Your Expert Witness Issue No. 33

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Media failure – data disaster? [ HARD DISK FAILURE CAN be extremely frustrating, particularly

when it contains the only copy of your treasured photos or your favourite music collection. Just imagine the despair a client would feel if it was their hard disk which had failed and it contained evidence crucial to their defence. So, what can be done if critical digital media fails?

There are a number of options available depending on the media and the nature of the failure – if it contains crucial evidence or important data, arrange for the media to be inspected by a reputable data recovery company. Griffin Forensics prides itself on providing a friendly, cost effective and professional data recovery service and, where evidence is involved, a forensic data recovery service.

The company has vast experience dealing with all makes and models of hard disks as well as USB thumb drives, CDs, DVDs, memory cards, complex RAID configurations, tape media and server failures. They realise how important data is and will try every technique available in order to recover it.

Once they have achieved the forensic data recovery, they have an experienced digital investigation team who can undertake an examination of the data and provide you with expert evidence for court. q

Leading gynaecologist has national and international reputation [ MR JONATHAN FRAPPELL has been a consultant at Derriford Hospital

in Plymouth for over twenty years and has a broad experience in all areas of gynaecology and obstetrics.

During this time he has developed a particular expertise in endoscopic or ‘keyhole’ surgery and is recognised both nationally and internationally as a leader in this field.

Endoscopic surgery has many benefits for patients and can be used in the diagnosis and treatment of a wide range of gynaecological conditions, particularly menstrual problems, endometriosis and prolapse. Mr Frappell also has specific interests in the management of vulval problems, abnormal smears (colposcopy) and related conditions.

Mr Frappell can act as an expert witness in all of these specialist areas, having attended courses on ‘Medico-legal Report Writing’ and ‘Giving Evidence in Court’. Indeed, he regularly provides expert reports for the NHS legal authorities in England, Wales and Scotland.

He also acts for both the Medical Defence Union and the Medical Protection Society on behalf of their members and has recently appeared as the defence expert witness at a full General Medical Council Fitness to Practise hearing which was successfully defended.

As well as appearing for the defence, Mr Frappell can also act on instructions for the claimant. In fact, his medico-legal reports – of which he completes approximately five per month – are split fairly evenly between claimant and defendant. q www.yourexpertwitness.co.uk

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 8 Updated guidance published on experts’ fees for legal aid 9 Guidelines issued to lawyers on ‘DIY justice’ 9 Cap removed on magistrates’ penalties BUILDING & PROPERTY 11 ‘Florrie’s Law’ forces LAs and HAs to limit repair charges 11 Listed buildings: expert advice needed 12 Leasehold issues require an expert’s attention 12 DCLG announces clarity for leaseholders on charges 12 Profiling Roger Nelson BA(Hons) FRICS 13 The right experts can make all the difference in global construction disputes 14 Planning applications – technical knowledge resolves unexpected obstacles

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PROCESS SERVING 15 You’ve been served – by social media FINANCE 16 Self-employed at a disadvantage when calculating loss of earnings 16 Calculating loss of earnings 17 Money laundering is an innocent Asian custom WILLS, LEGACIES & CHARITABLE BEQUESTS 19 Making a will is the first step 19 Legacies under discussion at NCVO fringe event 20 Vital help for victims and witnesses 21 Govt campaign aims to encourage will-writing among the younger age group 22 Enriching the lives of people with learning disabilities 22 Protecting primates and habitats worldwide 23 Appeal Court overturns animal legacy ruling 23 For millions of people, it makes a difference 24 Seeing Dogs – providing a choice

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TRANSLATION & INTERPRETING 25 Figures show some improvement, but could do better 25 Trust apologises to health service interpreters 25 Need for quality standards stressed by CIoL luminary

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

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. Printed in the UK by The Magazine Printing Company Plc www.magprint.co.uk

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MEDICAL ISSUES 29 Medical Notes

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NEWS 30 Little improvement at ‘Inadequate’ trust, claims BBC 31 Kirkup Report: recommendations made for the trust and wider NHS CLINICAL NEGLIGENCE 33 Frimley Park: group action being considered 33 The two faces of hernia compensation claims EXPERTS’ MEETINGS 35 How solicitors and courts can help the process SPEECH & LANGUAGE THERAPY 36 Speech and language therapy is a key element in head trauma rehabilitation PSYCHOLOGICAL ISSUES 37 How to address cognitive underperformance in neuropsychological testing 39 Psychologists debate pilot testing following Germanwings disaster 39 Call for mental health to be addressed by government 39 Psychologists invited to take up a testing role

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TRAUMATIC BRAIN INJURY 41 Restoration or compensation CARDIOLOGY 43 A challenging area of practice has both risks and rewards 43 Cardiologists guided through the legal minefield 44 Charity calls for screening following spate of deaths among young sports stars 44 Former youth footballer wins his case – after nine years DENTISTRY 45 Dentists join the fray against ‘superbugs’ 45 Damages for failure to spot gum disease COMPLEX REGIONAL PAIN SYNDROME 47 Painful condition continues to spark debate among lawyers and experts OCCUPATIONAL HEALTH ISSUES 49 HSE offers advice on noise regulations 49 Council fined over asbestos in town hall basement

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OPHTHALMIC SURGERY 51 Laser eye surgery is safe – but be aware of the potential issues DEEP VEIN THROMBOSIS 52 After deep vein thrombosis – post-thrombotic syndrome

EXPERT CLASSIFIED 54 Expert Witness classified listings 56 Medico-legal classified listings www.yourexpertwitness.co.uk

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Opening Statement

[ THE LEGAL WORLD has been buzzing with the same subject over the last month as pretty well

every other sector of professional life – that election result. The Law Society had set out its own manifesto, detailing the changes it saw as being essential to the principal of access to justice. Like most of us, the society expected to be dealing with a new government that would include at least two parties – or if not, a minority government that would be vulnerable to third party pressure.

What it got was Michael Gove. It is widely expected that he has been brought in, along with his pugnacious style, to steer through the abolition of the Human Rights Act and its replacement with a ‘British Bill of Rights’ that would not be beholden to Europe. That course of action is opposed tooth and nail by the Law Society, which is gearing up for a fight.

At his installation as Lord Chancellor, however, both Mr Gove and the Law Society vice-president sounded uncharacteristically conciliatory. It remains to be seen whether the warmer tones were employed for the pomp of the occasion.

• One issue that has carried over from the last government is that of leasehold extension, the Right to Manage and freehold ‘emancipation’. Former Communities Secretary Eric Pickles took an active interest in the issue. He was also responsible for ‘Florrie’s Law’, restricting the amount councils can charge leaseholders for repairs which are partly publicly funded. It is named after the tragic victim of an astronomical bill for repairs from a council – repairs which had not been costed and which, it turned out, didn’t need doing anyway.

• While housebuilding has been the focus of construction activity in this country, at least from a political point of view, internationally there has been a massive burgeoning of infrastructure and major projects in some regions, including well known centres of activity around growing economies. With increased globalisation comes increased complexity around disputes.

To help contractors and major project managers and stakeholders make some kind of sense of what the issues are and where, lawyers Clyde & Co have published a heavyweight guide to dispute resolution across the globe. The watchword, as always, is to make sure you get the right expert advice.

• Here at Your Expert Witness we have been engaged in a campaign to encourage people to leave a legacy to charity in their will – after they have provided for their family and others close to them. The essential precursor to that, of course, is that they should make a will in the first place. Still, half of us haven’t made a will, despite being harangued from all sides to do so.

The latest to jump on the soap box is the Ministry of Justice. Its Choice not Chance campaign is aimed at the younger adult age group – those least likely to have thought about such awkward subjects. In addition to encouraging will-writing, the MoJ campaign encourages young people to have ‘that difficult conversation’ with their parents regarding lasting power of attorney and to consider joining the Organ Donor Register. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Updated guidance published on experts’ fees for legal aid [

ON 1 APRIL the Legal Aid Agency issued updated guidance on payments for experts in specific areas such as transcripts and translation work. The new guidance clarifies when experts can apply for prior authority in those areas, which include transcripts of judgments, translation work, communicating with clients at court and experts on foreign law.

On transcription, for example, the new guidance clarifies the position on making an application after the case has concluded: “In some cases it will be appropriate for the legally aided party to pay for a copy of a transcript of the judgment or to contribute with other parties to such a cost. This may be where the client requires it for a possible appeal, or where the judgment and any findings are to be provided to an expert to consider in the preparation of any report or there has been a finding of fact hearing and the judgement is required as evidence later in the case.”

However, in such cases: “Where fees are incurred after the conclusion of the

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proceedings in other circumstances this would need to be justified as it may not be considered a reasonable expense. A copy of the court order requesting the transcription should be provided as well as reasons why it is necessary.”

Similarly the assessment will be based on: “Whether it was reasonable to incur the costs, based on the specific circumstances of each

case” and “If the costs are reasonable and proportionate”.

There is similar clarification in other areas.

As pointed out in an article by Carter Brown, the guidelines reiterate the necessity for all expert witnesses to comply with practice directions and procedure rules, which remain the same.

The guidance follows an update in September last year, covering • Maximum rates for different types of • expert witness • How to apply for prior authority, including • benchmarks for working ‘unusual’ hours • Expert activity time guidelines • Expert witness standards in family matters • Arrangements for specific expert types, • including independent social workers, • experts in risk assessment, drug and • alcohol testing and DNA testing. q • The full guidance can be downloaded from www.gov.uk/government/uploads/system/ uploads/attachment_data/file/420106/expertwitnesses-fees-guidance.pdf.

Guidelines issued to lawyers on ‘DIY justice’ [A SURGE IN the number of people representing themselves in

court has prompted legal organisations to draft guidelines for lawyers who come up against people who find themselves in court without legal representation.

The guidelines have been developed by the Bar Council, Chartered Institute of Legal Executives (CILEx) and the Law Society in response to the rising numbers of people representing themselves in court without a lawyer as a result of cuts to legal aid, the increase in the small-claims limit and the introduction of employment tribunal fees.

The practical guidelines are relevant to the civil and family courts and tribunals where there has been an influx of people who cannot afford to instruct a lawyer, have not been able to obtain free legal advice and often have no alternative other than to embark on 'do it yourself' justice.

The guidelines discuss how far lawyers can help unrepresented people without this conflicting with their duties to their own clients. Lawyers are advised to communicate clearly and avoid technical language or legal

jargon, or to explain any jargon to the unrepresented party where it cannot be avoided.

Law Society president Andrew Caplen said: “Cuts to legal aid and increases in court fees have forced more and more people into 'do it yourself' justice, where they find themselves dealing with unfamiliar procedures in busy courtrooms whilst trying to resolve often life-changing issues regarding their families, their homes and their futures. We recognise the difficulties that people face in these circumstances and the consequent challenges created for lawyers acting for represented parties. We hope that these guidelines will help everyone concerned with cases involving self-represented litigants, but would again emphasise that the cuts to legal aid need to be urgently reviewed by the incoming parliament.” q

Cap removed on magistrates’ penalties [

IN MARCH THE £5,000 cap limiting the maximum fines magistrates could impose was removed, allowing them to impose much higher penalties on offenders who have committed the most serious ‘Level Five’ offences.

The move will give magistrates more flexibility when deciding on punishments: they will still be able to hand down prison sentences of up to 6 months and be able to refer more serious cases to a Crown Court if they think a longer jail term is necessary.

The then Justice Minister Mike Penning said: “Dangerous criminals will always belong in prison but it is important that magistrates, who sentence the majority of offenders who come through our courts, have the power to hand down the appropriate punishment with the severity they see fit.

“Criminals should be in no doubt that if they break the law they will face consequences and where a fine is the most appropriate sentence this could run into several thousands.”

In 2012 the government changed the law to give magistrates more powers to fine offenders.

The MoJ stressed that sentencing is a matter for the independent judiciary, based on the full facts of the case. When handing down any fines magistrates will still take into account the financial means of the offender according to the sentencing guidelines. q

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‘Florrie’s Law’ forces LAs and HAs to limit repair charges [LAST AUGUST NEW directions were issued to local authorities and

housing associations forcing them to limit the amount they can charge for major repair, maintenance or improvement works on leasehold properties when they are wholly or partly funded by the government.

Eric Pickles, the then Local Government Secretary, vowed to introduce the cap after a 93-year-old constituent was landed with a £50,000 bill by her local authority for roof repairs. It later emerged the roof would have lasted another 40 years and the work was unnecessary.

The family of Florence Bourne say she ‘died of shame’ because she had never been in debt in her life and simply could not afford to pay the bill for work on her Brentwood home.

Mr Pickles ordered officials at the Department of Local Government and Communities to review legislation governing council house repairs after Mrs Bourne’s plight was brought to his attention.

Outside London the maximum level will be levied at £10,000 in any five-year period, with a cap of £15,000 for the capital. Authorities will bear the outstanding costs of work themselves.

Mr Pickles said: “I was appalled at Florence’s treatment and was determined that no other leaseholder should ever have to endure the stress and hardship she experienced in the final weeks of her life.

Florence served her country as a WAAF in the Second World War, raised a loving family and believed in paying her way, so to be faced with this excessive fee was more than she could stand.

“Charging excessive amounts for council house repairs not only targets some of the most vulnerable people in society, it can amount to a failure in a local authority’s duty of care. Under ‘Florrie’s Law’ authorities will no longer be able to levy huge bills for future government funded repair work on people who simply have little or no hope of meeting their demands.” q

Listed buildings: expert advice needed [

ONE OF THE situations where a householder may need expert help in following sometimes complex and even arduous regulations is when their property is listed. Most of us dream to live in a home that has historic value and ‘character’, but the dream carries with it responsibilities.

The Listed Property Owners Club is a membership organisation that provides advice to owners of listed buildings and is currently campaigning for repairs to be zero-rated for VAT. It describes the listing of a building thus: “In simple terms, your home is considered of special architectural or historic interest, the listing of which protects the whole of the building both inside and outside.

If you wish to demolish, alter or extend your building in any way which affects the character or setting, you must contact the conservation officer at your local district council for Listed Building Consent (LBC). LBC is similar to planning permission although no fees are payable.

“Failure to obtain consent before altering a listed building may result in a fine or even a term of imprisonment.

Local authorities can also serve an enforcement notice in respect of unauthorised works requiring owners to restore the building to its former state. These notices can also be enforced for works carried out by previous owners.”

Fortunately, there are experts in the field of obtaining LBCs and in advising on work that needs to be done. Many exhibit at LPOC’s Listed Property Show. q www.yourexpertwitness.co.uk

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Leasehold issues require an expert’s attention [THE ISSUES AFFECTING leaseholders

in apartment blocks have generated much attention and debate over recent years, with the right to purchase the freehold and the role of management companies and residents’ associations attracting most attention. There are campaigning bodies seeking to reform the rules affecting the way leaseholders are charged for repairs and maintenance, including one body specifically formed to represent retirement property leaseholders.

A number of cases have involved the Commonhold and Leasehold Reform Act 2002, known as the Right to Manage, including a recent Appeal Court ruling that the rules do not allow a single Right to Manage company to manage more than one building on a site.

The Leasehold Advisory Service (LEASE) has this to say about Right to Manage: “Clearly, it makes sense for the leaseholders to take general control of the upkeep of their most valuable assets – the flats – but to do so will bring with it duties and liabilities. In acquiring the power to make approvals and to enforce the covenants of the leases, the leaseholders become wholly responsible for all decision-making in terms of budgets and reserve funds, standards of management and provision of services, repairs and major works, and with the overall function of the building.

“Whatever the motivation, there are a number of basic issues which should be considered prior to taking any action.”

There have also been a number of scandals involving the amounts leaseholders are charged.

On the issue of acquiring the freehold of a

property, known as freehold enfranchisement (including collective purchase of the freehold of blocks of flats) or the extension of a lease, the appointment of an expert in that specialised field can mean the difference between a harmonious conclusion and a bitter dispute. q

DCLG announces clarity for leaseholders on charges [IN MARCH THE then Communities Secretary Eric Pickles published the government’s

response to the Competition and Markets Authority’s report into the way leasehold properties are managed. Mr Pickles said he wanted to ensure anyone looking to buy a leasehold home, and those who have already done so, are clear about their rights and what to expect from agents who manage their property.

Measures had already been taken to cap the leasehold charges councils can charge, said the DCLG; the new plans will give those buying properties managed by private companies confidence they are getting a fair service.

Eric Pickles said: “We’re determined that anyone who works hard and wants to buy their own home has the opportunity to do so.

“For many first-time buyers that means buying a leasehold home, and I want to be sure anyone taking that first step on the property ladder can do so confidently and know the full extent of the financial commitment – and what they can expect for their money.

“The report by the Competition and Markets Authority highlighted ways in which we can do this, and our plans will shine a light on the whole market, so people know their rights and the service they should receive, and where to go if they get a raw deal.” q

Profiling Roger Nelson BA(Hons) FRICS [ROGER NELSON, of Surrey

based Each Side Leasehold, carries out residential lease extension valuations as well as those for freehold enfranchisement under the Leasehold Reform Housing and Urban Development Act 1993 and the Leasehold Reform Act 1967. He began in the mid 1990’s, concentrating in London and the South East, and since 2008 he has totally specialised in this field.

He provides Expert Reports to Tribunals and Courts following matrimonial disputes and takes instructions from landlords/ freeholders or tenants – or both following a joint appointment. He mainly takes instructions from solicitors who specialise in this area of work.

Valuations in this field also include those for Capital Gains Tax, mainly for landlords following the ‘Part Disposal’ of a lease extension, and for Inheritance Tax purposes.

Roger has been a full member of the Association of Leasehold Enfranchisement Practitioners (ALEP), a professional organisation for valuers, solicitors, barristers and residential managers, as well as the Leasehold Forum since 2006. Each organisation has regular specialist training conferences throughout the year and Roger is a regular speaker at the Leasehold Forum. He has also spoken at the RICS CPD workshops in 2014 on the subject of ‘Navigating the Complexities of Leasehold Enfranchisement’. q

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Finding the right experts can make all the difference in global construction disputes

[WITH MORE AND more construction

projects being undertaken on a global scale, contractors and stakeholders in those projects need to be alive to issues which are generating disputes, both globally and in specific regions, as they take on work in new markets.

To help explain those issues, the global projects and construction team at lawyers Clyde & Co has published a Guide to global construction dispute resolution. The guide outlines areas of dispute internationally, before examining a number of regions that are expected to give rise to disputes.

John Morris, global projects and construction group head, said: “Across the diverse range of political and legal landscapes in the global infrastructure market, it is pivotal that construction contractors and project stakeholders understand the context in which any dispute over legal, commercial or technical matters will be fought.

“After a major construction dispute arises, one of the critical success factors from our analysis is the technical experts that are deployed during disputes. Whether you need a process engineer or a delay analyst, there

is inevitably a select club of the world's best experts. Choosing the wrong one (or being too late to choose the best candidate) will have a major impact on your chances of success. There is a real issue around a lack of availability which is a key stumbling block when going through a dispute.”

Ben Cowling, head of the group in the Kingdom of Saudi Arabia, added: “In an increasingly global marketplace it is vital to understand where a dispute might end up and the local nuances when you are new to market. For example, contractors or businesses with experience in more mature markets may be used to compulsory adjudication or Western-style court litigation, while in the Middle East and Asia disputes will be resolved by arbitration or through the local court system. A business that is expanding into a new region needs to get grips with these ‘unknown unknowns’ before commencing projects, in order to be best armed should issues arise.

“Looking forward, we expect to see multitiered dispute resolution procedures, including the use of Dispute Boards and requirement for mediation across the infrastructure sector

globally. It is also likely that there will be more ‘jurisdiction shopping’ for construction disputes with the emergence and use of an increasingly diverse number of key arbitral centres around the world.”

Causes of disputes identified in the construction and infrastructure sector globally include cost overruns, scope changes and payment disputes, delayed or nonperformance issues and design and quality errors. The guide lists a number of forms of construction contract generating disputes and most commonly used globally.

Regions identified as giving rise to disputes both now and in the future include Africa, Australia, Europe – where disputes have arisen in newly-acceded countries – Asia, the Middle East – ahead of upcoming cultural and sporting events such as World Expo 2020 and Qatar 2022 – and Latin America, where recent events such as the Rio 2016 Olympics are expected to continue generating disputes and arbitration. q • To obtain a free copy of the guide, visit www. clydeco.com/insight/updates/view/globaltrends-in-construction-dispute-resolution.

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Planning applications

How key technical knowledge can help to resolve unexpected obstacles

By MARK CHESTER of Cedarwood Tree Care

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PART OF MY role as a consultant in the planning process is to identify potential problems at the earliest stage and guide the parties through the minefield that can emerge. Sometimes, the issues which emerge are due to the inexperience of an applicant. Problems can also be encountered due to a lack of specialist knowledge within planning departments. There are occasions when a local authority is being unreasonable and one needs to be informed in highlighting this.

I try to help my clients prepare an informed brief. One client, who had previously not encountered trees on a development site, had surveyed the main specimens. They were unaware that, with the site being in a conservation area, smaller trees, including some self-set sycamore, still needed to be included in the survey data as they were sufficiently large to be included in the protection afforded to trees in such a location.

A desire by one client to plant trees for high impact resulted in alders being proposed for a prominent street frontage. This seemed a good idea to the planning consultants advising him, but they had overlooked the drawback of planting trees which cast shade and can grow to 20m in front of apartments which were proposed for this part of the development. I was able to reassure the worried planners that this feature would not be in the final draft!

Local authority cut backs can result in officers with little experience of trees being asked to comment on technical matters. Ecological arguments relating to dormice were being used by a team to resist the management of woodland. A reminder that the legislation protecting trees does not extend to dormice, which are protected by statute elsewhere, helped to ensure common sense prevailed.

I recently encountered an officer who cited the possible presence of veteran trees on a site to request more space for trees being retained, thus reducing the developable area. In the absence of this space, he was unwilling to support the application. Veteran trees are afforded more space within a development setting, and the request would have been justifiable had the trees been veterans. It happened that the trees on that site were oaks, which are the second longest living genus in the UK, rarely attaining veteran status before they are 500 years old (oaks can live to 900 years and yews for 2,000 years or longer). I commented that the trees would have needed to be growing when Henry Vlll was on horseback to be veterans. As the site was Victorian, this was not a valid request.

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Often, lay people can be caught unaware by a request for a report to BS5837:2012 or for a Tree Constraints Plan. There are occasions, however, when a request seems to be somewhat unreasonable and common sense is needed. I have been asked to visit sites where the tree cover is little more than a self-set sycamore and this information needs to be conveyed to the planners quickly, efficiently and with minimal fuss.

Sometimes, reassurance is being sought, although I do feel that there are occasions where the administrators are being pedantic.

I had one case where the officer was unwilling to sign off the trees condition, where some minor amendments had been agreed and the plan endorsed, until the new plan was incorporated in to the main report.

There are, of course, occasions when the applicant is being unrealistic or overly ambitious with their plans. In such cases, a feasibility assessment is beneficial, and I can provide recommendations of what may be acceptable to the local authority on arboricultural grounds. Providing this starting element is sound, usually the later challenges can be resolved, even if sometimes it feels like a box-ticking exercise. q

You’ve been served – by social media

By MARK HODGSON, Vice President of the Association of British Investigators

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IF YOU’RE A regular on Facebook, you’ll already be familiar with the plethora of options regarding your relationship status – everything from the blissfully conjoined ‘married’ and ‘in a civil partnership’ to the wonderfully vague ‘it’s complicated’.

If recent developments are anything to go by, social media sites could soon be adding a ‘just got served’ button to the status ranks.

Due process

Serving papers is a strictly regulated process. At my company Tremark Associates, when we undertake the serving of legal papers on behalf of a client, we have to observe the principles of the Data Protection Act 1998 and also consider the individual’s right to privacy as outlined in the Human Right Act. It can be frustrating at times, with some defendants being particularly skilled at evading the process – especially when they know the ropes almost as well as we do. That said, we still manage to serve the vast majority of papers using the tried-and-tested formula of turning up at our target’s home or place of work, even if it does take a few attempts and a little out-of-hours doggedness.

When we find ourselves struggling to track down an evasive subject, we have to start looking at the situation from a fresh angle. If we want to consider serving using another method, there is already provision for this in the current Civil Procedure Rules - Part 6 (6.15 & 6.27). This allows for the court to make an order permitting service by alternative means, where the usual approach has been unsuccessful.

Getting your ducks in a row

The CPR practice directions 6A (9.1 & 9.2) make it clear that any application must be supported by evidence – i.e. why the usual method is not possible, details of the proposed alternative method and, crucially, why the applicant believes that the documents will (or have already) come to the attention of the intended recipient.

It’s important to note that although many of our clients still make an application to obtain permission before serving via alternative means, the court can make an order ruling that steps already undertaken to bring the documents to the attention of the defendant be deemed effective service.

This can save a huge amount of time, if considered and undertaken straight away.

Cyber serving

The notion of serving papers using social media in one that’s gaining traction. It’s not as wacky an idea as it may at first seem and courts are beginning to accept that it can be a useful way forward when the subject is proving especially hard to find by conventional means.

In a high-profile case in New York recently, Justice Matthew Cooper

granted a Brooklyn woman the right to serve her husband with a summons for divorce via social media. Ellanora Arthur Baidoo had apparently been trying to divorce her spouse for several years, but had been unable to track down the improbably named Victor Sena Blood-Dzraku to serve him the papers.

In order to get the judge to agree to the unconventional approach, Baidoo had to prove the Facebook account in question actually belonged to her husband, and that he consistently logged on to the account, meaning he would see the summons.

The devil’s in the detail

In terms of serving via social media, my experience is that it needs to be made very clear to the court why and how the serving process will work.

Judges and registrars aren’t necessarily tech-savvy; they might need to know how private messaging works, or whether there can be any degree of certainty over whether or not the defendant can be assumed to have seen the message. The court will also want assurance that what is being requested has been considered, measured and is appropriate.

Evasive defendants will lie. Sometimes a little extra thought needs go into how you are going to prove beyond reasonable doubt that they have been properly served. An additional layer might be to upload the content of the documents to be served to a custom web page with a personal URL (PURL), which allows an administrator to track visits to the page. Once the defendant activates the PURL, evidence of when - and from where in the world - the page was viewed can be logged and used as confirmation that papers have been served.

Making it stick

If you commission a dedicated investigator or a specialist process server who can also provide evidence that only they and the defendant have knowledge of that PURL, it could well swing the balance of credibility. My experience is that judges like the fact that this task has been carried out by a professional specialist with no personal benefit or interest. The court will definitely want assurance that it can be proven (or that there is at least an extremely high likelihood) that the defendant has seen the content of the document to be served.

Social media is still an experimental medium as far as process serving is concerned. There still aren’t any shortcuts to a successful outcome and I believe it’s still best to start with a traditional face-to-face approach. However, times are a-changing and, if it proves to be a successful way of contacting elusive individuals, it could become a useful and cost-effective alternative. q • Mark Hodgson is managing director of Tremark Associates, a leading provider of investigative services. Visit their website at www.tremark.co.uk.

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Self-employed at a disadvantage when calculating loss of earnings [ CALCULATING – or even proving

– loss of earnings in the case of a selfemployed person is notoriously more difficult than is the case with an employed person.

As explained by Derek Williamson in the article below, a number of factors influence the calculation in the case of an employed person – such as likely promotions based on past performance. In the case of a self-employed person the variables are particularly complex. Defendants’ solicitors know this and are more likely to challenge the figures.

A case reported by John Green of Sheffield-based Taylor & Emmet in January last year highlights the difficulties in proving loss of earnings claims for people who are self-employed.

John explains: “In this case, the claimant was injured in a road traffic accident.

Liability was eventually admitted by the defendant’s insurers and I spent considerable time trying to assess the claimant’s loss of earnings.”

John’s client was off work for around three months. As he worked on a contract-

by-contract basis he had had to turn down a number of jobs from different companies.

The companies that had offered him work provided written statements to that effect.

John Green continued: “Despite obtaining written evidence from the companies that had offered him the work, the defendants only offered a derisory sum towards his potential loss of earnings.

“The client was then left in the unenviable position of having to issue court proceedings and rely only on verbal witness evidence from himself and representatives of the companies that had offered him work.”

John’s client accepted an offer which was less than he might have hoped for to avoid adjudication by a judge and to bring the matter to a swift close.

Said John: “This is a common example of the strategy used by some defendants’ solicitors who know they can often get away with paying less to self-employed people who suffer a loss of earnings and who don’t have a clear and complete earnings history showing year-on-year increases in income. q

Calculating loss of earnings

By DEREK WILLIAMSON, Forensic accountant at Goddards Accountants

[ A SOLICITOR APPROACHED us after his client’s husband

had been killed when run over and he had been offered £50,000 in compensation for the widow. He asked us to check the figures and agree that the pay-out was fair. We found that the husband was 66 and had been employed as a driver for a large firm. They had agreed to continue to employ him until he was 70 because his wife was crippled and in a wheelchair.

He had been run over and killed on a third party’s premises and their insurers accepted liability. The only concern was whether the £50,000 was acceptable.

Following representations to the employers, we were able to show that the loss of earnings for the rest of his working life was substantially in excess of the £50,000 offered.

We prepared a report setting out why we believed £50,000 to be unacceptable and our basis for a revised pay out. As a result, the widow eventually received £250,000 in compensation.

In another case, the claimant had been in the Navy and ‘struck’ on the head with a block and tackle, resulting in him being permanently brain damaged. On checking his service record we found that he had passed out of Dartmouth with honours and was expected to ‘go far’.

The Navy denied all responsibility or liability but we were able to prove that the accident was entirely avoidable and their fault.

We used the claimant’s training and service listing as our basis for probable future earnings with the result that our client was awarded over £2 million in damages. q

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Money laundering is an innocent Asian custom

By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOM-RCP, Hon MAPHA, Hon FRSPH • Expert Witness in Cultural, Religious & Ethnic issues in Litigation • Expert Witness in GP Clinical Negligence • Author, Transcultural Medicine.

[

to just £4,000 each. He may not be the EVERY DAY, BUSINESSMEN transfer sole owner and not very rich, but could money from one company or person to be assumed by the British authorities to another, both within Britain and abroad. be involved in ‘money laundering’.

When a substantial amount of money is Business in eastern countries is learnt transferred through the bank of one party from one’s parents and relatives, not from to another, this is legal in every country. schools as in Britain. The people are told by However, if this money is transferred in their parents that in the time of the British cash by one person to another it could be Empire in India they never put money suspected as being ‘money laundering’. in banks or building societies because This is illegal in Britain but is a it could have been taken by the British normal method of transfer in the Indian tax collectors. Today, this may be done subcontinent and many other countries by their own Pakistani, Indian or Afghan worldwide. Some British courts have governments. Therefore, they feel that it is asked for my reports to explain why this is safer to keep their money in cash and their the case? As an expert witness my duty is savings in gold jewellery in safes at their to the court and I have to be impartial and homes as opposed to in banks. Cash at objective. home is easy to access when one needs to Banking is a Western invention and spend it – whether it be for home needs or custom and the main language of the to buy business goods. banking system is English. Banks The British custom involves giving and have branches only in those cities and receiving a written receipt for goods sold, countries where they are safe to function. and that receipt is in English. Many people In many cities of Eastern countries – such from Eastern countries doing business in as India, Pakistan, Bangladesh and Sri Britain may not speak or understand the Lanka – not everyone can afford access English language. They have many different to a bank and many people do not have Dr Qureshi was a guest inside No. 10 Downing St, languages in their own countries. Moreover, command of the English language. On Whitehall, on 4th September 2014 not all dealers are honest and dealing in the other hand, people from the north and cash gives people peace of mind. There is south of India can only communicate with an eastern saying that ‘money is that which is in your possession’. each other in English due to having different languages.

There is more to it than meets the eye. The harmless light at the end Lack of accessibility, language differences and bank jargon are of the tunnel as perceived by a person of one culture, religion or race some of the many reasons why people in the East cannot use banks may appear as a light from the engine of an incoming train by another! and have to transfer money earned from business by cash, either Everyone is right is their own way. When delivering justice, in my opinion, directly themselves or by using delivery drivers, agencies or high a humanistic approach is needed to respectfully consider every person’s street shops where the people speak their regional language and can culture, religion and ethnicity. q answer customers’ questions. This is a normal method in Eastern countries and for people from those countries when doing business in Britain. In Britain, this can be branded as ‘money laundering’ which is illegal. This is where the lawyers have a role to play and expert witnesses must explain the circumstances to the court and the jury. A Single Joint Expert could be economical in these circumstances as it is a costly procedure.

Culturally, we have nuclear families from a single marriage in Britain, whereas in Eastern countries there can be large extended families sometimes from more than one marriage. There can be as many as 25 siblings from two marriages and these siblings have to look after each other as there are no state sponsored benefits or support. It is important to know that men often have to support their women and need to work hard to do this.

The siblings from an extended family in Eastern culture often become shareholders in a family owned company or hotel. They may pool their money together, so they can buy more expensive goods to sell and earn more money for the family. If a man is carrying £100,000 and this is owned by 25 shareholders, it equates www.yourexpertwitness.co.uk

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Legacies Over the past couple of issues Your Expert Witness has looked at the topic of charitable legacies: detailing the process of leaving a legacy in a will, the kind of work that is funded by legacies and some of the news stories surrounding the subject.

Making a will is the first step [INTIMATELY ENTWINED WITH the topic is the important matter of making a will in the first place. Disturbing figures have emerged from studies undertaken recently showing that fewer than half of Britons make any kind of will at all. Initiatives have emanated from the government, the Law Society and bodies representing charities encouraging people to make wills, enabling their relatives and executors to be certain of their wishes.

Making the inclusion of a legacy more ‘normal’ is one of the aims of Remember A Charity, a campaigning consortium of over 140 charities under the umbrella of the Institute of Fundraising. Their scheme to recruit solicitors and other will-writing professionals to raise the issue with clients is explained in depth in the following pages.

The organisation took the opportunity of the recent General Election to call on the incoming government to find appropriate

incentives for the legal sector to inform customers of the option of leaving a charitable gift in their will.

It formed part of the organisation’s ‘manifesto’ in which it set out its wish list to the incoming government of whatever colour.

The consortium is encouraging the government to devise and implement a match-funding scheme for charitable gifts in wills. It stated that, if the government match-funded the first £2,000 of all legacy gifts, the annual cost to the treasury would be around £187m.

That, says Remember A Charity, could prove an inexpensive way to create a ‘significant step-change in legacy giving rates and the capacity and sustainability of the UK’s non-profit sector’.

Alex McDowell, chair of the consortium, said: “Incentivising charitable wills for supporters of all levels of wealth would help to socially norm legacy giving. It would also give charities an even greater incentive to promote gifts in wills as a form of donating.” q

Legacies under discussion at NCVO fringe event [

LEGACY GIVING IS the subject of one of the ‘fringe’ events at the National Council for Voluntary Organisations’ Evolve 2015 conference on 15 June – the leadership event for the UK voluntary sector, described as the largest conference of its kind.

Speakers at the seminar, organised by the Institute of Fundraising, will be Rob Cope, director of Remember A Charity, and Daniel Fluskey, head of policy and research at the Institute of Fundraising, Gifts in wills form the foundation of charities in the UK, according to the preamble to the seminar which says: “Many charities depend on legacies – without them they would not exist.”

However, while 74% of the UK population support charities, only 7% currently leave a legacy to them when making a will.

Remember A Charity is the Institute of Fundraising’s long-term campaign to increase legacy giving to charities.

It works with charities to encourage more people to consider leaving a charitable gift in their will, once they’ve looked after their family and friends.

They want to work with charities to make legacy giving a social norm.

Legacy income is currently worth over £2bn a year. The Institute of Fundraising estimates that growing the sector by just 4% could raise an extra £1bn for UK charities.

The seminar Remember a Charity –

making the most from legacies will take place in the James Watt Room at The Brewery, London at 8.30am before the main plenary events begin. Places can be booked at www.ncvo.org.uk. q

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Vital help for victims and witnesses [ WHEN SHEILA AND TREVOR Fairhurst lost their daughter,

Carly, they despaired of ever being able to come to terms with the loss. Carly was just 19 when she was knocked unconscious by her boyfriend during a row and died in hospital six days later.

Following the incident, Victim Support got in touch to help Trevor and Shelia recover from the ordeal by offering practical and emotional support.

“I knew that we weren’t on our own,” said Trevor. “Sheila had a year of counselling sessions, sometimes three times a week. That helped her to cope with the terrible emotions of losing our daughter in such dreadful circumstances and see that she had reasons to carry on.

“Victim Support has been a godsend to us. Nothing can take away the pain of losing our daughter, but the charity has helped us to learn to live with it.”

Victim Support is the independent charity for victims and witnesses of crime in England and Wales. Last year they offered support to more than 1 million victims of crime. Victim Support provides the Homicide Service supporting people bereaved through murder and manslaughter and runs more than 100 local projects which tackle domestic violence, antisocial behaviour and hate crime, help children and young people and deliver restorative justice.

Victim Support will help anyone affected by crime – not only the victims and witnesses, but also their friends and families. This is a service that is crucial to helping people cope and come to terms with the after effects of a crime. q

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Govt campaign aims to encourage willwriting among the younger age group

[IN FEBRUARY THE Ministry of Justice launched a public awareness campaign encouraging people to plan for their future and think about what will happen in the event of their death. The Choice Not Chance campaign aims to start conversations about plans for when we die, or if we were to become incapacitated and require someone to make decisions for us.

The campaign will encourage people to take action by making a will, putting in place a lasting power of attorney and signing up to the organ donation register. By promoting the importance of making our last wishes known, the government hope to motivate the public to plan for their future.

Launching the campaign, the MoJ said: “The purpose of the campaign is to encourage people to think about, and talk about, what might happen in the event of their death, or if they lose mental capacity and need somebody to make decisions for them.

“The campaign is targeting the 25-50 age group, who are less inclined to think about these issues as they do not think they are relevant. These people often have young families dependent on them as well other responsibilities to consider such as mortgages, which would still need to be paid in the event of their death or if they became incapacitated.”

Your will, said the MoJ, lets you decide what happens to your money, property and possessions after your death. If you make a will you can also make sure you don’t pay more Inheritance Tax than you need to.

Also, if you make a will you can appoint a guardian to look after your minor children. q www.yourexpertwitness.co.uk

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Enriching the lives of people with learning disabilities [

CAMPHILL FOUNDATION PROVIDES much-needed financial support to projects which enhance the quality of life of adults, children and young people with learning disabilities. Camphill communities throughout the UK and Ireland offer safe and supportive environments, in a variety of semi-rural and urban settings, where individuals can feel at home and develop their personal abilities and interests.

There is also a strong sense of belonging to a diverse but cohesive intentional community and supported living network. Work opportunities abound, giving a real sense of meaning, purpose and achievement, which is essential for a person’s well-being.

Camphill Foundation supports development projects such as the building of new accommodation, establishing new workshops and facilities, developing agricultural and horticultural activities, providing new equipment and various educational, training, cultural and social initiatives. Support is often in the form of grants to help projects get started and loans at a low rate of interest, usually over several years.

Supporting Camphill Foundation also means fostering a new understanding and recognition of people with disabilities and enabling them to develop and make use of their astonishing talents and skills as fully engaged, talented and co-responsible members of the community carrying out important and meaningful work which is both fulfilling for them and of great value to others. q • For more information and to help the foundation achieve their aims visit www.camphillfoundation.net.

Protecting primates and habitats worldwide [

AT WILD FUTURES they are working hard to protect primates and habitats worldwide and they are all too aware that flora and fauna around the world are becoming more endangered at every moment. According to the charity: “For some species, it is too late – they are gone forever. The future of all that remains lies in our hands and the time to act is now, so leaving a donation to Wild Futures is the greatest gift that someone who cares about primates and the environment can give.”

Wild Futures are the only UK registered charity providing sanctuary to rescued monkeys and supporting projects overseas, as well as campaigning for primate welfare and educating to protect primates worldwide. They believe that education is vital in changing things for the better and their campaigning work has led to much positive change for primates.

A spokesperson said: “We receive no government funding, so financial

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support is vital to allow us to continue our work. Our safe haven for monkeys saved from mistreatment is The Monkey Sanctuary, in Cornwall – the first sanctuary in the whole of Europe to be accredited by the Global Federation of Animal Sanctuaries, demonstrating that we provide a high level of care.

“We have been rescuing monkeys from conditions of abuse and neglect and offering a safe home for life at our sanctuary in since 1964. With spacious, natural enclosures, companionship of their own kind and specialist care, monkeys learn to enjoy life once again.

“By focusing on primates and their protection, we aim to ensure a wild and safe future for all.” q • For further information call 01503 262532 or visit the website at www.wildfutures.org/waystohelp/legacies/.

Appeal Court overturns animal legacy ruling [TWO ANIMAL CHARITIES have expressed their ‘delight and

relief’ after a historic decision by the Court of Appeal on 9 June in a landmark legacy case, overturning the High Court judgment in the case of King vs Dubrey & Others [2014].

June Fairbrother made a will in 1998, leaving around £20,000 of pecuniary legacies to family and friends and the rest of her estate to seven animal welfare charities.

When Mrs Fairbrother died in 2011 her estate mainly consisted of a property worth £350,000. Sometime after her death, her nephew Kenneth King claimed that Mrs Fairbrother had spoken to him about her house four to six months before she died, effectively gifting her property to him.

In 2014 the High Court ruled that, by operation of the little known legal doctrine of donatio mortis causa (gifts made in contemplation of death), Mrs Fairbrother did gift the property to Mr King – a result which meant that the charities and other beneficiaries would receive nothing from her estate.

Two of the charities, Redwings Horse Sanctuary and Chilterns Dog Rescue Society, elected to appeal the decision, believing the High Court result set a dangerous precedent and undermined the legal sanctity of a properly executed will.

In the appeal judgment, Lord Justice Jackson said: “In my view it cannot be said that June was contemplating her impending death at the relevant time. She was not suffering from a fatal illness, nor was she about to undergo a dangerous operation or to undertake a dangerous journey. If June was dissatisfied with her existing will and suddenly wished to leave everything to the claimant, the obvious thing for her to do was to go to her solicitors and make a new will. June was an intelligent retired police officer. There is not the slightest reason why she should not have taken that course.

“If the DMC claim is upheld, the effect will be that June’s will is largely superseded and the bulk of her estate will pass to the claimant, who is not even named as a beneficiary in the will. This would bypass all of the safeguards provided by the Wills Act and the Law of Property Act.” Charlotte Watts, solicitor for the charities, said: “I want to thank the charities for having the courage to take this matter to appeal and overturn this dangerous precedent. It should send out a clear message to potential claimants that the court will not look favourably on those who try to circumvent the Wills Act.”

For millions of people, it makes a difference [

HUNGER IS THE world’s biggest health problem, but it is also the most solvable. No one should have to live with hunger and the damage it causes.

Concern Worldwide is an international humanitarian organisation, specialising in tackling hunger with the world’s poorest people in the world’s poorest communities. For over 40 years, they have combined their expertise and local knowledge to help communities develop their own lasting solutions to hunger.

Last year Concern helped over 17 million people by responding to emergencies, and through education and award-winning livelihoods and health programmes. Through advocacy and campaigning, they also work to influence local, national and international policy.

Concern relies on donations from the public to carry out much of their life-saving work. Currently, an average of £8 out of every £100 they receive from supporters come from gifts in Wills. These special gifts provide a crucial lifeline to people in some of the world’s poorest places, helping them in times of crisis and enabling them to transform their lives and build a future free from hunger for their families.

If, after taking care of their loved ones, your client wishes to kindly remember Concern’s work, the following details will need to be included in their Will to make sure that the gift reaches them safely: Concern Worldwide UK (registered charity number 1092236), 13/14 Calico House, Clove Hitch Quay, London SW11 3TN, United Kingdom. q • For more information visit www.concern.net/legacies, call 020 7801 1881 or email carla.thompson@concern.net.

Mr King will receive £75,000 from the estate as the Court of Appeal confirmed that June Fairbrother’s will did not make reasonable provision for him and he meets the legal criteria for a dependant under the Inheritance (Provision for Family and Dependants) Act 1975. q

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Seeing Dogs

providing a choice [

THE SEEING DOGS ALLIANCE has made steady progress since it started operations in 2001. It was launched, and is supported, mainly by guide dog owners who want a competitor charity – as is available to blind and partially sighted people in most developed countries. Seeing Dogs’ successful rearing and training programme continually includes several dogs either being puppy reared or receiving their ‘seeing dog’ (their term for guide dog) training.

Except for the highly skilled final training, the Alliance depend on volunteers. In this way, with careful monetary control, it costs them about £15,000 to train each dog and owner, about a third of what would otherwise be expected.

Seeing Dogs’ clients are usually trained in their home environment, although their target is to have a dedicated training centre. When residential training has been required, they have used hotels. Puppies remain with the puppy rearers till they are 12-14 months old, during which time they are familiarised with all the circumstances they are likely to encounter as Seeing Dogs – such as crowded streets, heavy traffic, buses, trains, cars, cafés, restaurants, stairs (although not escalators), lifts and swing doors. An allowance is available to cover the expenses of this very important pre-training work.

Seeing Dogs like their puppy rearers to take their charges to puppy training classes which helps with obedience training and socialisation with other dogs. They provide them with a reference manual and visit them from time to time to check on the puppy’s progress. They are also always at the other end of a phone to give advice or to obtain it for them.

Currently, waiting lists for trained dogs are such that some clients wait months or longer to be trained with a dog.

This is particularly serious for elderly people waiting for replacements. If they are without a dog for a period, they can lose the mobility needed to complete their training when a dog becomes available. Seeing Dogs urgently need funds to change this situation. With twenty owner and dog partnerships qualified, they have proved that they produce trained dogs to the very high standard required, at a price well below the norm. q • For further information on donating to this charity tel 01483 765556, email info@seeingdogs.org.uk or visit their website at www.seeingdogs.org.uk.

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Figures show some improvement, but could do better [IN APRIL THE Ministry of Justice published

its latest statistics on the use of language interpreter and translation services in courts and tribunals. The figures cover the period from 1 January 2013 to 31 December last year.

In its digest of the figures the MoJ states: “The total number of completed requests for language interpreter and translation services in 2014 decreased by 1,700 – from 162,300

services requests in 2013 to 160,600 in 2014, a decrease of 1%. The main driver for the decrease is due to fewer requests from the Social Security and Child Support Tribunal.”

Perhaps the most significant figure was what it termed the overall ‘success rate’ for completed service requests. That increased from 90.1% in 2013 to 94.6% in 2014. The stated ‘target’ rate is 98%.

The total number of ‘proven’ complaints made relating to completed service requests in 2014 decreased from around 6,600 in 2013 to just under 3,000 in 2014.

The commonest reason for complaint (1,347) was that no interpreter was available. On 820 occasions the interpreter was late while on 366 occasions they did not attend at all. q

Trust apologises to health service interpreters [

IT’S NOT ONLY the court interpreter service that is experiencing problems with new systems following outsourcing.

In May the Professional Interpreters’ Alliance – which campaigns against outsourcing in the NHS and justice systems – carried a report from the West End Extra newspaper regarding interpreters working for the Central and North West London NHS Trust who had not been paid under a booking system operated by Hull-based company Language is Everything.

In a statement, the trust says: “We know about the issues and we are

Need for quality standards stressed by CIoL luminary [

IN AN ARTICLE for the campaigning charity Fair Trials, Ann Corsellis OBE, vice-president of the Chartered Institute of Linguists, commented on the need for quality standards in court interpreting.

“Being nearly accurate is not good enough,” she wrote, “and possibly worse than not having an interpreter at all. Engaging qualified and experienced interpreters and translators is seen as important by the MoJ. However, it is a matter of concern that this is diluted by its aim to have a tier system, whereby it can be decided on which occasions some interpreters can practise at a lower level. Who decides, and how, on the linguistic complexity of a future event is not clear.”

She concluded by commending the establishment of the National Register of Public Service Interpreting (NRPSI), saying: “The NRPSI is an independent, not-for-profit, voluntary regulatory body set up to this end, with its own code of conduct and associated disciplinary procedures.

“There is an obvious conflict of interests where an employer takes on responsibilities for professional disciplinary matters, beyond such things as bad time keeping. Serious consideration is being given to seeking statutory regulation by interpreters and translators to defend their professional standards and ought to be supported.” q

looking into them. Across the trust our staff generate over 100 translation and interpretation requests a day; it’s an essential service. But like any NHS service we look for greater reliability and better value for public money.

“Language is Everything provide about a third of our requirements and our telephone translation service. Earlier this year we agreed a pilot for them to administer the booking system for translators across the whole trust; this would be more efficient. And there were a series of meetings to discuss this with the staff involved.

“Interpreters are paid from time sheets detailing the interpretation they provided. A mistake was made when we moved to the new system and new time sheets were not paid. This was an error and should not have happened and CNWL apologises for this. We will pay people what they are owed.

“Change is always difficult and mistakes add to anxiety and we repeat our apology. However that mistake is being corrected and after our investigation there will be greater clarity around all the issues involved.” q

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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.

Expert Forensics

The Medicolegal Practice of Donald Campbell Consultant Neurosurgeon.

Independent forensic consultancy service run by experienced forensic practitioners.

www.aaamedicolegalreporting.co.uk

www.expertforensicsltd.co.uk Forensic Mobile Services

Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Specialists in Digital Forensics & Cell Site Analysis

www.abc-translations.co.uk

www.fmsgroup.co.uk

Dr Aman Ranu

Griffin Forensics

Expert Witness in Clinical Forensic Medicine.

Injury interpretation • Drink/drug driving cases

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

www.expertphysician.info

T: 07789 986459 www.griffinforensics.com

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

Dr Joshua Adedokun

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

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

www.whiplashconsultant.co.uk

www.expertpainreports.co.uk

Building Design Workshop

Mr Marcus Ornstein

• Architects • Expert Witnesses • Personal Injury/Disability Housing Needs • Project Managers

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

www.expertsbdw.com

www.marcusornstein.co.uk

Central Investigation Bureau

Maurice W McLain

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

Consultant in Accident & Orthopaedic Surgery.

Specialist in whiplash and sports injuries.

www.c-i-b.co.uk

mauricemclain@btconnect.com

Mr Chris Makin

MD5 Ltd

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

Expert analysis of digital evidence stored on computers, phones and other digital devices

www.chrismakin.co.uk

www.md5.uk.com

David Bunker Arbitrator & Mediator

Medical Illustration UK Ltd

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

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

www.david-bunker.com

www.migroup.co.uk

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Mr. Michael Hodge

Mr Simon Bramhall

Maxillofacial and Oral Surgeon.

• Personal Injury • Criminal Cases • Clinical Negligence

Consultant General/Upper GI and HPB Surgeon. Significant medico legal work undertaken in his area of expertise.

www.consultantoralandmaxillofacialsurgeon.co.uk

www.simonbramhallhpbsurgeon.co.uk

Mr Michael Thompson

Dr Thomas C M Carnwath

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

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

www.expertcolorectalsurgeon.co.uk

www.psycholegal.org

Mrs Robyn Webber

WeatherNet Ltd: Dr Richard Wild

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

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

www.robynwebber.com

www.weathernet.co.uk

Professor Roger James

Mr William Stuart Hislop

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

Consultant Oral and Maxillofacial / Head and Neck Surgeon.

Specialist in ablative and reconstructive surgery.

www.independenthealthconsultant.co.uk

www.wshislop.co.uk

www.yourexpertwitness.co.uk

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MEDICAL NOTES [

THERE APPEARS TO be a never-ending succession of scandals involving NHS trusts. It began with the Mid Staffs affair, which stunned the nation and led to a traumatic inquiry. Meanwhile, in the North West another scandal was unfolding at Furness General Hospital in Barrow. The inquiry into the University Hospitals of Morecambe Bay NHS Trust, the trust in charge at Barrow, has now concluded and its findings published – just as the largest NHS trust in England, Barts Health NHS Trust, has been rated ‘Inadequate’ by the Chief Inspector of Hospitals, Professor Sir Mike Richards, following a Care Quality Commission (CQC) report.

Even mental health provision is falling foul of the CQC inspectors, with the BBC reporting on continuing problems at Norfolk and Suffolk NHS Foundation Trust. The trust was the first in the mental health sector to be placed into special measures, also following a rating of ‘Inadequate’. Things are improving there since the measures were introduced in February, it seems, but slowly.

• One issue in medicine that has been in the news a lot recently is the danger posed by the rise of so-called ‘superbugs’ – bacteria and other pathogens that are resistant to antibiotics. The problem has been around for a long time; the first example to hit the public eye being MRSA. Nowadays the issue is becoming even more pressing with the growth in internet prescribing and the ubiquitous use of antibiotics in farming, leading to increasing resistance.

Now the British Dental Association has joined the fray in no uncertain terms, joining with other branches of medicine to address the issue internationally. We can only hope they are successful.

• Pain is a complex subject and one that gives rise to much debate – particularly in the medicolegal sphere – and a condition that is debated more than most is complex regional pain syndrome, or CRPS. CRPS generally occurs in a limb after there has been an injury and is usually out of all proportion to the original damage. Its cause has yet to be established but it is thought to be neurological.

The fact that CRPS is difficult to pin down has led to many claims being disputed, with accusations of malingering even being bandied about. Many successful claims have been made, however, including the instance covered in this issue.

• For many decades the killer substance asbestos has been in the dock. Thousands have died as a result of inhaling its fibres – many during the course of their work – and the death rate for mesothelioma is not thought to have peaked even yet.

Despite all the attention, there are still contractors and builders who put the lives of themselves and their workers at risk by hacking at the substance without proper precautions. Indeed, only accredited contractors should be tasked with tackling the substance and building owners who suspect the presence of the mineral on their premises must take steps to identify it.

What is most dumbfounding, however, is that local authorities, hospitals and even schools continue to ignore asbestos in their own buildings. The latest before the courts was Waltham Forest Council.

• Another killer that has been in the news more than anyone would like is sudden cardiac death among young people. The condition appears to affect athletes and sportspeople disproportionately – exactly the kind of people intuition would place at least risk. Nevertheless, three instances of promising sports stars succumbing happened in the space of three weeks earlier this year.

Football clubs in particular have screening programmes in place, but they don’t always work. A lucky few survive and recover, Fabrice Muamba being a heartwarming example. Some, however, survive but are left with awful damage, as in the case of Radwan Hamed, whose case took nearly a decade to settle. q

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Little improvement at ‘Inadequate’ trust, claims BBC [A NEWS REPORT from the BBC has

claimed that there has been little improvement at the Norfolk and Suffolk NHS Foundation Trust, the mental health trust based at Hellesdon hospital, despite a director being attached to the trust to oversee an improvement plan.

The trust says it is receiving support from a director of improvement previously employed to help turn around Mid Staffs, the trust at the centre of one of the worst hospital scandals in the history of the NHS. The report quotes a ‘whistleblower’ as saying staff feel they are ‘just firefighting’.

However, in a statement the trust said: “The board knows what is important, understands where they got it wrong and are putting it right.

They will continue to listen, learn and improve and will ensure that the trust offers high quality and safe services.”

The trust was placed into special measures in February after a Care Quality Commission (CQC) inspection resulted in it receiving an overall rating of ‘Inadequate’.

CQC found the trust, which provides mental health and learning disability services to a large population across Norfolk and Suffolk, needed to make a number of improvements to ensure it

was consistently delivering care which was safe, effective and responsive to people’s needs, in services which were well-led. The inspection was carried out in October last year.

The trust was rated as ‘Inadequate’ with regard to whether services were safe and wellled, ‘Requires Improvement’ with regard to whether services were effective and responsive and ‘Good’ with regards to whether services were caring. Its overall rating was ‘Inadequate’.

CQC identified several areas of concern where the trust must make improvements.

However, despite the overall rating of ‘Inadequate’, inspectors identified a number of areas of good practice across the trust.

Dr Paul Lelliott, CQC’s Deputy Chief Inspector of Hospitals (lead for mental health), said: “We found a number of serious problems when we inspected the services run by Norfolk and Suffolk NHS Foundation Trust and we have made a recommendation to Monitor that the trust is placed into special measures. We have informed Monitor of the breaches and it will make sure these are appropriately addressed and that progress is monitored through the special measures action plan.

“We were concerned about the safety and quality of care provided by some of the trust’s

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

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Dr Paul Lelliott, CQC’s Deputy Chief Inspector of Hospitals services. We were also struck by the low morale of many of the staff that we interviewed who told us that their voices were not heard by those managing the trust.

“Some of the management team at Norfolk and Suffolk NHS Foundation Trust are quite new in post. They must provide the leadership to bring about the urgent improvements needed to ensure care and treatment consistently meets the required standard.” q

Kirkup Report: recommendations made for the trust and wider NHS [

ON 3 MARCH the long-awaited ‘Kirkup Report’ was published, following the investigation into events at Morecambe Bay NHS Trust.

The Morecambe Bay investigation was established by the Secretary of State for Health in September 2013 following concerns over serious incidents in the maternity department at Furness General Hospital (FGH) in Barrow. Covering the period from January 2004 to June 2013, the report concluded that the maternity unit at FGH was dysfunctional and that serious failures of clinical care led to unnecessary deaths of mothers and babies.

The investigation panel, chaired

by Dr Bill Kirkup (pictured), also reviewed pregnancies at other maternity units run by University Hospitals of Morecambe Bay NHS Foundation Trust. It found serious concerns over clinical practice were confined to FGH. The report made 44 recommendations for the trust and wider NHS, aimed at ensuring the failings are properly recognised and acted upon.

Announcing the report’s findings, Dr Kirkup said: “All health care – everywhere – includes the possibility of error. The great majority of NHS staff know this and work hard to avoid it. They should not be blamed or criticised when errors occur despite their efforts.

“But in return, all of us who work for the NHS owe the public a duty to be open and honest when things go wrong, most of all to those affected, and to learn from what has happened. This is the contract that was broken in Morecambe Bay.” The investigation report details 20 instances of significant failures of care in the FGH maternity unit which may have contributed to the deaths of three mothers and 16 babies. Different clinical care in those cases would have been expected to prevent the death of one mother and 11 babies. This was almost four times the frequency of such occurrences at the trust’s other main maternity unit, at the Royal Lancaster Infirmary.

The report says the maternity department at FGH was dysfunctional with serious problems in five main areas: • Clinical competence of a proportion of staff fell significantly below the standard for a safe, effective service. Essential knowledge was lacking, guidelines not followed and warning signs in pregnancy were sometimes not recognised or acted on appropriately • Poor working relationships between midwives, obstetricians and paediatricians. There was a ‘them and us’ culture and poor communication hampered clinical care • Midwifery care became strongly influenced by a small number of dominant midwives whose ‘over-zealous’ pursuit of natural childbirth ‘at any cost’ led at times to unsafe care • Failures of risk assessment and care planning resulted in inappropriate and unsafe care • There was a grossly deficient response from unit clinicians to serious incidents with repeated failure to investigate properly and learn lessons.

The report says proper investigations into serious incidents as far back as 2004 would have raised the alarm. It was not until five serious incidents occurred in 2008 that the reality began to emerge.

Dr Kirkup commented: “There was a disturbing catalogue of missed opportunities, initially and most significantly by the trust but subsequently involving the North West Strategic Health Authority, the Care Quality Commission, Monitor, the Parliamentary and Health Service Ombudsman and the Department of Health.

“Over the next three years, there were at least seven opportunities to intervene that were missed. The result was that no effective action was taken until the beginning of 2012.”

The report’s recommendations are far reaching, with 18 aimed at the trust and 26 for the wider NHS and other organisations.

Many contain specific target dates for completion. The General Medical Council and Nursing and Midwifery Council are recommended to consider investigating the conduct of those involved in patient care.

A national review is also recommended of the provision of maternity and paediatric care in rural, isolated or difficult to recruit areas.

Dr Kirkup said: “For the first time the full extent of the problems have been laid bare, independently and comprehensively. Those affected by the consequences deserve to see the nature and degree of failures acknowledged, after too long hearing them denied. I am sorry that it has taken so long to happen.

“I would like to thank the families who have been harmed by these events. Without their courage in coming forward and their persistence in challenging what they were wrongly told, this investigation would not have come about.”

The investigation panel included expert advisers in nursing, midwifery, obstetrics, paediatrics, governance and ethics.

Their report concludes that significant progress is being made at FGH and that the recommendations are intended to ensure they continue to be built on. q

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Frimley Park: group action being considered [PENNINGTONS MANCHES HAS

announced it is considering a group action against the trust that runs Frimley Park Hospital in Surrey on behalf of former patients of Jayne Cockburn, a consultant obstetrician and gynaecologist who practised at the hospital until 2011.

The clinical negligence team at the firm has

so far been instructed by more than 20 women who have been affected by substandard medical care provided by the doctor.

As the lead firm of solicitors involved in claims for damages against Frimley Health NHS Foundation Trust, Penningtons is liaising with the trust and its legal team to agree a framework for dealing with these cases.

The two faces of hernia compensation claims [

UNUSUALLY, THERE ARE two distinct types of medical negligence claim that are made following hernia operations – claims that the hernia was caused by negligent surgery for another condition and claims that a hernia operation was carried out negligently.

According to solicitor Kevin Bolton of the Accident Claim Expert site: “Technically the term ‘hernia’ is used to describe the condition when part of one of your organs, or the wall of your organ, extends outside of the biological cavity which normally contains it.”

While some hernias are hereditary and others can be caused by heavy lifting, others, known as incisional hernias, can be caused by weaknesses that develop following surgery. Such hernias can lead to claims for negligence.

Claims can also arise because of damage caused during hernia surgery, or failures in aftercare. Cases have included damage to nerves that can also remain unrecognised and untreated, and damage to the bowel, including perforation. A number of specialist medical negligence solicitors carry stories of such cases they have brought.

Compensation arising from hernia claims – which are often settled out of court – is made up of various elements. Specialist PI firm Duncan Lewis Solicitors describes them as: • General damages for pain, suffering and loss of amenity. The exact amount will be • assessed according to the extent of injury, estimated recovery time and rehabilitation • needed.

• Special damages to cover medical fees and out-of-pocket expenses. Expenses might • include physiotherapy, loss of earnings, travel expenses to hospital. On-going care, • loss of future salary and pension would be included if appropriate. q

In July 2014, Frimley Health NHS Foundation Trust announced that it had undertaken an internal review of Miss Cockburn’s urogynaecological practices. The hospital then wrote to 101 of the patients who had been treated by Miss Cockburn offering them the opportunity to see another gynaecologist and to have their care reviewed. It is reported that nearly half of the patients who were contacted were found to have later suffered ‘potentially significant issues’.

Elise Bevan, a solicitor in Penningtons Manches’ clinical negligence team, who is handling the claims, said: “Since the trust’s review last year, a number of women have come forward and instructed us to investigate claims on their behalf. While the majority of those had received a call back for review, we have also been approached by women who did not receive a letter in July 2014 but have since been confirmed as one of those affected by Miss Cockburn’s practices. It is very likely, therefore, that there are other patients who have been affected but who have not received a letter from the trust.

“All of these claims involve hugely sensitive issues and some of our clients have suffered permanent life-changing injuries as a result of Miss Cockburn’s substandard medical care. Almost all of our clients feel that their trust has been breached and that they have been let down by Miss Cockburn.

“We are seeing very similar issues across the cases which, based on the admissions made by the trust to date and our own expert evidence, indicate that Miss Cockburn had a tendency to undertake surgery on patients which was neither indicated nor required.

Some patients are therefore unclear about what surgery they have had.

“The trust is being co-operative and open with us at this stage and we hope that this continues. We believe that these claims can be dealt with efficiently, sympathetically and cost-effectively.” q

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Experts’ meetings – helpful process or waste of time and money?

How solicitors and courts can help the process

By ALISON SOMEK of Somek & Associates

[

AS A CARE AND OCCUPATIONAL therapy expert I have had many experts’ meetings, pursuant to CPR 35.12, over the past 15 years. We have nearly 200 associates from health profession backgrounds, and experts’ meetings are not an infrequent activity.

Our experience is that most have worked really well and the outcome has been an agreed joint statement, produced in a reasonable period of time, documenting clear information that is helpful to both parties, in terms of resolving the claim, and to the court in terms of understanding the issues between the experts.

Some meetings have been painful and totally unhelpful to anyone!

There is the expert who simply states at the outset they will not be changing their opinion regardless, thus failing to operate within the spirit (and probably the letter) of the CPR. Others refuse to engage in a ‘discussion’, ie talking, and only want to write comments into a written statement.

In my view, the success or otherwise has much to do with the experts themselves, their understanding of the process and willingness to engage in it – the latter even calling into question their understanding of their role as an expert witness and true remit under the CPR. At the end of a joint statement we have always reaffirmed our duty to the court and following the publication, in December 2014, of the new Guidance for the Instruction of Experts in Civil Claims, experts must additionally confirm that they ‘have neither jointly nor individually been instructed to, nor has it been suggested that they should, avoid or otherwise defer from reaching agreement on any matter within their competence.’ Yet we have counterparts who state they have been instructed only to address scenarios opined by the medical experts instructed by their own party.

The ‘success’ of an experts’ meeting or agreed joint statement does not equate to ‘agreement’, but rather to a true understanding of the issues between the experts, commitment to engaging in a discussion, involving listening to alternative views, and ability to document any movement from a previously articulated view, the reason(s) for such change and confirmation of what is agreed and not agreed.

So as expert witnesses what can we do to improve our performance in regard to experts’ meetings? Timely preparation would appear to be the key – something that some busy experts seem to struggle with.

Can solicitors and courts assist?

Firstly, I do believe that time tabling could be better managed. What is the point of experts having joint discussions without the necessary evidence? We are busy people and to ask us to proceed on this basis probably means discussions will be longer, more costly and less effective; it probably means there will be more confusion as we attempt to define scenarios to be addressed; it possibly means that we will have to hold further discussions once the relevant evidence comes to light, and / or the parties proceed to hold settlement meetings with confused information.

In my own field of care and occupational therapy, it would be so much more sensible if the medical joint statements were available prior to our discussion, but all too often the court order directs filing of all the joint statements on the same day. Indeed, in certain cases, it would be most helpful to have other quantum statements, such as

physiotherapy, in advance of a discussion on care.

Secondly, I ask the question, is it appropriate to have two experts who have reported on the same topic, hold a discussion to ‘narrow the issues’ when they have not seen the same evidence? I think not!

Surely all they are going to do is to ‘disagree’ on the basis that their views are formulated as a result of reviewing different evidence, essentially re-hash their own testimony to date and not move the case forward at all.

Thirdly, and in connection to the above point on evidence, with regard to quantum experts who have undertaken an assessment or examination of the claimant in order to formulate their costed recommendations, is it sensible to have a discussion to ‘narrow the issues’ when the two experts’ assessments were undertaken at significantly different times with the claimant presenting completely differently at each? Undoubtedly the expert who assessed first is at a significant disadvantage and will have great difficulty persuading anyone, not least the opposing party and the court, of the provenance of their opinion.

In summary, I suggest the following

For experts • Respect the process and your counterpart by preparing well • Experts should determine the issues between them for discussion • Experts could be proactive – with court orders being more available • to them and adhered to, experts themselves can suggest re• examination of a claimant and provision of evidence seen by the • counterpart • Try to avoid repetition, cluster items and keep statements short, • whilst maintaining clarity and reasoning.

For instructing solicitors • Respect your experts and instruct them early • Be aware of differences in assessment time frames and instruct • for re-examination if necessary. Where this occurs the experts • should produce an addendum to be served prior to the experts’ • meeting and in time for the counterpart to consider • Collaborate with the opposing party to agree the relevant • documents that should have been seen by both experts • Collaborate with the opposing party to agree the issues for • discussion – this is helpful even for a quantum experts’ meeting • where the experts are using a Scott Schedule to document their • discussion.

For the court • Recognise the need for certain experts to rely on other expert • evidence and provide directions that facilitate timely filing of the • same – for example, joint condition and prognosis statements being • filed in sufficient time for care experts to consider before their own • discussion • Impose reasonable time frames for both the discussion and filing • the statement thereafter, bearing in mind the complexity of some • statements, the fact that in a quantum statement alternative costings • may need to be calculated and that most experts are busy people • with many other commitments. q www.yourexpertwitness.co.uk

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Speech and language therapy is a key element in head trauma rehabilitation [

VIEWERS OF THE popular soap opera Emmerdale will have been following the storyline involving ex-vicar Ashley Thomas, who collapsed with an intracranial bleed after being hit by a car.

Traumatic head injury is one of the areas of personal injury that will often involve speech and language therapy, whether it is the result of a road traffic accident, an accident at work or even caused deliberately by assault. Often the provision of SLT will figure in the calculation of the compensation claim.

According to Headway, the brain injury association: “Communication problems after brain injury are very common. Although most of us take it for granted, the ability to communicate requires extremely complex skills

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and many different parts of the brain are involved.”

The association describes four main effects of head injury which may cause communication problems: physical, cognitive, emotional and behavioural.

“Many people will experience more than one form of communication problem after brain injury,” says the association, “depending on the areas of the brain affected and the severity of the injury.”

Brain injury caused by head trauma can have immediate and life-altering effects such as inhibiting the ability to swallow. That also falls within the competence of the speech and language therapist.

In a manual designed for commissioning speech, language and communication needs in hospitals, the Royal College of Speech and Language Therapists says: “SLTs have a unique contribution to play in the differential diagnosis of communication and swallowing problems following an acquired brain injury, in differentiating the individual’s residual and emerging abilities, including those factors that can act as facilitators and barriers to recovery in these areas.”

Specialist head injury lawyers Barratt Goff & Tomlinson describe how early intervention to start rehabilitation is crucial.

“Early rehabilitation can improve the recovery process and outcomes.

Severely injured people may require treatment at a residential facility; others will benefit from a range of activities as an out-patient.”

Part of that range of activities, says Barratts, is speech and language therapy. “NHS rehabilitation resources are limited, but if the injury is the result of an accident then appropriate rehabilitation might be funded by the insurer.”

Rehabilitation is an important part of the personal injury process, according to the Association of Personal Injury Lawyers (APIL).

“Rehabilitation is designed to help injured people regain the closest possible level of mental and physical ability which the person possessed prior to being injured. It helps an injured person to regain their independence as much as possible.

“Rehabilitation will ensure that an injured person achieves optimal physical, psychological and social function and, where appropriate, helps them to stay at or return to work.”

Again, APIL lists speech and language therapy as one of the elements involved. q

Cognitive underperformance in neuropsychological testing in medicolegal cases – and how to address it

By DR LINDA MONACI, Consultant Clinical Neuropsychologist

[ NEUROPSYCHOLOGICAL TESTING IS employed in medico-

legal cases to assist in assessing the extent and validity of claimants’ symptoms. There are occasions when a patient’s clinical presentation during neuropsychological testing is inconsistent with the expectations of his/her abilities based on their clinical history, behavioural observations and/or established medical knowledge of the condition in question. This phenomenon is called cognitive underperformance.

The reasons for this inconsistency may be one of several, including poor effort, symptom overreporting/underreporting, malingering, somatisation or the controversial factitious disorder. The processes that underlie these effects are not well understood and research in this area is lacking. Studies that have been conducted in medico-legal settings in the USA have largely attributed cognitive underperformance to malingering (fabricating/exaggerating the symptoms of mental or physical disorders for a variety of ‘secondary gain’ motives). Other theories of cognitive underperformance include stereotype threat, diagnostic threat and symptom underreporting.

It is believed that activation of negative stereotypes can contribute to cognitive underperformance in certain groups. The effects of ‘stereotype threat’ have been demonstrated in ethnic minority groups (Katz et al, 1965; Chan et al, 1997) and individuals of lower socioeconomic status (Croizet & Claire, 1998). Studies have revealed that when faced with a task in which subtle information is provided that members of their group often struggle with such tasks, they exhibit behaviours consistent with this stereotype. Stereotype threat effects are thought to be due to cognitive, emotional and physiological factors that lead people to adopt a behaviour they believe is consistent with others’ expectations (Derks et al, 2008; Schmader et al, 2008).

A related phenomenon relevant to acquired brain injury is ‘diagnostic threat’. The provision of information regarding a clinical condition, and how it is expected to impact on cognition, can affect an individual’s self-perception and performance during assessment.

Suhr and Gunstad (2002, 2005) conducted studies that manipulated this threat in samples of healthy, non-litigant, undergraduate students with a history of mild head injury (self-reported loss of consciousness between one and thirty minutes). Students were randomly allocated to a ‘diagnosis threat’ group or a control group and were presented with a cognitive assessment. The diagnosis threat group were informed that they had been selected due to their history of head injury, as these injuries have been found to impact on cognitive functioning, and the study aimed at understanding the difficulties experienced by people who had experienced a mild head injury. The control group received standard instructions, with no mention of their head injury, prior to the cognitive assessment. The results demonstrated that when assessing cognition, if emphasis was given to the participants’ history of head injury (ie as in the diagnosis threat group), then performance was poorer than the control group. The authors suggest that emphasis on diagnosis and expected symptoms can impact performance.

There are also situations when symptoms and difficulties may be intentionally underreported during assessment (Cima et al, 2003) to portray themselves in a particular positive light in order to appear more socially desirable, or to obtain secondary gains.

These studies demonstrate that cognitive performance often involves factors other than cognitive ability alone. It is important that practitioners consider the complexities of psychosocial variables

involved in cognitive testing and do not erroneously conclude that someone is intentionally feigning their symptoms when this may not the case.

Neuropsychological assessment employed in medico-legal cases typically involves measures to help detect inconsistent presentations. Symptom validity testing involves the presentation of simple tasks as being more difficult than they actually are. This allows the neuropsychologist to discriminate between those not exerting optimal effort and those with genuine cognitive impairment.

Neuropsychological testing, in conjunction with detailed clinical assessment, can determine whether the pattern of results obtained is a true reflection of the patient’s cognitive abilities.

Clinical neuropsychology is a speciality in clinical psychology that applies the principles of assessment and intervention to neurological, cognitive, medical and learning disorders. The register of clinical neuropsychologists is freely available at http://www.bps.org.uk/ bpssearchablelists/SRCN. q • Dr Linda Monaci is a Consultant Clinical Neuropsychologist and Chartered Clinical Psychologist. If you require a medico-legal neuropsychological assessment, please contact Dr Monaci at www.monaciconsultancy.com.

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Psychologists debate pilot testing following Germanwings disaster [

ON 12 MAY the European Federation of Psychologists’ Associations (EFPA) issued a statement following the preliminary report of the French accident investigation authority into the crash of Germanwings Flight 9525, which suggested it was due to deliberate action of the co-pilot, who had suffered from depression.

The EFPA listed six areas in which psychology can help to prevent future air accidents: • Psychological testing of pilots • Assessment of the pilot’s mental health • condition • Counselling or psychotherapy by clinical • psychologists • Crew resource management training

• Multidisciplinary research and • development with aviation human factors • specialists • Focus on human issues in accident • investigation Welcoming the statement, the president of the British Psychological Society, Professor Jamie Hacker Hughes, said: “I welcome this statement from the European Federation of Psychologists' Associations following the recent Germanwings disaster. It highlights the roles that psychology and psychologists might take in order to seek to prevent similar human-made tragedies in future.”

In a statement issued shortly after the crash Professor Hughes said: “The airline crash this week and the information emerging from the investigation is a tragedy for all involved.

“There has been discussion about the psychological testing and monitoring of pilots following this incident. Many people associated with the industry have said that lessons need to be learned and, of course, this could help the bereaved families feel that steps are being taken to prevent these types of rare incidents happening in the future.”

The society’s then-president, Professor Dorothy Miell, added: "Of course, rare events such as this do attract a lot of public attention.

We would encourage the debate in the media not to add to the stigma surrounding mental health problems, which millions of people experience each year, by making assumptions about the risks posed by someone experiencing depression.” q

Call for mental health to be Psychologists invited addressed by government [SIX OF ENGLAND’S leading mental health organisations have

joined forces to produce a plan for what the Government should do in the first 100 days of the new Parliament to improve the lives of people with mental health problems.

Improving England’s Mental Health: The First 100 Days and Beyond, has been published

by Centre for Mental Health, the Mental Health Foundation, Mental Health Network, Mind, Rethink Mental Illness and the Royal College of Psychiatrists.

Poor mental health, say the publishers, carries an economic and social cost of £105bn annually in England and business loses £26bn due to mental ill health every year. Just 25% of adults with depression and anxiety get any treatment and only 65% of people with psychosis are thought to be getting support.

The call comes after research into mental health at work carried out last November by YouGov found that workplace stress is impacting on other areas of people’s lives. One in five said it had put a strain on their marriage or relationship with a significant other, while 11% had missed important events such as birthdays or weddings. Stress was also having a physical impact, with 53% agreeing that it affected their sleep, 22% their appetite and 27% their physical health.

Despite the high prevalence of stress at work, staff still don’t feel comfortable telling their employer if stress has caused them to take time off work. Of those who said they’d taken time off sick with stress, just 5% said the main reason they gave their employer was that they were too stressed to work. The remaining 95% cited another reason for their absence, such as an upset stomach or a headache. q

to take up a testing role [

CHARTERED PSYCHOLOGISTS WITH expertise in psychological testing have been invited to apply for membership of the British Psychological Society’s Committee on Test Standards (CTS). The CTS is responsible for developing standards in testing and for promoting good practice in the use of psychometric tests.

In its statement announcing the move, the CTS said: “The committee is keen to receive applications from academic or practitioner colleagues who have expertise and interest in the areas of clinical, counselling, educational, forensic, neuropsychological and sport and exercise testing. Chartered Members who wish to apply will be required to submit a Statement of Interest form plus a copy of their curriculum vitae.

The society’s Psychological Testing Centre (PTC) provides information and services relating to standards in tests and testing for test takers, test users, test developers and members of the public.

Through the PTC the society provides qualifications in test use and independent reviews of psychological tests used in occupational and educational settings. The PTC website features a wide range of guidelines on testing and test use. q

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Restoration or Compensation:

Evidence-based treatment for cognitive impairment in traumatic brain injury

By DR DANIEL GHOSSAIN, Chartered Clinical Psychologist at Re:Cognition Health

[TRAUMATIC BRAIN INJURY (TBI) frequently

results in cognitive and behavioural problems, often accompanied by psychological symptoms of depression and anxiety or physiological symptoms including chronic pain and sleep disturbance. The debate continues regarding treatment of impaired cognition in TBI in the presence of coincidental emotional, behavioural and physiological difficulties. Can lost cognitive functions including memory be fully or at least partially restored?

Or do strategies aimed at compensating for their loss represent the best hope?

Restoration

Restoration methods include brain repair, pharmacological interventions and ‘brain training’. Although there are promising signs that these techniques are effective, research on the use of stem cells to regenerate and repair damaged brain tissue is still in its infancy and has not yet reached the stage of clinical application in aquired brain injury (ABI).

Pharmacological interventions, for example use of SSRIs (traditionally used as antidepressant medication), have been shown to increase axonal sprouting following damage to the brain, in turn increasing plasticity and the potential for recovery, although the underlying mechanism for this is not fully understood.

‘Brain training’ techniques, based on the rationale that the brain can be strengthened through ‘exercise’ similar to a muscle, have been the subject of publicity and controversy in recent years. The techniques include computerised cognitive training packages, some of which have been popularised for the mass market, and repeated practice at memory tasks. Whilst a small number of studies report positive findings, typically these have been limited methodologically and provide little evidence that improved memory on training tasks applies to practical, everyday activities.

Compensation

The compensatory approach involves training in techniques to circumvent difficulties resulting from cognitive impairment. The approach includes enhanced learning and mnemonics, environmental modification and use of memory aids.

Enhanced learning is based on the repetition and elaboration of information and includes techniques like errorless learning, vanishing cues and spaced retrieval. Mnemonics are strategies to help us to remember things more easily, and can be verbal (such as first letter and rhyming mnemonics) or visual (use of mental images).

Environmental modification refers to the restructuring of the environment to decrease the impact of memory difficulties – for example labels, orientation boards and ‘Smart House’ technology.

A related approach is the use of external memory aids and equipment to compensate for everyday memory lapses, including notebooks, diaries and Dosset boxes for medication.

Recent advances in technology have led to an increase in the range of aids available.

Mobile phones and tablets provide a number of compensatory functions, with audio and visual recording of information and alerts and GPS technology to help individuals learn new routes. q

Educational Meetings 1st JULY 2015 THE MARYLEBONE HOTEL, 47 WELBECK STREET, LONDON Dr Daniel Ghossain will discuss these ideas in more detail at Re:Cognition Health's next Medicolegal Expert Witness and Rehabilitation Service Educational Meeting at the Marylebone Hotel, Welbeck Street in London on 1st July from 6pm.

Also at this event: Consultant neurologist Dr Steve Allder will be presenting on An emerging neurobiology of the mind: making sense of ‘unexplained’ neurological symptoms.

15th OCTOBER 2015 THE PULLMAN HOTEL, ST PANCRAS, LONDON Re:Cognition Health will be hosting The Big Picture in 2015. This one day conference at The Pullman Hotel, St Pancras will debate how advances in neuroimaging, neuropsychology and other new diagnostic biomarkers influence the evaluation of brain injury in clinical medicine, rehabilitation and in court.

Speakers include: consultant neuro radiologist Dr Emer MacSweeney, Professor of Neurology Richard Wise, consultant neuropsychiatrist Dr Mike Dilley, consultant neuro radiologist Dr Paul Butler and consultant neuropsychologist Dr Priyanka Pradhan.

• For further information, please contact Mr Ajay Sachdeva on 0203 355 3536 or email medicolegal@recognitionhealth.com

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A challenging area of practice has both risks and rewards [

ONE OF THE most challenging of clinical specialties – and consequently an area that can be prone to mistakes and negligence claims – is that of cardiology.

According to the Royal College of Physicians: “Cardiology involves the care of patients with heart disease, involving all ages from prenatal diagnosis to end-of-life care.”

The work of a cardiologist often involves the management of patients with clinical manifestations of coronary heart disease and this includes clinical syndromes such as angina and heart attack. That could involve interventional treatment, including surgery, the management of cardiac disorders and heart failure.

One of the legal firms with particular experience in negligence cases involving cardiology is Penningtons Manches.

In a recent news story the firm reported that: “Cardiology and cardiac surgery are challenging areas for treating doctors and injuries resulting from cardiology errors make up a steady proportion of the clinical negligence team’s caseload.

“People of all ages can suffer from heart problems and the failure to diagnose these properly can result in serious injury, including brain injury, and death.

Misdiagnosis of heart problems by GPs, A&E doctors or cardiologists include the failure to spot problems with heart function or with the proper function of the arteries and veins that serve the heart. Delays in performing or omitting to perform the correct tests, such as exercise ECGs or blood tests that signal the heart muscle is under strain, are another problem area.”

The firm went on to describe a number of examples of negligence cases.

“One of the team’s most upsetting cases concerned a young mother who suffered from a congenital heart disease known as cardiomyopathy. Her treating cardiologists mismanaged her cardiac care, both during and after her pregnancy, and she died a few months after her daughter was born.”

Issues arising during or following cardiac surgery can also lead to legal involvement. Penningtons Manches again: “One of our settled claims involved a man in his 50s who came through heart value replacement surgery only to be left without proper intensive nursing care in the days following the procedure. Sadly, this lack of care led to our client suffering permanent brain damage.” q

Cardiologists guided through the legal minefield [

COACHING FOR CARDIOLOGISTS in the issues they may face during a medicolegal case was on offer at the annual conference of the British Cardiovascular Society in Manchester in June.

A survival guide to the medicolegal minefield took place in the main auditorium of the Manchester Central conference venue on 9 June and involved a number of courtroom scenarios.

Chaired by eminent cardiologists Professor Roger Hall and Dr Rodney Foale, the session saw the mysteries of the courtroom explained by barrister Sally Smith QC. A number of clinical cases were then postulated by cardiologists Dr Stephen Brecker, Dr Duncan Dymond and Dr Michael Norrell.

Following presentations of ‘the facts’ and questioning by Ms Smith, there was an audience vote on the outcome, after which eminent catastrophic injury and clinical negligence barrister Gerard Martin QC summed up the law and delivered ‘judgement’. q www.yourexpertwitness.co.uk

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Charity calls for screening following spate of deaths among young sports stars [ONE SUBJECT INVOLVING cardiac

abnormality which has tragically been catapulted onto our news screens recently is that of sudden cardiac death among the young – particularly athletes and sportspeople.

A numbing two-week period from 30 April to 11 May saw three elite sportsmen fall victim

to such a bewildering event, including Belgian footballers Gregory Mertens and Tim Nicot – both in their 20s – and Welsh Rugby League international Danny Jones Cardiac Risk in the Young (CRY) is a charity set up to promote screening for cardiac abnormalities in young people, especially

Former youth footballer wins his case – after nine years [A SUDDEN AND catastrophic cardiac event can strike young people who are as young as teenagers – and the heartbreak can be compounded if the calamity happens when the young person has actually been screened.

Such was the case of Radwan Hamed. Radwan collapsed during a game for Tottenham Hotspur youth team in 2006, aged 17. In February a judge ruled that two sports physicians employed by the club at the time and the cardiologist who carried out his screening were negligent.

The judge concluded that the cardiologist, Dr Peter Mills, was 30% responsible and Tottenham Hotspur was 70% responsible.

The level of damages is to be decided at a later date.

Diane Rostron, medical negligence specialist at Linder Myers Solicitors, said: “My client suffered catastrophic brain damage as a result of a cardiac arrest which this judgement confirmed was entirely avoidable.

“The FA has a screening programme which requires that clubs ensure their young players undergo tests for cardiac conditions such as the silent, and well-documented, life threatening heart condition hypertrophic cardiomyopathy.

“Both the doctors employed and instructed by Spurs failed in their duty of care to Radwan with devastating results.

“Radwan and his parents were not even given the privilege of knowing that his test results had been returned showing abnormal results. Had they been afforded the right to this crucial information, Rad would not have continued playing.

“Instead, specialist doctors told his parents that there was nothing to worry about and he sadly collapsed having suffered a cardiac arrest just 11 months later. The judgement against the defendants serves as a clear message to all sporting organisations. Radwan Hamed is lucky to be alive.” q

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sportspeople. It found itself offering a series of statements of sympathy following the tragedies.

Its director of screening and research, Dr Steve Cox said: “While so much has been achieved there is still an urgent need for more awareness, more research, increased investment and a greater understanding into the causes of cardiac arrests in young people.

Put simply, more needs to be done to prevent young sudden cardiac deaths – 80% of which will occur with no prior symptoms.

“Every week in the UK, 12 apparently fit and healthy young people aged 35 and under die from undiagnosed cardiac conditions – although this is now widely believed to be a conservative estimate.”

CRY offers its own screening programme, overseen by world leading sports cardiologist, Professor Sanjay Sharma at St George’s University, London. In its election ‘manifesto’ the charity called on the government to establish a national strategy for the prevention of young sudden cardiac death, including offering screening for young people to identify cardiac conditions.

Said Dr Cox: “One in every 300 of the young people that CRY tests will be identified with a potentially life-threatening condition. Specialist cardiac screening will identify the majority of – although not all – young people at risk.

“However, in Italy – where screening is mandatory for all young people engaged in organised sport – they have reduced the incidence of young sudden cardiac death by 90%. This is because sport can significantly increase a person’s risk if they have an underlying condition.” q

Dentists join the fray against ‘superbugs’ [ON 9 MAY the annual conference of

the British Dental Association (BDA) saw the launch of a consensus report on the growing problem of pathogens in dentistry that are resistant to antibiotics. The report sets out a comprehensive blueprint to help dentists play their part in the global fight against antimicrobial resistance (AMR), acknowledged as a worldwide threat to public health.

The BDA recognises that no one sector can address AMR in isolation and therefore hosted a high profile event last year

to harness the expertise of antimicrobial specialists, educators, defence organisations, the Faculty of General Dental Practitioners, the Association of Clinical Oral Microbiologists and the Cochrane Oral Health Group. They were joined by representatives from the Departments of Health from three countries in the UK, Public Health England and NICE, as well as the pharmacy, medical and veterinary professions, to consider how best to conserve the effectiveness of existing antibiotics, and overcome barriers to reduce inappropriate prescribing.

The report is based on the highlights from this event. It points out that not only is cross-professional and international

Damages for failure to spot gum disease [SPECIALIST DENTAL NEGLIGENCE solicitors the Dental Law

Partnership have reported winning £28,500 in damages for a Liverpool woman (referred to as Miss A) after three separate dentists failed to spot gum disease over a 15-year period – resulting in significant jawbone loss and the imminent loss of at least five teeth. The severe gum disease was only picked up once she was referred to an orthodontist in 2013.

Heather Owen, associate solicitor at the Dental Law Partnership, said: “This case is a classic example of malpractice from three dentists at three different practices. Due to their negligence Miss A has suffered years of pain and suffering and irreversible bone loss which could mean even more tooth loss. The shocking thing is that all of this could have been easily avoided and treated if it had been picked up at an early stage.”

In September 2013, Dental Law Partnership took on her case and 18 months later settled her claim out of court against all three defendants for £28,500. However, none of them admitted liability.

Said Miss A: “The settlement will pay for the treatment I have had to incur already and also some future work. It’s shocking just how much this whole episode has affected my confidence. I used to have a very active

collaboration required, but patients and the public also need to be made aware of AMR and understand the difference between antibiotics and analgesics.

Commenting, Susie Sanderson from the BDA's Principal Executive Committee, said: “Dentistry accounts for around 10% of all antibiotics prescribed in the UK, so it’s fitting that the BDA leads the way in supporting dentists to reduce antibiotic prescribing. We are privileged to be able to draw on the expertise of specialists who can help steer us in the right direction, and for this reason I am proud to be launching the report today.”

There has been increasing public and professional concern regarding inappropriate prescribing of antibiotics in medicine and dentistry. Two disciplinary hearings at the General Dental Council included the issue in the lists of ‘offences’ in January this year alone. q

social life but now I don’t go out. I don’t want to talk to people and don’t even want to smile because it’s embarrassing – it’s made me feel really down personally.” q

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Painful condition continues to spark debate among lawyers and experts [

ONE OF THE most mysterious of debilitating conditions affecting limbs is known as Complex Regional Pain Syndrome (CRPS), formerly termed Reflex Sympathetic Dystrophy (RSD). The syndrome often develops following an injury: a fracture, sprain or surgery – even after soft tissue injury such as a burn, cut or bruise, or after limb immobilisation such as encasement in plaster. The seriousness of the original injury seems to bear no relationship to the painfulness of the condition.

According to the National Institute of Neurological Disorders and Stroke in the US: “The key symptom of CRPS is continuous, intense pain out of proportion to the severity of the injury, which gets worse rather than better over time. CRPS most often affects one of the arms, legs, hands or feet. Often the pain spreads to include the entire arm or leg.

“Typical features include dramatic changes in the colour and temperature of the skin over the affected limb or body part, accompanied by intense burning pain, skin sensitivity, sweating and swelling. Doctors aren’t sure what causes CRPS. In some cases the sympathetic nervous system plays an important role in sustaining the pain. Another theory is that CRPS is caused by a triggering of the immune response, which leads to the characteristic inflammatory symptoms of redness, warmth and swelling in the affected area.”

In the UK new guidelines were issued in 2012 regarding the condition. The Royal College of Physicians stated: “CRPS is a poorly understood condition, which tends to occur after an injury to a limb.

Pain is the primary problem and is associated with some limb changes and limb dysfunction, often resulting psychological distress. One in seven patients continue to experience unrelenting pain and physical impairment and these patients are considered to have a long-term condition. They report among the lowest quality of life scores known in medicine. There is no proven cure for CRPS and the causes are still unknown.”

Writing in the Law Society Gazette last year, Andrew Campbell and Hywel Evans describe the problems for lawyers in bringing cases.

“Lawyers can find themselves in a difficult position when attempting to quantify an injury that is frequently misunderstood by medical practitioners.”

Claimants, they say, are often accused of malingering and psychological secondary effects may add to the perceived symptoms.

“Defendants will seek to blame the underlying cause on some psychosomatic illness, if not exaggeration. Claimants will search for the often non-existent organic change to prove the symptoms and injury. Even where liability is admitted, causation remains highly contested.”

Law firm Brian Barr Solicitors are specialists in handling cases involving CRPS. Last year they reported a particular example where they won substantial damages.

“In July 2010, Neil was working for a civil engineering company as an HGV driver. Returning to the company yard one day, he found a JCB was parked across and blocking the entrance. Under instruction from his manager, Neil went to move the JCB so that he could park his HGV in the yard.

“The JCB had been vandalised, including having its windows smashed. Neil climbed up the steps to the cab, but was unable to open the damaged door. Instead he tried to reach through the broken window to open the door from the inside. As he did so, he slipped, badly cutting his left arm on the remaining shards of glass.

“As a result, Neil damaged the radial artery, median nerve and flexor tendons. He developed CRPS and underwent a median nerve block, guanethidine blocks, physiotherapy, pain management, a sympathectomy and nerve graft.

“His left arm has been left virtually functionless and, though righthanded, Neil has been unable to work since.”

Despite a deduction for contributing to the accident by reaching in through the window, the final figure was just over £905,000.

Neil commented: “If I could turn back time four years I would. I loved getting up and going out to work. Driving HGV vehicles is all I’ve ever done. The accident in itself was horrendous but life since has been far worse. The pain I suffer on a daily basis and lack of independence has been the biggest challenge and still is.” q

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HSE offers advice on [

noise regulations

THE CONTROL OF Noise at Work Regulations outline the responsibilities of employers to safeguard the hearing of their employees. The regulations are detailed by the Health and Safety Executive in its publication Controlling noise at work, with an explanation offered in the leaflet Noise at work: A brief guide to controlling the risks. An updated version of the latter was published in 2012. Both are available to purchase or download from the HSE website at www.hse.gov.uk/pubns/noisindx.htm Loud noise at work can damage your hearing, the HSE says.

The Noise at work: A brief guide to controlling the risks leaflet helps employers to understand what they need to do under the Control of Noise at Work Regulations 2005 and how to protect employees from noise. It is also designed to be useful to

employees and safety representatives.

The leaflet explains: • The harm that noise can cause • What employers have to do under the act • How to assess and control noise at work • Personal hearing protection • Consulting with workers • Health surveillance The latest update to the leaflet has been simplified and streamlined to provide clear information that will enable employers to make sensible and proportionate decisions about managing risks arising from noise. The underlying message, says the HSE, has not changed. q

Council fined over asbestos in town hall basement [ WALTHAM FOREST BOROUGH COUNCIL has been fined after

it exposed members of staff and visiting contractors to the potentially lethal dangers of asbestos, which it knew to be present in the Town Hall basement.

The hazardous material was identified in a survey commissioned by the council in 2002, yet it failed to take adequate action to act on the findings and put effective controls in place. As a result, employees and visiting contractors were allowed to carry on working in the basement regardless of the dangers for the next ten years.

On 30 March Westminster Magistrates heard that the issue only became public by chance in mid-2012, when a local resident put in a request to the council to see some election expenses documentation.

The authority denied the request with the reason that the paperwork was contaminated with asbestos.

The resident then approached the Health and Safety Executive’s ‘Mythbuster Challenge Panel’, which in turn referred the matter to HSE inspectors in north east London to investigate further.

HSE served an Improvement Notice on the council requiring them to put in place a proper management plan dealing with the presence of asbestos. Inspectors also interviewed a number of employees and contractors who had used the basement over the years, including printroom staff who were based down there.

Waltham Forest Borough Council was fined a total of £66,000 and ordered to pay £16,862 in costs after pleading guilty to two breaches of the Health and Safety at Work etc Act 1974 and a breach of the Control of Asbestos Regulations 2006.

After the hearing, HSE inspector Chris Tilley said: “Waltham Forest was aware of the asbestos in the basement as far back as 1984. It was also aware of the risks from asbestos exposure and of its duty to manage those risks. However, the authority singularly failed to do so over more than a decade. Over that period, an unquantifiable number of its own employees plus workers from maintenance companies and similar were regularly exposed to these hazards.” q

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Eye surgery can be life-changing [ FOR OVER 20 YEARS, Mr Wayne Crewe-Brown has helped to

transform the lives of over 20,000 people in the United Kingdom, Ireland and South Africa.

As a consultant ophthalmic surgeon, specialising in refractive and cataract surgery, he has become one of the most experienced eye surgeons in the world and is an international authority on corneal inlay procedures – revolutionary treatments that help alleviate the effects of presbyopia, commonly known as the age-related need for reading glasses.

Mr Crewe-Brown heads one of the north west's busier medicolegal practices, specialising in all ophthalmic disciplines – including paediatric, anterior segment, glaucoma, retinal (medical and surgical) and oculoplastic.

Reports are prepared quickly and communication is prompt and professional from Louise Brennan, Mr Crewe-Brown’s secretary.

Appointments are available at his central Manchester clinic as well as his Harley Street rooms. q • Please visit www.medicolegaleye.com for more information.

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Laser eye surgery is safe but be aware of the potential issues [WITH THE GROWING popularity of laser eye surgery over the

years, the Royal College of Ophthalmologists published some time ago a patients’ guide to the techniques and the processes involved.

Among the issues discussed in the Laser Refractive Eye Surgery Guide are the risks and side effects of treatment that patients should be aware of.

The guide says: “Safety has improved greatly over the last 10 years and treatments are now more accurately targeted. Surgeons are also able to better assess who is most suitable for treatment.”

The college says that the risk of something going wrong with laser surgery is less than 5%, but recommends potential patients check the complication rate for the clinic in question as rates vary to as high as 40%. If the figure for that clinic is not readily available, the patient should ask themselves why.

It is one of five crucial questions the guide advises potential patients to ask an ophthalmic surgeon. They include asking if the surgeon has the Royal College of Optometrists’ own Certificate of Competence: the only independent assessment of a surgeon’s skills in that area.

It also suggests ascertaining the number of procedures being carried out per year. The higher the figure, the more skilled and up-to-date a surgeon should be. The guide suggests a figure of at least 500 a year, with a success rate of 75% or more of cases resulting in 20/20 vision.

Finally, the guide advises inquiring into the amount of formal training the surgeon has in laser eye surgery. It advises an absolute minimum of at least three months.

The medical negligence information website Medical Negligence Claim points out that laser surgery can carry with it the risk of complications, as with all surgery, but that if the complication or side effect is recognised as being a risk and the patient had the risks explained before giving consent, then there is unlikely to be grounds for a claim. Such recognised side effects – which are often only temporary – are explained in the Royal College’s guide.

The website article gives instances of when a medical negligence claim might be potentially made – for example if there was a surgical error or the patient’s eyesight had deteriorated after the procedure and continued that way.

“In extreme cases,” the article says, “if the equipment has not been operated correctly or the surgeon has made a severe error it has been known for patients to lose their sight entirely.”

It then goes on to cite two instances where successful claims have been made. Both were reported by Irwin Mitchell and involved cases where the patients were not suitable for the procedure to be carried out. q

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After deep vein thrombosis – post-thrombotic syndrome

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

[

DEEP VEIN THROMBOSIS (DVT) occurs when a combination of slow blood flow during anaesthesia, severe illness or even long haul air travel permits blood clots to form in the leg veins. Treatment for medical and surgical conditions during hospital admissions is a strong risk factor for DVT. However, the condition also arises spontaneously in about one person per 1,000 per year in the general population without the provocation of hospital admission. In the population over the age of 75 the frequency of DVT is one person per 100 per year.

Prevention of DVT during times when it is known that there is a high risk of an occurrence during hospital admissions is highly desirable. The National Institute for Health and Care Excellence (NICE) has published guidelines for identifying patients at risk of deep vein thrombosis during hospital treatment and has recommended methods for reducing the risk of DVT. 1 This publication has set the current standard for DVT prevention in the UK and failure to comply with these recommendations might be considered to comprise substandard care.

in the deep veins of the lower limbs which were initially affected by the thrombus. In general, the sooner the diagnosis is made and anticoagulant treatment commenced, the better the outcome. It has been shown that the efficacy of anticoagulation in the first 4 weeks after treatment of a DVT determines the long term outcome for years afterwards. Inadequate anticoagulation during the first month is associated with persistent pain and swelling of an affected leg. Delay in diagnosis of a DVT with resulting delay in commencing the correct treatment may lead to a poor long term outcome.

In these cases, it may be possible to show that delayed treatment has led to a poor outcome whereas more expedient treatment would have avoided pain and suffering for the patient.

Following a DVT, the valves in the affected veins may be permanently damaged. Normally venous valves ensure that blood flows exclusively towards the heart and uphill against gravity in the case of the legs. Following recanalisation after a deep vein thrombosis blood may flow towards the feet as well as towards the heart in the deep veins of the leg. Blood is normally propelled from the legs by the pumping action of the calf muscles which Deep vein thrombosis and its consequences compress the deep veins of the leg. Usually this results in flow towards the Immediately following the onset of a deep vein thrombosis, a thrombus fills heart in the deep veins. The pumping mechanism is damaged when the and may block the deep veins in the lower limb. Once a DVT has developed, deep vein valves are damaged and the blood has difficulty in returning to the the process of removing the thrombus begins. It is removed by the body’s heart. The muscles, and hence the calf circumference, increase in size to try own thrombolytic processes. This takes many weeks or months, especially to compensate for the valve failure. Increased pumping pressure may also in the larger veins. The process by which the flow of blood is restored in be necessary to overcome the obstruction of veins. Increased pressures in blocked veins is referred to as ‘recanalisation’. Recanalisation may take the deep veins during walking may lead to pain in the leg on exercise and is many months in the femoral vein. Some vessels remain permanently referred to a ‘venous claudication’. blocked and blood flow is never restored in Physiologically these problems in the leg these veins. Blood has to find an alternative have no significant effect on the heart but route back to the heart. Small veins increase cause raised venous pressure in the veins in size to accommodate the increased blood in the leg. The high pressure in the veins is flow forming a ‘collateral circulation’. transmitted back to the smallest vessels in The main method of treatment is the use the circulation of the leg causing damage to of anticoagulant (blood thinning) drugs. In the capillaries. The skin is the main organ the past, injections of heparin combined which is damaged and this leads to skin with the oral anticoagulant warfarin were problems including ulceration (a chronic nonused. More recently a series of drugs which healing wound) at the ankle (pictured). In require less close laboratory monitoring have addition, all the tissues which are subjected been developed. The drugs rivaroxaban to increased venous pressure may become and apixaban are licensed for treatment swollen due to oedema (increased tissue of DVT and are in common use. In some fluid) and a common problem is swelling of cases where the thrombosis affects large the ankle, foot and calf. veins in the groin and abdomen, thrombolytic The combination of leg swelling, pain, skin (clot busting) treatment is used. These changes and leg ulceration is referred to drugs are infused via a catheter inserted as ‘post-thrombotic syndrome’. This is the into the blood clot and can remove the subject of a recent, detailed and authoritative DVT within 24 to 48 hours. Anticoagulation review by the American Heart Association. 2 prevents pulmonary embolism (passage It may affect 20 – 50% of patients following a of blood clot from the leg via the right side DVT. The symptoms range from mild ankle of the heart to the lungs) and encourages oedema and aching to severe pain, swelling resolution of the DVT. Oral anticoagulation and leg ulceration. is continued for 3 to 12 months following a The main treatment for patients with deep vein thrombosis since there is a high damage to their deep veins causing postrisk of further thrombosis in the early stages thrombotic syndrome following a DVT is the following a DVT. use of compression stockings. These reduce The long term outcome depends on the swelling of the foot and ankle as well as A venous leg ulcer with the dressing removed – this extent to which the blood flow is restored minimising the risk of ulceration at the ankle. has resulted from post-thrombotic syndrome

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In a patient with extensive deep vein thrombosis it may be necessary for him to wear compression stockings for the rest of his life. A number of surgical procedures are available to repair damaged valves and to bypass blocked veins. However, following an extensive DVT the damage may affect so many veins that this is often infeasible.

In the longer term (over many years), the valves do not recover and symptoms of post-thrombotic vein damage tend to worsen. There is a significant risk of further episodes of deep vein thrombosis due to the damage sustained to the veins leaving them more likely to be the source of a further thrombosis. If further episodes of thrombosis occur, then lifelong treatment with anticoagulants (warfarin or rivaroxaban) may be necessary.

These are effective in preventing thrombosis but carry a significant risk of producing life-threatening haemorrhage.

Conclusions

DVT is a common condition which may arise after hospital treatment as well as spontaneously in the general population. DVT prevention measures should be used in hospital patients as recommended by NICE. Prompt diagnosis and anticoagulant treatment leads to a much better outcome than delayed treatment. Post-thrombotic syndrome occurs in 20 – 50% of patients after a DVT and ranges from mild swelling and aching to severe pain, swelling and leg ulceration. q REFERENCES 1

NICE clinical guideline 92: Reducing the risk of venous thromboembolism

(deep vein thrombosis and pulmonary embolism) in patients admitted to hospital. NICE, January 2010.

2

Kahn SR, Comerota AJ, Cushman M, Evans NS, Ginsberg JS, Goldenberg

NA, Gupta DK, Prandoni P, Vedantham S, Walsh ME, Weitz JI; on behalf of the American Heart Association Council on Peripheral Vascular Disease, Council on Clinical Cardiology, and Council on Cardiovascular and Stroke Nursing. The Postthrombotic Syndrome: Evidence-Based Prevention, Diagnosis, and Treatment Strategies: A Scientific Statement From the American Heart Association. Circulation. 2014 Sep 22

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