor Ward, head of medical negligence at Manchester-based law firm Linder Myers, agrees: “Clinical negligence is a very complex area of law,” he says, “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 regulations making other areas of practice less attractive to some firms. “This is bad news for those who have been seriously injured as a result of negligence at their local hospital. The likelihood of not only winning their case but also securing a settlement which meets the real cost of their needs brought on as a direct result of the incident is significantly reduced if they don’t appoint a specialist. It’s not an area of law that can be played at.” q
Ombudsman upholds family’s complaints against health trust ‹ LACK OF OPENNESS and honesty
at a hospital trust caused unnecessary distress and further pain to a family who had already suffered from the tragic and avoidable death of their baby, according to a report by the Parliamentary and Health Service Ombudsman. The Ombudsman investigated five complaints about University Hospitals of Morecambe Bay NHS Foundation Trust which related to the way in which the Trust handled the family’s complaints following the death. The investigation upheld two complaints about inappropriate email exchanges involving members of staff at the Trust. It also upheld a complaint about the adequacy of the investigations the Trust carried out following the death of the child. A complaint concerning an allegation of collusion among midwives was not upheld. The Ombudsman’s office also investigated and upheld a complaint from the baby's father about North West Strategic Health Authority concerning how they investigated events at the Trust. That
report was published in December along with a further report: Midwifery supervision and regulation: recommendations for change. Julie Mellor, Parliamentary and Health Service Ombudsman said: “We are publishing these reports as they highlight the need for more openness and transparency in the way hospitals and the wider health and social care system deal with complaints. “Hospitals and other health care providers have a duty to patients and their families to investigate their concerns properly. In these cases the Trust failed to be open and honest about what went wrong and this caused the complainant and his family further unnecessary distress at a very difficult time. “When serious untoward incidents happen there needs to be an independent investigation which looks at the root cause of the complaint and the role of human factors such as people and the organisation's culture. We expect all service
providers to adopt this approach to help them understand why mistakes happen and help improve services for everyone. “Our recommendations underline how important it is that trusts learn from complaints. This is what families want and deserve.” R
CQC accused of ‘blind spot’ over patient safety alerts ‹ A NEW REPORT BY the patient safety charity, Action against
Medical Accidents (AvMA) has found that the Care Quality Commission (CQC), the national regulator of the NHS in England, is failing to take any action over NHS trusts who fail to implement patient safety alerts. Although overall compliance with alerts has improved dramatically since AvMA started publishing reports on this, information obtained under the Freedom of Information Act has established that even the trust with the worst record had not received a single warning from the CQC or any other body over its non-compliance, despite having failed to comply with a total of seven alerts as at the end of January. Two of them were five years past the deadline for completion, and a further two were over three years past the deadline. Despite that, the trust board had not even discussed its non-compliance with alerts and on its website the CQC gives a complete bill of health to the trust. AvMA chief executive Peter Walsh said: “While we are pleased with the improvement in compliance, patients have the right to expect 100% compliance when it comes to patient safety alerts. These alerts deal with literally life and death issues and are meant to be mandatory. It is a scandal that some trusts are still prepared to ignore them and that the CQC and others have turned a blind eye.” Professor Brian Toft OBE, Professor Emeritus of Patient Safety at Coventry University and Professor of Patient Safety at Brighton and Sussex Medical School, said: “I welcome AvMA's report for shining a bright light on an area of medical practice which is of great importance. Patient safety alerts are issued to keep patients from suffering avoidable harm and it is shocking to find that the Care
Quality Commission is not taking strident action against those who do not comply.” AvMA's research found that there were 141 instances of alerts which were past the deadline as of 30 January which had not been implemented. That compares with 2,124 when they first reported in February 2010 and 455 in the previous report in August 2011. There are 14 examples of trusts who have still not complied with three or more patient safety alerts for which the deadline is past. There were 13 cases where the deadline has been exceeded by over five years. R
Assessing and treating the psychological effects of medical accidents or negligence By Dr Hugh Koch, Chartered Psychologist and Director, Dr Jon Willows, Chartered Psychologist and Dr Victoria Lucas, Chartered Psychologist all of Hugh Koch Associates LLP
‹ THERE HAS BEEN A gradual increase in claims for medical
negligence in recent years. Addy (2013) noted four main reasons for litigation for malpractice: concern over standards of care; lack of incident explanation; financial compensation for loss, pain and suffering; and holding care staff accountable. Further evidence suggests poor communication is also a central theme. Often, legal recompense is the only way a claimant can gain access to the timely treatment they may need in order to regain control of their lives and everyday functioning. Of course, gaining acknowledgment from others of the impact that an incident has had upon one’s life can also be beneficial. The main clinical areas in which medical accident and/or negligence occur include accident and emergency, orthopaedic, amputation surgery, brain injury, cancer care, cosmetic surgery, birth injuries and primary care. Medical and paramedical care is, as we know, complex. Yet, untoward incidents do occasionally occur and, when this results in litigation, it is important to ascertain if a psychological injury has occurred and what implications this may have for prognosis and treatment (Koch et al., 2013). In cases of alleged psychological distress, four key medico-legal issues are paramount: • Did the claimant suffer a recognised psychological injury at the • time of the alleged incident and did this injury meet the criteria • under DSM-IV-TR or ICD-10? • Was this alleged medical incident a material cause of this • injury? • Were there any other contributing factors prior to or post index • accident? • What is the prognosis with/without treatment for the • psychological symptoms described?
include periods of peri-traumatic dissociation (Koch, Goodall & Midgley, 2012). Post-incident events over the next 1-4 weeks These might include: • Further treatment delays • Poor co-ordination of care in hospital or community • Incorrect treatment, including dispensing and co-prescribing. The main areas of psychological injury in the field of medical adverse events include symptoms of depression, anxiety and neuropsychological impairment. Anxiety may be associated with one or more particular foci (e.g. fear of hospitals, infection, anaesthesia) or can be more generalised such as a heightened sense of personal vulnerability. In one specific area of medical accidents - breast implant
When assessing a claimant with regard to the psychological effects of a medical incident, several key areas should be investigated chronologically: Pre-incident pain, distress and anxiety Where there is a pre-existing disorder or a pre-existing symptom, it is possible that pre-existing symptom-related distress will have persisted and ‘contributed’ to post-incident difficulties. Similarly, the natural course of the pre-existing condition may have been causing ongoing pain or anxiety. Pre-incident expectations It is important to gauge the claimant’s pre-operative expectations, especially in the case of elective surgery. The dissonance between expectations and outcome is likely to influence the claimant’s postsurgery and post-incident perception, experience and evaluation of the post-surgical outcome. Peri-trauma, post-incident effects These occur immediately after the incident or, for example, if the patient regains consciousness during surgery. The effects can www.yourexpertwitness.co.uk
removal and retention - Koch et al. (2012) described how preexisting vulnerability affected reactions to implant problems. They also described how subsequent psychological distress adversely affected post-implant removal surgery and breast reconstruction. They suggested that a comprehensive assessment of pre-implant and post-implant removal distress would help the court to assess disability and future care needs (Koch & Addy, 2012). In a second specific area - awareness and conscious memory during anaesthesia - psychological effects of explicit memory during anaesthesia included: • Persistent and distressing re-experiencing of the traumatic • event i.e. distressing recollections and ‘awareness’ of the • surgery taking place • Fear of falling asleep • Fear of dreaming • Anticipatory anxiety in relation to the possibility of any further • medical intervention. Of course, the ‘secondary’ impact of such an array of symptoms is likely to further undermine the quality of one’s everyday life with the concomitant risk of additional psychological difficulties accumulating over time. Assessing the psychological effects of ‘unintended anaesthetic awareness’ naturally requires great care and diligence. In addressing this issue it necessary to obtain, evaluate and triangulate detailed information from the claimant, their family members and members of the multidisciplinary surgical team involved. It is worth commenting on the fact that a significant medical diagnosis/disorder in its own right can lead to PTSD and the need to factor the possibility of this into the assessment. For example, one in four people who survive a stroke or transient ischemic attack (TIA) suffer from symptoms of post-traumatic stress disorder (PTSD) within a year, and one in nine experience chronic PTSD more than a year later.
If they have PTSD symptoms then this can lead to increased risks of further strokes or heart attacks (Edmondson et al., 2013), also the degree of life threat can predict the level of PTSD symptoms (Bennett et al., 2002). PTSD associated with medical conditions has also been associated with poorer medication adherence, possibly due to attempts to avoid reminders of the trauma which are linked to hospital visits, medical visits etc (Mundy & Baum 2004; Shemesh et al 2001). It is in everyone’s interest to expedite reliable and appropriate expert evidence at the earliest stage in order that rapid diagnosis can be obtained and treatment, if necessary, can be expedited. Much psychological distress can be ameliorated in the short term with appropriate treatment. Any long term effects (e.g. psychosocial consequences of post-accident disability) can be identified and monitored over time to help the court establish the presence/absence of long-term disability and its ramifications. Claimant resilience in the face of significant medical trauma and uncertainty is significantly aided by clear and reliable expert evidence. q • More details can be obtained from Dr Hugh Koch – email hugh@ hughkochassociates.co.uk or visit www.hughkochassociates.co.uk. He and his associates hold 100 monthly clinics throughout the UK for cases involving medical negligence. REFERENCES • Addy K (2013) Medico Negligence. PIBULJ. March. • Koch HCH, Beavan-Pearson J & Willows J (2013) Why did this happen to • me? Expert Witness Journal. Autumn. • Koch HCH, Hampton N, Addy K, & De Haro (2013) More than skin deep? • New Law Journal. 27.01.13. 145-6. • Koch HCH & Addy K (2012) Faulty breast implant removal. Solicitors • Journal. 06.03.12.
Witnesses of crime need help to remember ‹ THE MEMORY OF PEOPLE who have witnessed or been victims of crime is prone to errors which law officials must take into account when proceeding with criminal cases. The unreliability of eyewitness memory has been demonstrated by a number of research programmes and even a BBC TV series, Eyewitness. It was also the theme of a presentation at last year’s Festival of Social Science, an event mounted annually by the Economic and Social Research Council. One of the country’s foremost experts in the field of eyewitness memory was once herself caught up in a bank robbery. Dr Anne Ridley, from London South Bank University, described the experience ahead of the festival. “As soon as the perpetrators left, a lot of people in the bank started talking about what had happened,” she recounted. “I knew that this was bad, as discussing an event after it has happened with other people who were there can corrupt your memory, making you believe that you have seen something when actually you have just been told about it.” Dr Ridley is all too aware of how susceptible memory is to incorporating incorrect details about an event: “Memory is not like a video recorder – it is malleable and can be changed after the event. We also interpret everything we see in line with our existing knowledge and beliefs, so we might have a particular idea of what a ‘bad guy’ might look like and that might bias our actual memory of what someone did look like.” Research shows that stress can affect memory in a number of ways that aren't fully understood yet. For example, when people are the victims of a violent crime, they can tend to focus on narrow things, such as a weapon. “During the bank robbery I had a sawn-off shotgun in my face, so I have a very good memory of the shotgun. But I don't have a memory of the face of the perpetrator. In fact I couldn't even tell the police what race the perpetrator was,” says Dr Ridley. This effect is called weapon focus, and reflects the fact that in these situations your attention is narrowed and you focus on small things at the expense of the wider picture. This can mean that collecting testimony from witnesses can prove difficult for the police. However, interview methods based on psychological research can improve the accuracy of eyewitness accounts from vulnerable witnesses, particularly children. That was the subject of the presentation of Dr Ridley’s colleague at the festival, Dr Elizabeth Ahern – an experienced child interviewer and researcher from the University of Cambridge. q
UK soldiers have better mental health ‹ THE MENTAL HEALTH OF UK soldiers is stronger than
that of their peers from the US, according to new research from King’s College London (KCL) reported by the British Psychological Society. In a review of 34 previous studies published in the Journal of the Royal Army Medical Corps researchers claimed British troops who
served in Afghanistan and Iraq tended to cope better than those from the US in terms of mental health. For UK regulars, the rate of post-traumatic stress disorder (PTSD) ranged from 1.3% to 4.8% – similar to the 3% figure for the British population as a whole. In contrast, recent studies in the US have reported PTSD rates of between 21% and 29%. Discussing the likely reasons for the trend, KCL noted that military personnel from the US are generally younger, undertake longer tours of duty – 12 months, rather than six months in the UK – and are from lower socio-economic backgrounds. Dr Deirdre MacManus, lead author of the study from King's, said: “Overall, UK military personnel have remained relatively resilient in spite of the stresses endured in Iraq and Afghanistan.” R
Dementia moves up the health agenda ‹ ACCURATE DIAGNOSIS OF dementia is important from a
legal point of view for a number of reasons, such as an assessment of an individual’s capacity to make decisions regarding their care of finances or their fitness to plead in a court of law. NHS England has committed to invest £90 million to diagnose two-thirds of people with dementia by March 2015, an ambition set out in the Prime Minister’s Challenge on Dementia. Health Secretary Jeremy Hunt is also challenging the NHS to bring down the average wait for an assessment for dementia to six weeks from GP referral in each area of England. Three-quarters of memory services offer people an assessment within an average of six weeks but in some areas the wait can be up to 25 weeks. Jeremy Hunt said: “To have variation in diagnosis rates from a few weeks to close to six months is totally unacceptable and I am pleased that the NHS England have agreed to address this within the funding they have available.” The Royal College of Psychiatrists has this to say on the matter: “Psychiatric diagnosis is important because of its major contribution to predicting the natural history, and possible clinical, social and legal outcomes for individuals.” R
DNA through the decades For millions, 2004 saw the creation of a business which has touched their lives in a way no-one expected. Facebook was launched and took the world by storm. Most would struggle to pick out another highlight. However, it was an important year in the world of DNA testing. With the passing of the 2004 Human Tissue Act, the somewhat unregulated and chaotic world of DNA and paternity testing started to be put into order with a regulator and requirements on laboratories and testers. Combine this with advances in technology and the scene was set for this new industry to come of age. Dr Thomas Haizel, who established Anglia DNA Services in 2004, completes the story...
‹ “BLOOD TYPE PATERNITY TESTING was available as early
as the 1920s. However, with the chances of another individual having the same blood type being high, the test only excluded a third of the population as a potential parent and so reliability was low. Medical advances increased this to 40%, but still not high enough for a conclusive court judgement. DNA investigation offered huge advances. Over 99% of your DNA is identical to any other person, but that 1% variation can be used to establish paternity. Human Leukocyte Antigen DNA tests appeared in the 1960s using blood, and the use of ‘restriction enzymes’ in the 1970s moved things forward again. Polymerase Chain Reaction (PCR) testing in the late 1970s still only gave 80% accuracy – short of what a court would ideally need. Testing started to reach realistic levels in the 1990s with up to court acceptable ‘99.9% accuracy’ using more indicators and moving from blood to cell tissue swabbed from the mouth. As demand grew for PCR machines, manufacturers responded with faster, better devices. Prices fell, making a test more affordable and opening the market to new providers. But the icing on the cake, and my spur to set up Anglia DNA, was the 2004 Human Tissue Act. The Act meant there was at last a set of standards on which you could build an ethical business. The new regulated environment was our opportunity to create a client focused, quality, paternity testing business for the legal profession. The need for UKAS and Ministry of Justice accreditations sorted the men from the boys when it came to tests you could trust in court. But, the trick to building a DNA testing ‘business’ is combining the science with the legal requirements to give a lawyer a test result quickly, efficiently and accurately. So our customer service team has one objective, to make it easy for a lawyer. We sort all sampling, appointments, chasing and testing, taking the hassle out and leaving the lawyers to do what they do best. Ten years on, we continue to grow, accredited and court approved. We created the UK’s, if not Europe’s, first and only, ‘high street’ consumer paternity test with Boots plc and last year we set up a new Drug and Alcohol Testing laboratory to offer UKAS approved testing for legal purposes and a comprehensive workplace service. Our first decade has been an exciting one. We expect the next to see even more innovation – 2004 seems a long time ago!” q
Dr Thomas Haizel, director of Anglia DNA Services
• Anglia DNA offer a CPD course, The Use of DNA Testing in Legal Practice for any professionals who want to learn more.
Leg arteries and limb ischaemia By Philip Coleridge Smith DM MA BCh FRCS Consultant Vascular Surgeon and Medical Director, British Vein Institute and Reader in Surgery, UCL Medical School
‹ THE NATIONAL HEALTH SERVICE treats about 12,000 patients
Progression of the narrowing can lead to blocked major arteries with deteriorating blood flow to the lower limb. In patients with slowly advancing atheroma of leg arteries, small arteries gradually enlarge providing an alternative (collateral) route of blood supply to the leg. Even when major arteries are blocked, few symptoms may result although the intermittent claudication will worsen. In some patients the limb ischaemia is so severe that pain in the leg is present at rest. This usually affects the foot at first and occurs at night when the patient is in bed. Diurnal variations lead to a reduced blood pressure during the night reducing the pressure available to push blood through the leg. The pressure in the arteries is increased on sitting or standing and patients with ‘rest pain’ find that hanging the leg out of bed or sleeping in a chair are helpful. The ischaemia may be so severe that the skin is damaged and destroyed leading to a chronic non-healing wound of the foot or leg. This situation is referred to as ‘critical ischaemia’ and requires expeditious Causes of lower limb arterial disease intervention by a vascular surgeon to restore flow to the limb in order The most common association with atheroma of leg arteries is to avoid amputation. Delay in diagnosis of a few days is acceptable. smoking. This is probably a causative factor in about 90% of patients However, if critical ischaemia persists for several weeks or months, with lower limb arterial disease. Diabetes is also a factor in about 10% irretrievable damage to the skin, muscles and nerves of the leg will lead of patients. Other conditions, including high blood pressure and high to the need for amputation. blood cholesterol, may also be part of the problem. It is likely that Acute limb ischaemia arises when a catastrophe leads to occlusion of inherited factors also play a role. a major artery in the leg. This may arise in an artery affected by atheroma when sudden thrombosis of the vessel occurs. Alternatively, a clot may Symptoms of leg artery disease form in another part of the arterial system, most commonly in the heart. In slowly progressive atheroma of the lower limb arteries (the most This detaches and travels to the leg via the major arteries. The travelling common site for peripheral arterial disease) gradual narrowing of clot is known as an embolism. The embolism is trapped in the leg vessels limits the capacity for arteries, which are narrower than blood flow to the leg. At rest, the vessels that leave the heart, sufficient blood flow is present and blood flow to the leg ceases fig. 1 - Ischaemia of the second toe for the limb to remain in good immediately. The symptoms of leading to gangrene condition. On exercise, where this include: severe pain in the more blood flow is required for leg, coldness and paleness of walking or running, the narrowed the limb, reduced sensation or vessel can no longer provide the numbness of the leg, paralysis leg with enough blood flow to and loss of the peripheral pulses. power the muscles. After walking This is a surgical emergency a distance of tens or hundreds requiring immediate intervention of yards, depending on the if the limb is to be saved from severity of the arterial disease, amputation. The embolism can pain arises in the calf muscles be removed by an operation or bringing the patient to a halt. The a blocked vessel re-opened or pain goes after a few minutes bypassed to restore blood flow to and walking can continue. the leg. The muscle and nerves This condition is referred to of the limbs are very susceptible as ‘intermittent claudication’ to severe ischaemia and begin to and is a form of chronic (long die within 6-8 hours of the onset standing) lower limb ischaemia. of symptoms. After 24 hours Few patients with this condition of total ischaemia, amputation suffer severe consequences is usually the only possible such as limb amputation. treatment. Standard treatment includes smoking cessation, management Problems arising from of high blood pressure and limb ischaemia high cholesterol levels and an Intermittent claudication due exercise regime which will lead to chronic limb ischaemia is to an increased walking distance. relatively common in elderly Surgical intervention to improve patients. This group may not the blood supply to the leg can even notice any symptoms unless also be considered. they undertake a brisk walk. The per year with lower limb ischaemia (insufficient blood supply) due to blocked leg arteries threatening the legs. Severe damage to the limb will arise leading to amputation if the correct treatment is not provided promptly and the time available for action to be taken varies according to the circumstances of the individual case. Where the blood flow to all of the leg stops completely there is a window of opportunity of only a few hours before irretrievable damage is done to nerves and muscles. However, where the arterial system is blocked by slowly advancing atheroma (hardening of the arteries) there is an opportunity for alternative routes of arterial supply to open up. Even when a main artery becomes completely blocked, enough blood flow is still present to keep the leg alive – just! Action must be taken within days if the limb is to be restored to health.
condition is relatively stable and it is uncommon for a serious threat to the lower limb to develop. Symptoms are dramatic and severe in patients who experience acute limb ischaemia. These patients usually present to the Accident and Emergency department of a hospital where the diagnosis is rapidly recognised and the correct treatment provided. Expedient treatment is required since the window of opportunity is only a few hours. Any unnecessary delay in management may lead to irreversible damage to the limb and could be considered to be substandard treatment. Adverse outcomes, such as limb amputation due to delay in diagnosis and treatment, is most likely in the those patients with critical limb ischaemia. Some patients report the symptoms of pain in the leg at night, relieved by hanging the leg out of bed, to their general practitioner. This classical history of critical limb ischaemia should lead to clinical examination of the lower limbs with careful attention to the peripheral pulses. The leg may look entirely normal but clinical examination may fail to detect a palpable pulse. This may simply be because ankle pulses can be difficult to feel in some patients. Alternatively the pulse may be absent. Pulses can be detected reliably using a Doppler ultrasound probe, available to doctors and nurses in general and hospital practice. This device has a small transducer which is placed on the leg and translates the blood flow into an audible pulse. An absent pulse on Doppler ultrasound examination confirms that the blood flow is absent in that vessel. If the pulse is present it is conventional to assess the blood pressure at the ankle by inflating a blood pressure cuff around the limb until the pulse disappears. This indicates the Doppler systolic pressure. This can be compared to the arm blood pressure and a ratio calculated (the ankle:brachial systolic index). Normally the blood pressure at the ankle is the same as that in the arm or slightly higher. Where arteries are blocked in the lower limb, the pressure is lower than the arm. In critical limb ischaemia the ankle pressure is usually less than half that in the arm. This simple test is therefore very useful in assessing the quality of the blood flow to the lower limb. Some patients present to their GP with one or more black or dark mauve toes (fig. 1). The toes are the most distant part of the limb and critical ischaemia may present with gangrene (black toes) or irretrievably damaged toes requiring amputation. These patients are usually recognised as having a vascular problem and are referred for urgent vascular surgical advice within a few days of presentation.
Delayed in treatment due to failure to recognise the diagnosis A group of patients in whom diagnostic confusion may arise is those who present with pain in the foot due to critical ischaemia but no obvious abnormality to be seen. Palpation of the ankle pulses is an essential part of the clinical examination and absent pulses will immediately lead to the suspicion of limb ischaemia. This can be confirmed by Doppler ultrasound assessment. If the diagnosis of limb ischaemia is not suspected and the pulses are not examined, delay in treatment and an adverse outcome with loss of some or all of the limb may arise. Failure to examine the peripheral pulses could be considered to be substandard management in such cases. Alternative diagnoses may be suspected and treated, such as gout, arthritis and plantar fasciitis. The treatment for these conditions is completely different and will not lead to a satisfactory outcome in a patient with limb ischaemia. In some instances, ischaemic damage to the limb may give rise to a leg ulcer â€“ a chronic non-healing wound arising from loss of the skin. The location of the ulceration is usually in the calf near the ankle. Leg ulceration is a common problem arising in elderly patients and is often attributable to diseases of the veins rather than the arteries. Varicose veins and previous deep vein thrombosis account for about 70% of leg ulcers. However, in 25 - 30% of patients with a leg ulcer, limb ischaemia will also be a factor. It is essential that every patient who presents with a leg ulcer should be evaluated for lower limb ischaemia by measurement of the ankle:brachial pressure index. It may be impossible to distinguish the clinical appearances of some ulcers between an arterial or venous cause and this is the only reliable way of identifying the presence of arterial disease. Leg ulceration is a common problem in general practice and district
nurses spend as much as half of the their time attending to these. The most common treatment for venous leg ulcers is compression bandaging, an effective treatment leading to healing when used correctly. However, the same treatment applied to an arterial ulcer can be disastrous! The compression bandage may apply a pressure above the arterial blood pressure in a patient with limb ischaemia, completely shutting off the blood flow to the limb. Within hours, irretrievable ischaemic damage is caused to the limb which may necessitate amputation. Patients with severe limb ischaemia may find a compression bandage intolerable due to the pain and so the district nurse will apply a bandage without compression. In some instances I have encountered, an ischaemic ulcer has been dressed over several months without regard to the underlying arterial problems. Gradually the ulcerated area enlarged, since the blood flow remained poor in the limb, and eventually amputation was required. This would have been avoided had the diagnosis been correctly established before treatment began. Good nursing practice includes measuring the ankle:brachial systolic index before compression is applied and this is taught to district nurses as a matter of course. Sometimes the district nursing team will seek advice from a â€˜Tissue Viability Nurseâ€™ who will also have expertise in assessing the peripheral circulation. The circulation to the limb should be assessed before any compression bandaging is applied and within a few days of referral to the district nursing team for management of a leg ulcer. Identification of a greatly reduced blood pressure at the ankle should give rise to the suspicion of limb ischaemia with urgent referral to a vascular surgeon within a few days.
Outcome in cases of delayed diagnosis In cases where the limb has remained severely ischaemic for an extended period, the region of destroyed tissue gradually extends leading to a reduced likelihood of saving the limb when blood flow is restored. Moderate size ulcers (a few centimetres across) will heal and severely damaged toes can be removed. Extensively ulcerated limbs which have been permitted to develop over weeks or months will not heal and amputation of the limb is the only option. The outcome of studies of critical limb ischaemia where the correct surgical treatment has been used, show that about 90% of limbs are successfully treated. Some further amputations may also be required over the ensuing years but in most patients the leg can be saved. However, this group has a high mortality rate of 50% at 5 years, arising from the extent of the arterial disease affecting coronary and cerebral vessels leading to death from heart attack and stroke
Conclusion Critical limb ischaemia and acute limb ischaemia require expedient treatment if the limb is to be saved. Critical limb ischaemia, giving rise only to pain in the foot or to leg ulceration, may lead to delay in diagnosis unless well established simple methods of assessing the peripheral circulation are used. Palpation of foot pulses and measurement of Doppler ankle pressures should be used in general practice and in hospital where the diagnosis of limb ischaemia is suspected. A delay in diagnosis of critical limb ischaemia may give rise to progressive destruction of the skin, nerves and muscle of a limb and lead to the need for amputation. Successful restoration of blood flow to an ischaemic limb by a vascular surgeon will lead to avoidance of amputation in 90% of cases. However, patients presenting with severe limb ischaemia have a life expectancy of only 5 years, attributable to arterial disease in other parts of the vascular system. A detailed consensus document has been published which summarises good vascular surgical practice in patients with limb ischaemia. q REFERENCES Inter-Society Consensus for the Management of Peripheral Arterial Disease (TASC II). Norgren L, Hiatt WR, Dormandy JA, Nehler MR, Harris KA, Fowkes FG; TASC II Working Group, Bell K, Caporusso J, Durand-Zaleski I, Komori K, Lammer J, Liapis C, Novo S, Razavi M, Robbs J, Schaper N, Shigematsu H, Sapoval M, White C, White J, Clement D, Creager M, Jaff M, Mohler E 3rd, Rutherford RB, Sheehan P, Sillesen H, Rosenfield K. Eur J Vasc Endovasc Surg. 2007;33 Suppl 1:S1-75.
Maternity claims account for one third of negligence bill
‹ A REPORT FROM the National Audit
Office published in November last year revealed that around one third of the clinical negligence bill for the NHS in 2012/3 was accounted for by maternity claims. A total of £482m was set aside during that year – nearly a fifth of all spending on maternity services or nearly £700 for each birth. The report, Maternity Services in England, states: “Adverse outcomes can have serious consequences for the taxpayer as well as for the women and babies concerned. In 2012-13, there were 1,146 clinical negligence claims relating to maternity care, equivalent to around one claim for every 600 births. The number of claims increased by 80% in the five years from 2007-08 to 2012-13, which is consistent with the rise in claims across the NHS as a whole.” Analysing how claims arise, the report says: “Over the last decade, the most common
reasons for maternity claims have consistently been mistakes in the management of labour and relating to caesarean sections, and errors resulting in cerebral palsy. “The average time from an incident occurring to a claim being resolved is over four years and therefore it is difficult to draw conclusions about the quality and safety of current care from the claims that have been settled.” The report pointed out that, in 2011, one in 133 babies was stillborn or died within several days of birth. That mortality rate has fallen over time, but comparisons with the other UK nations suggest scope for further improvement. The performance of individual trusts in relation to rates of complication and medical intervention varies widely. Since the Department of Health’s 2007 Maternity Matters strategy there has been improvement in maternity services, with
more midwifery-led units, greater consultant presence on labour wards and progress on the government’s commitment to increase midwife numbers. However, there is wide variation between trusts in performance in respect of quality and safety, cost and efficiency. The head of the National Audit Office, Amyas Morse, said: “NHS maternity services provide good outcomes and positive experiences for most women during a very important time in their lives. Since the Department of Health’s 2007 strategy, there have been improvements in maternity services, but the variation in performance across the country, and our findings on how services are being managed, demonstrate there is substantial scope for further improvement. The Department’s implementation of its strategy has not matched its ambition.” R
Royal College publishes new guide on review process ‹ AN UPDATED GUIDE OUTLINING the review process for
obstetric and gynaecology services has been published by the Royal College of Obstetricians and Gynaecologists (RCOG), to help provide the highest possible standards of care for women. The RCOG receives requests for invited reviews of services when responsible officers (ROs) and healthcare organisations (HCOs) have concerns. The reviews provide an independent perspective where concerns are raised with regard to the standards of care being provided by an individual clinician or service, or where validation and advice on the configuration of women’s services is required.
Many miscarriages are preventable, study finds ‹ OVER A QUARTER OF miscarriages may be preventable,
researchers in Denmark have estimated. Their conclusions have been reported in a study published in February in BJOG: An International Journal of Obstetrics and Gynaecology. The nationwide study used data from 91,427 pregnancies included in the Danish National Birth Cohort between 1996 and 2002 in order to identify the modifiable risk factors for miscarriage and to estimate the preventable proportion of miscarriages which could be attributed to these factors. Miscarriage in Denmark is defined as a foetal death and/or expulsion before 22 completed weeks of gestation. Of the 91,427 pregnancies examined in this study, 3,177 resulted in miscarriage. Information on lifestyle was collected by computer-assisted telephone interviews. The study examined nine potentially modifiable risk factors for miscarriage using the Cox regression model to provide the estimations. The risk factors include: amount of exercise, alcohol consumption, smoking, coffee consumption, work schedule (ie night shifts, rotating shifts), lifting of more than 20kg daily, maternal age at conception, pre-pregnancy weight status and previously diagnosed genital diseases. The study estimated that 25.2% of the miscarriages might be prevented by reduction of all the associated risk factors to low levels, and that modification of risk factors acting before and during pregnancy could lead to prevention of 14.7% and 12.5% of the miscarriages respectively. Sandra Feodor Nilsson, a PhD student from the Department of Public Health at the University of Copenhagen and co-author of the study said: “Miscarriage is the most common adverse pregnancy outcome affecting at least one in seven pregnancies and is considered irreversible. Therefore, prevention may be the only way of reducing the number of miscarriages that occur. “Our results indicate that the risk of miscarriage is increased by multiple potentially modifiable risk factors and a considerable proportion of miscarriages may be preventable. We know that the modifiable aspects of the risk factors may be questioned as they often depend on other factors that are not necessarily easy to change. “However, we think that information about increased chances of having a successful pregnancy at a relatively young age is an important perspective. If our findings are supported by future prospective cohort studies they may support a prevention strategy towards miscarriage.” q
The new document, published in January, sets out the RCOG’s approach to those requests. The College has a role to assist ROs and HCOs in these circumstances to: • • • • • • •
Evaluate a service or individual’s practice where concerns have been raised Establish whether problems do exist and, if so, in which areas, and make recommendations to the HCO Support HCOs in implementing RCOG standards Provide a source of advice and ‘signposting’ for assistance where the College cannot itself directly respond to the request.
This guidance aims to inform ROs and HCOs how the RCOG can assist them and outline the process to ensure that each review is both robust and fair to all concerned. Professor Alan Cameron, Vice President, Clinical Quality at RCOG said: “One of the key objectives of the RCOG is to set standards to improve women’s health. One way to achieve this is through the promotion of the highest standards of care for women accessing both obstetrics and gynaecology services and the review process is a key part of this. “An invited review can play an important part in evaluating concerns, protecting patient care and ensuring patient safety when there are concerns raised. “Moving forward from the Francis Inquiry, the RCOG is committed to ensuring that patient safety is integral to the work we do and further that it is embedded into the daily practice of all trainees and specialists in obstetrics and gynaecology.” q
Expert Profile Professor Sanjiv Jari Consultant Trauma & Orthopaedic Surgeon Bsc (Hons), MBChB, FRCS (Eng), FRCS (Tr & Orth) Orthopaedic & Trauma Services Ltd www.oatsltd.com firstname.lastname@example.org
‹ 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.
Fibromyalgia where are we in 2014? By DR ANTHONY CLARKE, Consultant in Rheumatology & Rehabilitation, Bath
‹ FIBROMYALGIA USED TO be easy. Patients presented with
muscular pain, sleep disturbance and had tender trigger spots in certain places. We helped them with sleep hygiene, often with low dose amitriptyline, treated any underlining painful condition and helped with ‘pacing’. Pacing is where the patient is encouraged not to overdo things on the days they were feeling well. If the patient was seen early and complied with the management programme, they got better. Not surprisingly, a lot of patients could not or would not follow the management strategy and went on to have a chronic problem. Lack of sleep was also associated with fatigue and a number of authorities came to the conclusion that fibromyalgia was the physical manifestation of chronic fatigue syndrome (CFS). Chronic pain also leads to sleep disturbance and increasingly it was recognised that patients with chronic fibromyalgia, CFS and chronic pain were likely to share a number of symptoms and indeed move from one of these diagnostic groups into another. However, things have started to get out of hand. If you Google fibromyalgia you will access 5,400,000 sites in 0.18 seconds! The current Wikipedia entry opens with the statement that fibromyalgia ‘is characterised by chronic widespread pain and allodynia (a heightened and painful response to pressure)’. I doubt if any pain practitioner in the UK would agree with that definition of allodynia or the statement that it is characteristic of fibromyalgia. Allodynia is defined elsewhere in Wikipedia as ‘pain due to a stimulus which does not normally provoke pain’ and is typical of neuropathic pain, such as that seen in complex regional pain syndrome. I never saw a fibromyalgic patient with allodynia until it started to be mentioned in websites.
If you Google fibromyalgia you will access 5,400,000 sites in 0.18 seconds!
either, in fact, illness behaviour or part of somatisation secondary to depression. Unfortunately, some claimants read the descriptions of fibromyalgia on the internet and regurgitate them to fraudulently claim compensation, particularly following minor whiplash injury. The other problem is that many patients who complain of fibromyalgia are convinced that it is an incurable and permanently disabling disorder (shades of CFS here), whereas pacing, improvement in sleep hygiene, relief of any underlying pain, often under the supervision of a physiotherapist, and the lifting of concurrent depression can be remarkably effective and produce long-term relief of symptoms. The medico-legal significance of fibromyalgia has been mentioned above. There are underway significant changes in the way the courts look at soft tissue injuries, especially in connection with whiplash injury in road traffic collisions. As most of my readers will know, the United Kingdom is the world leader in the rate of whiplash claims, despite the fact that it has been recognised for at least two decades that whiplash is a relatively insignificant injury in the overwhelming majority of low speed collisions, such as those which occur, for instance, at roundabouts. What is more, a number of quite large studies have shown that the prevalence of fibromyalgia is no higher post-whiplash than in the population at large. That does not mean that every now and then the severity of the soft tissue injury is such that prolonged symptoms do occur or that occasionally fibromyalgia may be precipitated by the pain and sleep disturbance following a collision. The presumption, however, should be that the chain of events would not have precipitated fibromyalgia and prolongation of the recovery period, unless special circumstances, such as pre-existing neck disease, can be demonstrated. In summary, I would say that the ‘new’ fibromyalgia is not the disorder recognised by most rheumatologists but falls more into the realm of the multidisciplinary teams treating CFS, chronic pain and somatisation. Indeed some of these patients may have that exciting new disorder ‘Medically unexplained symptoms’ (MES). But that is another story. q
Other features in the fibromyalgia Wikipedia entry include difficulty with swallowing, cognitive dysfunction, as well as bowel and bladder problems. I recently saw a claimant who was convinced he had fibromyalgia and when asked to list his symptoms did not mention pain! He said he had memory problems, despite the fact that formal testing of his memory in a memory clinic was well within normal limits (and a little better than mine!). He also said he had poor concentration, but when I probed further, he said that if he was watching a film on television he often got bored after twenty minutes or so. Boredom is an entirely different condition to poor concentration. What we are seeing appears to be a number of issues intertwining. Undoubtedly some patients do develop fibromyalgia as described in my opening paragraph. This fails to be identified or managed properly and chronic pain emerges. The internet supplies these and other patients with additional symptoms which are ascribed to fibromyalgia but are www.yourexpertwitness.co.uk
Physios warn of consequences of cuts to senior posts ‹ PHYSIOTHERAPY TREATMENT for
patients with complex needs, ranging from learning disabilities to long-term conditions like MS, could be threatened by cuts to expert posts, the NHS is being warned. The Chartered Society of Physiotherapy (CSP) has voiced concerns that a reduction in the number of senior grade roles means the experience and knowledge of those clinicians will be lost to patients. There was an almost 9% reduction in senior posts between 2008 and 2013, and new statistics expected this month could show further cuts. Physiotherapists in these roles have developed their skills in specific fields to deliver specialist treatment for patients and provide clinical leadership to colleagues. Speaking on 3 March, as physiotherapy staff met in Cardiff for the CSP’s Annual Representatives’ Conference, its chief executive Prof Karen Middleton said: “The evidence shows that clinical leadership improves patient care and safety so these posts are critically important. “We understand the NHS is facing enormous financial pressures, but specialist services save money by preventing conditions from worsening and requiring more expensive treatment.
“The leadership and expertise of these physiotherapists has a positive impact on the quality of life for many patients and we strongly urge trusts to recognise the value of this by retaining senior posts.” The CSP worked with its members locally to defeat two recent attempts to ‘downgrade’ specialist posts at Oxford University Hospitals NHS Trust and Berkshire
Healthcare NHS Foundation Trust. Both proposals were withdrawn after physiotherapy staff demonstrated the benefits of the posts for patients and NHS finances. The overall number of physiotherapists working in the NHS continues to rise however, with more than 18,000 now providing treatment. q
Orthopaedics body criticises reductions in replacements ‹ IN DECEMBER THE British Orthopaedic Association issued a statement following
publication of the Dr Foster Hospital Guide 2013, which focused on hip and knee replacement data. The statement said: “Committed to clinical leadership and our patients, we are already working closely with NHS England, Hospital Trusts and Clinical Commissioning Groups to ensure high quality orthopaedic clinical care for all. We are therefore concerned that the report highlights a reduction in the number of hip and knee replacements performed in some areas. “Those patients who are not receiving joint replacements at the time they most need them are being denied the significant benefits that this surgery can bring. There is strong evidence that these are highly effective operations with a wider economic and social impact because they restore mobility and reduce disability. They are also very cost-effective for the NHS, and if they are being reduced for financial reasons, as the report suggests, we consider this to be both counter-productive and detrimental to patient care.” q
The role of the
ZENA SCHOFIELD of Blackheath Medico Legal Services answers the question: What can the experienced Physiotherapist bring to the medical legal arena?
‹ EXPERT PHYSIOTHERAPY OPINION may bring sound support
to medical opinions, but importantly we may also highlight additional causal or contributory factors that can widen or successfully challenge the medical conclusions. Conclusions which are drawn from their routine but often less informative tests. As a profession, we have evolved and developed many of these physical tests to joints, muscles and neurological structures, which can highlight more comprehensively the structures involved and their contribution to the degree of functional impairment, the appropriate management, as well as the probable long term outcome. Such tests include detailed movements to joints and their associated soft tissues where we apply compression and stretch forces in order to ascertain not only any symptom provocation and the available range of movement of the joint, but also the quality and feel of that movement. The type and feel of the resistance under our hands on moving the joint may identify the probable specific structures involved – i.e. the joint surfaces, alteration of tension of specific ligaments, muscles and their tendons. Other tests to assess the involvement for example of the nerves of the upper and lower limbs are routinely extended beyond the medical tests for power, sensations and reflex testing. We add in a variety of specific movements to the accepted straight leg raise test that applies tension to the sciatic nerve down the back of the leg, and it can provoke significant reproduction of symptoms that the less demanding straight leg raise test may not reveal. For example, applying the straight leg raise test with the patient in slump sitting, with their chin placed on their chest and when the angle of the leg and foot is varied. In the matter of whiplash injuries, some believe that this is a ‘medico-legal illusion’ (Matheson 2002). We can now show ground-breaking physiotherapy research ‘that has the potential to revolutionise clinical practice and transform our patient outcomes’. (C. Worsfold 2013). These measures can recognise the probability of a poor recovery in 15-20% of whiplash patients at a far earlier stage than has previously been possible – i.e. a few weeks post trauma. Such recognition would impact on the appropriate future management of these patients, and on the likely costs of such management, which is relevant in any legal case.
Case Presentation Let us now briefly consider a legal case where some of these specific tests were applied by the physiotherapist, that lead to the defendant’s medical expert’s opinion being successfully challenged by the claimant’s lawyers. Mr A was a pillion passenger on a motorbike when it was hit by a car and he was thrown 13.72 metres up the road. The car insurance company accepted liability for the accident but claimed that Mr A’s subsequent injuries were only minor, that his complaint of low back pain was due only to a strain at the time of the accident and that almost three years later, by the time of the request for a physiotherapy assessment, there was no good reason why he could
not have returned to work as a felt roofer. His treating rheumatologist upheld this view. Six months before the trial, Mr A was sent to the physiotherapist for her opinion as to the likely cause and severity of his present complaint, whether this could have been caused by his accident and what the likely prognosis in relation to his functional activities was. The physiotherapist examined the claimant in the September. At this time, Mr A was complaining of central low back pain which was significantly aggravated by bending and lifting. Activities which were a routine part of his daily work as a felt roofer. He was not complaining of any leg symptoms. On examination, routine active back movements were only slightly sore on forward flexion. Routine examination of sensation, power and reflexes showed nil abnormal responses in the legs. However, careful palpation of the low back joints provoked very significant localised pain over the lowest joint of the spine, the L5/S1 joint, each time this movement was applied in a particular direction. Examinations when applying specific stretch tests, which loaded the central structures within the spinal canal and the sciatic nerve to a far greater degree than just applying a straight leg raise test alone, provoked central spinal pain suggestive of some compromise of the covering of the nerves within the canal, possibly a disc prolapse at that level. An MRI scan was recommended to be applied before the physiotherapist could comment on the prognosis. In response, in the September, the defendant’s medical expert wrote that there was no evidence whatsoever that this could be a possibility. He actually wrote: “Rubbish, rubbish, rubbish, there is no evidence whatsoever that this man could have a disc prolapse.” He went on further to say that: “Doctors, unlike physiotherapists, are trained not to believe everything the patient tells them!!” The treating rheumatologist also disagreed with the possibility of disc pathology. However, six months later and three weeks before the case went to court, the defendant’s medical expert requested a scan of the lumbar spine. This showed a significant central disc prolapsed at the L5/S1 level of the spine as suggested by the physiotherapist in her report of the previous August. This case is just one example which highlights the relevance and contribution of the physiotherapy skills that may change, challenge and in other instances further support medical opinions in legal cases. q • Blackheath Medico Legal Services is a gradually expanding panel of experienced physiotherapy clinicians who can provide opinions and medico legal reports on a range of clinical areas for civil matters. Their areas of expertise include musculo-skeletal and neurological conditions as well as adult and paediatric neurological disorders, work related and manual handling problems, whiplash, spinal conditions and sports injuries. All of Blackheath’s panel of experts are members of The Chartered Society of Physiotherapists and are registered with The Health Professions Council. They are able to provide extensive advanced level post-graduate qualifications and experience. For further information visit www.blackheathmedicolegal.co.uk or email email@example.com. www.yourexpertwitness.co.uk
Dental profession voices on-going issues with contract pilots ‹ CONTINUED ENGAGEMENT between the Department of Health (DH) and
the dental profession is vital if issues with pilots for the reform of contractual arrangements in England are to be resolved, the British Dental Association (BDA) has reiterated. The warning follows the publication of a new report: NHS Dental Contract Pilots – Learning after two years of Piloting. It identifies an overall health gain for patients at participating practices, but warns that many are struggling to maintain the number of patients they are able to see, particularly initially, as patients undergo the detailed oral health assessment that is being trialled. Some pilot participants also raised practical concerns around the software being used, pointing to the need to sometimes override the system, the large amount of colour printing involved in producing care plans and some of the language in the plans not being patient friendly. Also identified are repercussions for use of the skill mix in dentistry, with the important role of Dental Care Practitioners in the delivery of the care pathway the pilots are trialling being noted. Such arrangements present particular challenges for smaller practices, the report warns. Dr John Milne, chair of the BDA’s General Dental Practice Committee, said: “This is an interesting and useful report and I urge all those with a stake in the future of NHS dentistry in England to read it. It identifies a number of complex learning points that must be addressed by continued dialogue between the Department and the profession before wholesale reform can be implemented. “It is important that engagement continues as all parties strive for new arrangements that work for practitioners and patients alike. The profession has endured the difficulties created by the 2006 contract for what feel like eight very long years and GDPC will continue to press hard for the delivery of new arrangements.” q
Mouth cancer sufferers wait longest to present ‹ MOUTH CANCER CAMPAIGNERS the British Dental Health
Foundation believe survival rates from the disease could plummet following an investigation into the amount of time people wait before seeking medical help. The research revealed those displaying the early warning signs of mouth cancer are more likely to put themselves at risk by waiting longer before seeking professional diagnosis than any other form of cancer. The study, published in the International Journal of Cancer, discovered people waited almost a month between spotting mouth cancer symptoms and visiting their GP, a delay that could be crucial to their survival. The British Dental Health Foundation identified that 51% of people would wait four weeks or more to seek medical advice if they had a non-healing ulcer, a classic sign of the disease. The statistics highlight a worrying lack of awareness when it comes to identifying mouth cancer symptoms. Chief executive of the British Dental Health Foundation, Dr Nigel Carter OBE, stressed the
Illegal tooth whitener prosecuted
importance of knowing the signs and symptoms of one of the fastest growing cancer variations. Dr Carter said: "It is of great concern that people wait almost a month before seeking medical advice about their symptoms. It also points to a lack of knowledge about what the signs and symptoms actually are. “The challenge in relation to mouth cancer is to ensure that, due to the very nature of the disease, patients are seen quickly. Most people with mouth cancer present as late as stage 4 – the most advanced stage, where time is of the essence in potentially saving a life. “This makes early detection absolutely crucial in transforming survival rates. Those leaving their symptoms for such a long period of time are potentially risking a late diagnosis, something that reduces five year survival rates to as low as 50%. With the benefit of early diagnosis, survival rates can increase to up to 90%.” In 2012 a report from Cancer Research UK showed oral cancer to be one of the few forms of cancer expected to increase in coming years. It was followed by a plea for dentists to be more aware of the symptoms and to refer early. According to a report in November last year by the British Dental Health Foundation, almost three in every four cases of oral cancer are spotted by the dentist, yet many people are unaware their dentist even checks for mouth cancer. It quoted a survey by OnePoll, revealing that 60% don't realise their dentist checks for mouth cancer, with a further 33% unaware they check for general health issues. q
‹ THE GENERAL DENTAL COUNCIL (GDC) has successfully
prosecuted a non-registrant for unlawfully practising dentistry, namely tooth whitening. On 5 February 2014 Michael Flanagan pleaded guilty at Nottingham Magistrates’ Court to unlawfully practising dentistry in Nottingham on 10 January 2012, contrary to Section 38 (1) and (2) of the Dentists Act 1984. Mr Flanagan was given a conditional discharge, ordered to pay £355 in compensation and a £15 victim surcharge. He was also ordered to pay costs to the GDC of £1,000. Only dentists, dental hygienists and dental therapists (working to the prescription of a dentist) can carry out tooth whitening. A High Court decision last May confirmed that tooth whitening is the practice of dentistry and should only be undertaken by registered dental professionals. This case follows two previous prosecutions by the GDC last year. q www.yourexpertwitness.co.uk
CCTV/VIDEO/IMAGE ANALYSIS BUILDING, PROPERTY & CONSTRUCTION
CHARTERED FINANCIAL PLANNERS
COMPUTER & MOBILE FORENSICS
VEHICLE & ROAD TRAFFIC ISSUES
VOICE/SOUND TRANSCRIPTION & ANALYSIS
WOOD & TIMBER
MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY
OBSTETRICS & GYNAECOLOGY
ORAL & MAXILLOFACIAL SURGEONS
PHYSICIANS ORTHOPAEDIC SURGEONS
PAIN MANAGEMENT PODIATRIC CONSULTANTS
Your Expert Witness Magazine Issue No. 28 The Solicitors Choice