Your Expert Witness Issue No.30

Page 1

www.yourexpertwitness.co.uk


www.yourexpertwitness.co.uk


Liver expert famed for plane crash transplant ‹

WHILE WORKING AT THE Queen Elizabeth Hospital in Birmingham in 2010, leading liver expert Simon Bramhall was involved in the dramatic transplantation of a liver that had been on board a private jet that crashed in fog at Birmingham International Airport en route to the hospital. According to Mr Bramhall, the recipient would ‘certainly have died’ without the liver, which mercifully survived the crash unscathed. With around 10-15 instructions per year as an expert witness in his specialist area, which covers the whole spectrum of liver, biliary and pancreatic surgical matters, Mr Bramhall carries out medico-legal work in criminal cases in addition to medical negligence work. His client base is reasonably evenly split between claimant and defendant. Mr Bramhall was a consultant surgeon at the liver unit of Queen Elizabeth Hospital between 2002 and 2014, performing liver transplantation, pancreatic cancer surgery and liver surgery. He is now a consultant general/upper GI (HPB) surgeon. In addition to his surgical duties, Mr Bramhall has been involved in tutoring and examining medical students and supervising postgraduate students in higher degrees, management and research. He has published peer review papers, abstracts and book chapters and also has given presentations and invited lectures nationally and internationally. He is a member of the West Midlands Surgical Society, the Midland Gastroenterological Society, the Association of Surgeons of Great Britain and Ireland and the Association of Upper GI Surgeons. q

Surgical expert has an international reputation ‹ CONSULTANT SURGEON MR LUKE MELEAGROS has extensive

experience as a medico-legal expert – on average he completes two to three expert reports per week. He is instructed mainly by solicitors on behalf of NHS Trusts and the NHS Litigation Authority, but he also acts on behalf of claimants in medical negligence. He has acted as joint expert in some medical negligence cases. Mr Meleagros is a consultant surgeon at North Middlesex University Hospital, where he specialises in gastrointestinal and general surgery. His expert reports cover a wide range of cases of alleged negligence, in particular those involving abdominal and colorectal surgery. He has also reported on cases involving deep vein thrombosis and nerve injury. In 2006 he was the joint author of a report published in the Journal of the Royal Society of Medicine on the potential dangers of stomach and abdominal conditions associated with the misuse of cocaine. The article was widely reported in both the medical and general press around the world. Mr Meleagros is a member of the Association of Surgeons of Great Britain and Ireland, the British Association of Surgical Oncology, the Society for Academic and Research Surgery, the British Society of Gastroenterology and the British Medical Association. He regularly takes part in conferences and seminars for expert witnesses. q

www.yourexpertwitness.co.uk


contents IN THIS ISSUE 7

9

Opening Statement

NEWS 8 UK forensics company offers insights into James Foley murder 8 New expert guidance issued 8 Conspiracy theories need no explanation 9 Crime survey shows another fall, while reported crime remains steady 9 Law Society awarded special status by UN HEALTH AND SAFETY 10 Health and safety practitioners hail 40 years of legislation 11 Conference will discuss Act’s influence 12 You the jury – construction industry asked for verdict in mock trial 13 Many a slip… BUILDING & PROPERTY 14 Expert surveyors get new guidance 14 Rental code aims to drive up standards 15 Surveys of historic and listed properties – experience required!

10

FINANCE 16 Member states must do more to combat fraud 16 Fraud becomes more systemised 17 Money laundering – new EU directive wends its way towards the statute books ANIMAL & VETERINARY ISSUES 18 The impact of European Legislature on the welfare of animals TREES & FORESTRY 20 Professional tree planting – successfully establishing the next generation of trees FAMILY ISSUES 21 Children to be seen and heard in Family Court

13

TRANSLATION & INTERPRETING 23 Language barriers are still getting in the way of justice 25 World congress calls for protection of interpreters 25 New Patent Court brings added need for translation to London

A to Z WEBSITE GUIDE 26 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

EXPERT CLASSIFIED 61 Expert Witness classified listings 63 Medico-legal classified listings

Your Expert Witness

Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising: 0161 710 3880 Editorial: 0161 710 3881 Subscriptions: 0161 710 2240 E-mail: ian@dmmonline.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher.

4

www.yourexpertwitness.co.uk

1YWG


www.yourexpertwitness.co.uk

MEDICAL ISSUES 29 Medical Notes

38

NEWS 30 Francis Review seeks the views of those on the front line CULTURAL ISSUES FOR THE GP 31 Culture matters – mind the gap! RHEUMATIC DISORDERS 33 Does trauma cause arthritis? NURSING HEALTHCARE 34 Keeping in touch with day to day issues is vital for expert witness role DRUG AND ALCOHOL ISSUES 35 The price of success in sport! Justice or travesty? 38 Reducing the drink drive defences 40 Food glorious food… or is it? DNA PROFILING 41 Does DNA need context?

43

VASCULAR ISSUES 43 Limb ischaemia – repairing the arteries NOISE-INDUCED HEARING LOSS 47 Hearing claims can be successful even years after exposure 47 Regulations protect workers MEDICAL PHOTOGRAPHY 49 Personal injury photography in the operating theatre OPHTHALMOLOGY 50 Avoiding complications in blepharoplasty 51 Ophthalmologists respond to NHS challenge 51 Laser surgery investigated by Which? PSYCHOLOGICAL ISSUES 53 Psychological injury in clinical negligence peri-traumatic stress 55 One new drug a week puts health services under pressure

47

UROLOGY 57 The role of the expert witness in urology GYNAECOLOGY 59 MPs and doctors unite against FGM 59 Trust settles in ‘lack of consent’ case SPEECH AND LANGUAGE THERAPY 60 Research studies language development in Wales 60 Royal College submits evidence to child exploitation inquiry

www.yourexpertwitness.co.uk


www.yourexpertwitness.co.uk


Opening Statement ‹ THIS YEAR SEES THE 40th anniversary of the legislation that is widely credited with saving countless

lives across a multitude of industrial sectors. The Health and Safety at Work Act 1974 brought together the many strands of legislation covering various industries into a single, risk-based Act requiring industry to operate in the best interests of its workers. In the ensuing decades the Act, and its associated pieces of legislation, have been the bedrock for ensuring those who flout the safety of their workers can be successfully prosecuted and the victims of their negligence compensated. The legislation also saw the establishment of the Health and Safety Executive, which has run many campaigns. One such was to highlight the risks of slips and trips in any area of work. Now experts can assess with accuracy the ‘slipperiness’ of any surface, as explained by Dr Rajen Lavingia, senior civil engineer with Cadogans. • Reforms to the way the Family Court operates have been introduced over the past year or so, with the emphasis on speedy resolution as against countless reports. The latest to be announced will enable the children involved in family disputes to express their feelings on what is happening to them. The announcement was made by Family Justice Minister Simon Hughes. • Despite continuing controversy over the working of the contract to provide court interpreters, there is a continuing need for the services of skilled language experts. In particular, translators may find a windfall in the establishment of an arm of the European Patent Court in London. • Such a safe environment is not enjoyed by all interpreters and the International Federation of Translators has called for interpreters working in conflict zones to be protected. It is a sad fact that many innocent people working for justice and peace in such places are under threat, as demonstrated so hideously by recent events in Syria. Expertise is being brought to bear to ensure the perpetrators are identified, caught and punished. • Funding terrorism is one of the principal evils of the international crime of money laundering. No one state is capable of combatting the problem, so the reaching of agreement in the Council of Europe for a fourth directive on the issue is an important step forward. Constant updating of measures is needed as the crime itself does not stand still. As the British barrister who is the ‘shadow rapporteur’ for the directive said in a speech: “Money laundering may seem like a less dangerous form of crime in some people’s minds, but in reality it goes right to the heart of criminality in Europe. These offences fund some of society's worst crimes such as terrorism and drug smuggling, and indeed people smuggling as well.” • Back at home, property prices are back in the news – this time for being on the rise. So surveying a property is becoming more and more important. Getting expert advice in that area is particularly vital when the property is listed or historic and bound about with legislation. David Ensom, of chartered surveyors Hall and Ensom, offers some advice for purchasers. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

www.yourexpertwitness.co.uk


New expert guidance issued ‹ IN AUGUST THE Civil Justice Council published

new guidance for the instruction of experts in civil claims. It is not formally in force at present, although it is intended that it should replace the Protocol on experts which currently forms part of Practice Direction 35 of the Civil Procedure Rules. The guidance was issued in anticipation of the Protocol’s removal from the Practice Direction in the autumn, after which the guidance will then be in force. The new guidance runs to 92 paragraphs, including a number of additions made after initial publication. The full text of the new guidance is available to download from the website of the Civil Justice Council at www.judiciary.gov.uk/new-guidance-forinstruction-of-experts. R

UK forensics company offers insights into James Foley murder ‹ THE BRUTAL MURDER of American journalist James Wright

Foley has been the subject of a lot of analysis in the press and in public debate. The evidence from the video released by his murderers has also been the subject of extensive review by audio experts at Afentis Forensics, with particular emphasis on the suspect’s voice. As has been widely reported, the individual possesses a clear British accent. Moreover, according to material published by Afentis: “The pronunciation and intonation suggest an individual who has been raised or spent substantial time in or around London. The speaker uses a variety of English terms which would further suggest a southern England connection, perhaps through family or relationship ties. There are phonetic indications that the individual comes from a multi-ethnic area of inner London, with intonations that possibly denote AfroCaribbean links. “The harmonics, patterns, rhythm, intonations, fundamental

frequencies, vowel formants and their transmission characteristics all combine to make a relatively unique voice. By breaking down the speech into its fundamental components, a ‘voice print’ can be created. This could then be compared to audio from other websites, social media accounts or even against intercepted telephone conversations.” A further, surprising element of the evidence is provided by a senior expert at Afentis, Ross Patel, who told CNN that a second individual appears in the video after an edit. “There’s definitely a change of actor, a change in the physique of the individual standing next to the deceased. There are subtle, but noticeable changes in their build, their physical appearance,” he said. A myriad other clues have been or are being analysed to piece together the identities of the people involved, as well as identifying the location of the crime. It is that kind of meticulous attention to detail that is the stock in trade of Afentis. R

Conspiracy theories need no explanation ‹ CONSPIRACY THEORIES FLOURISH

even when there is no official explanation to react against – that was the finding of a psychologist who has examined reactions to the disappearance of Malaysia Airlines flight MH370, the passenger jet that vanished without trace in March. Dr Karen Douglas from the University of Kent presented her research to the annual conference

8

www.yourexpertwitness.co.uk

of the British Psychological Society’s social psychology section in Canterbury in September. Dr Douglas asked 250 participants to rate their agreement with a range of conspiracy explanations for the disappearance of MH370. They were also asked to rate their agreement with well-known conspiracy theories, such as those about the 9/11 attacks and the death of Princess Diana. Participants were also asked to

complete psychological measures of personality variables. Said Dr Douglas: “Results confirmed that people who believe in MH370 conspiracy theories also endorse other well-known conspiracy theories. However, the psychological predictors of conspiracy beliefs may be the same whether an official explanation has been established or not.” R


Crime survey shows another fall, while reported crime remains steady ‹ LATEST FIGURES FROM THE Crime

Survey for England and Wales (CSEW), published by the Office of National Statistics (ONS) in July, show that there were an estimated 7.3 million incidents of crime against households and resident adults (those aged 16 and over) in England and Wales for the year ending March. This represents a 14% decrease compared with the previous year’s survey and is the lowest estimate since the survey began in 1981. The CSEW covers a broad range of victimbased crimes and includes crimes which do not come to the attention of the police. Decreases were evident for most major crime types compared with the previous year – violence saw a 20% fall, criminal damage fell by 17% and theft offences decreased by 10%. In contrast, according to the ONS, police recorded crime shows no overall change from the previous year, with 3.7 million offences recorded in the year ending in March. Prior to that, police recorded crime figures have shown year-on-year reductions since 2002/03. While both series have shown falls in crime since 2002/03, police recorded crime has fallen at a faster rate than the survey, particularly between 2006/07 and 2011/12. This has raised questions about the quality of crime recording by the police. For the most recent year, the pattern has changed, with the recorded crime series showing a similar level of crime compared with

the previous year while the survey continues to fall. The renewed focus on the quality of crime recording by the police is likely to have prompted improved compliance with crime recording standards in some police forces, leading to a higher proportion of reported crimes being recorded. This is thought to have particularly impacted the police recorded figures for violence against the person (up 6%) and public order offences (up 2%). The number of police recorded shoplifting offences showed a 7% increase compared with the previous year. Anecdotal evidence from police forces suggests that this rise is likely to be a result of a genuine increase in crime rather than any change in recording practice.

There was also a large increase in the volume of fraud recorded, 17% up on the previous year, though it is difficult to judge to what extent that reflected an improvement in recording practices, an increase in public reports or a rise in actual criminality. Sexual offences recorded by the police saw a 20% rise from the previous year and continues the pattern seen in recent publications. That rise is thought to be related to the effect of the Operation Yewtree investigation, connected to the Jimmy Savile inquiry, whereby more victims are coming forward to report offences to the police. Improved compliance with the recording standards for sexual offences in some police forces may also be a factor. q

Law Society awarded special status by UN ‹ THE LAW SOCIETY has been granted special consultative status

by the United Nations. It provides the representative body for solicitors in England and Wales with unprecedented access to member states and the United Nations’ system. The society will have scope to collaborate with member states on issues including human rights and the rule of law, as well as to have input into discussions on the UN’s agenda on an international and domestic level. Consultative status for an organisation allows it to engage actively with the Economic and Social Council of the UN and its subsidiary bodies, as well as with the United Nations Secretariat, programmes, funds and agencies in a number of ways. The Law Society will be able to: • Provide expert information and advice to the UN • Be informed about the provisional agenda of the Economic and • Social Council • Make suggestions for the provisional agenda • Designate official representatives to the United Nations • headquarters in New York and the United Nations offices in Geneva • and Vienna. Law Society president Andrew Caplen said: “We are thrilled to have been granted special consultative status at the UN. The recognition

of the Law Society as an organisation that can provide insight and expertise will further our work upholding the independence of the legal profession, the rule of law and human rights on a domestic and international level.” q

www.yourexpertwitness.co.uk


Health and safety practitioners hail

40 years of legislation

‹ ON 31 JULY 1974 Royal Assent was given to the Health and

Safety at Work Act and 40 years later the anniversary was marked by a myriad organisations whose purpose it is to promote the health and well-being of the workforce. Among them is a body of experts who have developed a comprehensive support network for the still too many workers injured in the course of their jobs. That body of experts now forms one of the most experienced groups of expert witnesses available to the courts to help determine the culpability or innocence of the parties involved. The TUC described the Act as ‘one of the most important and

10 10

www.yourexpertwitness.co.uk

successful pieces of workplace legislation ever’. In those 40 years, the TUC said, the number of fatalities in the workplace has fallen by 85%, while the number of injuries at work has fallen by 77%. The anniversary was also marked by the British Safety Council. That organisation pointed out that the main headline of the September 1974 edition of its Safety and Rescue publication read Work safety: A new era begins. The BSC averred: “The evidence since then does indeed support this headline. The dramatic reduction in workplace injuries and ill health over the last 40 years is attributable to the creation of an independent


and unified regulator, HSE, the duty placed on all employers to ensure the health, safety and welfare of all of their employees and the active involvement of employers and trade unions. This important legacy of the 1974 Act is still going strong 40 years later.” Its chief executive Alex Botha commented: “At the heart of the 1974 Act is the principle that those who create the risk of injury and ill health in the workplace must manage the risks. The 1974 legislation has attracted admiration and emulation across the globe and provided the model for many other regulators.” That principle was also highlighted by the chair of the HSE, Judith Hackitt. Writing in her regular blog in February, she said: “The 1972 Robens Report concluded there were too many regulations and that what was needed was a regulatory regime that set broad, nonprescriptive goals for dutyholders, underpinned by a fundamental principle – those that create risk are best placed to manage it. “The Act that emerged from his review swept away detailed and prescriptive industry regulations; it created a flexible system where regulations describe goals and principles, supported by codes of practice and guidance. Based on consultation and engagement, the

Conference will discuss Act’s influence

new regime was designed to deliver a proportionate, targeted and riskbased approach.” Commentators also looked to the future of the legislation, identifying areas where there had not been so much success. Alex Botha continued: “Going forward we need a legal framework that is flexible and one that can adapt to changing risks. We cannot stand still. There remains so much to do including tackling the thorny issues around health and wellbeing – the sometimes forgotten part of the health and safety equation.” The TUC’s Francis O’Grady echoed that view. She said: “While the Act has been successful in bringing down deaths and injuries in the workplace it has been less effective at preventing occupational diseases such as cancers, asthmas, dermatitis, back pain and lung diseases. This is still a massive problem and I hope that the Act will be used much more vigorously to address this challenge in the years to come.” She also sounded a note of caution regarding recent developments aimed at ‘simplifying’ the regulations and removing so-called red tape, adding: “Unfortunately the present government is hell-bent on chipping away at the Act by removing large numbers of self-employed from its coverage. “Ministers are planning to replace its universal coverage with complex new rules about which self-employed workers are covered and which are not. This will create huge challenges for employers, workers and regulators. “Few pieces of legislation can be seen to have been as effective as this Act. We should be celebrating its 40th birthday and thanking those who drafted it.” Judith Hackett added her own tribute, saying of the Act: “Arguably it is one of the best pieces of legislation on the statute books – although we know it is often misunderstood and misinterpreted. It has protected millions of British workers and driven sharp reductions in incidents of occupational death, serious injury and ill health.” q

‹ ON 4 DECEMBER the Faculty of Occupational Medicine

of the Royal College of Physicians will be holding a conference on the 40th Anniversary of the Health & Safety at Work Act. The conference will be held at the Royal College of Anaesthetists in London and will ‘examine the seismic shift in the health and safety landscape’ in the four decades since the Bill was enacted. As well as focussing on the progress made since the passage of the Act, there will also be assessment of the work that is yet to be done. Speakers planned for the day include Sir Anthony Newman Taylor, Principal of the Faculty of Medicine at Imperial College London, who will speak on asbestos, and Professor John Cherrie, director of research at the Institute of Occupational Medicine, who will examine occupational cancer. Speakers lined up from industry include Dr Paul Williams, group medical director of JCB, and Professor Neil Budworth of AMEC. q

www.yourexpertwitness.co.uk

11 11


You the jury: construction industry asked for verdict in mock trial ‹ COMPANIES FROM THE construction industry and its

associated trades were invited to a mock trial in September to give their verdict on a fictitious health and safety prosecution. The free event, organised by the West Midlands Working Well Together group with support from the HSE, Birmingham Health, Safety and Environment Association and law firm Pinsent Masons, took place at the University of Wolverhampton Science Park. The ‘trial’ focused on a fictional prosecution arising from an incident where an employee of a painting and decorating firm, working on a refurbishment project, suffers serious injuries after falling from height. The case was heard by a magistrate and prosecuted and defended by qualified legal professionals as it would be in a real court case. Those attending were asked to decide if the company and its director were guilty or not guilty. Following the verdict there was a discussion on the case outcome and an opportunity to ask questions. According to HSE, falls continue to be the biggest cause of fatal injury in Britain’s workplaces, accounting for more than half of construction workplace deaths. In 2012/13, 25 of the 47 worker deaths in construction were the result of falling from height. On top of that, more than 4,000 major injuries such as broken bones or fractured skulls are reported to HSE each year by the construction industry. More than half of these serious injuries involve falls from height or from tripping over materials on walkways and are, says HSE, easily preventable. Acting principal health and safety inspector Amy Kalay said: “Protecting the health and safety of employees is an essential part of risk management.” Commenting on the mock trial she added: “It was a real eye opener for those attending, giving a detailed insight into what happens when someone has to answer to the courts because a worker has been injured.” q

12 12

www.yourexpertwitness.co.uk


Many a slip… By DR RAJEN LAVINGIA, Cadogans

‹ AT SOME TIME OR other, most of us have come a cropper by

losing our footing on a slippery floor. Often the outcome is the odd bruise but much more serious injuries occur too. Last year, more than 2,900 employees in Scotland and more than 30,000 across Britain slipped, tripped or otherwise fell on what should have been a safe level surface. It is the largest cause of employment related injuries. Did you know that road signs left lying around after roadworks have caused slipping incidents? To understand the cause of a slip and what can be done to stop it happening again, the floor surface needs to be tested. The pendulum test for slip resistance is recognised by the HSE and hence by the courts. In addition, surface roughness of a floor is generally measured to complement the slip resistance results. These tests can be carried out in most locations using portable equipment.

Why is a surface slippery? The real question should perhaps be ‘why don’t you slip?’. The answer is ‘friction’. This depends on the nature of the material, its surface roughness and other factors such as cleaning, contamination, the environment, human factors and, yes, your shoes.

Microroughness test In order to achieve a low slip potential, a surface needs to have enough microroughness to break through a contaminant so that the shoe contacts the floor and not the contaminant. A rougher surface is required for oils than say water. A surface roughness meter is used to measure microroughness. This is passed over the surface and scans the variation in height of five sections each 0.8mm in length. The area tested is therefore very small, so readings can vary widely as they can be affected by, for example, a crack in a tile. An average of ten readings is taken to ensure measurements are more representative of the entire floor.

Co-efficient of friction test This test measures the slip resistance of a flooring material directly. There are various methods but the pendulum test is the HSE’s preferred method of testing because it is accurate, portable and works in the conditions where slip accidents happen. It can be used in real workplace conditions. It allows for comparison between clean and contaminated floors. It simulates the action of walking, both barefoot and in a variety of types of footwear.

The effect of flooring Flooring is probably the most important factor affecting the slip risk. It is therefore important to understand the effect of the type of flooring material, floor finish, profile and wear and tear over a period of time. Identification of the right flooring material at the initial design stage or during refurbishment can help reduce slip risk. Location, type of work, amount of pedestrian usage and type and amount of contamination are the slip risk related factors which need to be considered at the design stage.

Effect of contamination Contamination plays an equally important role in slip resistance. The HSE states that almost all slip incidents involve some form of contamination between the floor surface and the foot. Most surfaces, when clean and dry, should present a low slip risk. Contamination could come from spillages, leaks, ingress due to weather, work process or improper cleaning. It is therefore essential to identify the source of contamination and control or remove it. In many cases, simple engineering solutions or minor changes in the system of work can achieve this. Contaminants can be divided in three categories: • Fluids – water, oil, milk etc. • Dry – brick-dust, flour, sand etc. • Semi-solids – fruit, chips, dough etc. Slip resistance is affected by the individual properties of each type of contaminant.

Can slipperiness be measured? Slipperiness is a function of frictional resistance of the surface material. As a result, it is possible to measure the slipperiness of a surface. The assessment is made based on the results of testing both microroughness and co-efficient of friction.

Using the equipment (pictured above) requires training and care to ensure that accurate results are achieved. The test is repeated several times. The results are measured in a unit called PTV which is about 100 times the co-efficient of friction. The HSE classifies slip potential of pedestrians walking in a straight line on a level surface in three categories – low, moderate and high – based on the value of the PTV. q • Dr Rajen Lavingia is a senior civil engineer fully trained in measuring slip resistance and preparing reports on slipping incidents. Cadogans accepts instructions relating to engineering and health and safety matters, large and small, from within the United Kingdom and abroad. For details of Cadogans’ full range of services and specialist expertise please contact them by telephone, email or fax or visit their website www.cadogans.com. www.yourexpertwitness.co.uk

13 13


Expert surveyors get new guidance ‹ NEW GUIDANCE CAME into effect

in July for surveyors who provide expert evidence to be relied upon in civil proceedings before a wide range of tribunals. The document, published by the RICS and available for use by its members, explains the need for clear instructions and terms of engagement and outlines the format of a written report. It also clarifies the differences between the roles of expert and advocate, gives guidance on what to do in situations of

conflict of interest and helps remove pressure upon experts to support their clients’ cases irrespective of their honest professional opinion. Announcing the publication of the guide, RICS said: “This practice statement is also published in the form of an accompanying client guide, a copy of which can be supplied by the expert witness to the prospective client. This guide may be provided without copyright permission, however the expert witness must

make clear to the prospective client that his/ her copy is for his/her use only, and that any reproduction of the guide for the use of a third party would breach RICS copyright.” q

Rental code aims to drive up standards ‹ A NEW Code of Practice has been launched to drive up standards and quality in the

residential private rented sector. It is being promoted by 17 leading organisations in the sector and was developed at the request of the Department for Communities and Local Government and facilitated by RICS. The initiative emerged in response to the high number of privately rented homes in the UK failing to meet the English housing survey standards. It outlines mandatory and recommended best practices for landlords and lettings agents to improve the stock of privately rented homes. Welcoming the publication of the document, Housing Minister Brandon Lewis said: “The private rented sector plays a vital role in our housing market, providing a flexible option for millions of people across the country. The last thing we want to do is strangle it in red tape – but tenants and landlords should have confidence that they will be treated fairly. “Today’s package of measures is designed to do just that, putting power in the hands of people to get the deal they deserve, without punishing the vast majority of good landlords and still encouraging more investment in the sector.” q

14 14

www.yourexpertwitness.co.uk


Surveys of historic and listed properties – experience required! By DAVID ENSOM of Hall and Ensom

‹ WE ALL LIKE old buildings, even if we have no direct interest in architecture. Many of us buy period homes for their character and sense of history, and the wise buyer has a full Building Condition Survey carried out prior to purchase. But how does a buyer know the surveyor has adequate experience? And how many surveyors turn down the opportunity to inspect a large attractive building because they don’t actually have the experience and knowledge required? Only once in 32 years have I come across a surveyor who walked away from a survey because he knew he couldn’t do it. Arriving at the property he quickly discovered that behind the 1920’s façade was a much older timber framed building and since he had no experience of such construction, he rang his client and recommended they seek another surveyor. Having seen a few survey reports I believe there are others who should do the same. Whether the building is of timber frame, masonry, stone, clunch or straw bale construction, the surveyor needs an in depth understanding of the materials, their characteristics and historic forms of construction. Applying knowledge of, say, cavity masonry construction to a rubble filled stone wall will inevitably result in inappropriate advice being given. For example, recommending the injection of a damp proof course in such a wall could lead to a client spending large sums of money to no effect. Modern materials can harm historic properties – cement-based mortars and renders being the prime examples – and reports which fail to identify their incorrect use may allow deterioration of the building fabric to continue.

It is all too easy for a surveyor to recommend the employment of damp and timber treatment specialists when he or she lacks the knowledge to analyse the evidence of their own inspection and provide reasoned advice. Intrusive damp or timber treatment may be completely inappropriate and unnecessary. Virtually every property dating from the 19th century or earlier is going to have ‘defects’ as judged by modern standards. The experienced surveyor will be able to put the defects in context and advise on appropriate methods of repair – or on how to simply live with the issue. Not all damp can be solved and buyers sometimes need advising on how to live with a degree of damp. Some signs of defects can be hard to

Typical sign of dry rot in skirting board which had spread behind plaster to the next room

Use of cement based mortars causing damage to soft stone

Floor joist with virtually no end support identify. I’ve seen reports which have overlooked the small tell-tale signs of dry rot – a potentially expensive oversight. Another missed the signs of movement in an old timber frame, where the floor joists barely rested in the mortises (or sockets) in the primary supporting beam. Of course, some defects may be hidden altogether so it would be unreasonable to expect the surveyor to identify them. But a surveyor with experience of repairing and refurbishing historic properties will know of the dangers of, for example, rot in the heart of a timber beam or the lack of adequate connections between masonry walls and old timber partitions. Advising the client of the hidden risks of buying a neglected old property is as valuable as a list of evident problems and their solutions. Lack of knowledge of listed building legislation and its implementation can allow unapproved alterations and repairs to go unrecorded. A purchaser may thus find himself liable for the errors and omissions of past owners and be handicapped when negotiating further works with the local conservation officer. The quality of survey reports would improve, and the number of claims reduce, if surveyors were more selective about the commission they took on – and clients selected their surveyors with more care. q

David Ensom BSc MRICS

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

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

www.hallandensom.co.uk www.yourexpertwitness.co.uk

15 15


Member states must do more to combat fraud ‹ MEMBER STATES MUST step up their work to prevent, detect and report fraud affecting EU funds, according to the European Commission’s annual report on the protection of financial interests, published in July. The report found that detected fraud in EU spending accounted for less than 0.2% of all funds. However, the Commission believes that greater efforts at national level, both on combatting and detecting fraud, should be deployed. On the positive side, the report notes that good progress is being made at national level to implement new rules and policies which will strengthen the fight against fraud in the years ahead, according to a release issued by the Commission. Algirdas Šemeta, Commissioner for Taxation, Customs,

Statistics, Audit and Anti-Fraud, said: “In the last five years, the Commission has taken the fight against fraud to a new level. Our commitment to protect citizens’ money from fraudsters is clear from the tough and ambitious new rules, initiatives and frameworks we have put forward. “Now it is time for Member States to play their part more effectively. They need to step up their game in preventing, detecting and prosecuting those who try to de-fraud the EU budget.” According to the report, fraud affecting the EU budget decreased slightly in 2013 compared to 2012. On the expenditure side, €248m in EU funds were affected by fraud, compared to €315m the previous year. On the revenue side, suspected or confirmed fraud amounted to €61m, compared to €77.6m. q

Fraud becomes more systemised By DEREK WILLIAMSON, forensic accountant at Goddards Chartered Accountants

‹ A RECENT ARTICLE IN the news showed that the average age

of fraudsters is falling – and that they are becoming better educated in software systems and solutions than their employers. As a result, employers are left unaware that fraud might be being carried out right under their noses. Many solicitors, when defending clients, will be wondering how and why their clients were able to commit these frauds. With modern technology, it is quite easy to put a trace on an employer’s computer that will enable a fraudster to access all logins and passwords. Unless the employer has loaded key computers with anti-access software, he will be unaware that he could be being hacked by employees – or even be under attack from outsiders who have sent an ‘innocent’ email which, when opened, accesses data or contains a virus. Modern firewalls, if maintained and updated, usually block all such unwanted emails thus restricting potential fraud to employees. A popular form of fraud at present requires conspiracy with a supplier who issues inflated invoices which are approved by the relevant employee. Once payment has been made, the supplier then raises an internal credit note and shares the credit with the fraudulent employee. In a recent case, the defendant was found guilty of defrauding in the region of £100,000 of his employer’s money over a number of years. Another example is where the employee creates his own limited company using a ‘virtual office address’ which sells non-existent goods or services. These are substantiated by purchase orders raised by the employee who then approves the invoice for payment. In larger organisations, the cheque signatory usually relies on the purchase orders and invoice approval as evidence to make payment, thus making it easy for the fraudster. When material goods are allegedly involved, the fraudster will often ‘mis-post’ a selection of purchase invoices into incorrect categories. This creates errors in the stock balance and an opportunity to slip in invoices for non-existent goods. Having defended cases like these for over 30 years, I have found that the best form of defence is to highlight the weaknesses in the systems – such as stock write offs due to mis-postings (preferably by others than the defendant) – and also to highlight problems seen continually and not ceased with the prosecution of the employee.

16 16

www.yourexpertwitness.co.uk

In fact, I have dealt with a number of cases where the problem continued after prosecution. We were able to convince the jury that the client was clearly not guilty of fraud as the problem continued after the client left. q


Money laundering New EU directive wends its way towards the statute books ‹ IN JUNE THE Council of Europe announced it had reached

general agreement on measures for inclusion in a fourth anti-money laundering directive. It follows two years of work in the council to update the measures contained in the third directive, taking into account submissions from a number of national and international bodies, including the Law Society. At the time, Internal Market Commissioner Michel Barnier said: “The agreement in Council today represents an important step towards the adoption of stronger rules to combat money laundering and terrorist financing. Europe must lead by example by putting in place a framework which focuses on greater effectiveness and improved transparency in order to make it harder for criminals to abuse the financial system. “Enhancing beneficial ownership transparency has been at the heart of the international agenda and I particularly welcome the ambition of both the parliament and member states to introduce new investigative tools. I consider that significant progress has been achieved. The Commission will now work with Council and Parliament during the forthcoming trilogues [negotiations between the three EU institutions] to agree on an ambitious and effective review package.” The package consists of two legal instruments: • A directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing • A regulation on information accompanying transfers of funds to secure ‘due traceability’ of these transfers. The proposed update of the legal rules will have to be adopted by the European Parliament and the Council of Ministers under the ordinary legislative procedure. The ‘shadow rapporteur’ for the fourth directive – a rapporteur is the MEP who presents the relevant committee’s deliberations to the parliament and oversees the progress of legislation through the various bodies – is English solicitor, Timothy Kirkhope MEP. In a speech in March, prior to the proposals being adopted by the European Parliament, Mr Kirkhope said: “Money laundering may seem like a less dangerous form of crime in some people’s minds, but in reality it goes right to the heart of criminality in Europe. These offences fund some of society’s worst crimes such as terrorism and drug smuggling, and indeed people smuggling as well. “The fight against money laundering is not an easy one. It requires often lengthy and laborious processes in following trails. It involves dedicated individuals sifting through reams of information looking for anomalies. But it’s worth it. At the end of the process they end up catching real criminals, the leaders of the crime gangs who are responsible for the vast majority of the organised crime in Europe. “Our most central aim is to make it easier for our law enforcement bodies to prevent abuse to our financial systems and to prosecute criminals. We must make it harder for illegitimate money to be hidden in Europe’s legal economy.” Speaking in an interview for the Law Society Gazette in September he said of the fourth directive: “It is designed to allow member states more proportionality in how they apply it. I hope the Financial Conduct Authority takes note and uses it to get rid of the more irksome requirements that the present directive places on banks and businesses.” One of the issues raised by the Law Society was that of removing pooled client accounts from a list of vehicles deemed to be of low risk. At the time of the proposals’ adoption in March a spokesman for the society

Money laundering may seem like a less dangerous form of crime in some people’s minds, but in reality it goes right to the heart of criminality in Europe.

Timothy Kirkhope MEP

said: “We are pleased that the European parliament has heeded our calls for pooled client accounts held by legal professionals to continue to be considered low risk for anti-money laundering purposes.” Whether that remains the case through the forthcoming negotiations remains to be seen. q

www.yourexpertwitness.co.uk

17 17


The impact of European Legislature on the welfare of animals By PAUL ROGER of Veterinary Consultancy Services

‚ CONTINUING OUR CONSIDERATION

of the impact of the European Legislature on the welfare of animals leads to an analysis of the particulars. This consideration of specific problems is an area where interpretation needs to be matched with an underlying knowledge of the common management approaches taken within the different sectors. For example, an understanding that the welfare of animals in intensive systems, such as housed broiler chickens, depends upon high levels of stockmanship and management, optimal nutrition and environment and empathetic handling. This has lead the EU to introduce the Meat Chicken (Broiler) Directive.

18 18

www.yourexpertwitness.co.uk

It introduces a novel approach to welfare law as it is based not only on measuring inputs important for animal welfare, such as the number of drinkers and space allowances, but it also requires outcome measures based on welfare assessment on the farm and in the abattoir. It means that National Competent Authorities are required to put in place

complex schemes of measuring anteand post-mortem indicators to establish how well the birds were cared for. The Directive allows for setting target levels for enforcement action. There are requirements for keepers to produce action plans to improve welfare with a reduction of stocking density if remedial measures are not shown to be effective. Improvement orders are also among the options available for enforcement. An additional complication in the assessment of farm welfare is the potential for non-compliance with some EU welfare and zoo-technical rules, resulting in the reduction of payments made under the Common Agricultural Policy. The process of establishing noncompliance often rests on the interpretation of the EU Directive, Regulation or Decision by an inspector. In such cases, the court will require expert opinion, based on a


detailed understanding of EU law, current practice and an assessment of the available evidence. This evidence may be provided by a professionally qualified veterinarian with the relevant experience to provide advice on the interpretation of EU rules. Qualitative behavioural assessment can be a useful aid in understanding the condition of animals. It provides a starting point in appreciating the need to understand welfare from a standpoint of mental well-being and not stopping when physical requirements have been met. This is a critical point and is often difficult to manage in its interpretation. Of course the final arbiter in the interpretation of European laws are the European courts but DG SANCO, on an ad hoc basis, have issued guidance on the interpretation of some EU rules. Likewise, the Food and Veterinary Office of the European Commission, in their reports on audits of Member States, have also provided opinion on how an EU rules should be implemented. The European Commission has reviewed the performance of Member States in implementing and enforcing EU welfare laws and found it is far from optimal in many countries. In its Animal Welfare Action Plan 2012-2016, the Commission has called

for the setting up of Reference Centres to advise Member States on the implementation of EU rules, education and other measures to motivate keepers of livestock to comply with EU rules and, where possible, to show they have implemented best practice. A pilot of such a welfare network was made during 2013 – EUWelNet confirmed that it was possible for such a network to meet the challenge to assist Competent Authorities to motivate and educate veterinarians and keepers to comply with EU laws. This would both improve the lives of their animals and often result in better economic returns. The legal basis of such centres is currently under consideration in Brussels. In the future they should provide yet another source of information for professional veterinarians and assist in providing advice to the legal professions dealing with cases involving EU animal welfare legislation. The need for guidance through the ethical and science base for these developing applications within the EU legislation is an area in which, through experience and involvement, Veterinary Consultancy Services can offer advice. Our directors cover a wide spectrum of interests and are happy to discuss your requirements on all aspects of veterinary

science, veterinary medicine, animal husbandry and management and on wider issues concerning the agricultural and veterinary sectors. Our next article will cover companion animals including equines. This growing sector of the market attracts interest from claims adjusters, insurers, pet and horse food suppliers as well as many active welfare-orientated charities and so remains an area of considerable interest to the legal professions. q

www.yourexpertwitness.co.uk

19 19


Professional tree planting successfully establishing the next generation of trees By MARK CHESTER of Cedarwood Tree Care

‹ WHEN WE WISH TO commemorate an important occasion, such

as the birth of a child or an anniversary, planting a tree is often a popular way to do this. The Queen’s Diamond Jubilee in 2012 was marked by the creation of 60 new woodlands by the Woodland Trust and similar activities are happening this year to commemorate the centenary of the start of World War l. Tree planting is also associated with regeneration projects and often accompanies artist impressions for proposed developments. However, with some 25% of new trees in public spaces failing to become established, and many others struggling to reach their potential, something is going wrong. Earlier this year, BS8545 Young Trees: From Nursery to Independence Within the Landscape was published. This pioneering new document provides detailed best practice across the seven areas involved in successfully establishing young trees. I have also been working on a new course, the Lantra-endorsed Young Trees: Achieveing Longevity In the Landscape which develops the themes more fully. I have come to appreciate that what happens below ground is as important, if not more so, as that which happens above ground. Trees don’t necessarily need soil to grow well in, but they do require a suitable growing media. Research in Sweden has found that trees native to Stockholm thrive on building waste. This is because the material does not compact, and so remains well aerated, and water filtering through is able to dissolve the building waste, releasing minerals stored within it. I am not advocating planting trees here in the UK on building waste, but the research has highlighted the importance of getting air to the roots which, lacking chlorophyll, are unable to photosynthesis and so need to respire. There is a misnomer that, in ideal circumstances, tree roots will mirror the branches – being deep, but possibly not beyond the crown spread. Whilst roots can penetrate to depths of several metres and more, this is not the norm. Most roots are found in the top 600 to 1,000mm of soil and they prefer to spread out often well beyond the crown spread. Much work has been done in the past decade in developing systems using crates which can contain the growing media without it becoming compacted, yet can withstand weights of several tonnes. This is enabling trees to be planted within car parks and alongside road ways. This approach has facilitated quality landscaping schemes to be installed within retail developments, alongside delivery and parking infrastructure. However, whilst it is important to provide trees with a suitable environment in which to grow, the journey begins much earlier, on the nursery. Trees are grown either from cuttings or seeds. When propagating from cuttings, usually the grower will attach the cutting to an existing root, growing from a different plant. This is an important part of the journey. If the attachment is weak, then the resulting tree is likely to fail, although this may not happen until it is much older. The choice of the rootstock is also important as some are not compatable with the cutting, a problem again that may not become apparent until much later. Regardless of the production method, the development of good, healthy and vigorous roots is key to successfully establishing a young tree. If a tree is being grown in the field, its roots should be cut every two years to encourage fibrous growth, whilst container stock needs to be re-potted on a similar basis. With container grown trees, the failure to do this often results in the roots becoming crowded and beginning to encircle the root ball. With time, they will suffocate the tree. Affected trees tend to snap at the base where the trunk has become constricted. Plants from garden centres can be particularly vulnerable to this, especially if they are kept on site for an extended period. The more reputable producers and retailers keep records of how long stock has been growing in the current container, and will be willing to cull plants which have been in

20 20

www.yourexpertwitness.co.uk

their container for too long, although this is a costly approach. Having ensured that the site conditions are suitable for the young tree, and that it has been grown in accordance with best practice, the next element in the process is species selection. Whilst aesthetics are naturally important, other elements such as size when mature, suitability to the site and the role of the tree also need to be considered. There is little purpose choosing a tree sensitive to salt in a coastal setting, or a specimen with a height of only several metres when planting around a car park with the need for sight lines. Similarly, if you wish to leave a legacy, it is better to choose a longer-lived tree such as Lime, London Plane or Beech rather than a shorter-lived ornamental such as a Japanese Maple. There are other factors to be considered, but the final one for here is one of the major causes of young tree failure: watering, either too much or too little. If a tree is over-watered, the roots can drown from loss of oxygen. Too little water, and it will dehydrate, desiccate and die. Planting in a pit with a permeable base and sides will help. Regular monitoring during the important first and second years is key to enabling this asset to become established and to be the feature you planned in the first place. q • Mark Chester is an independent arboricultural consultant specialising in Amenity Tree Valuations, Tree Preservation Orders and advising on planning applications involving trees.


Children to be seen and heard in Family Court ‹ CHILDREN ARE TO BE given a greater

voice in the family justice system so they can tell judges how they feel and what they think about the family disputes they are involved in. The government has announced a commitment that, from the age of 10, children and young people involved in all family court hearings in England and Wales will have access to judges to make their views and feelings known. The announcement was made following calls from young people’s representative group, the Family Justice Young People’s Board, that for too long children have been pushed and pulled through the family justice system with little or no say on what happens to them. Family Justice Minister Simon Hughes said: “Children and young people must by law have their views heard before decisions are made about thgeir future, and where decisions are made that will impact on them. At the moment, it is still too often that their views are not heard.

“Our commitment to giving children the chance to speak to a judge and make clear their views means children will not only be seen in family courts but they will also have their own voice heard. This will put them firmly at the heart of the family justice system.” The government will also work with the mediator sector so that children have appropriate access to mediators in cases which affect them. The age of 10 has been used to be consistent with other existing policy and

practice in this country. It is the age of criminal responsibility for young people in England and Wales. The changes that will affect public and private law cases will be implemented as soon as is practically possible. The Ministry of Justice says it will be working with the Family Court judges, with the Children and Family Courts Advisory and Support Service and – most importantly – with young people themselves to implement the change. q

www.yourexpertwitness.co.uk

21 21


22 22

www.yourexpertwitness.co.uk


YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

Language barriers are still getting in the way of justice ‹ IN THE LAST ISSUE of Your Expert Witness the right to have an interpreter in court was

stressed, with mention being made of instances where the absence of such a person had led to hearings being adjourned. Problems with the MoJ’s contract for the provision of interpreters had been the subject of reports by MPs and comment by judges. Court clerks were reportedly resorting to Google Translate to find appropriate text and local foreign-owned businesses being approached to act as interpreters. Such reports are, sadly, still reaching the press. One of the latest concerned a judge in Cardiff who reportedly ordered a trawl of local Chinese restaurants after a Mandarin interpreter booked for a case failed to appear. The case was far from trivial, it concerned a woman accused of importing banned goods. Shadow Justice Secretary Andy Slaughter was quoted as saying: “This is the latest example of how the criminal justice system under David Cameron has descended into a complete farce. The interpreters’ contract shambles has been widely documented – but even by this government’s standards this is embarrassing.” Other recent controversial cases have involved adjournments because interpreters have been elsewhere. One solicitor in Staffordshire told local press: "This court works with speed and usually pleas are taken at the first appearance and requests for adjournments are looked at with scepticism. I am a bit aggrieved at the way this has been dealt with and I ask for a week adjournment because I cannot make progress with this case. "I feel I have been dealt with some discourtesy by the admin staff. This is the second time he has attended and the second time there is no interpreter.” Away from the criminal courts, however, there has been better news, with progress being made on the establishment of a crucial element of the European Patent Court in London, with the accompanying need for document translation. That element of the profession is still thriving, with more and more business being carried out internationally and the expansion of global trade. Whatever the rights or wrongs of placing court interpreter provision in the hands of one contractor, there are still business contracts to be translated, conveyancing to be carried out for properties abroad, interviews for solicitors with clients who do not speak English and the general day-to-day legal work that now reaches into places unheard of a couple of decades ago. The need for professional interpreting and translation services in the legal sphere goes far beyond the arguments over the contract with Capita. R

www.yourexpertwitness.co.uk

23 23


24 24

www.yourexpertwitness.co.uk


YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

World congress calls for protection of interpreters ‹ WHILE COURT INTERPRETERS in the

UK are campaigning against the erosion of living standards, the International Federation of Translators (FIT) has highlighted the very serious threats faced by their colleagues in the many conflict zones around the world. Following its recent World Congress in Berlin FIT has called upon national governments and international institutions to protect linguists working in these conflict zones. A resolution to that effect was worded by participants at the Statutory Congress, which brought together representatives from FIT member associations around the world. It was passed by acclamation at the Open Congress, attended by more than 1,600 people. The resolution expresses great concern for ‘those colleagues who undertake their work in conflict zones all over the world’. It continued: “With their dangerous, yet important jobs they guarantee at least a minimum of communication

between the otherwise ‘speechless’ parties in the conflict. “As linguists are committed to impartiality, they build bridges that overcome language and cultural barriers and thus help resolve situations where otherwise only weapons would speak. Yet the services of translators and interpreters lack the recognition they deserve and time and again they are regarded as traitors or

collaborators by all the parties involved.” The resolution calls upon national governments and the international community to do four things: • Protect the local translators and interpreters • in conflict zones • Ensure a life in security during and after • their work in the conflict zone • Respect the impartiality of the work of • translators and interpreters • Work for a UN Convention and/or an • international safety document for the • protection of translators and interpreters in • conflict zones during and after their service In a statement issued following the publication of the document, the UK-based Institute of Translation and Interpreting (ITI) announced: “ITI is proud to support this resolution. We would also like to offer thanks and respect to our colleagues around the world who are undertaking this vital and perilous role.” R

New Patent Court brings added need for translation to London ‹ LAST YEAR Business Secretary Vince Cable finalised the

deal for a new patent court to be based in London. The new Unified Patent Court will have three bases: the central division will have its seat in Paris and there will be two specialist sections, in London and Munich. London will hear cases relating to chemistry, including pharmaceuticals and the life sciences. According to the Department of Business, Innovation and Skills, the new court and patent system creates a one-stop shop for companies wanting to protect their business ideas in Europe and will bring at least £200m to the UK economy each year. Commenting on the agreement at the time, Vince Cable said: “The decision that London should host this new court shows not only the confidence in our legal sector but also the strength of the UK’s intellectual property regime. Agreement on a unified patent regime is a good result as it will mean defending a patent across Europe will now be much simpler.” As part of the development work being carried out by the Select Committee of the European Parliament to establish the new court, a scheme to compensate companies for the cost of translating patents is being set up. The guidance document issued by the committee states: “According to Regulation (EU) No 1260/2012, a compensation scheme will be available making it possible to receive reimbursement for all translation costs up to a ceiling for patent applications filed at the European Patent Office (EPO) in one of the official languages of the Union that is not an official language of the EPO. The compensation scheme will be available only for SMEs, natural persons, non-profit organisations, universities and public research organisations having their residence or principal place of business within a Member State.” As with all areas of unified European administration, much of the

written material must be made available in a number of languages, and patents are a particularly complex area. The aim is to develop a comprehensive system of machine translation. Significantly, however, the report adds: “Such machine translations should serve for information purposes only and should not have any legal effect.” That area of work would still, of course, need to be carried out by skilled translators. R

www.yourexpertwitness.co.uk

25 25


Welcome to our A to Z guide of the websites of some of the Expert Witness field’s leading players. If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website. To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk AAA Medicolegal Reporting Ltd.

Elizabeth J. Soilleux

The Medicolegal Practice of Donald Campbell Consultant Neurosurgeon.

Expert Witness Pathologist with a particular interest in haematopathology.

www.aaamedicolegalreporting.co.uk

www.expertwitnesspathologist.co.uk

Dr Aman Ranu

Expert Forensics

Expert Witness in Clinical Forensic Medicine. Injury interpretation • Drink/drug driving cases

Independent forensic consultancy service run by experienced forensic practitioners.

www.expertphysician.info

www.expertforensicsltd.co.uk

A J M Birnie F.R.C.S.

Fingerprint Analysis

Consultant Orthopaedic Surgeon. Specialist in backache, neckache and whiplash injuries

Experts in fingerprint legislation, standards of fingerprint evidence and fingerprint development techniques.

www.whiplashconsultant.co.uk

www.fingerprint-analysis.co.uk

A M Associates

Griffin Forensics

Chartered Building Surveyors & Project Managers. Expert Witness and Dispute Resolution Services.

Cost effective and jargon free Digital Investigation and Data Recovery service. Contact Chris Watts:

www.am-associates.co.uk

T: 07789 986459 www.griffinforensics.com

Building Design Workshop

Inclusion.me Ltd

• Architects • Expert Witnesses • Project Managers • Energy Consultants

Medico-Legal & Second Opinion Occupational Therapy Services.

www.expertsbdw.com

www.inclusion.me.uk

Central Investigation Bureau

Dr Joshua Adedokun

• Surveillance • Process Serving • Tracing • Insurance Investigation • Status & Financial Reports

Chronic pain expert following personal and occupational injuries. Wide experience in medical negligence claims.

www.c-i-b.co.uk

www.expertpainreports.co.uk

David Bunker Arbitrator & Mediator

Lakes Medico Legal

Disposal & acquisition of businesses, management buyouts, shareholder & partnership disputes and taxation enquiries.

Our specialism is musculo-skeletal trauma and we provide a full range of medico legal services in this field.

www.david-bunker.com

www.lakes-medicolegal.co.uk

David W Dyson

Dr Laurie Durand (Medlegal Consulting)

Firearms related Civil and Criminal cases • Negligence and liability • Technical Interpretation

Expert witness services for court appearances countrywide in Forensic Psychiatric and Child Protection proceedings.

www.firearmsexpert.co.uk

www.medlegal.co.uk

26 26

www.yourexpertwitness.co.uk


Mr Marcus Ornstein

Optimum MedicoLegal

Recently (this year) retired general surgeon with expertise in general surgery, breast disease, hernia and abdominal trauma.

A Premium Service for Psychiatric. Medico Legal Reports.

www.marcusornstein.co.uk

www.optimummedicolegal.com

Marsh & Parsons

Mrs Robyn Webber

Valuation expertise in rental and capital matters in respect of both residential and commercial property.

Private Consultant Urological Surgeon. Medicolegal reports for both medical negligence and personal injury cases.

www.marshandparsons.co.uk

www.robynwebber.com

Dr. Martin Barrett

Professor Roger James

Forensic physician and expert witness in cases concerning interpretation of injuries and custody medicine.

Independent Health Consultant and Expert Witness in the field of cancer services.

www.forensic-medical.co.uk

www.independenthealthconsultant.co.uk

Maurice W McLain

Mr Simon Bramhall

Consultant in Accident & Orthopaedic Surgery. Specialist in whiplash and sports injuries.

Consultant HPB & Liver Transplant Surgeon. Significant medico legal work undertaken in his area of expertise.

mauricemclain@btconnect.com

www.simonbramhallhpbsurgeon.co.uk

Medical Illustration UK Ltd

Dr Thomas C M Carnwath

High quality photography for personal injury claims and other medico-legal requirements

Consultant Psychiatrist and expert witness in medical negligence and personal injury cases.

www.migroup.co.uk

www.psycholegal.org

Mr. Michael Hodge

WeatherNet Ltd: Dr Richard Wild

Maxillofacial and Oral Surgeon. • Personal Injury • Criminal Cases • Clinical Negligence

Legal (CPR/non CPR) Weather Reports or Certified Statements for civil and criminal cases (e.g. RTA/PI claims)

www.consultantoralandmaxillofacialsurgeon.co.uk

www.weathernet.co.uk

Mr Michael Thompson

Mr William Stuart Hislop

Specialist in bowel cancer and the effects of delay in diagnosis on survival.

Consultant Oral and Maxillofacial / Head and Neck Surgeon. Specialist in ablative and reconstructive surgery.

www.expertcolorectalsurgeon.co.uk

www.wshislop.co.uk

www.yourexpertwitness.co.uk

27 27


28 28

www.yourexpertwitness.co.uk


MEDICAL NOTES ‹ MEDICAL NEGLIGENCE CONTINUES to be a major issue in the legislative world, with the NHS

reportedly paying out £1.3bn in litigation costs and over £700m in treating ‘adverse events due to medication errors’. Of course, if a life is ruined because of failures of treatment by a medical practitioner, it is appropriate and right that compensation be made available, particularly to allow the victim to live as full a life as possible. And those errors can occur in any of a vast array of medical specialties. In this issue we examine medico-legal issues thrown up in the areas of urology, rheumatology, peripheral arterial disease, ophthalmology and gynaecology. • The best way to ensure fairness in such cases is to have detailed information available. More and more, photography is being used as evidence in such cases. Photography is routinely used in theatre to record procedures for later reference and even for education. Now those photographs are used in court to assess liability. • The psychological impact of medical errors is less easy to assess and forms a specialism of its own. In this issue Dr Hugh Koch discusses the issues involved. • One of the areas of industrial injury that was neglected for many decades was the effect noise at work had on people’s hearing. Anyone growing up in the textile towns of the north west of England at the height of that industry would have been aware of the widespread ability to lip-read among the adult population – a skill acquired of necessity because of the noise of the looms and spinning machines. A further industry found in those same towns was papermaking. It was similarly noisy and has led to numerous claims. Now the insurance industry is going on the offensive against such claims. Speaking at a European forum on claims management, James Dalton, head of motor and liability at the Association of British Insurers, said: “Industrial deafness claims are fast becoming the new cash cow for claimant lawyers, eager to make up for last year’s reduction of fixed legal fees in the Claims Portal. With lawyers typically pocketing three times the amount of compensation paid to the claimant, the rise in industrial deafness claims shows that claimant lawyers are keeping the compensation culture alive and well.” • There are a large number of ways in which cultural expectations impact upon medical treatment. At the front line are the GPs who act as first point of contact. As a regular contributor on cultural issues, Dr Bashir Qureshi is well placed to offer advice on where cultural differences come into play. • There are some issues, however, where cultural differences can be used in an attempt to justify practices that are just plain wrong. One such is the practice of female genital mutilation, or FGM. A recent report by the Commons Home Affairs Select Committee called for a national action plan to combat the practice. The call was welcomed by the Royal College of Obstetricians and Gynaecologists, which made recommendations on the subject in November last year. • Some would claim that drinking and the taking of drugs is a cultural issue, but in those areas, too, there are issues of right and wrong. Doping in sport is one such. While cheating at sport may not be a life-threatening activity, a great deal of emotional and economic investment is made and ensuring fairness involves a great deal of expert activity. Similarly, ingenious and sometimes convoluted ways of denying drink driving have for years been the subject of debate and that debate does not look like it is going away. q

www.yourexpertwitness.co.uk

29 29


Francis Review seeks the views of those on the front line ‹ SIR ROBERT FRANCIS QC has been

seeking the views of health workers and associated agencies who have had experiences – both good and bad – of raising concerns in the NHS. The consultation, which ran until 10 September, formed part of the review Freedom and Responsibility to Speak Up: An Independent Review into Creating an Open & Honest Reporting Culture in the NHS. The review was set up as part of a package of measures announced in June to consider what further action is necessary to protect NHS workers who speak out in the public interest and help to create the kind of open culture that is needed to ensure safe care for patients. In particular Sir Robert was looking to hear from: • NHS workers who have successfully raised concerns at work as • well as those who have felt deterred from doing so • People who have supported colleagues who have raised • concerns • Those who say they have suffered detriment as a result of • raising legitimate concerns, or supporting others who have • raised concerns • Employers, trade unions, professional and system regulators • and professional representative bodies • Organisations who support those who raise concerns

30 30

www.yourexpertwitness.co.uk

He also invited suggestions on how to create the right culture in which people feel safe to speak up without fear of recrimination. The package of measures follows the report, also by Sir Robert Francis, of the public inquiry into events at Mid-Staffs. Other initiatives included: • The NHS Choices safety website – a new microsite which • gives patients, regulators and staff unprecedented safety data. • The seven safety indicators will allow people to look at safety • and staffing data across the country, driving up competition and • standards. • The launch of the Sign up to Safety campaign: Sir David Dalton, • chief executive of Salford Royal NHS Foundation Trust is • leading a major patient safety campaign which aims to halve • avoidable harm, and in doing so save up to 6,000 lives over the • next three years. The announcement was followed in July by the introduction of legislation to introduce fundamental standards for health and social care providers. Subject to parliamentary approval, they will become law in April 2015. A study by the Commonwealth Fund earlier in the year ranked the UK first in the world for quality of care, including safety. However, according to the Department of Health, healthcare systems around the world continue to have high levels of avoidable harm. Tackling unsafe care and avoidable harm such as medication errors, blood clots and bed sores will not only improve patient outcomes but will save the NHS money that can be reinvested into patient care. A 2007 study estimated the cost of adverse events due to medication errors at £774m per year and the NHS currently spends around £1.3bn per year on litigation claims. q


Culture matters – mind the gap! By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon. FRSPH, Hon. MAPHA-USA

‹ YOUR MIND WON’T KNOW what your eyes can’t see – and seeing

is the key to believing. A bright light from a tunnel, seen as harmless by someone from a Western culture, may be perceived as a danger light from an oncoming train by someone with an Eastern culture. London is a big city, comprising small areas inhabited by communities of various sizes from many countries around the world. Each community has different cultural customs, religious beliefs and ethnic (racial) characteristics which should be considered as positive distinctions and not negative discriminations. Respect others and be respected. Nothing could be further from the truth than the concept ‘we are all the same – and if not, we must be’. This concept is at the root of many tensions and wars. If a mother-in-law and her daughter-in-law cannot live together in a house, they would have to live upstairs and downstairs. In London, almost all communities work together but live in separate areas. Nevertheless, and mainly for economic reasons, there are some truly multi-ethnic areas. Usually, birds of a feather flock together and patients tend to choose a GP of their own cultural, religious and ethnic background who can converse in the same language and who understands their thoughts and actions. Local GP practices reflect these varying customs which are innocently and openly practised. Let me tell you of some incidents in GP practices where doctors, managers, receptionists and patients come from all ethnic backgrounds. Please read the stories with positive thinking and appreciate the distinctions and differences, because everyone is right in their own way. There are some innocent customs based on culture where time, person and place all matter. These stories are based on real events and the aim is to learn lessons and understand the permanent cultural distinctions which exist.

Punctuality A British Asian male locum GP arrived 45 minutes before the time for his surgery and 15 minutes before the practice’s opening time. The British Malaysian nurse arrived even earlier. As she was going out to buy some milk, she saw the GP arriving, opened the door to let him in and left him alone in his consulting room. Everyone else arrived within five minutes of the opening time and greeted each other. The English staff arrived exactly on time and hid their surprise to see the locum GP alone. The nurse brought the milk, everyone had a cup of tea and all worked happily together. Time keeping is an English habit, they allow up to five minutes lateness if necessary. Strict time keeping is a German custom, with no allowance. People from some Eastern subcultures try to take their time and to get away with being late, even in London. The range of time allowed for being late ranges from 15 minutes to one hour. After one hour they would not turn up at all. They would not ring to apologise, which is purely an English custom. Traditionally, Europeans are brought up as being army nations – if a soldier is early or late during a war the result could be fatal, possibly even by ‘friendly fire’. Being a westernised Easterner, I often say that if I arrive on time then I am late and colleagues worry if I do not arrive early. Cultural habits last forever, even after a western training, and any angry reaction to these innocent customs could generate more anger.

paid. They like fair play. By contrast, nonEnglish British citizens find themselves working further down the pecking order with lower pay, less opportunity and job security. They need additional income, such as tips or gifts, which the English interpret as a bribe but they consider as genuine income. In the words of Rudyard Kipling ‘East is East and West is West and never the twain shall meet’.

Hearing only about a hearing aid A Polish male patient, with an interpreter, came to see an English GP and asked for hearing aids. He said, in English, that he had used hearing aids in Poland but they had worn out and he needed a new pair. The GP told him that as he could hear well enough to hold a conversation he would examine his ears for wax and arrange an appointment for a hearing test. The patient was unhappy and said that he had to return to Poland at the weekend. The GP felt that he had been helpful. It is widely known in Eastern Europe and worldwide that the British NHS is free and that the social welfare system meets all demands. Sometimes immigrants or visiting patients need medications and medical aids for themselves while on other occasions it is for their poor relatives. Medical tourism has been thriving in the UK up until recently when politicians have pulled the curtains on both the ‘free for all’ benefit system and legal aid.

Who wrote the prescription? An Afghan male patient, dressed in white Afghan clothes with a turban, came into the consulting room holding a note with three medications written on it. He asked the GP to issue him with the medications as he had been taking them in his own country before migrating through Italy the day before, where they had been prescribed by an Italian doctor. One was for diabetes, the other for iron deficiency anaemia and a third was a vitamin. The GP asked him whether he was diabetic and anaemic to which he replied, in good English: “No, sir”. The GP suspected that the prescription may have been given to him illegally in an attempt to prove that he was receiving medical treatment in the UK and therefore could not be be deported. When the GP declined to simply issue the medications without first examining him and taking a blood test, he left the surgery in anger.

Go out and sign prescriptions, doctor – I need your room! A British Asian male locum GP finished seeing patients a few minutes before his departure time. The British South East Asian nurse came into his consultation room with a woman patient on crutches. She gave him a bundle of prescriptions to sign and asked him to go out to the reception desk to sign them. The locum felt insulted but agreed to go and share the reception desk. He turned his annoyance around using his acquired British sense of humour and told the incoming patients that he was the new receptionist! They believed him but simply smiled, ignored him and went to see the East European lady receptionist.

First come, first served?

Would you like chocolates or something else?

A British Asian male locum GP noted that his first patient was a Philipino female. Before he called her in, the East European receptionist requested, with a smile, that he see the fourth patient on the list, a Caribbean, first as she had to go to work. In all, she made requests for four British Caribbean patients to be seen before their turn. The GP felt guilty because he had been trained by the English and did a number of surgeries in English areas of London. However, he was tactful and wanted to get more work and so he complied. There is no such thing as ‘doctor’s orders’ anymore! The English custom is first come, first served – except in exceptional circumstances. It is their land, they usually have priority in jobs and are well

One British Caribbean female patient arrived and asked the lady receptionist for a prescription for Amoxicillin, an antibiotic. The receptionist acknowledged her request without making an appointment for her to see the GP. The patient then asked her: “Would you like chocolates or something else?” The locum GP concluded that this incentive may have been the reason why he was asked to see some patients before others and sign prescriptions. He left the surgery precisely on time, perhaps for the last time! q • Dr Bashir Qureshi is an Expert Witness in cultural, religious and ethnic issues in litigation as well as in GP clinical negligence. www.yourexpertwitness.co.uk

31 31


32 32

www.yourexpertwitness.co.uk


Does trauma cause arthritis? By DR ANTHONY CLARKE, FRCP Consultant in Rheumatology & Rehabilitation, Bath

‹ IT OFTEN COMES AS a surprise to people that rheumatic

disorders are the largest cause of disability in the developed world. What is not surprising is that many claimants come forward alleging that their arthritis has been caused by an accident. I would like to look at the evidence that does or does not support these assertions. There are, of course, a wide range of arthritic conditions. For simplicity, I will divide them into inflammatory and degenerative arthritis. Rheumatoid arthritis (RA) is the commonest form of inflammatory arthritis, affecting about 1% of women and 0.5% of men in the United Kingdom. Interestingly it is getting less common and appears to be a less aggressive disease than 50 years ago. What is more, there is no clinical description or other representation of RA before 1800. These are important observations as they support the contention that RA is, in part, caused by one or more infectious agents. Amazingly, after a hundred years of intensive research the infective nature of the condition is still only a theory. What is clear is that there is a genetic propensity to develop RA, one or more environmental triggers and, probably, factors that cause the condition to persist. The other thing that is clear is that the trigger or triggers act some time before the arthritis becomes obvious, possibly after weeks or even months. It is possible that trauma could release intracellular particles, such as DNA, which could provoke an autoimmune response leading to inflammation, in turn leading to RA. There is just one controlled study in the literature that I am aware of, however, that demonstrates a statistically significant association between trauma and RA. What is certain is that trauma can cause a flare of RA. This is probably as part of the well-recognised phenomenon of stress, either internal or external, being related to flares. Thus bereavement, divorce and moving house have all been identified as causes of flares. As the stress is relieved, the flare usually settles. Interestingly, there is one form of inflammatory arthritis which has been recognised as being related to trauma and that is psoriatic arthritis. Psoriasis is a fairly common skin disease (about 3% of the adult population in the UK) but 15% or so of patients with psoriasis will develop one of the several forms of arthritis seen. Psoriasis is known to be a condition that is sensitive to stress and this may be the mechanism with trauma. That does not mean that the exact immunological and cellular events are understood. Other forms of inflammatory arthritis are not known to be caused by trauma, but again trauma can cause a flare. This is most significant in ankylosing spondylitis (AS), which affects the spine and often manifests itself in young men. Although it is now increasingly recognised in the normal population that low velocity whiplash injuries do not lead to long-term disability, some AS patients have vulnerable cervical spines, which are rigid and with poor bone density. The condition can be aggravated by relatively low velocity impacts, with worsening of symptoms and progression of the inflammatory process and, on occasion, fracture with the risk of spinal cord injury. Osteoarthritis (OA) is often described as being due to ‘wear and tear’ but it is a far more complex condition than that. There is a strong genetic influence and it is not just seen in elderly people. Simple physical activity in fit people with normal joints will not, in usual circumstances, lead to OA. Indeed in early OA the treatment of choice is graded exercise. Strong muscles are the best protectors of joints.

After injury, particularly if immobilisation is used – such as a plaster of paris cast applied after a fracture – muscle wasting will occur. If appropriate exercises are not undertaken, then the integrity of the joints in the immobilised limb may well be more prone to degenerative change, but this is unusual. However, if the fracture involves the joint surface, there is a high risk of joint failure in the long-term, especially if there is any step in the surface of the cartilage. A joint is also at risk if there is significant malalignment of a weight-bearing long bone, such as the femur, or major loss of muscle bulk. If a degenerate joint is damaged, then it may become symptomatic for the first time, especially if there is muscle wasting following the injury. That does not mean that the joint would inevitably have failed, unless full pre-accident muscle power is not able to be re-established because of pain or some other confounding factor. There is no scientific basis for the concept of ‘acceleration’ and what evidence there is, that from the radiological literature, shows that there is little correlation between x-ray findings of early OA and disabling symptoms. Penetrating injuries to the joint carry a significant risk of septic arthritis, usually as an acute infection, but if not recognised, chronic septic arthritis can develop. This in turn can lead to osteomyelitis, which may lead to prolonged ill-health and even amputation. Gardeners and horticultural workers face one unusual risk, that of plant thorn arthritis. An intra-articular rose thorn can initiate a significant immunological reaction with intense, localised inflammation. Treatment is nearly always the surgical removal of the plant material. In conclusion therefore, the majority of arthritic conditions are not thought to be caused by trauma, but existing arthritis may temporarily experience a flare of the disease. In OA it is only in exceptional circumstances that permanent damage is caused by trauma, as long muscle building is pursued appropriately. I have, due to space constraints, only been able to give a broad overview of this important topic. As ever, I would caution that each claimant must be viewed in the light of their circumstances. If in doubt, ask a rheumatologist! q

www.yourexpertwitness.co.uk

33 33


Keeping in touch with day to day issues is vital for expert witness role ‹ BASED IN NORTH Lincolnshire but

operating throughout the country, Sue Bayram is an experienced expert witness specialising in cases involving clinical negligence and personal injury claims in her specialist area of healthcare. She is fully trained and able to provide reports – for both claimant and defendant – which are compliant to CPR requirements. With a background in both the NHS and the private sector, and now working as an independent nursing consultant, Sue has extensive experience in general and continuing care nursing, including residential and community care. She is fully aware of the legal obligations of care provision and the pitfalls of completing documentation. Sue undertakes ongoing professional development for herself, and also provides a consultancy and training service to those working in healthcare in a variety of settings including interim and crisis management. Undertaking this work ensures that she keeps up to date with current practice and

34 34

www.yourexpertwitness.co.uk

is regularly involved with day to day issues – a factor she feels is vital to her role as an expert witness. A member of The Academy of Experts, Sue is also Deputy Chairman and sits on both the Council and Executive Committee of the Academy. The Academy provides training and support for experts worldwide and also advises government bodies, the judiciary and allied organisations on procedures and protocols relating to expert witness issues. Sue qualified as a mediator with The Academy of Experts in 2001 and mediates on a range of disputes – from neighbour and boundary disputes to multi-million pound business issues, including personal injury, clinical negligence and employment cases. Mediation/early settlement is now recommended by the Civil Courts as the first consideration rather than taking legal action. If mediation/early settlement hasn’t been considered – or has been delayed prior to legal action – this may affect the decision of the Judge regarding costs, with

several winning parties to date out of pocket as they refused to consider, or delayed, the process of mediation prior to legal action. To ensure that she is current in her knowledge and approach in this area also, Sue carries out research into current mediation practices nationally and internationally as well as updating her skills on a regular basis. She said: “I enjoy a challenge and feel very positive about the benefits of mediation in terms of not only enabling the parties to resolve their dispute with a ‘win, win’ outcome, but also in reducing costs, time and stress for all concerned and allowing all parties to remain in control of the issues and decisions made.” Sue is able to offer flexible mediation arrangements with a range of charges relevant to the amount involved in the dispute. q • For information regarding Sue Bayram's fees and a full CV please contact her directly on 01724 784148.


The price of success in sport!

Justice or travesty?

By PROFESSOR M R GRAHAM MBChB PhD FRSM, MS G M GRAHAM, PROFESSOR LYN BATEMAN PhD DSc FRSM, JOHN LOCKETT MCITP and DR J K PATES, PhD

‹ DOPING IN SPORT IS as a multi-million pound business of easily

detectable anabolic-androgenic steroids (AAS) and more recently it is pervading combat sports such as boxing and Mixed Martial Arts. Less detectable drugs, human growth hormone (h-GH) and insulinlike growth factor 1 (IgF-1) have also resulted in increased performance enhancement in sport. Health risks from contaminated vials, manufactured in non-sterile environments, result in cardiovascular pathology and communicable diseases. There can be catastrophic effects on a sports person’s legitimate status in both amateur and professional sport. A recent landmark case resulted in United Kingdom Anti-Doping’s life-time ban of a non-competitive father’s association with his sport. His daughter, a female amateur boxer, received a four year ban from boxing for alleged knowledge and complicity in trafficking. Such a ruling indicates the extent to which the anti-doping establishments will stamp their authority to prevent drug abuse within sport. In 2009, a study of samples by a World Anti-Doping Agency (WADA) accredited laboratory identified that 53% of the injectable AAS esters and 21% of the oral tablets were counterfeit. Analysis revealed the presence of organisms which can contribute to the development of communicable diseases. The retail price of these drugs on the internet and black market is freely available. Trade prices are implausibly economical because of the profitability of their manufacture in countries other than the UK and USA. Users of AAS, hGH and IgF-1 for combat sports are paying prices which may risk not only their health, because of the below par meticulous manufacture of such products, but also any future potential rewards they may have had from a of natural success in sport.

1.6.2 (in the case of athlete support personnel) Possession of one or more prohibited substances (UKAD Rules – Article 2.6.3) 1.6.3 Trafficking or attempting trafficking in any prohibited substance (UKAD Rules - Article 2.7) 1.6.4 Assisting, encouraging, aiding, abetting or covering up or any other type of complicity involving an anti-doping rule violation or any attempted anti-doping rule violation (UKAD Rules – Article 2.8). The life-time ban of the father was not appealed. He had already pleaded guilty and had been convicted for exchanging AAS. An appeal was launched for the four year ban of the daughter. The initial tribunal had consisted of a Queen’s Council (QC), who chaired the tribunal and two panel members who were former Olympic athletes, one of whom was a registered general medical practitioner who appeared at first instance to have no training or qualifications in anti-doping laws in the index case. The tribunal chairman (a QC) and the prosecution barrister refused to allow the hearing to be digitally recorded or video recorded. The defence believed that the ruling against the amateur boxer was unjust and unfair on the grounds of abuse of process, misrepresentation of

The case In May 2014 the National Anti-Doping Panel (NADP) tribunal issued a life-time ban to the father of an amateur female boxer, subsequent to a crown court conviction for exchange of anabolic-androgenic steroids, and a four year ban from amateur boxing to his daughter. An appeal was immediately lodged. The father’s life-time ban was such that he could not be associated with the sport of boxing in any capacity. His involvement in boxing had been to drive his daughter to training and competitions and observe her at ringside. His advocate’s defence was that the NADP had no jurisdiction over him and that as a consequence they would not be able to enforce or police such a ban. The prosecution had also pursued a life-time ban for his daughter, a Welsh champion female boxer, but the maximum penalty available was an eight year ban. The defence was able to elicit from the prosecution witnesses that their evidence was only rumour and the tribunal issued a four year ban to the daughter on the following allegations under sections 1.5 and 1.6 of the United Kingdom Anti-Doping (UKAD) regulations. Regulation 1.5 stipulates that at all relevant times she was a licensed member of the WABA and bound by its anti-doping rules. Regulation 1.6 stipulates that the following constitute anti-doping violations contrary to article 2 of the UKAD rules: 1.6.1 (in the case of an athlete) Possession of one or more prohibited substances (UKAD Rules – Article 2.6.1) www.yourexpertwitness.co.uk

35 35


the facts and misdirection of the facts by the chairman to panel members. The written ‘evidence’ that was relied upon was an enormous volume of non-affirmed schedules, produced by absent parties. No evidence was adduced at the initial hearing by any of the witnesses that linked the amateur boxer to any drug involvement, either on the balance of probabilities or beyond all reasonable doubt. The evidence that was adduced by the witnesses acquitted the amateur boxer of any and all knowledge and complicity in her father’s activity, on the balance of probabilities and beyond all reasonable doubt. She had no ‘mens rea’ of her father’s activity and no ‘actus reus’ in her father’s activity. More importantly, she had been proven to have a negative drug test, complying with the NADP and UKAD specifications for sport, which the UKAD and NADP had withheld from her until her advocate adduced a confession from the prosecution barrister. The thrust of the appeal was that beyond all reasonable doubt and on the balance of probabilities there was no evidence linking her to wrong doing, nor complicity in her father’s activity. The cases that were referred to in the disclosure prior to this tribunal and the subsequent judgement had no bearing on the index case and were totally irrelevant. They referred to individuals who had pleaded guilty to unlawful dealings in WADA banned substances and who had tested positive to WADA banned substances. On the occasion of the appeal there were two QCs and one retired doctor, a former GP, who was not licenced to practice medicine in the UK and appeared at first instance to have no training nor qualifications in antidoping laws in the index case. The defence had attempted to disqualify the unqualified panel member (the GP) from determining the future of the female boxer, requesting a legally qualified panel member, trained in doping in sport. The president of the NADP dismissed this application prior to the appeal. Despite the female boxer having a clean enhanced criminal records bureau (CRB) check and a negative drugs test, the NADP tribunal dismissed her appeal on 30th July 2014.

The drugs Yearly reports from WADA identify that AAS are still the most abused group of drugs in competitive sport, despite severe penalties for positive test results.

Multiple countries license the sale of AAS without a medical prescription and sale of these products to overseas customers is also not restricted, either directly or through snail mail and the internet. Most AAS found in Europe are initiated from countries within the European Union and Russia but they also come from Colombia, Thailand, Turkey, Egypt, India and Pakistan. In the US, significant quantities of AAS emanate from Mexico as well as from Russia, Romania and Greece. In the UK, performance enhancing drugs are controlled under Schedule 4 Part 2 of the Misuse of Drugs Act 1971. There is an exemption from restriction on the possession of these substances when they are in a medicinal product and are for self-administration. AAS can only be obtained in the UK for non-medical use from sources of unknown derivation, such as the black market or the internet. These products will definitely not be manufactured in accordance with good practice. There has been an enormous increase in use by female athletes leading to an assessment of the type of drugs they use. Past doping violations, contravening the WADA code, illustrate the excessive ‘polypharmacy’ in the athletic world and have identified the extensive doping regimes of household names such as Dwain Chambers in athletics and, more recently, Lamont Peterson in boxing – when he tested positive for testosterone (under the ruse of testosterone replacement therapy) in his world title victory over Amir Khan. The use of performance-enhancing drugs (PED) is contrary to all Olympic values and creates negative role models for young athletes. Peer influence and the information that AAS administered by intra-muscular (IM) injection are ‘less harmful’ than oral products has increased the use of IM preparations. The escalation in the frequency of IM abscesses in a cohort of sportspersons has been considered to be as a result of the use of nonsterilised or contaminated counterfeit products obtained from the black market. Such harm to health has a gargantuan price – that price is paid in cash for black market products and is resulting in lengthy bans for any complicity in illegal dealing in every aspect of sport. Discussions with AAS users provided information on yet another new counterfeit company which sell AAS products online. The generic name of the drug was identified from the brand name, specified on the label. All vials were analysed for culture and sensitivity prior to analysis for chemical formulaic content.

TABLE 1: Counterfeit Androgenic Anabolic Steroids: manufacturing cost, trade and retail prices Quantity

Product (VMX)

Administration

Presentation

Manufacturing cost £ and Provenance (Unknown)

Trade Price £ (Variable)

Retail Price £ (Variable)

1

Tritren 200

IM

Multidose (10 mls)

Unknown ?

23

30-50

2

Andro-Nex 250

IM

Multidose (10 mls)

Unknown ?

17

30-50

3

Androplex 500

IM

Multidose (10 mls)

Unknown ?

21

30-50

4

Equi-Lone 200

IM

Multidose (10 mls)

Unknown ?

18

30-50

5

Masterone 100

IM

Multidose (10 mls)

Unknown ?

18

30-50

6

Primobolan Depot 100

IM

Multidose (10 mls)

Unknown ?

20

30-50

7

Nandrolone 200

IM

Multidose (10 mls)

Unknown ?

16

30-50

8

Test Cypionate

IM

Multidose (10 mls)

Unknown ?

15

30-50

9

Test Enanthate

IM

Multidose (10 mls)

Unknown ?

15

30-50

10

Test Propionate

IM

Multidose (10 mls)

Unknown ?

13

30-50

11

Test 400

IM

Multidose (10 mls)

Unknown ?

19

30-50

12

Trenbolone 80

IM

Multidose (10 mls)

Unknown ?

19

30-50

13

Zanabol 10

Oral

Tablets

Unknown ?

25

30-50

14

Oxandrolone 50mg

Oral

Tablets

Unknown ?

28

30-50

15

Oxydrol 50mg

Oral

Tablets

Unknown ?

28

30-50

16

Stanozolol 50mg

Oral

Tablets

Unknown ?

28

30-50

Key: Testosterone (Test)

36 36

www.yourexpertwitness.co.uk


TABLE 2: Parenteral products analysed by GC-MS and LC-MS/MS which contained no active ingredients Quantity

Product label

Product claimed

Product found

1

Boldabol

Boldenone undecylenate

Nil

2

Boldebal-h

Boldenone undecylenate

Nil

3

Mastabol

Dromastanolone dipropionate

Nil

4

Primobolan

Methenolone enanthate

Nil

5

Spectriol

T. Esters

Nil

6

Testabol depot

T. Cypionate

Nil

7

Testex elmu prolangatum 250

T. Cypionate

Nil

8

Tesosterone cypionate injection (cypionax)

T. Cypionate

Nil

9

Trenbol 75-r

Trenbolone acetate

Nil

10

Kigtropin

Growth hormone

Nil

11

Hygetropin

Somatotropin

Nil

12

Norditropin simplexx

Growth hormone

Nil

Key: Testosterone (T)

TABLE 3: Oral products analysed by GC-MS and LC-MS/MS Quantity

Product label

Product found

1

Clenbuterol (Spiropent)

Clenbuterol

The risks

The risks of AAS abuse can be catastrophic to health and any unregulated manufacture may produce preparations that are contaminated with infectious agents No anabolic steroids detected 2 Stanozolol and are of poor quality. The sharing of AAS ‘multi-dose’ 3 Stanozolol 5α-dihydrotestosterone vials, whether the vials are from a legitimate source or 4 Methandienone Methandienone otherwise, is common-place, exposing individuals to the risk of intramuscular abscesses. 5 Stanozolol Stanozolol Reported infections associated with AAS injection include Oxymetholone Oxymetholone 6 abscesses attributable to mycobacterium smegmatis, 7 Ephedrine Ephedrine staphylococcus, streptococcus, pseudomonas, hepatitis B, hepatitis C and human immunodeficiency virus. 8 Stanozolol Methyl testosterone and caffeine Administration of large volumes of testosterone esters 9 Ma Huang Ephedrine in one injection (up to 5 mL) is common, exposing an Mesterolone (Proviron) Mesterolone 10 individual to sterile abscess formation, where pathogenic organism cannot be found. Contamination of vials with used needles would be an effective means of transmitting blood-borne pathogens. This is comparable to the sharing of spoons among intravenous drug users, who inject street drugs. The results Education and provision of disposable sterile needles and syringes Table 1 identifies a recent unlicensed counterfeit company, VMX remain as methods to prevent such infections to this population. Pharma. Retention times and full scan spectra were compared to those However, there has been a pandemic increase in hepatitis C from obtained from analysis of standards and drugs supplied by licensed recreational drug abuse and currently a minimum of 50% of all pharmaceutical companies. The results of tablet and vial analysis, obtained recreational drug abusers are suffering with the virus. There is a direct from the underground market, are displayed in Tables 2 and 3. relationship between the increase in PED use and infections and Of the 22 samples analysed, 15 were counterfeit (68%).From 12 vials communicable diseases, which are reaching plague magnitudes. for parenteral use, no samples contained what was described on the label (Table 2) and contained no active drug. Of the 10 oral preparations (Table 3), three products were counterfeit (30%). Seven products labelled contained the correct contents (70%). Microbiological culture of the vials revealed the presence of contaminants. Trade prices of black-market drugs appear to be decreasing, because of the enormous competition of illegal black market cottage industries and the pervasive invasion of the internet. In the UK, Europe and USA access to controlled drugs is uncontrolled and cannot be policed. However, in certain countries with a history of communist regimes, such as China, some websites, including Youtube, are banned. Manufacturing costs in third world countries are fractional in comparison to UK costs, because of slave labour and the use of children in countries such as India, Thailand and Pakistan. Trade dealers will try and buy large quantities to obtain the cheapest prices and sell at retail for the maximum amount of profit (Table 1). 100% of the injectable PED AAS (Table 2) and 30% of PED tablets (Table 3) were found to be counterfeit, containing steroids other than those indicated or no steroid at all.

The way forward Funding for contemporary research must be provided to educate and prevent the catastrophic effects of doping. However, the caveat to such measured bans on associated sporting personnel, must not rely on unfounded diatribe. Quasi-legal authorities cannot and must not rely on hearsay information to obtain a conviction at any price. Justice should be delivered in the fairest way possible by examining hard factual evidence and not just unconfirmed reports or word of mouth. Otherwise we may as well disqualify passengers from driving when the driver is doing 100 mph in a 30 mph zone. It is considered gross professional misconduct not to treat drug addicts. A world famous professor once stated that we should give addicts not just what they want, but add harmful products to what they take (personal communications). Such opinion is inexcusable. However, misrepresenting ‘data’ to blame family members for crimes committed by their parents is equally heinous and should be considered to be perverting the course of justice. q www.yourexpertwitness.co.uk

37 37


Reducing the

drink drive defences

By PROFESSOR RONALD C. DENNEY BSc Hon DSc PhD CSci CChem FRSC FCSFS Forensic Scientist and Industrial Consultant

‹ THE PAST FIFTY years have seen a

progressive tightening of the drink drive laws in the UK since the Road Traffic Act 1962, introduced by the then Transport Minister, Ernest Marples. This was the first Act of Parliament to introduce breath, blood and urine samples in drink drive cases and pre-dated Barbara Castle’s Road Safety Act 1967, in which prescribed legal limits were introduced. However, the development of refined blood analysis procedures, electronic breath screening devices and evidential (substantive) instruments has led to extensive case law in all aspects of drink drive legislation which does not appear to diminish despite legislative efforts. This is obvious from the many pages on such cases in Wilkinson’s Road Traffic Offences and Pauline Callow’s invaluable summaries in Drink Drive Case Notes. It is often surprising the lengths that many motorists will go to in order to try and save their driving licences. It probably reflects the way in which, in recent years, society as a whole has become dependent upon the motor car for business, social, pleasure and domestic purposes (to use a phrase so popular with insurance companies). But the potential loopholes are being reduced. A remaining few, which are sometimes successful, revolve around claiming that there

38 38

www.yourexpertwitness.co.uk

are instrument faults associated with mobile telephone and police radio interferences or long purge times. However, the usual defences and pleas are based upon alcohol calculations, despite the potential errors and variations that have to be taken into consideration. In this category come the pleas in respect to being in charge of a motor vehicle with a breath/blood alcohol level in excess of the legal limit. The claim is that the driver would not have driven again until his (her) blood alcohol level was below the legal limit. Some defendants expect the instructed expert to tell them when they would have been in a condition (not necessarily fit) to drive. This is, of course, something the expert should not be asked to do by the instructing solicitor and should not be prepared to provide as it constitutes assisting the defendant to fabricate a defence. It is up to the defendant to state clearly when he next expected or intended to drive and for the expert then to work out what the breath/ blood alcohol level would have been by that specified time. The result will fall within a range based upon the variation that exists in alcohol elimination rates and may well show that the driver could still have exceeded the limit at the intended driving time. In any case, the court has the task of determining the veracity of the defendant.

It is not generally possible to make an assumption about an individual’s elimination rate unless, by some chance, the police have followed up the evidential breath tests with one or more pre-release quick tests. If this has been done it enables an indicative alcohol elimination rate to be calculated. It is, in any case, a good reason for the police to carry out quick tests in all drink drive cases where possible before allowing drunk drivers back on the roads. Although some officers claim they cannot do this under PACE, they are entitled to re-test a driver on grounds of health and safety of the driver and other road users. But most alcohol calculations relate to either post-driving drinks defences or laced drinks special reasons pleas. For these to stand any chance of success the data relating to the type of drinks, the quantities of drink and the times of drinking have to be as precise as possible. As with GPs, forensic scientists are only too familiar with the observation that drinking drivers at least halve the amount they admit to having drunk. This inevitably means that the calculations do not work out. Also, it is not sufficient just to show that the amount of alcohol in the lacing or the postdriving drinking is enough to account for the driving exceeding the legal limit. ln fact, the


criteria required for cases of this type were actually established many years ago. They are: 1. The total alcohol consumption for the period in question must account for the recorded breath/blood alcohol value after allowing for alcohol eliminated from the body and based upon an accepted calculation procedure and alcohol elimination range. These calculations must take into consideration the individual’s physical proportions. 2. The amount of alcohol used to lace the drinks or the alcohol drunk after the incident must account at least for the amount that the breath/blood alcohol level exceeds the legal limit at the time the sample was provided. This gives a ‘reduced sample value’ attributable to alcohol drunk prior to the alleged offence. 3. A back calculation from the ‘reduced sample value’ to the time of driving should also show that the defendant would have been below the legal limit when he was driving if the only drinks had been those which were intended without the lacing or after excluding the postdriving alcohol. Another factor that is relevant in the laced drinks special reasons plea must be whether or not the individual would have been aware that they were unfit to drive. This level of potential awareness is something that the courts rarely seem to consider. Probably because it is a fairly subjective area. However, the UK legal limits are quite high and to be exceeded require the drinking of more alcohol than many people realise. Most ‘normal’

drinkers can feel the effects of alcohol by the time they have reached the legal limit. To reach a higher figure of, for example, 50 µg in breath or 115 mg in blood, requires quite lot of alcohol and at that level most people would normally be well aware that alcohol was affecting them. At some stage a British government will have the courage to reduce the legal limit for driving to around 20 µg in breath and 50 mg in blood. Until that time comes, the police need to try and reduce the time intervals between roadside screening tests and the evidential tests at the police station. They should also ensure that all subjects are re-tested and the results recorded before they are allowed to leave the police station – even if there is no apparent intention of them driving

immediately. This power to re-test should be written into the law to ensure that drunken motorists are not released from custody in a state where they can still drive whilst over the legal limit. As there is every likelihood that evidential roadside breath testing machines will be introduced in the foreseeable future, they will undoubtedly open the door to a whole set of new legal arguments on behalf of those who believe they have the right to drive a high speed weapon and endanger other road users when their abilities are impaired due to alcohol and/or drugs. q • The views expressed in this article are those of the author.

www.yourexpertwitness.co.uk

39 39


Food glorious food… or is it? ‹ SINCE THE 2013 HORSEMEAT scandal,

Family through a food supplement product. we are well aware that the ingredients HRH Prince Harry, along with the other contained in our food may not necessarily be ‘Walking with the Wounded’ team members included on the label. The world’s food testing on their way to the North Pole, was powered agencies were put under considerable stress by Mountain Fuel, described as ‘...a multi during this period to find out the truth and sport system that is nutritionally balanced demonstrated that they could find nutritional to ensure your body is fuelled for maximum needles in haystacks! performance…’ In fact, the high degree of accuracy and That same food supplement is now sensitivity in testing today means that we often at the centre of a doping scandal at the find that there are substances in our food Commonwealth Games. Rhys Williams which we never really knew about and could and Gareth Warburton tested positive for easily get us, unexpectedly, into trouble. drug doping. Williams said he was ‘utterly The sporting world is no stranger to drug devastated’ by the news of his failed test and testing and doping. The Tour de France claimed, as Warburton did, that he had never appeared to go rather smoothly this year, knowingly doped. considering its now very tainted past, but a They both used Mountain Fuel in their horse racing institution and flagship sporting training preparations for the Games. So far Dr Thomas Haizel, managing gathering of 2014 did throw up some surprises. the jury is out on whether the supplements director of Anglia DNA The highest profile case involved a contributed, either through contamination or horse called Estimate, last year’s Gold some other un-intentional cause, to the failed Cup winner, who was found to have morphine in its blood. Horse tests. A product used widely in sports really cannot afford this kind of doping is nothing new, however Estimate is owned by Her Majesty challenge. The Queen! After investigation, the result was thought to have been The reality is that everyone will probably, at sometime or another, come down to a contaminated feed product. Even the slightest, accidental, into contact with a substance that they didn’t know was in their food or contamination can be detected these days. drink. So, it will be interesting to hear the outcome of the Mountain Fuel The doping issue has also touched another member of the Royal investigation – which got me thinking, is there anything else weird and wonderful in our food that goes undetected, which we have been happily consuming for decades? First candidate, wine! This may make you think twice, but traces of arsenic can actually be found in wine and beer. Arsenic makes the drinks clearer in colour through the filtering process to remove plant matter and leftover yeast – most people don't want to drink a cloudy Sauvignon Blanc after all! “Glass of wine with your dinner, love?” Second candidate in the dock, tea! You may think, ‘I’ll have a cup of tea instead of wine - that’s good for you!’ There are many varieties of tea on the market that claim they can improve digestion, metabolism and even prevent certain illnesses. Tea is inevitably mentioned daily – health benefits of tea, discussions on tea in the office, teas that promote clean living. However, was your tea washed before it went into the bags? If not, and if the tea was sprayed with pesticides, will those pesticides go directly into your cup? Will boiling water destroy these pesticides? Last, but by no means least, chips! Essentially, acrylamide is known to cause cancer by damaging DNA. This substance is produced when starchy foods are heated to high temperatures and is found in foods such as chips, crisps and some bread. Damaged DNA means genetic mutations. But trace testing for contamination and ingredients also has an up-side. Green tea contains high levels of a group of chemicals called catechins. Green tea contains 3 to 10 times more catechins than black tea because of the way it is prepared. Laboratory studies on cells have shown that catechins could block the growth of cancers. They prevent DNA damage by mopping up free radicals, blocking the growth of tumour cells and stopping the activation of cancer-causing chemicals. The latest social media food scare is ‘noodles and cancer’ with 3.9 million Google hits. Near paranoia stemming from some social media messages that a wax, supposedly used on instant noodles, causes cancer. It’s enough to stop you eating altogether! But beware of jumping to conclusions. If you have concerns about dangerous food contaminants, or detecting drugs in food or people, we suggest that you consult a professional, accredited specialist in whatever field of testing you are looking into. The online alternative is less than reliable and with a professional laboratory you will get some facts, not food scare fiction. q

40 40

www.yourexpertwitness.co.uk


Does DNA need context? By KERRI ALLEN and JULIE ALLARD of Forensic Context Ltd

‹ THIS SUMMER SAW THE introduction of a new DNA profiling

technique, DNA17, the biggest change in DNA profiling for more than ten years. From July 2014, DNA17 profiles will be loaded to the updated National DNA Database and will be used routinely in forensic casework. As its name implies, DNA17 tests seventeen areas of DNA rather than the ten areas tested by the previous SGMPlus® test. This means that DNA17 is more discriminating, but more importantly other improvements have been incorporated into the new chemistry which make the technique more sensitive and more robust. Therefore, as well as providing more information for comparison, the expectation is that the new system will produce profiles where one would not previously have been obtained. The increased sensitivity means that results are likely to be obtained from extremely low levels of DNA and consequently, in many cases, it will be even more important to consider whether the DNA is truly related to the crime or whether it could have been transferred innocently. It also means that more complex mixture results will be observed, which often produces differences in opinion between experts on their interpretation. The potential for contamination also increases – despite stringent procedures, inadvertent transfer of DNA may occur via investigators, laboratory staff or processing equipment. Another complication is that several manufacturers have produced DNA17 kits and all are slightly different in how they operate and in the presentation of results, potentially increasing the opportunity for errors when comparing the results from two different kits. These factors make the interpretation of DNA17 results and their consideration within the case context more challenging and highlight the importance of both parties having the benefit of expert advice. If you would like to learn more about the ramifications of DNA17, try the online training at www.DNA17.co.uk.

been innocently transferred to his penis and underwear. Forensic experts can review such DNA results and provide expert opinion on how likely the findings are given each of the prosecution and defence accounts and whether they favour one account over the other. The introduction of Streamlined Forensic Reporting in 2012 has added to the potential confusion with the use of a brief form-based report presenting only the DNA match. The short initial reports often do not detail any of the case context evaluation necessary to understand the significance of the DNA match. As DNA profiling has grown in importance, other more traditional forms of forensic analysis are often overlooked in the race to find the elusive, quick fix DNA profile which will ‘solve’ the case. There has been a reduction in the number of cases where fibre and hair evidence is considered, even though this type of analysis can provide highly significant evidence of contact between parties and often introduces a time frame for contact – rarely possible with DNA. As a result, the number of experts in this field is reducing and the ability of the defence to scrutinise such evidence is therefore more difficult. Changes in the provision of forensic science over the last few years, the closure of the Forensic Science Service in 2012 and the ongoing squeeze on police and legal aid budgets are all putting a strain on the system and making it harder for the defence to review the evidence. The introduction of DNA17 increases the risk that forensic evidence will be misinterpreted. It has never been more important to ensure that the Crown’s forensic findings are independently reviewed and evaluated. q

A screenshot from the DNA17 website video DNA profiling is widely used in forensic casework to establish from whom particular body fluids may have come. It is also used to establish whether ‘touch’ DNA is present – DNA transferred by an individual touching, handling or wearing an item. However the DNA profiling result is only the start of the story, and the evaluation of the DNA profiling results within the context of the case is vital to ensure that the court is presented with a full picture of the evidence and what it means. Consider a sexual assault case where a couple meet and spend the evening together. The female alleges that her underwear was pulled down and the male rubbed his penis against her genital area but did not penetrate her. His penile swabs and underwear are examined for DNA from the complainant. A DNA match is reported which appears to be significant evidence – however there could be an innocent explanation for such a DNA transfer. Research has demonstrated that DNA can be transferred to the hands during social contact and subsequently to both the penis and underwear. So if the male had contact with the complainant during the evening and subsequently touched his penis during urination, her DNA could have www.yourexpertwitness.co.uk

41 41


42 42

www.yourexpertwitness.co.uk


Limb Ischaemia repairing the arteries

By Philip Coleridge Smith DM MA BCh FRCS Consultant Vascular Surgeon and Medical Director, British Vein Institute and Reader in Surgery, UCL Medical School, London

Critical ischaemia of the foot leading to ulceration of the toes

‹ LOWER LIMB ISCHAEMIA is a common problem, especially

in elderly patients. Total disease prevalence has been evaluated in several epidemiological studies and is in the range of 3% to 10%, increasing to 15% to 20% in persons over 70 years. Methods of treating blocked arteries, most commonly in the lower limb, have changed considerably in recent decades with the development of minimally invasive treatments.

Who needs treatment? There is no doubt that patients with severe limb ischaemia with threat to the integrity of the limb are in need of urgent treatment. The most urgent group is those patients presenting with sudden onset of acute limb ischaemia which results in severe lower limb pain. Irreversible damage is caused within 6 – 8 hours to the muscle and nerves when a limb is suddenly deprived of its blood supply. This is a surgical emergency and amputation of the limb may be required if treatment is delayed by as little as 12 – 24 hours from the onset of symptoms. A further problem requiring urgent intervention is ‘critical limb ischaemia’. In this condition insidious reduction in blood flow to the limb leads to pain in the foot or leg, most commonly at night, ulceration

or gangrene of the foot or leg. Expeditious restoration of blood flow is required to ensure healing of the damaged regions. Failure to manage this condition within a few days may permit rapidly advancing gangrene of the limb to develop resulting in the need for amputation. Patients presenting to their General Practitioner with symptoms suggesting critical limb ischaemia should be referred urgently or as an emergency to a vascular surgeon for consideration for reconstruction of the lower limb arteries.

Methods of restoring blood flow in blocked arteries Surgery: Open surgical removal of atheroma from blocked arteries is effective in restoring blood flow in some vessels. Alternatively a bypass graft made of the patient’s own vein or a plastic graft made from expanded PTFE may be used to bypass a blocked section of artery. The connections are made by suturing the ends of the graft to the open arteries above and below the blocked section. This strategy is used less frequently these days now that more modern, less invasive techniques have become more popular. Surgical removal of blood clot is still useful in patients where the clot has formed in the heart or other large artery and then travelled (as an ‘embolism’) to the leg arteries. www.yourexpertwitness.co.uk

43 43


44 44

www.yourexpertwitness.co.uk


Here it can readily be removed by passing a balloon catheter down the blocked artery, inflating the balloon and retrieving the clot via an incision in the patient’s groin. Balloon angioplasty: In this technique the operator (usually a radiologist) inserts a catheter into the arterial system via a needle puncture and passes a balloon angioplasty catheter through the blocked or narrowed section of vessel. The balloon is positioned with the diseased segment and inflated to a high pressure. This fractures the atheroma blocking the artery, but does not (usually) disrupt the artery. Blood flow can then be restored to blocked arteries. This method is effective for restoring blood flow to blocked sections of up to 10 – 12 cm in length. Stents: Balloon angioplasty is often used in combination with ‘stents’ which are expandable metal tubes which hold an artery open once they have been stretched in place over an angioplasty catheter. This technique can be used to treat longer sections of vessel. Catheter directed thrombolysis: In cases where diseased arteries have suffered thrombosis or an embolism has blocked an artery, a catheter can be placed into the thrombus blocking the vessel and a ‘clot busting’ drug infused to dissolve the thrombus. This method takes several hours to dissolve clot and in cases of acute limb ischaemia, where immediate restoration of blood flow is essential, either a catheter clot removal method or open surgical technique are used. Catheter surgery: Catheters are available which will remove thrombus and atheroma. These may be used to treat blocked vessels via a skin puncture over a major artery. Some use mechanical methods to remove atheroma. One type employs high pressure jets of saline to remove thrombus. These can be used in combination with angioplasty and stenting.

Problems giving rise to litigation in patients with severe limb ischaemia In my experience the most frequent problems giving rise to litigation is delay in recognition of the diagnosis, most commonly in those patients with critical limb ischaemia. Patients with sudden onset of severe symptoms usually receive prompt and effective treatment which restores blood flow and prevents significant damage arising in the limb. However, I have come across one case in which severe ischaemia affecting both lower limbs was initially thought to be due to a stroke, resulting in delay in diagnosis. This was compounded by a long delay before transfer to another hospital where the correct treatment was provided. The total period of severe limb ischaemia amounted to about 24 hours and led to bilateral above knee amputations. Such a protracted delay in hospital before treatment of acute limb ischaemia would be regarded as sub-standard treatment. More commonly, patients with critical limb ischaemia suffer foot or ankle ulceration and this can be confused with ulceration arising from a vein problem, rather than arterial disease. Ulcers of venous origin are usually treated by compression bandaging but in a patient with arterial disease this can shut off the small remaining blood flow to a limb with ischaemia leading to disastrous damage to the limb. Current standards of care for limb ulceration management include an initial assessment in which the ankle blood pressure is measured. This will detect those patients with severe limb ischaemia leading to leg ulceration and ensure that appropriate management is arranged urgently. Failure to assess the arterial circulation in a patient being treated for leg ulceration before treatment begins or soon afterwards could be regarded as substandard management. Amongst patients presenting to hospital with critical limb ischaemia it has been shown that about 90% will avoid lower limb amputation with timely and effective management of the blocked arteries. The outcome is the same whether open surgical methods or the newer endovascular techniques are employed. However, patients with critical limb ischaemia tend to have a poor long term prognosis. Presentation to hospital with this diagnosis leads to an average life expectancy of about 5 years after the event. Patients with lower limb arterial disease have arterial disease in other critical places including the coronary arteries leading to a reduction in life expectancy. This will influence assessment of quantum.

Sometimes amputation cannot be avoided In some instances the affected limb cannot be saved despite the best efforts of vascular surgeons to restore blood flow, even when a timely referral to hospital has been made. These cases arise when the peripheral vascular disease is so severe that no remaining artery of any size is present in the leg and all attempts to open the blocked arteries fail. I am aware of a number of instances where this has occurred, and reported clinical series have found that this affects about 10% of patients presenting with critical limb ischaemia. Arterial disease may have progressed over many years, often encouraged by the patient’s smoking habits. Perhaps angioplasty or other treatments have been used to save the limb on previous occasions. Eventually the remaining vessels are so diseased or so few that it is no longer technically feasible to do any operation to save the limb. Amputation is the only option since delay may lead to the death of the patient. I have advised in a number of such cases. A commonly advanced defence in cases where the limb has been lost after a delay in referral is that the limb would have been lost in any case. However, of those patients reaching hospital and receiving reconstructive surgery for critical limb ischaemia, only about 10% will require amputation. If the patient is referred to hospital at such a late stage that the limb is no longer viable, then amputation is inevitable. It can readily be argued that timely referral would have led to only a modest risk of amputation and that on the balance of probabilities the limb would have been saved.

Conclusion The modern vascular surgical team can offer several options to restore the blood flow to severely ischaemic limbs. Delays in referral to hospital prejudice the outcome since ischaemic limbs very rapidly become nonviable if neglected. However, not all limbs can be saved. Sometimes the arterial disease is too extensive or severe to permit restoration of blood flow and an amputation is the only solution. q

www.yourexpertwitness.co.uk

45 45


46 46

www.yourexpertwitness.co.uk


Hearing claims can be successful even years after exposure ‹ Despite the passing over time of a series of regulations governing exposure to noise at work,

there is still a steady flow of cases coming to court regarding noise-induced hearing loss caused by noise at work. Noise-induced hearing loss is described by the NHS as ‘damage to the ear due to repeated exposure to loud noises over time.’ It occurs when the sensitive hair cells inside the cochlea become damaged and is known as sensorineural hearing loss. The cells cannot be repaired or replaced. Another cause of sensorineural hearing loss is damage to the auditory nerve, though this happens very rarely. Action on Hearing Loss describes the process thus: “You gradually get a sensorineural hearing loss that is usually most severe in the high frequencies (pitches). The hearing loss will be similar in each ear and will get worse if you continue to be exposed to the noise. Sometimes, you will not notice the effect on your hearing until years after you were first exposed to the noise.” Hearing loss can also occur suddenly due to an exceptionally loud noise, such as an explosion. This is known as acoustic trauma. In addition, exposure to noise can cause tinnitus. Again, according to Action on Hearing Loss: “Tinnitus is a medical term to describe noises that people can hear in one ear, both ears or in the head, such as ringing, buzzing or whistling. The sounds heard can vary from person to person, but the common link is that they do not have an external source. “Sometimes tinnitus is the first sign that your ear has been damaged by noise. You may get tinnitus before you notice any effect on your hearing. The tinnitus can occur suddenly or very gradually. For some people it can be temporary, but continued exposure to loud noise may make it permanent.” The Association of Personal Injury Lawyers warns that the problem can take several years to develop, meaning action should be taken swiftly once the problem has occurred as there may be a limited time to make a claim. In many cases the defendants will deny either the facts of the hearing loss or its causation. Examination by an expert is therefore often essential. It is, however, possible to claim successfully many years after the noise exposure was first experienced. Manchester-based hearing claim specialists WE Solicitors have recently reported two cases of workers in the paper industry where they negotiated out-ofcourt settlements for exposure over many years, including periods before the introduction of the regulations. In one case, according to the firm: “The defendants continued to deny the claim on the grounds of causation, arguing that the plaintiff did not have noise-induced hearing loss. The case was soon to be listed for trial when an out-of-court settlement was reached in the sum of £4,500.” R

Regulations protect workers ‹ ON 6 APRIL 2006 the Control of Noise at Work Regulations

2005 – known as the Noise Regulations – came into force for all industry sectors except music and entertainment, where a two-year delay meant they came into force in April 2008. According to the Health and Safety Executive: “The aim of the Noise Regulations is to ensure that workers’ hearing is protected from excessive noise at their place of work, which could cause them to lose their hearing and/or to suffer from tinnitus.” The level at which employers must provide hearing protection and hearing protection zones is now 85db (daily or weekly average exposure) and the level at which employers must assess the risk to workers’ health and provide them with information and training is now 80db. There is also an exposure limit value of 87db, taking account of any reduction in exposure provided by hearing protection, above which workers must not be exposed. The Noise Regulations do not apply to members of the public exposed to noise from their non-work activities or when they make an informed choice to go to noisy places. R www.yourexpertwitness.co.uk

47 47


48 48

www.yourexpertwitness.co.uk


Personal injury photography in the operating theatre By DAVID BRYSON, Personal Injury Photographer

‹ PERSONAL INJURY PHOTOGRAPHY

isn’t restricted to the photographic studio. In my time I have visited nursing and care homes to photograph clients with road traffic accident injuries and pressure sores and photographed young children in their own homes where they feel safe. I have visited Long Martin and Winsome Green prisons to photograph inmates, taken photographs at a second autopsy and, the topic of this article, taken photographs in the operating theatre. Operations on clients involved in personal injury litigation are equivalent to an autopsy in forensic cases. They enable the consultant to see injuries and details that can’t be easily seen on X-rays or even Magnetic Resonance Imaging (MRI) – for example blood flow in a joint during a total knee replacement following injury – which have implications for prognosis. Unlike an autopsy, where a second autopsy can take place, an operation is a one time opportunity to look at an injury or features of clinical negligence and photography should be an important part of any procedure. Photography when the patient is under anaesthesia is useful to reveal the extent of joint movement. For knee complaints, showing the full range of a condition can be very painful and so patients can tense up and the true picture isn’t seen. The photos above right show the extent of movement of the knee joint with varus and valgus stress under anaesthesia. The operation also showed that, alongside ligament and cartilage damage, the client had a compression fracture of the tibial surface including damage to the cartilage1. The idea of using photography in theatre for personal injury cases is not recent. In 1955 Averbach2 recommended that ‘...when a trial lawyer knows in advance that a client, while a patient in a hospital, is scheduled for a... open reduction in the orthopaedic field or plastic surgery procedure, that arrangement should be made... to requisition full medical photography in the case.’ In orthopaedics it is difficult to tell the extent of cartilage damage, even from an MRI. So if the knee is being opened up for an operation, such as replacement or repair of a cruciate ligament, then being able to show the effect of an accident and facture on the joint surface can be useful in determining the quantum of damage and arriving at a prognosis for the client. In plastic surgery, photography is the only way to record damage to soft tissues.

Examination under anaesthesia of joint movement with varus stress (left) and valgus stress (right)

Photography of the femoral surface of the knee joint with the healed fracture shows changes to the cartilage Clinical and photographic records from an operation can provide valuable evidence as to causation, quantum of damage and prognosis. It is important in supporting early rehabilitation that operative corrections are undertaken but the opportunity should not be lost in these cases for photographs to be taken. Operating theatre photography is an integral part of a clinical photographer’s training and so in this aspect of personal injury photography, as in others such as

visiting prisons where only qualified clinical photographers are allowed, the requirement for a qualified clinical photographer needs to be emphasised. q REFERENCES 1

Bryson, D. (1999) Operating theatre photography

1

for personal injury cases. Journal of Audiovisual

1

Media in Medicine; 22 (2): 75-82.

2

Averbach, A. (1955) Medical photography as a

1

boon to trial lawyers. J Biological Photographic

1

Association; 23:110-2.

www.yourexpertwitness.co.uk

49 49


Avoiding complications in blepharoplasty By MR BRIAN LEATHERBARROW, Consultant Ophthalmic, Oculoplastic & Orbital Surgeon

‹ MANY PEOPLE TYPICALLY seek an opinion about this

increasingly popular type of cosmetic eyelid surgery for a number of reasons. They may have concerns about lower eyelid dark circles which can cause a tired appearance and attract unwanted comments from others, undermining their self confidence. The same can be said about hooding of the eyes and the development of eye ‘bags’, both of which conditions can cause an aged appearance. A blepharoplasty is an operation that removes loose folds of skin from the upper eyelids and eye ‘bags’ from the lower eyelids. An upper eyelid blepharoplasty is performed for people who have droopy, overhanging eyelid skin that impairs vision, looks unsightly or prevents the application of make up. It can be combined with blepharoptosis surgery if there is an associated droop of the upper eyelid itself. Often an eyebrow ptosis (drooping of the eyebrows) contributes to the problem and may also need to be addressed. Many patients are now seeking non-surgical interventions to help to camouflage the appearance of lower lid dark circles. This is referred to as ‘tear trough rejuvenation’ for which a variety of dermal filler injections are used. These treatments are not, however, subject to any form of regulation and can be undertaken by practitioners who are poorly trained and inappropriately qualified. In addition, inappropriate fillers are often used in this very delicate area. This has led to a rapid rise in complications, complaints and litigation. It is important that other potential medical problems are excluded as an underlying cause of the complaint – an underactive thyroid gland can, for example, cause ‘puffy’ eyelids. The Department of Health provides the following recommendations

50 50

www.yourexpertwitness.co.uk

for such surgery, stating “This procedure should be carried out by a surgeon with relevant skills and experience in an establishment registered with the Care Quality Commission. An ophthalmologist (an eye surgeon) should also assess a patient’s suitability for surgery.” An ophthalmologist who is also an oculoplastic surgeon has the required skills not only to examine a patient’s eyes using specialist equipment but also to undertake this highly specialised surgery. Unfortunately, complications of surgery undertaken by those who are not experts in eyelid surgery are not uncommon and very few of their patients have seen an ophthalmologist pre-operatively. Oculoplastic surgeons are frequently called upon to manage: • complications of surgery undertaken by surgeons in other specialties who cannot examine a patient’s eyes and who cannot appropriately diagnose pre-existing eye problems, such as a dry eye problem • the ophthalmic sequelae of surgery undertaken in a substandard fashion. For example, exposure of the eyes due to incomplete eyelid closure with constant discomfort and blurred vision, watering and overflow tearing of the eyes and double vision • unsatisfactory aesthetic outcomes with revisional eyelid surgery. An experienced oculoplastic surgeon is the ideal choice to provide a medicolegal opinion about liability and causation issues following the occurrence of complications of blepharoplasty surgery, and about a patient’s condition and prognosis. q • For further information visit Mr Leatherbarrow’s website at www.eyelidsurgery.co.uk.


Ophthalmologists respond to NHS challenge ‹ THE ROYAL COLLEGE of Ophthalmologists has issued

responses to the NHS Call to Action: Improving Eye Health and Reducing Sight Loss. Two responses were submitted as part of a consultation that ended on 12 September. They came from the College Council and from its Lay Advisory group. In the responses, the college outlined its recommendations to meet the needs of patients with visual impairment through better and more efficient hospital eye services. There is a call for clinical data and research to help optimise resources, for improved clinical expertise and for funding to ensure that all patients being seen for the first time or being followed up for acute and chronic eye

conditions are seen by the right eye care professional, in the right location and at the right time. That, says the college, should be facilitated by IT links between primary care, hospitals and community services. Announcing the responses, the college said: “This is a unique opportunity to change the way ophthalmic services are delivered in hospitals or the community. We urge all key decision makers in the health sector to take up the recommendations made in this response and to maximise the expertise of ophthalmologists, supported by allied professionals, for the benefit of patients’ safety and quality of life.” q

Laser surgery investigated by Which? ‹ AN INVESTIGATION BY Which? has found that some high

street clinics are giving unsatisfactory advice about the risks of laser eye surgery, and even pressuring customers to sign up. In its report, the consumer group says that a third of the 18 consultations given to its researchers posing as potential patients were rated 'poor' by an expert panel, with one of the leading chains rated the worst. As with any surgery, the group claims, potential laser eye surgery patients need full information about the risks for their particular eyes to make an informed decision. Serious long-term complications are rare but, in extreme cases, patients have debilitating long-term problems, such as severe dry eyes, and could even lose some sight. The Which? expert panel was consequently concerned that a third of the clinics visited played down the potential risks of surgery. On some visits staff even played down the fact that it is surgery. Investigators also found evidence of high-pressure sales practices during the course of the research. According to law firm Asons, problems following laser eye surgery arise in less than 5% of cases. “However, when things go wrong, and clinical negligence or surgical errors take place, these can have dramatic consequences with the potential to cause blindness,” the firm said. Which? pointed out that the laser eye surgery involved in the research was to correct vision such as short sight, rather than the specialist procedures carried out in hospitals to prevent vision loss. The main types of laser treatment are Lasik (laser-assisted in-situ keratomileusis) and Lasek (laser epithelial keratomileusis). q

www.yourexpertwitness.co.uk

51 51


52 52

www.yourexpertwitness.co.uk


Psychological injury in clinical negligence – Peri-traumatic stress By Dr Hugh Koch, Chartered Psychologist and Director, Dr Victoria Lucas, Chartered Psychologist, Dr Jon Willows, Chartered Psychologist and Dr Paul Elson, Chartered Psychologist – all of Hugh Koch Associates LLP

‹ WITH THE GRADUAL increase in claims

for medical negligence in recent years (Koch et al, 2013) there has been a growing awareness and understanding of the psychological aspects of adverse medical incidents. As we know, such incidents occur across all medical specialties, the most common are shown in figure 1 (right). Typically the main area of psychological injury involves symptoms of depression, anxiety (trauma-related, generalised, phobic and/or social anxiety) and neuropsychological impairment (when a brain injury has occurred). Depression symptoms: • Low mood, tearfulness, lack of interest • or pleasure, appetite change, poor sleep, • nightmares, lethargy, poor self-esteem, • concentration difficulties, irritability, • suicidal thoughts or intent, social • withdrawal, pessimism. Anxiety symptoms: • Somatic (physical) symptoms such as • hyperventilation, muscular tension, • nausea. • Cognitive symptoms including anxious • anticipation, worrying, ‘catastrophising’ • and ‘predicting the worst’, flashbacks. • Behavioural manifestations of anxiety such • as avoidance of feared ‘trigger’ situations, • withdrawal and increased ‘safety • behaviour’. • Social effects of anxiety including • withdrawal from friends, emotional • withdrawal from family and loss of self • esteem. Cognitive Impairment symptoms: • Impaired concentration and/or memory, • poor ‘executive functioning’ leading to • difficulties with decision-making, ‘planning • ahead’ and organising information in one’s • everyday life. • Emotional and social consequences of the • impairment(s) incurred. Specialty-specific psychological consequences of medical accidents such as breast implant removal and retention, and consciousness during general anaesthetic were discussed in a previous edition of this journal (Koch et al, 2013). One aspect of this was the ‘peri-traumatic’ postmedical incident effects – in normal English, the acute phase occurring immediately at or just after the adverse medical incident.

Figure 1

What are the main clinical areas of medical negligence? Below are listed some of the most common medical areas in which medical negligence claims have been brought.

Area

Example

Accident and Emergency Delay in diagnosis.

Failure to diagnose a fracture. Lack of communication.

Orthopaedic Claims

Delay in diagnosis of developmental dysplasia of hip. Failure to diagnose fractures. Unintended anaesthetic awareness. Medical and nursing attitudes.

Amputation Surgery

Vascular problems in diabetes. Serious limb injuries or infection. Delay in diagnosing bone cancer. Lack of understanding of phantom limb experiences.

Brain Injury

Cerebral Palsy problems. Delay in diagnosing sub-arachnoid haemorrhage. Anaesthetic complication during surgery. Unintended anaesthetic awareness.

Cancer

GP failure to arrange intervention or referral. Failure to investigate symptoms in hospital. Misreporting of scans, smears or biopsies. Communication problems

Cosmetic Surgery

Breast augmentation and reduction injuries. Adverse effects in eyelid surgery, facelifts or ear reshaping. Unacknowledged social anxiety.

Birth Injuries

Delay in delivery causing deprivation of oxygen. Failure to diagnose jaundice or low blood sugar. Injuries to Brachial Plexus and Erbs Palsy. Poor communication with parents. www.yourexpertwitness.co.uk

53 53


The acute phase of medical accidents Medical trauma victims typically report alterations in their experience of place, person and time associated with a sense of unreality to what has been happening. Being in a medical accident can result in the phenomenon of dissociation which may take several forms, such as an altered time sense, with time being experienced as slowing down or significantly accelerated; feelings of unreality, depersonalisation, out-of-body experiences and general confusion and disorientation. These phenomena are recognised by trauma specialists as peri-traumatic dissociations (Marmar et al, 1996). Research has identified these dissociative experiences in victims of medical accidents. Independent studies plus extensive clinical findings point towards a predisposition or vulnerability to subsequent psychological or psychiatric disorder arising from peri-traumatic dissociation. Initially, it was thought that dissociation somehow protected an individual from: a) the initial shock and, b) any subsequent adverse reaction. However, it is now thought that such experiences are themselves predictors of later disorders.

What is peri-traumatic dissociation? Marmar et al (1996) identified nine main items of dissociative experiences at the time a traumatic event was occurring: 1. Moments of losing track or blanking out. 2. Finding one self-acting on automatic 2. pilot. 3. A sense of time changing during the event. 4. The event seeming unreal, as if in a 2. dream or play. 5. Feeling as if floating above the scene. 6. Feeling disconnected from body or body 2. distortion. 7. Confusion as to what was happening to 2. oneself and others. 8. Not being aware of things that happened 2. during the event that normally would 2. have been noticed. 9. Not feeling pain associated with physical 2. injury. Overall, clinical findings are supportive of a link between medical incident peri-traumatic dissociation and subsequent psychological disorder. The underlying mechanism for this and reasons for individual variability in peri-traumatic dissociation remain unclear with personality, genetics, psychobiological models and pre-existing vulnerability all making a contribution. In addition to peritraumatic dissociation, other predictors of later distress were lack of social support, pre-existing personality traits and degree of actual exposure to the critical medical incident. From a medico-legal point of view, peritraumatic dissociation, if ongoing for several hours and days, can result in one of several psychological disorders which are clearly attributable to the index accident.

54 54

www.yourexpertwitness.co.uk

These include: 1. Acute Stress Disorder (ASD) (DSMIV 1. 308.3) 2. Specific Phobia (DSMIV 300.29) 3. Adjustment Disorder (DSMIV 309.24/28) 4. Depressive Disorder (DSMIV 311) In cases where these dissociative symptoms, alongside other psychological symptoms, last for four weeks or more and have a significant disruptive effect on personal, social and occupational areas of living, then Post Traumatic Stress Disorder (PTSD) (DSM-IV 309) may be the appropriate diagnosis to consider. There are two important distinctions between ASD and PTSD. Acute Stress Disorder is a more immediate, short-term response to trauma, lasting between hours and four weeks. The second distinction is that ASD is more associated with peri-traumatic dissociation with extensive emotional disconnection, temporary amnesia, depersonalisation where the person feels detached, and derealisation where their world seems strange or unfamiliar and they don’t feel real. Peri-traumatic dissociation in medical incidents can lead to Acute Stress Disorder when the dissociation significantly and adversely affects day-to-day activity and functioning. In addition to dissociative experience, the medical incident victim may find the traumatic event is persistently re-experienced via nightmares and flashbacks. ASD sufferers report sudden, unwanted, uncontrolled and intrusive visual and sensory memories of their experience – sometimes in response to obvious reminders or triggers and sometimes not. This involuntary recall is accompanied by intense emotion – often similar to the fear that was present at the time – and are vivid but also fragmentary and scrambled in time; they do not offer a neat, coherent account of the incident. Although often primarily visual, this recall also presents with sound, smell or physical information. A key aspect is that a true flashback is a dissociative experience. For a few moments, or longer in rarer cases, the individual is truly lost within the memory and is re-experiencing the trauma in a manner quite different to normal memory recall. It is a dramatic and discomfiting experience and typically leaves in its wake significant upset both from the memory content but also at having had the uncontrolled recall event (Reay et al, 2012). With regards to nightmares, it is important to define how serious, severe or ‘pathological’ the experience is. It is crucial to distinguish nightmares, which waken the sleeper, from bad dreams, and those which do not. Levin & Nielsen (2007) proposed a useful typology of dreaming relating this to variable feeling (affect), distress and trauma severity. They illustrate how normal dreaming, bad dreams and idiopathic nightmares (no link to index event) with low distress are all considered non-pathological. Idiopathic nightmares with high distress, post-traumatic trauma-related nightmares and post-traumatic replicative nightmares (linked to imagery of index medical

event) are all considered pathological because of the subjective emotional distress associated with them. In addition, there may be avoidance of stimuli that remind or arouse recollections of the medically-related trauma, such as attending GP or hospital, watching medical TV programmes. There may also be increased arousal, anxiety and a tendency to ‘jump’ or be startled by loud noises or sudden movements. During these difficult first few days following trauma, the individual may feel hopeless and low in mood, even depressed. This is especially so if the trauma led to another person’s death or serious injury. From a medico-legal point of view, claimants will typically discuss details of their traumatic medical experience without prompting, providing they are given the space to do so with open questioning. Some peri-traumatic and re-experiencing experiences may also be recorded either in hospital or on GP records or claimant or relatives’ witness statements. Direct questioning by the expert is important, although it can result in a higher degree of socially desirable responses. It is appropriate that, in obtaining a comprehensive and reliable estimation of how significant a medical trauma and subsequent personal injury is, a full assessment of the psychological effects including peri-traumatic and re-experiencing experiences of the claimant is carried out. 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 • Koch HCH & Kevan T (2005). Psychological • Injuries. XPL. St Albans. • Koch HCH, Beavan-Pearson J and Willows J • (2013). Why did this happen to me? Expert • Witness Autumn. • Koch HCH, Goodall B and Midgley S (2013). The • Acute Phase of Trauma. Expert Witness. April • May 86 – 88. • Koch HCH, Willows J & Lucas V (2014) • Assessing and treating the psychological effects • of medical accident of negligence. Your Expert • Witness, 28, 35 – 36. • Levin R and T A Nielson (2007) Disabled • dreaming, PTSD and Affect distress. American • Psychological Association 133, 3, 482-528. • Marmar C R,Weiss D S, Metzler T J & Delucchi • K (1996). Characteristics of emergency services • personnel related to peri-traumatic dissociation • during incident exposure. American Journal of • Psychiatry 153, 94 -102. • Reay K, De Haro L, (2012) Why ‘Flashback’ is a • much misused term. PIBULJ. February All four authors provide expert reports in medical negligence cases as part of Hugh Koch Associates. (www.hughkochassociates.co.uk) and can be contacted on 01242 263715.


One new drug a week puts health services under pressure ‹ HEALTH SERVICES ARE NOT equipped

to deal with the rise in club drugs and socalled ‘novel psychoactive substances’ (NPS), according to a report published in September by the Royal College of Psychiatrists’ Faculty of Addiction Psychiatry. The report is the first that the faculty has published on the subject of club drugs and NPS. In a statement the faculty says: “Services are under pressure due to the concerning number of users of club drugs – psychoactive substances used in nightclubs, bars and festivals – such as ketamine and mephedrone. It is estimated more than one million adults a year use club drugs and every week a new NPS – drugs that mimic, or claim to mimic, the effects of traditional drugs – is introduced across Europe, often made easily available for purchase on the internet.” The statement continues: “Despite their reputation as ‘recreational’ drugs, club drugs and NPS are clearly causing significant and sometimes catastrophic harm for some. Harms including extreme toxic reactions, heart irregularities, damage to internal organs, overdose, psychosis and longer-term physical

and psychological dependence have been reported.” Dr Owen Bowden-Jones, a consultant addiction psychiatrist at the Club Drug Clinic of the Central and North West London NHS Foundation Trust and co-author of the faculty’s report, said: “Our current drug services were designed to deal with the drugs and dangers of the last decade, such as heroin and crack; and while it is important that this work continues, services now need to widen their front door and adapt to address the serious harms that club drug and NPS users are experiencing.” In its discussion paper, the faculty recommends six steps to ensuring services are equipped to tackle the growing use of club drugs and NPS: • Drug services should put the treatment and recovery needs of club drug and NPS users on an equal footing and importance with alcohol and opiate treatment • Support and training are needed for frontline healthcare staff • Non specialist services need to establish better links with drug services so specialist support and expertise can be shared, and

onward referrals made more effectively • With new club drugs and NPS emerging all the time, information on the harm they can cause should be recorded not only by drug and alcohol services, but also by expanding national monitoring systems to include information from accident and emergency/acute care settings, primary care, sexual health services, mental health services and prisons • Research funders should prioritise new programmes into interventions for club drug and NPS users • Preventing initiation of club drug and NPS use through access to reliable information is a priority q

www.yourexpertwitness.co.uk

55 55


56 56

www.yourexpertwitness.co.uk


The role of the expert witness

in urology

By CHRIS DAWSON MS FRCS LLDip, Consultant Urologist

‹ THE UROLOGY EXPERT WITNESS potentially has many

roles to play. For convenience these have been broken down into personal injury claims and medical negligence claims.

Personal injury In the author’s experience the majority of personal injury claims follow road traffic accidents (RTA). The majority of claimants will have multiple injuries, often involving pelvic trauma. Male claimants often present with erectile dysfunction due to pelvic nerve and blood vessel trauma. Causation is relatively straightforward in such cases. Some patients may be helped with phosphodiesterase inhibitors such as Viagra or Cialis, or by intracavernosal injection therapy with alprostadil. The outcome may be difficult to determine but failure to respond to the above strategies usually indicates a poor prognosis. Pelvic trauma may also lead to urethral disruption in the male patient with subsequent stricture formation. These patients are usually treated with urethroplasty, but are at risk of future urethral stricture. RTA may also lead to organ trauma necessitating removal of one of the kidneys. In the majority of such cases the other kidney will hypertrophy and compensate for the loss of renal function. The expert will be required to comment on prognosis and the risk of damage to the remaining kidney.

Medical negligence Compared to other specialties urology appears less prone to claims of negligence but there are some exceptions, notably testicular torsion, vasectomy and matters relating to consent. Testis torsion occurs when one of the testicles twists on the spermatic cord (blood vessels and vas deferens). This usually occurs spontaneously although certain anatomical features make the condition more likely to occur – the so-called ‘Bell clapper testis’. The annual incidence of torsion is 1 in 4,000 males under the age of 25 years (Ringdahl & Teague 2006). Although it can affect males at any age it most often occurs around the age of puberty (Cuckow & Frank 2000). The typical features of torsion are pain and swelling of the affected scrotum often with reddening of the overlying skin. The features are often variable and the diagnosis may be difficult to make, particularly in men with a history of sexual contact in whom the diagnosis of orchitis may be entertained. The published literature suggests that imaging with Doppler ultrasound may be helpful, but this should never be allowed to interfere with a speedy diagnosis, particularly in the hospital setting where such investigations may not be readily available in an out of hours setting. Where there is doubt, the affected scrotum should be explored at the very earliest possibility. Ischaemia can occur as soon as four hours after torsion and is almost certain after 24 hours of torsion

(Ringdahl & Teague 2006). In one study investigators quoted a testicular salvage rate of 90% if detorsion occurred within six hours from the onset of symptoms. This fell to 50% after 12 hours and to less than 10% after 24 hours (Ringdahl & Teague 2006). The Bristol series showed that of those testes that had been twisted for less than 12 hours, only 4% appeared necrotic and were removed, but beyond this time 75% of patients underwent orchidectomy (Cuckow & Frank 2000). Vasectomy, or rather failed vasectomy, is another source of litigation but proper counseling and consent should prevent claims against the surgeon concerned. Use of the British Association of Urological Surgeons (BAUS) information sheets, available at www.baus.org.uk and procedure-specific consent forms will avoid any doubt as to what the patient was told. The patient should in particular be advised of the early failure rate of 1 in 250 to 1 in 500, and the late failure rate of 1 in 4,000. Chronic testicular pain after vasectomy is common with a rate of 10-30% and this should also be explained to the patient. Urogynaecology: The expert witness in urology will often be involved in claims involving the aftermath of gynaecology procedures. In the author’s experience the majority of these involve alleged damage to one or both ureters. This may occur during emergency caesarian section, hysterectomy or removal of large ovarian cysts or fibroids. Liability will be for the expert witness in gynaecology to decide upon, and the urology expert witness will be asked to comment on matters of causation and condition and prognosis. Consent: As with other specialties the issues of consent and counseling are common themes in urology medicolegal cases. It is essential that the patient has a full explanation of any procedure in the outpatient department and both the GMC (GMC 2013) and Academy of Medical Royal Colleges (2014) have issued guidance on consent issues. In 2008 the Royal College of Surgeons made the following recommendations (Royal College of Surgeons 2008): • Meet with the patient prior to surgery to discuss the operation • and its implications • Ensure that patients are given information about the treatment • proposed, any alternatives and the main risks, side effects and • complications when the decision to operate is made • Provide time for patients and their supporters to discuss the • proposed procedure and provide an opportunity for the patient • to make a fully informed and unharrassed decision to agree to • the treatment suggested. Best practice therefore would be to follow the above guidance and to keep clear, comprehensive and contemporaneous notes about any discussion. So often, in the author’s view, the medical notes and clinic letters are lacking in detail about what was proposed to the patient. Use of the BAUS information sheets and procedure-specific consent forms will help to clarify what was explained to the patient. Counselling should be well in advance of surgery and consent should ideally not be left to the day of surgery. q www.yourexpertwitness.co.uk

57 57


58 58

www.yourexpertwitness.co.uk


MPs and doctors unite against FGM ‹ IN JULY THE Commons Home Affairs

Select Committee published its report calling for a national action plan to combat the practice of female genital mutilation and for specific steps to respond to this growing crisis. The committee agreed that a number of successful prosecutions would send a clear message to those involved that FGM is taken with the utmost seriousness in the UK and will be punished accordingly. It also said there should be an extension of the right to anonymity to include victims of FGM in order to aid prosecution. It stated that the ‘good example of France’ should be emulated and there is a case for a system that empowers medical professionals to make periodic FGM assessments where a girl is identified as being at high risk. Other proposals in the report include: • The multi-agency guidelines on FGM should be placed on a statutory footing to provide a stronger incentive for the provision of training on FGM to all those who need it • The inclusion of mandatory questioning on FGM for ante-natal booking interviews and at GP registration along with changes to the Personal Child Health Record/Red Book to refer explicitly to FGM • All schools should be required to provide training on FGM in the remaining in-service training days in 2014 • The introduction of FGM protection orders similar to those which exist for forced marriage • Making the failure to report child abuse a criminal offence if other measures to increase the level of reporting are not effective in the next 12 months. Rt Hon Keith Vaz MP, chairman of the committee said: “FGM is an on-going national scandal which is likely to have resulted in the preventable mutilation of thousands of girls to whom the state owed a duty of care. Successive governments, politicians, the police, health, education and social care sectors should all share responsibility for the failure in recent years to respond adequately to the growing prevalence of FGM in the UK. We need to act immediately. “It is unacceptable that those with clear access to evidence of these crimes do nothing to help those at risk. We must follow the example of France and remove any barriers to referral. Conversations and checking must become the norm. In 12 months’ time, if reporting does not increase, we must make a failure to report a criminal offence.” Welcoming the report, the Royal College of Obstetricians and Gynaecologists (RCOG) said: “Many of the recommendations of the committee report echo the recommendations of the Intercollegiate Group report on FGM published in November 2013. The

role of data collection and the sharing of information between agencies, along with the development of care pathways and training materials for healthcare professionals, are acknowledged by the committee. “The RCOG agrees that clinicians sometimes have difficulty discussing the issues when dealing with children and/or women from ethnic backgrounds. This may become a barrier in the surveillance of at-risk girls and women. Better tools and training to improve the confidence of healthcare professionals so that they can address FGM issues with those in their care in a nonjudgemental but direct way would be helpful.” The RCOG statement continued: “Doctors should be aware that they may be dealing with potential child abuse and making an automatic referral to children’s social care or the local multi-agency safeguarding hub does not breech patient confidentiality but provides added protection to the child. Such preventive measures are also part of the life-

Doctors should be aware that they may be dealing with potential child abuse

course approach. Other times when doctors should be vigilant include when girls present for their inoculations (childhood diseases, booster, HPV and travelling vaccinations), routine health checks or if they seek sexual healthcare.” q

Trust settles in ‘lack of consent’ case ‹ PENNINGTONS MANCHES LLP reports that it has settled a claim against Frimley Park

Hospital NHS Foundation Trust for treatment provided by a consultant gynaecologist to its client, a Surrey grandmother in her 50s. The treatment provided was for symptoms of urinary frequency, urgency and incontinence. The patient was advised that she required surgery which was carried out at the end of July 2010. Although the urinary symptoms were noted to have improved post-operatively, she developed additional symptoms of pain and tenderness. After further investigations, she was advised that she required a further procedure and she was consented for an injection to a 'trigger spot' on her vaginal wall where an internal suture was possibly aggravating the pain in that area. During that operation, in December 2010 – which was carried out under general anaesthetic – the surgeon also proceeded, without the patient’s consent, to make incisions into the internal vaginal wall. These caused significant bleeding which required her to undergo a further emergency operation to resolve the bleeding on New Year’s Day 2011. The incisions made without consent could not be justified by reason of necessity or emergency. Following the procedures the urinary symptoms returned and the patient’s bowel symptoms worsened, resulting in faecal incontinence. She has required further, significant investigations and treatment which have, unfortunately, failed to fully correct the injury caused. After investigation, the allegations were put forward in a Letter of Claim to Frimley Park Hospital NHS Foundation Trust and the allegations of breach of duty were admitted in the Trust’s response. Specifically, the Trust admitted its failure to obtain appropriate consent to perform the incision to the posterior vaginal wall and its failure to perform surgery to the appropriate standard. As a result of negotiations, the claim was settled in the sum of £50,000. Emma McCheyne of Penningtons Manches LLP said of the settlement: “We were pleased to achieve this settlement for [our client] but she has still not received an apology from the Trust. We understand from the Trust's solicitors that they are seeking instructions on whether an apology will be offered.” q www.yourexpertwitness.co.uk

59 59


Research studies language development in Wales ‹ NEW RESEARCH commissioned by

the Welsh Government supports the need for more speech and language therapists for some of Wales’s youngest and most disadvantaged children. Cardiff-based consultancy Arad Research was commissioned to review current practice in relation to early language delay within Flying Start settings in Wales. The research has been warmly welcomed by the Royal College of Speech and Language Therapists (RCSLT) as it highlights the vital role of speech and language therapists in tackling early language delay among Wales’s youngest and poorest children. In a statement the RCSLT said: “Learning to communicate is one of the most important elements of child development in the early years. The ability to listen, understand, talk and interact with others is an essential component of a child’s development and impacts on all areas including social, emotional and behavioural wellbeing. These skills are essential to a child’s ability to access education to their full potential.” Delay in language development is recognised as the most common childhood disability amongst pre-school children – affecting up to 25% and rising to more than 60% for children in particularly disadvantaged communities. Boys are more affected than girls. Arad’s recommendations to the Welsh Government include: • All local authorities should employ speech and language therapists as part of their core Flying Start teams, with a particular focus on early language delay entitlement. • All Flying Start staff should receive a minimum level of training relating to early language delay and good-practice in adult-child interaction. This training should be overseen by a speech and language therapist. • Flying Start childcare staff and other

60 60

www.yourexpertwitness.co.uk

staff who deliver early language provision directly to children should be encouraged to undertake more detailed training relating to early language development. Where possible, this should be accredited and planned by a speech and language therapist. • All staff using screening and assessment tools should receive training on the implementation of these tools to ensure they are applied consistently.

Reporting the research, Arad said: “The review considers practitioners’ awareness, understanding and training in relation to early language development (ELD), models and structures of delivery, screening and assessment tools and engagement with families. The findings will be used to inform future guidance and delivery of the ELD entitlement in Flying Start.” R

Royal College submits evidence to child exploitation inquiry ‹ IN JULY THE Royal College of Speech and Language Therapists (RCSLT)

submitted a briefing document to the Independent Inquiry into Child Sexual Exploitation in Northern Ireland. The document went into a great deal of detail on the ways in which speech, language and communication skills are ‘key factors to consider in relation to child sexual exploitation’. It also went into detail on how those factors impacted on the child population of Northern Ireland in particular. In the context of geography the RCSLT noted that difficulties in the areas of speech, language and communication are more prevalent among young people in Northern Ireland than any other single condition, affecting 7-10% of all children. The evidence identified three specific areas where speech and language difficulties are critical factors when considering child sexual exploitation. These were: • Speech, language and communication skills as a predictor of neglect • Speech, language and communication skills and risk of harm • Speech, language and communication skills and achieving best evidence through the • judicial process The evidence also identified a cycle of behaviour connected to the fact that an estimated 60% of young offenders suffer speech, language and communication difficulties. Evidence supports the fact that children and adults with communication difficulties are at greater risk of harm than the general population. The document concluded: “Young offenders with speech and language deficits will become parents themselves and will thus continue a cycle of poor communication enrichment with their own children. These risk factors need to be addressed if we are to reduce child sexual exploitation and neglect. A focus on speech, language and communication should be core elements in early intervention and youth diversion programmes and SLTs should be key members of early intervention teams.” R


AVIATION

COMPUTER & MOBILE FORENSICS

BUILDING, PROPERTY & CONSTRUCTION

EMPLOYMENT CONSULTANTS

ENVIRONMENTAL ISSUES

FINGERPRINT EXPERTS

FORENSIC SERVICES

CCTV/VIDEO/IMAGE ANALYSIS

www.constructionnational.co.uk www.yourexpertwitness.co.uk

61 61


METEOROLOGICAL CONSULTANTS

TREE CARE

HANDWRITING ANALYSIS

VEHICLE & ROAD TRAFFIC ISSUES

HIGHWAY LAW

VOICE/SOUND TRANSCRIPTION & ANALYSIS

WEB DESIGN

METALLURGISTS WOOD & TIMBER

62 62

www.yourexpertwitness.co.uk


MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY

CARDIOLOGISTS

ANAESTHESIA

CHARITIES

CLINICAL NEGLIGENCE

BREAST SURGERY

COLORECTAL SURGEONS

DENTAL EXPERTS

www.yourexpertwitness.co.uk

63 63


LUNG TOXICOLOGY

MEDICAL PHOTOGRAPHY FORENSIC MEDICINE

NEURODEVELOPMENTAL PAEDIATRICIANS GENERAL SURGEONS

NEUROLOGISTS

GENETICS

NEUROSURGEONS

LIVER SURGEONS

OBSTETRICS & GYNAECOLOGY

64 64

www.yourexpertwitness.co.uk


ORTHOPAEDIC SURGEONS

OCCUPATIONAL THERAPY

ONCOLOGISTS

OPHTHALMIC SURGEONS

OSTEOPATHS

PAIN MANAGEMENT

ORAL & MAXILLOFACIAL SURGEONS

www.yourexpertwitness.co.uk

65 65


PODIATRIC CONSULTANTS

PATHOLOGY

PSYCHIATRISTS PHYSICIANS

PHYSIOTHERAPISTS

PLASTIC SURGEONS

PSYCHOLOGISTS

66 66

www.yourexpertwitness.co.uk


SPORTING INJURIES

UROLOGISTS

TOXICOLOGY CONSULTANTS

www.yourexpertwitness.co.uk

67 67


68 68

www.yourexpertwitness.co.uk