Your Expert Witness Issue No. 60

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 8 Judge’s criticism emphasises duties of experts 8 Referral centres urged to begin accreditation process 9 Review of guidance helps experts prepare for remote hearings LEGAL ISSUES IN CONSTRUCTION 11 Construction: very much a world of its own 11 Adjudication figures point to permanent change 11 New campaign addresses injustices on site 13 Gove beefs up cladding measures 13 Lawyers’ body applauds cladding measures 15 An expert’s day out 17 Review prompts debate on stricter valuation rules 17 JCT notches up four score and ten 19 Lawyer warns of corner-cutting on site 19 HSE issues warning on demolition and refurb projects 20 Consultancy’s experts assist the court on timber-related issues

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FIRE INVESTIGATION 21 Fire investigation carries its own hazards FORENSIC ACCOUNTANCY 22 Fraud investigators clock-up £1bn in seizures 23 Challenges in forensic linguistics when applied to industry-specific translation 25 Let’s debunk some myths about valuing a private business VIEWPOINTS 26 The expert witness – a brief history 28 Parole boards: how do they assess danger to the public?

DIGITAL FORENSICS 29 Digital forensics: how data can reveal incriminating evidence 31 Access a device for data without the cost of a full forensic analysis 31 Commissioner writes to authorities on new surveillance camera code 31 Construction gets first industry-focused cyber advice

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OIL DISPUTES 32 What is the market price of oil for calculating quantum?

ANIMAL WELFARE 33 Farmer cleared after cow tramples walker 33 Couple sentenced for cruelty to dogs

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MEDICAL ISSUES 35 Medical Notes

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NEWS CQC research shows impact of COVID on care services 39 39 Law firms awarded contracts by NHS legal body 41 PI lawyers slam fixed costs proposals 42 Pilot aims to address biases in healthcare AI OPHTHALMOLOGY & OPTOMETRY 43 Statement clarifies process for post mortem eye examinations of children 45 Optometrists’ body critical of new approach to illegal practice 45 MPs debate eye health and macular disease ORTHOPAEDICS 47 Why does a total hip replacement dislocate?

49 New care pathway helps alleviate post arthroplasty pain, study finds 49 T&O surgery tops waiting list figures – again!

SPEECH & LANGUAGE THERAPY 50 Passing the baton: the challenges and cost implications for SLT training

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PSYCHIATRIC & PSYCHOLOGICAL ISSUES Psychologists back conversion therapy ban 51 51 Research is on-going into intimate partner violence 53 Mental health access standards published 53 Young people with eating disorders being failed CARDIOLOGY 55 Campaigners call for better awareness of female heart disease in Wales 55 Cardiac waiting times up one quarter since start of pandemic VASCULAR MEDICINE Blocked arteries and veins: thrombosis and embolism 57 OBSTETRICS & GYNAECOLOGY RCOG calls for better maternity care for women prisoners following Styal report 58 58 Report highlights increased risk of maternal death among disadvantaged groups PLASTIC, RECONSTRUCTIVE & HAND SURGERY 59 Government moves to license non-surgical procedures BAPRAS receives historic patient’s notes 59 61 What are the medicolegal challenges of nerve injuries in the upper limb?

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UROLOGY 62 Missed testicular torsion – the clock is ticking…

A to Z WEBSITE GUIDE 38 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

EXPERT CLASSIFIED 63 Expert Witness classified listings 67 Medico-legal classified listings www.yourexpertwitness.co.uk

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Opening Statement [NOT MANY INDUSTRIES have their own court and government minister – or Act of Parliament governing

their payment systems. One that does is the construction industry. It is one of the country’s biggest employers, accounting for a huge amount of finance each year. It also generates a huge number of disputes, and what happens in that arena is of relevance to everyone.

More and more disputes are being settled via alternative dispute resolution, and the trend looks set to continue. An expert in the field looks to the future.

• When something goes wrong in the construction industry the effects are widespread – and costly. The government’s plans to ensure the costs of the cladding scandal are not borne by individual homeowners have been applauded by the legal profession, particularly the amendment to bring buildings under 18 metres into the aegis of the measures.

The whole panoply of construction-related activities requires particular expertise. From surveyors to materials specialists to contract specialists, the range is comprehensive. Timber has its own potential problems, which an expert explains for us.

• Alongside construction, the energy sector is making headlines these days. News bulletins are peppered with reports on the price of oil, which is reaching heights not seen since the oil crisis of the last century. But oil pricing is a complex commodity in itself and has its own experts. One such expert explains it to the layperson.

• The increasing internationalisation of businesses such as the energy industry has brought with it an increasing complexity of the linguistics involved. Deals may be being done in a multiplicity of languages and dialects, all of which have to be brought together to ensure all parties are clear as to what is being said. That is without regard to the many complex linguistics issues involved in asylum and other immigration hearings.

• Experts in many fields will have spent the past two years getting used to the novelty of remote meetings and conferences. This year the move to video hearings will be accelerated and whole trials will be carried on remotely. Giving expert evidence in those circumstances will be a new experience for many expert witnesses, who will need to be aware of what comes across via the camera. A leading trainer guides us through the process.

• The virtual world has long been one in which the digital forensics experts are at home. Ever since there have been computers there have been computer crimes and computers have been used to solve crimes. With the blossoming of devices in recent years have come new ways of analysing those devices to solve or help solve other crimes. The analysis of mobile phones to help pinpoint a suspect’s position at a given time is one such technique – although care must be taken in interpreting the data. The use of CCTV cameras is another case where cross referencing can be used to prove – or disprove – a person’s presence in a location. A new Code of Practice is now in force.

• Techniques such as digital forensics are the bread and butter of forensic accountants, who ‘follow the money’. In the case of one agency, a part of HMRC, they have followed £1bn of unpaid tax and other ill-gotten gains and returned it to the Treasury, where it belongs. That sum has been clocked up in the space of only five years. Those of us who pay what’s due when it’s due find it galling that some people get away without paying their share. The £1bn recovered by HMRC’s Fraud Investigation Service is equal to funding 20,000 NHS nurses for a year. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Judge’s criticism emphasises duties of experts [A HIGH COURT JUDGE has reminded two experts of their duties

in the judgment of Palmer v Mantas & Anor [2022] EWHC 90 (QB).

The experts were specifically warned about the way they expressed themselves and a level of unconscious bias towards the claimant.

In his judgement, Anthony Metzer QC, sitting as a Deputy High Court Judge, said that the way one expert expressed themselves ‘went beyond language which is appropriate for an expert to employ and suggests a level of unconscious bias, even where there is a lack of belief in the claimant's case’ and that the evidence of a second ‘lacked the appropriate necessary balance, probably as a result of his initial views of the claimant's credibility’.

Commenting on the judge’s remarks, Simon Berney-Edwards, chief executive officer of the Expert Witness Institute (EWI), said: “This is yet another reminder of the importance of the expert witness developing a firm understanding of their duty to the court. I would recommend any expert who is considering undertaking expert witness work to look at our Core Competencies for Expert Witnesses and to ensure that they have had relevant training before accepting any instruction.

“The issue raised in this judgment of unconscious bias is important for all expert witnesses to consider. I am therefore pleased that Frederico Singarajah from Gatehouse Chambers will be covering this at our online conference on 20 May.” The EWI launched its core competency framework for expert witnesses in January. The document sets out the attributes, knowledge and skills that experts must develop if they wish to act as an expert witness. It can be used as a self-assessment tool for experts to think about their personal and professional development. It also underpins EWI’s levels of membership and the assessment and vetting process for each.

At its launch Simon Berney-Edwards said: “Over the last year we

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have seen the results of experts acting as expert witnesses without fully understanding their duties to the court or having the sufficient training and competencies to act as an expert witness. This framework outlines the full set of competencies which must be developed in order to become an expert witness.” q

Referral centres urged to begin accreditation process [IN 2020 the Forensic Science Regulator (FSR) set in place a

timeline for Sexual Assault Referral Centres (SARCs) to achieve accreditation to ISO 15189:2012 by 1 October 2023.

UKAS – the body that administers accreditation to standards – has recognised that ISO 15189:2012 and the requirements for a management system is a new and unknown element for many SARCs and has worked with the FSR to develop an assisted application scheme (UAAS).

The UKAS application fee includes access to the UAAS. The UAAS has been developed as a series of eLearning modules that guide all SARCs through the accreditation process, how to develop their management systems and consider and develop those items identified as interim requirements in the Codes of Practice and Conduct.

The eLearning modules provide a comprehensive starting point for anyone new to standards and/or accreditation and are available within the cost of the initial application. They can be accessed anytime, anywhere and by any of a centre’s staff to suit their development and service needs.

At the end of each module there is the opportunity for the SARC to submit key documentation that will then be reviewed by UKAS and feedback provided to further develop and prepare for each next step.

UKAS points out that it can take from 18 months to two years for new applicants to achieve accreditation, so SARCs should commence the process now. q

Review of guidance helps experts prepare for remote hearings [

THE COVID-19 PANDEMIC brought about a fast and widespread transition to remote hearings while participants were unable to attend court or tribunal buildings. The results have been mixed, depending on factors such as the complexity of the hearing, how much live evidence needs to be given and whether any vulnerable parties or witnesses are involved.

Mark Solon of leading expert witness training provider Bond Solon has formulated some tips for experts based on the available guidance.

“In December 2021, the HM Courts and Tribunals Service published an evaluation of remote hearings,” he wrote, “reflecting on some of the concerns raised. And this year it will be transitioning to a new video hearing service, which includes virtual consultation rooms and built-in guidance for court users.

“It is currently at the discretion of the judges whether a case is suitable to hold as a remote hearing, based on whether the court can be satisfied that justice can be served. Therefore, it is highly likely that many expert witnesses will still need to be prepared to give evidence by video link or phone.”

He went on to list the main pieces of guidance that have been released since the outbreak of the pandemic, while noting that, as guidance is constantly being updated, readers should check for more up-to-date versions, where applicable.

The main points he drew from the guidance were that: • Although the hearing will be recorded by the court, no one may • make other recordings without permission.

• Apart from the new procedures, remote hearings are dealt with as • classic CPR hearings.

• The principles of open justice remain paramount, and the judge will • decide at the outset whether the hearing is open to the public or • private. If it is public, various ways are suggested to allow that.

• The judge and listing office must make sure facilities are available • and that the parties know the method of remote communication.

• A short remote case management conference in advance of the • fixed hearing can allow for directions to be made on the conduct of

• the actual hearing to avoid delays and problems on the day.

• The parties should prepare a pdf of documents and authorities • properly indexed, paginated and circulated in advance. These • should contain only essentials as large electronic files can be slow • to transmit and unwieldy to use.

“Many experts will have been on video conference calls but giving evidence is a different situation. Their whole demeanour and professionalism are being judged. The way they speak, how they refer to the evidence, the way they look and even what they wear and their surroundings are being judged and assessed. Solicitors should do all they can to support the video virgin in terms of presentation and the use of technology. Everyone is on a steep learning curve when it comes to using remote communications.”

He then outlined the technicalities of the available platforms before advising on preparation, working space, interruptions, equipment and set up, background and giving evidence.

“The most important point to remember is that, whether you are physically present in court or not, your duty to the court remains the same as always: you are giving evidence in order to assist the court on matters within your expertise. The reality is that the hearing is actually much like a classic in person hearing but just done remotely. All the usual rules apply.” q • Read Mark’s article in full on the Bond Solon website at www.bondsolon.com/news/.

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Construction: very much a world of its own [

THE CONSTRUCTION INDUSTRY is very much a special case in that a lot of its contracts and payment systems are governed by a specific Act of Parliament and, together with technology, it has its own specialist court within the Queen’s Bench Division.

Nowadays most disputes in construction are decided by adjudication,

arbitration and other forms of alternative dispute resolution – and indeed the courts often insist such methods are used.

Recently the industry has felt the affects of both Brexit and the COVID pandemic more than most. It is by its nature a dangerous industry, and so health and safety regimes are particularly stringent. q

Adjudication figures point to permanent change [

THE COVID PANDEMIC has had an effect on all areas of life and the economy – in some areas that effect has led to permanent change in ways of doing things.

Martin Burns, head of ADR research and development at the RICS, has produced a review of the effect the pandemic has had on the use of adjudications in the construction industry during and after lockdown, and how that reflects changes in the industry as a whole.

“Over the past two years,” he wrote, “the crisis threw a spotlight on adjudication as a barometer of the state of the industry. The experience of RICS, which has appointed over 20,000 adjudicators since 1998, is that, just before the UK economy goes into a decline, there will usually be a sudden and short-lived upturn in numbers of adjudications followed by an equally dramatic fall in numbers as the economic downturn kicks in properly.”

The economic downturn caused by the COVID pandemic, however, led to a somewhat different process, according to Martin Burns. While adjudication appointments made by RICS did indeed rise at the start of the first lockdown – by around 50% to more than 120 per month – the fall-off by the end of the year was not as dramatic as he had expected.

He wrote: “The decrease in numbers of adjudications was oddly slow, and by early 2021 numbers fell back to just below pre-COVID levels. Since the beginning of October 2021, however, there has been a sharp upturn in applications to RICS for appointments of adjudicators. It’s early days but there are signs that adjudication numbers are again on the rise. This could

suggest that the UK economy is entering a new post-pandemic period where disputes about money will escalate, and adjudication numbers will again increase significantly.”

He speculates that there are a number of reasons for the change.

“A shortage of manpower has been attributed by some in the UK to Brexit, though the impact is seemingly global, which suggests it’s a post-pandemic symptom. There has been record demand for construction products as the sector strives to recover from the pandemic. Increasing demand is putting up prices and it has become immensely difficult to accurately value contracts.

“Add to this the breakdown in logistics that get materials from one country to another, and the extraordinary increases in fuel costs, and it is little wonder that there is talk of the construction industry facing a potential tsunami of disputes in the coming months and years.”

Looking to the future, there is a new environment for adjudicators.

“People no longer need to – or often wish to – travel to meetings. The residual fear of ‘catching’ COVID will no doubt continue for a long time to come and this is resulting in more parties wanting to resolve their disputes in ‘safe environments’. The nature and types of dispute have already started to change, and adjudicators will increasingly be called on to take on board issues that have rarely been at the heart of adjudications in the past.” q

New campaign addresses injustices on site [

A NEW CAMPAIGN to tackle work-related rights within the construction industry was launched in November by National Accident Helpline.

Rights on Site aims to address the treatment of construction workers should they have an accident at work or be facing any unfair treatment. It will highlight the need for a change in culture and enable workers to get the justice they deserve. An online poll was conducted to understand the culture around making personal injury claims and 42% of British male workers said that the prospect of getting justice would be an influential factor in making their decision.

As well as addressing the injustices, the campaign will explore the harsh realities of ‘blacklisting’ – the secret vetting system applied by some construction firms. Despite the Employment Relations Act 1999 (Blacklists) Regulations 2010 making blacklisting in relation to trade union activity illegal in the UK, the fear of being blacklisted is still prevalent today and it is preventing workers from making a personal injury claim.

Jonathan White, legal and compliance director at National Accident Helpline, explained: “No one should ever feel bullied or shamed into not coming forward about any unfair treatment or injustice that they've experienced on the job – it's a matter of doing the right thing.

“Ultimately, we go to work to earn a living, and if that job for some unfortunate reason results in an injury through no fault of our own, we are entitled to carry on living our lives without worrying about bills or supporting our family. We believe that Rights on Site will help right many wrongs that construction industry workers currently face. In the coming weeks, we will be calling for justice and sharing thoughts from the workers themselves who have witnessed it first-hand.” q www.yourexpertwitness.co.uk

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Gove beefs up cladding measures [ IN FEBRUARY Michael Gove

announced the further measures he had promised to force industry to pay to remove cladding – including remediating unsafe cladding on 11-18 metre buildings.

For those in industry not ‘doing the right thing’, the government will be able to block planning permission and building control sign-off on developments, effectively preventing them from building and selling new homes.

The Department for Levelling Up, Housing and Communities remains in on-going discussions with industry leaders – who agree that leaseholders should not pay cladding removal costs – with progress being made. However, for those unwilling to make commitments, the Secretary of State has been clear he is ready to act.

Reflecting the scale of the problem, the government will also be able to apply its new building safety levy to more developments, with scope for higher rates for those who do not participate in finding a workable solution.

Alongside further legal protections for leaseholders, courts will be given new powers to allow developers to be sued where they have used shell companies to manage specific developments so they can avoid taking responsibility for their actions.

Lawyers’ body applauds cladding measures

The Secretary of State said: “It is time to bring this scandal to an end, protect leaseholders and see the industry work together to deliver a solution. These measures will stop building owners passing all costs on to leaseholders and make sure any repairs are proportionate and necessary for their safety.

“We cannot allow those who do not take building safety seriously to build homes in the future, and for those not willing to play their part they must face consequences.”

Cost Contribution Orders will be able to be placed on manufacturers who have been successfully prosecuted under construction products regulations. The orders will require them to pay their fair share on buildings requiring remediation. Amendments to the Building Safety Bill will also allow building owners and landlords to take legal action against manufacturers whose defective products have been used on a home that has since been found unfit for habitation. The power will stretch back 30 years and allow recovery where costs have already been paid out.

New clauses will also enshrine in law the commitment the Levelling Up Secretary made in the House of Commons in January that no leaseholder living in their own home, or sub-letting in a building over 11m, ever pays a penny for the removal of dangerous cladding. q

[THE GOVERNMENT’S PLANS to address the cladding crisis

have been welcomed as a step in the right direction by the Law Society of England and Wales.

Many thousands of flat owners living in potential fire traps are being hit by huge bills to manage and rectify life-threatening cladding issues affecting their homes. Most who want to sell are unable to do so.

Speaking as Michael Gove announced that support for leaseholders would be extended to those in blocks below six storeys and outlined the plans to make developers pay for the costs of remediation, the society’s president I Stephanie Boyce said: “Today’s announcements are a step in the right direction for innocent homeowners who are under intense emotional and financial pressure. We have been raising concerns for some time now that leaseholders who live in unsafe buildings through no fault of their own are bearing the brunt of the costs of cladding remediation.

“We argued that the government should remove the block height restriction on eligibility for financial support available to leaseholders for cladding remediation and are pleased to see this step now being taken for 11-18 metre buildings. The restriction of financial support to those in the tallest blocks unfairly deprived leaseholders in small and medium-sized blocks of any remedy and left them significantly out of pocket for a problem not of their own making.

“We urge the government to go further and remove the height restriction completely, so that leaseholders in blocks of any height can access financial support.

“We welcome plans for developers responsible for dangerous building defects to pay for works to rectify these defects, which we have called for. If developers cannot reach a consensus on how to play their part, then they should be legally obliged to do so.” q www.yourexpertwitness.co.uk

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An expert’s day out

By GUY JACKSON Founding Partner of Overford

[WHILE ATTENDING A SITE I heard someone comment that they

were part of an ‘expert witness firm’. That got me thinking: what was intended by such a statement, if anything? Just to add context to the statement, the opening gambit went something like ‘…it is nice to visit site and have a day out’.

There are firms whose core business is to provide expert witness services; however, is it possible to appoint an ‘expert witness firm’ and for anyone within that firm to act as the independent expert?

Part 35 of the CPR at 35.2 (1) says: “A reference to an ‘expert’ in this Part is reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.”

The Collins Dictionary defines a person as: “A person is an individual human being”.

Part 35 of the CPR seems to say that only an individual expert can be appointed to meet the requirements of Part 35; it is that expert who has responsibility for the evidence.

The burden placed upon the shoulders of an expert witness is significant and was brought to the fore in the case of Jones v Kaney [2011] UKSC 13. That case in the Supreme Court lifted a 400-yearold immunity on those acting as experts and means that experts who used to be free from suit can now be sued if they do not carry out their services with appropriate skill and care.

Heading back to the well-known case of National Justice Cia Naviera SA v Prudential Assurance Co Ltd [1993] (The Ikarian Reefer), which is the reference point for those acting as an expert witness and sets out the well-known principles by which experts should present their evidence: ‘uninfluenced as to form and content by the exigencies of litigation’; ‘it should be independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise’.

Would the appointment of an ‘expert witness firm’ meet that objective? I would opine not; according to Part 35 of the CPR it must be an individual that is appointed and named rather than a firm. The associated practice direction does appear to suggest that an expert can rely on others to provide assistance under the expert’s supervision: “3.2 (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give

the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision.”

The person who stated that they work for an ‘expert witness firm’ would suggest to me that they think it is OK for them to undertake the work of a named expert (Part 35 of CPR), rather than the expert themselves.

It is accepted that an expert can delegate and obtain assistance, but when the expert delegates the central issue in the matter, is that expert acting beyond what is expected of an expert? After all, it is only the expert (named) who can provide evidence in court. The on-site surveyor might be required to provide evidence as a witness of fact in court but is unlikely to be able to provide expert evidence.

What does that do to the credibility of the expert witness and their report? I feel it could have a negative impact on the credibility of the expert’s report. It should be remembered that the expert is essentially providing the technical expertise that the court does not have; therefore, the evidence is of paramount importance and needs to be seen as independent.

Statute does not recognise the appointment of an ‘expert witness firm’. While companies tout themselves as expert witness firms, those firms have a duty to ensure that they do not dilute the role and importance of the individual who has been appointed to act as the expert with the use of non-expert staff to carry out duties that they themselves should do.

It is noteworthy that there are several expert witness training bodies who aim to improve the quality and consistency of experts’ reports.

That is to be applauded, because being appointed as an expert witness brings with it a huge amount of responsibility.

The role of an expert witness is an individual one. I would venture to suggest that the quantity surveyor who attended the site in question did not fully appreciate the role. Maybe, the named expert should have carried out the valuation themselves, as that is what they were appointed to do.

At least the quantity surveyor, not the named expert, who carried out the on-site valuation – notably the whole nature of the dispute – was thankful for having a day out! q www.yourexpertwitness.co.uk

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Review prompts debate on stricter valuation rules [

A MAJOR REVIEW published in January has called for stronger oversight and stricter rules governing property valuation. The review, commissioned by the independently-led Standards and Regulation Board (SRB) of the Royal Institution of Chartered Surveyors (RICS), was carried out by Peter Pereira Gray, chief executive of the Wellcome Trust’s Investment Division.

Property makes up an estimated 70% of global wealth and the review’s recommendations apply to major UK and global assets such as shopping centres, offices and business parks. RICS members and registered firms play a market leading role in that crucial sector around the world, delivering confidence to the public, industry and markets.

The SRB’s chair, Dame Janet Paraskeva, said: “The recommended

JCT notches up four score and ten

changes for stronger oversight will underpin future stability and market confidence in this major asset class – much of which is funded through pensions and savings – and are therefore very much in the public interest.

These changes are critical to ensure that RICS-regulated professionals and firms operating in this sector remain relevant and trusted. The board welcomes and accepts all 13 recommendations of the review.”

The board has committed to detailed discussion with the profession, with particular focus on three major changes: • The introduction of a Valuation Compliance Officer role for RICS • regulated firms undertaking valuation • The creation of a dedicated Valuation Panel under the aegis of the SRB • Further guidance on the culture within the sector and the behaviour • expected of valuation professionals The board will also consult with other industry regulators to scope any changes needed to its valuation standards and related regulatory framework.

Alongside publication of the review findings the SRB has issued a public response which confirms its plans to establish a programme of work to implement the recommendations.

Peter Pereira Gray, chair of the Valuation Review, commented: “I commend the RICS Standards and Regulation Board for commissioning this objective and transparent review and for accepting all of the recommendations. It is my belief that implementing these recommendations as a package will lead to a greater and more enduring trust in the work of RICS-registered valuers.

“The review noted the substantial progress that RICS has made over the past 10 years and more to uphold standards, under independentlyled regulation. Building upon that work, when implemented the recommendations will provide stronger assurance, with stricter rules governing property valuation. Ultimately, this will deliver the best possible outcomes for markets and the public.” q

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LAST YEAR marked the 90th year since the formation of JCT – the most widely-used standard construction contract in the UK. While mention of the use of standard forms of construction contract goes back to the 19th century, the creation of JCT formally recognised the need within the building industry for a standard process of entering into a contract that minimised the outlay of costly bespoke provisions, fairly apportioned risk and included benchmark sets of provisions that reflected precedent.

Such was this cultural shift that now, 90 years on – and despite the myriad additions of procurement methods, other forms of contract and providers – a standard form of contract remains the way in which almost all building projects are procured.

Alongside the contracts, JCT plays an important role in providing information, education and training resources in respect of the contract process, improving the use and understanding of contracts at all levels of the industry.

Today, one of JCT’s primary objectives is assisting the industry with its transition to digital working, and ensuring that a flexible range of options is available for construction professionals working with contracts. Currently, the entire suite of the JCT 2016 Edition is available via the JCT On Demand digital service. JCT On Demand has revolutionised the digital approach to construction contracts, providing ease of access and use, security, transparency and convenience.

JCT’s other digital service, JCT Construct, is a powerful, featurerich digital contract subscription service that combines one of the most comprehensive and complex sets of legal documents with the ability to make bespoke changes and amendments.

The impacts of Brexit and the COVID-19 pandemic presents one of the most challenging times for the construction industry in JCT’s 90-year history. However, JCT is committed to continuing its legacy of excellence and supporting the industry with reliable contract products backed by all those years of expertise. q www.yourexpertwitness.co.uk

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Lawyer warns of corner-cutting on site [

NEWS THAT THE number of construction-related injuries in the UK is on a slow overall decline is welcome news, but employers and contractors are still cutting corners and endangering lives, according to personal injury specialist Lee Hart.

Lee, a partner at national law firm Clarke Willmott LLP, says the new study by construction site storage experts at SiteStak shows that, despite improved health and safety awareness, there are still too many accidents resulting in serious injury or death.

The study, using published data from the Health and Safety Executive, shows injuries and ill health to workers is costing the UK construction industry approximately £1.29bn

a year, with male construction workers seven times more likely to be injured.

“Not only is this a staggering cost financially to industry but it is devastating to those seriously injured and the families of those killed,” said Lee, a member of Clarke Willmott's accredited personal injury team, a brain injury claims specialist and member of the Association of Personal Injury Lawyers.

“The report acknowledges that huge strides have been made to safety on construction sites over the last decade, with non-fatal injuries in UK construction having decreased by 45.56%; but there are still too many accidents and more can be done.

“Despite improved health and safety awareness, employers and contractors are

still cutting corners, often to save costs, and are endangering life and limb. We are still seeing plenty of cases where an employer's negligence and breach of statutory duty has shattered lives.”

The SiteStak survey also revealed male construction workers are seven times more likely than women to have a non-fatal accident or injury at work – and not just because there are more male workers. In 2019/20 there were 395 non-fatal accidents per 100,000 male construction workers compared to just 52 non-fatal accidents per 100,000 female construction workers. q • For more information visit the website at www.clarkewillmott.com

HSE issues warning on demolition and refurb projects [THE HSE is urging demolition and construction firms to double-down

on planning, management and control when it comes to demolition and refurbishment work.

In the past year HSE has dealt with prosecutions involving severe injuries and fatalities as a result of poorly planned demolition work.

HSE is reminding contractors that it is crucial to complete a survey ahead of demolition work, including structural investigation and appraisal which considers the age of the structure, type of construction, history of the building including alterations and design codes used to avoid an uncontrolled collapse. Specific consideration should also be given to the effect of additional weight of demolition machinery and debris on suspended floors and the risks to nearby buildings and structures.

HSE's head of construction Sarah Jardine said: “It is easy to get it wrong even on small, straightforward structures – which makes it even more important to put the planning in place when it comes to demolishing large, complex structures. Demolishing these types of structures is a particularly hazardous activity and doing it safely is highly complicated and technical, so relevant expertise is vital. These jobs require careful planning and execution by contractors who are competent in the full range of demolition techniques and have access to designers and engineers with the right knowledge, skills and experience in this area.”

A systematic approach to demolition projects should be a team effort. Clients must appoint professionals who have the relevant skills, knowledge, experience, organisational capability, and who are adequately

resourced. They must also, with the help of the principal designer, provide essential pre-construction information to the relevant designers and engineers. That should include a range of surveys and reports to check for presence of asbestos, structural stability, and the location of above and below ground live services.

Sarah Jardine added: "Incidents caused by poor planning and risk management can have substantial human costs that are felt for many years by the victims and their families. In addition to the impact on people's lives, incidents can also lead to substantial remediation costs, higher insurance premiums and, if HSE investigates, court fines and prison sentences, which will inevitably impact reputations.

“As well as being morally right, it is simply common sense and good business to ensure rigorous planning, organising, managing and monitoring of the whole project.” q

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Consultancy’s experts assist the court on timber-related issues [

WITH THE INCREASED use of timber and timber products in construction, driven by timber’s low embodied carbon and ability to sequester carbon, there is the potential for increased failures in performance. The experts at RSK have found that it sometimes relates to a failure to understand properties of the products themselves, which means they are inappropriate for the application.

On some occasions that has resulted from the substitution of higher-cost timber species with those that are not only cheaper but less durable. However, it can also relate to poor detailing and construction practices, which results in timber remaining wet for extended periods and liable to degradation.

RSK employ two timber experts, with over 60 years combined experience in the manufacture and use of timber and timber products. Through regular inspection work, detailed knowledge of relevant standards, memberships of relevant professional bodies, and participation in national and international standard and technical committees, those experts can act in a wide range of timberrelated disputes. Both are Fellows of the Institute of Materials, Minerals and Mining.

Dr Andy Pitman (pictured) has prepared expert witness reports and given evidence at the Technology and Construction Court and the Royal Court of Justice, and as such has a clear understanding of the role of the expert witness and what that entails. His specialist knowledge lies in the methods of wood protection, and the performance of products in service and manufacturing processes relating to timber and timber products, including vacuum pressure treatments and the kilning of wood. He is fully conversant with quality management systems relating to timber product manufacture.

Andy is an expert on international standards relating to testing timber and timber product properties, having both undertaken testing and interpreted test data on behalf of others. He also has expertise in the chemistry and cure of resins used as wood adhesives.

Andy has been involved in several disputes relating to the efficacy of wood preservatives and to the quality of timber supplied against grades specified. The performance of preservative-treated timber depends on the treatment being present at an appropriate retention level and depth of penetration in the component. That is determined through extensive testing by preservative manufacturers before their release onto the market. The appropriate loading and distribution depends on a wide range of factors – including timber species, region of the stem, moisture content and method of application – and is the responsibility of the treater. The installer is responsible for selecting a product treated for a specific end use from the treater and using it appropriately.

The premature failure of the preservative-treated timber component could be the responsibility of one or more of these parties in this supply chain, but is ultimately the problem of the client. Dr Pitman has worked in several cases to help the court understand preservative efficacy testing, preservative application and the causes for premature failures of products in service.

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Dr John Williams has spent almost 25 years inspecting condition of products in a wide range of end uses and is fully conversant with quality of detailing and site practices which can result in premature failure of timbers and timber products. Both experts are qualified timber strength graders. q

Fire investigation carries its own hazards

By ANTHONY MURRAY Fire Investigation Specialist at Strange Strange & Gardner

[ EVERY YEAR expert witnesses attend many fire scenes, with the aim of investigating fire-related incidents. They include fire services personnel, fire investigators, scene of crime officers and forensic investigators. Without proper precautions they may be exposed to vapours, gases and particulates – all of which pose a significant health risk.

Fire-related hazards, such as the risk of inhalation and absorption of harmful substances, can persist for hours or even days after a fire has been extinguished. Often these risks are overlooked.

Investigators may arrive at the scene of a fire several hours or even days after it has been extinguished. Safety measures may be relaxed and inadequate because of an incorrect assumption that the danger has passed. However, there can still be a multitude of particulates, including carcinogens, remaining at a fire scene due to burned debris. The hazards are not always apparent.

In contrast to firefighter health, the risks associated with investigating fires have not been adequately studied. The effects of toxic exposure can take years to materialise. The parts of the body that are affected by cancer, the types of cancer present and the extent of the hazard will vary widely between location, the nature of the fire, the type of work and the duration of employment. Having appropriate procedures in place ensures the risks are identified at an early stage so that mitigation can be put in place.

Employers and investigators should place a high priority on personal safety and welfare. Scene safety protocols should be established, followed and enforced as a matter of routine. If that is done, investigators’ jobs will be a lot safer in the future.

Good hygiene practices and the use of appropriate PPE, especially respiratory protection, is the best way to accomplish that. After working at a scene, investigators should routinely decontaminate, remove soot-covered clothing and wipe any affected skin.

At Strange Strange & Gardner the health and safety of our fire investigators is of paramount importance. As a result,

our investigators are properly equipped and are trained in safety protocols that will minimise the risk of chronic and life-threatening illnesses and conditions. q

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Fraud investigators clock-up £1bn in seizures [MORE THAN £1BN has been recovered

from the proceeds of crime and tax offenders since the formation of a specialist HM Revenue and Customs (HMRC) fraud squad in April 2016. The Fraud Investigation Service (FIS) has now recovered assets equivalent to funding around 20,000 NHS nurses for an entire year.

FIS has been proactively pursuing suspected proceeds of crime using enforcement powers – both criminal and civil – to disrupt the movement of cash and assets. More than 1,200 seizures of cash and assets have been made while on operational duty, including gold bars worth £750,000 from a passenger at Manchester Airport and £48,000 found in a freezer drawer, hidden among chicken nuggets at a house in Blackpool.

Simon York, the director of FIS, said: “To reach this £1bn milestone in five years speaks volumes to the dedication, hard work and skill of FIS to recover the proceeds of crime from those who try to cheat the system.

“Whether it’s cash seizures, confiscation orders or account freezing orders, recovering these assets stops criminals bankrolling their lavish lifestyles and funding further crimes that harm our communities, such as drugs, guns and human trafficking. Crucially, this money goes back into the public purse, helping fund our vital services such as schools and hospitals.

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“HMRC deploys cutting-edge technology to investigate unexplained wealth and uncover hidden assets. Last year alone we recouped more than £218m from proceeds of crime. We are committed to recovering criminal assets and today the message is clear – crime doesn’t pay.”

Criminal cash is seized by HMRC officers under the Proceeds of Crime Act 2002. If the courts are satisfied the cash is from a crime, or was going to be used in a crime, they can order a forfeiture. In uncontested cases HMRC can administratively order forfeiture of the cash.

HMRC also obtains Account Freezing Orders to freeze balances in bank accounts where it is suspected they contain criminal money.

A financial investigator will use a range of tools to investigate the cash or account, and any criminality. That may involve interviewing the suspect, obtaining production orders

on identified bank accounts and assessing whether the cash was seized alongside illegal items such as non-duty paid alcohol or tobacco. Uncontested cases can be administratively dealt with by HMRC, while others would be determined in a court.

Confiscation orders can be imposed on tax fraudsters after conviction. Investigators will assess the criminal benefit from their crimes and evaluate any assets they hold. If the assets held by the convicted criminal at the time of the order are less than the benefit derived from the fraud, then any future assets can be confiscated up to the value of the benefit of the fraud.

The courts make the final decision on a confiscation order. Failure to pay leads to default sentences and many more months or years in jail and they will still owe the money when released. The recovered money is returned to the public purse.

The Contractual Disclosure Facility (CDF) is another tool for FIS to deal with serious fraud cases. The CDF allows tax evaders to admit their fraud and agree to pay the tax in full, along with interest and penalties due.

However, if FIS discovers that individuals have not made a full and frank disclosure via the CDF, it can and does criminally investigate and prosecute. q

An expert witness faces particular challenges in forensic linguistics when applied to industry-specific translation

By DMYTRO TUPCHIIENKO FRSA FCIM FRSS MBCS MIET MInstP MIScT MIAP MCIArb MCIoL

[

AN EXPERT WITNESS in forensic linguistics can be a great asset in cases involving libel complaints, online law enforcement operations, police reports or witness statements, as well as when allegedly forged emails and other documents are involved. Such cases always depend on successful identification of authorship of the evidence in question.

One of the major challenges for a native or near-native speaker of languages with an existing banking/financial vocabulary – English or German, for example – is how developed is the banking/financial vocabulary of the other component of a linguistic pair, both in terms of the existence of a physical compendium, as well as of a vocabulary in terms of the body of words used.

It is especially true when analysing banking and financial evidence in cases related to parties from developing economies which were formerly part of the COMECON, for instance the recent PrivatBank case.

Thus, for example, the first-ever English-Mongolian Finance Glossary has been produced only in 2011, with the help of experts from the United States Agency for International Development (USAID). The lack of English-Kazakh and Kazakh-English dictionaries in industry-specific subject areas still is a serious problem for the professionals and translators, even after the successful implementation of a Certified International Professional Accountant-Examination Network (CIPA-EN) in Kazakhstan and subsequent interventions of the World Bank and other international financial organisations.

In comparison, for example, the Russian/English banking and finance terminology has been in existence ever since so-called sovzagranbanks established their presence in London and other English speaking financial centres. Additionally, there was an influx of a next generation of such glossaries with the development of a free market economy in Russia after the collapse of the Soviet Union in 1991.

Another type of challenge is when a seemingly industry-specific translation task – eg banking or financial evidence – is being conversed in either a street slang or colloquialisms, such as London cockney or Russian fenya, or in a rare local dialect, for example Bernese dialect of Swiss German, as it was the case of several LIBOR-related investigations.

In all those cases, a forensic linguist who is preparing to give evidence as an expert witness must be ready to delve into what is sometimes an uncharted area of a virtually non-existent or roughly

drafted/unstable terminology, thus leaving much space for uncertainty with regard to the correctness of specific terms to be translated. In my humble opinion, such risks must be clearly stated as an assumption, either in an expert witness report per se or when giving the oral evidence in court. q

www.yourexpertwitness.co.uk

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Let’s debunk some myths about valuing a private business Business valuation expert FIONA HOTSTON MOORE of FRP Advisory explores the common misconceptions about the valuation of private companies and has collated her ‘Top 10 Myths’

Myth No 1: Business value can be determined using rules of thumb Valuing a business requires a thorough analysis of the business itself, as well as an understanding of the wider market and the factors driving current and future value. The business valuer must first determine the appropriate valuation methodology.

Private companies are typically valued by either the capitalised maintainable earnings or net assets. However, other alternatives may be relevant including industry metrics, discounted cash flow or dividend yield.

Myth No 2: If a business is losing money its worth nothing The expenses deducted in the profit and loss may include discretionary items, exceptional costs or costs above a commercial rate. Furthermore, there may be a value in the net assets and in certain industries businesses can be sold at substantial multiples even before they report a profit.

Myth No 3: There is no difference between price and value Ultimately a business is worth what someone will pay for it.

However, in our valuations we are required to calculate the ‘notional’ market value based on our careful analysis of the business and our own commercial experience.

Myths No 4 & 5: There is a single value for a business; and one business valuation is as good as another A business can have different values for different purposes – for example tax, special purchaser, cessation or bank reports.

Myth No 6: A 10% interest is worth 10% of the business The maths are correct but in valuation that may not be correct.

The valuation of a minority interest is not necessarily the pro rata valuation of the whole. There may need to be a valuation discount or consideration of a control premium. The court may deem the business is operating as a quasi-partnership and ignore the minority discount.

Myth No 7: It’s not possible to value ‘blue sky’ ‘Blue sky’ refers to goodwill and intangible assets. Typically, such assets are not included on the business balance sheet. However, the valuer – in adopting a valuation methodology such as capitalised earnings or discounted cash flow – arrives at an entity value which includes the value of goodwill and intangibles. Valuations of that nature are complex and require an assessment of projections, growth curve, development costs, barriers to entry and application of market knowledge.

Myths No 8 & 9: A company’s value does not change over time; and all business values have fallen amid the pandemic Business values certainly do change over time and are often in a state of transition. The pandemic has had a significant impact on the value of many but not all businesses – and value can be increased or decreased. Current data suggests the economic recovery postpandemic has been quicker than anticipated. The UK FTSE 100 was just 4% lower in January 2021 compared to January 2020.

In conducting valuations since the onset of the pandemic it is necessary to obtain up-to-date management information to assess the impact of the pandemic, including the lockdown and government support. The valuer also needs to consider the impact on the debt within the business.

Myth No 10: I need a business valuer who specialises in the particular industry Typically, expert witness valuers of private companies do not specialise by industry. We instead rely on our commercial knowledge, industry data, transaction knowledge and research. However, there are occasions where, due perhaps to the complexity of the business, a sector specialist or the input of another expert may be required.

Conclusion

In conclusion, business valuation is both an art and a science. The business valuer brings their commercial experience to bear having undertaken a robust analysis of both the particular business and the wider market. q www.yourexpertwitness.co.uk

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The expert witness – a brief history

By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner

[THIS IS A BRIEF HISTORY of the

expert witness’s involvement in litigation in recent years. It may help you litigators to brief your experts effectively. As an expert, I am ‘plugged in’ to the process only at certain stages, so don’t expect me to know all the ins and outs of case management.

I will set aside my activities as a mediator and an expert determiner, though they can be important, and I will concentrate on civil procedures, whilst recognising that I am equally active in family and criminal cases.

Early days

The first case where the status of the expert was recognised is Foulks v Chard [1783] (spellings vary) where John Smeaton, famous for building the Eddystone Lighthouse, was giving evidence in a trial to do with coastal erosion. Opposing counsel objected that he was giving an opinion – a judgment in the language of the day – but the judge overruled him, saying that he had often relied on Mr Smeaton’s opinions, and that a man of science can express his opinions when giving evidence within his own science. Experts can assist the court ‘within their expertise’ (CPR 35.3(2)).

That is why Professor Sir Roy Meadow went so very wrong in the R v Sally Clark cot death case, when he said that the chances of multiple cot deaths occurring in the same family was 73 million to one. He was a renowned gynaecologist, but was speaking as a statistician – wrong!

The courts have relied on experts for many years, but only within their science: see Whitehouse v Jordan [1980] UKHL 12, the Ikarian Reefer [1993] 2 Lloyd’s Rep 68 and the CPR as above.

About Chris Makin

[CHRIS MAKIN was one of the first 30 or so chartered accountants

to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert.

He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases.

For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q

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My early days

I was a general practitioner in a small practice in Leeds for some years. Solicitor clients would ask me to help with some of their cases, for example applying Gourley in personal injury cases, but then I was asked to act as expert on the record in a product liability case. The claimant (plaintiff in those days), cardboard box manufacturers, claimed £330,000 loss of profit on faulty platens, but my careful analysis of the production records showed that there were many reasons for loss of production – routine maintenance, raw material shortage, holidays, staff sickness – and my opinion of loss attributable to the platens was £105! The claimant abandoned the claim, and I had caught the litigation bug.

Next, in about 1980 a tax partner had as a client a stuntman who had been injured on a Superman film at Elstree Studios, falling to the ground when the invisible wires broke. He would not work again.

The trial was five days at the RCJ. I had sketched out a report, but it didn’t go in as evidence. I sat in court next to the films organiser for Equity, listening to the casting directors and second unit directors giving evidence on what a great chap this stuntman was, that they would have booked him for their next film, and how much they would have paid him. I had to go back to counsel’s chambers every evening (Stephen Sedley QC was our leader, later of the Court of Appeal) and recalculate my loss of earnings. Then on the Friday I was in the witness box all day, giving my opinions orally – no expert reports in those days!

The turning point

The solicitors acting for the chairman of Barlow Clowes (BC) were desperate to find a forensic accountant who could help them defend the chairman. BC was an investment company which said it invested only in gilts, and was able to maximise returns with sophisticated computer programs. So many accountants advised their clients to invest, and they couldn’t now act because they had a conflict.

I was ‘Billy-no-mates’ because I had not advised such an investment.

And BC was a sham, an early Ponzi scheme. The directors had taken investors’ money and spent it on buying commercial property, vineyards, a brewery, the Spa at Scarborough, Porsches and Bentleys – and even a yacht from Christina Onassis for $3.5million!

I was required to work at the solicitors’ office for eight months, with six assistants I had recruited, and go through the mass of evidence coming from the Serious Fraud Office. I had to pass all my general practice clients to other partners, and was told that I would be at the trial at Chichester Rents (the high-tech annex to the Old Bailey) for 18 months on very high cost legal aid. This was a career!

Then at counsel’s chambers in the Temple, the very day before the trial started, I was told that my report (43 ringbinders) had been agreed by the SFO and I didn’t need to appear at trial. But I had given all my clients away, and now I had nothing to do!

On the train from King’s Cross back to Leeds, I drafted a mailshot letter and then wrote to solicitors saying I was a forensic accountant.

There weren’t many of us in those days, and the work flooded in; I had a department of seven within a few months.

Oh! And my client at BC, the chairman, was found not guilty on all charges. The MD Peter Clowes (not my client) was found guilty and jailed for 10 years with a 15-year director disqualification. Quite a result!

Access to justice

In the bad old days, civil cases meandered along with snippy letters flying around, until solicitors thought it was time for a trial. This was not good enough for Lord Woolf, the Master of the Rolls, who launched the Civil Procedure Rules on 1 April 1999 – the Family Procedure Rules and Criminal Procedure Rules came along soon afterwards.

Lord Woolf had two aims: to keep disputes out of the courts if they could be solved in some other way, and to put efficiency into the courts by having judges control each case.

The rules are constantly updated – my copy is 128 – but the intentions are unchanged. There is constant pressure to keep cases out of the court and to handle them efficiently when that becomes necessary. Parties must constantly consider ADR, especially mediation, with costs penalties for those, win or lose, who unreasonably refuse to mediate. Part 36 offers are important, again with costs consequences for those who do not respond as the court expects them to. We have the hot tub (concurrent evidence) where the judge chairs a discussion between the experts, who must also answer questions from both counsel and even from their own opponents; far more efficient than having each expert give full evidence on everything which may possibly turn up in the opponent’s evidence later.

We also have the meeting of experts (with Zoom, email, telephone etc now often referred to as liaison between experts), where a joint statement must be produced after each expert’s report has been issued, on those matters where the experts are agreed, and those matters on which they have failed to agree, with reasons. That cuts down the length of trials since agreed matters may be ignored, and the reasons for disagreement take the court directly to the matters needing attention. I prepare for meetings of experts very carefully; they can be as important as a full trial.

Mediations are important, too. They can take place at any time, even during a trial, and agreement may be on matters which a judge could never order. To take an extreme example, with one of my mediations an employer had given an unhelpful reference to a departing employee, who wanted her dream job. The employer had never given a reference before, and regretted what she had said. So at the mediation she agreed to resile from that reference, and a new one was compiled, paragraph by paragraph, as agreed between the parties. The employee went off, confident she would now get her dream job; something a judge could never have given her.

years on the Forensic Committee at ICAEW where we launched an accreditation scheme for experts. This has now been taken over

by The Academy of Experts, where I am a fellow; and I serve on the Investigation Committee there, looking at experts who still get it wrong. There are some harrowing tales in my litigation blogs at https://chrismakin.co.uk/category/litigation/.

Wannabe experts need to recognise that they must undergo training at The Academy of Experts or the Expert Witness Institute, and litigators should be careful to instruct experts who know what they are doing.

So where does all this take us?

The world of litigation has changed much in the 30 plus years I have been involved in it. Think: Part 36, mediation, hot tub, expert determination, Zoom, Precedent H, high court fees, backlog.

Litigators have a lot to think about. From my point of view, all I can say is that you need to choose experts carefully, since they need to know as much about the Brave New World as you do. Good luck! q

Dual qualification

It will be apparent that I believe in the importance of having an expert who knows what he is doing. In the early days I was often opposed by chartered accountants who thought it was sexy to do a bit of expert witness work between audits. They were hopeless. I saw that experts must be properly trained, and I served for 14 www.yourexpertwitness.co.uk

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Parole boards: how do they assess danger to the public?

In his third of a series of articles on the criminal expert, Dr MARK BURGIN BM BCh (Oxon) MRCGP DCH CPE Dip Med Ethics discusses the assessment of dangerousness from a disability analysis perspective.

[THERE IS A DISCONNECT between the justice system and the

public on the subject of dangerousness. The public want dangerous individuals to be removed from society even when they have done nothing wrong. The justice system wants to find the right punishment even for those who pose no risk to anyone.

Society should keep the public safe, but that responsibility is shared between health services, secure hospitals and prisons. It is hospitals, not prisons, that can detain a person without charge if they have a mental illness and pose a risk to themselves or others. The decision to release from prison is different – the parole board assesses whether the prisoner is safe to re-enter society. That decision is typically based upon the findings of psychiatrists, prison officers and others in the prison.

There is a fundamental flaw with that: the behaviour in prison may be very different from that in society. Many model prisoners revert to their previous activities as soon as they are released. Parole boards generally pass or fail and do not help the prisoner to make real progress.

Personal relations

Close relationships with others are necessary to give purpose and fill the emotional gaps built into human nature. One theory is that the hormone oxytocin increases when interacting with family and very close friends, which reduces the need for excitement and pleasure. Modifying the person’s responses helps them to manage emotional trauma and drug addiction. Generally, the better a person’s relationships the less danger they pose to others and the less self-destructive behaviour they show. Measuring the quality and quantity of close relationships is one part of the disability assessment.

The pattern of personal relationships reflects the functional restrictions that the person has in that area.

The assessment therefore asks the person about their relationships and how they feel, behave and think about those they care about. That is a naturalistic approach which allows the assessor to build excellent rapport. The relationship between the person and the assessor gives further evidence of the restrictions in the personal relations element of the assessment. It is not unusual for the person to be completely baffled by the responses of others or the reason that they struggle with family.

Social skills

The ability to manage social situations is important in many workplaces and social gatherings.

Those who are described as having superficial charm often have good social skills but poor personal relations.

Social skills are more of a game than a feeling and those that cannot play well lose out. Good social skills come at

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a cost, and a common pattern is being drawn into criminal behaviour by peers. The parole board may be put off by poor social skills or be overgenerous with those with good social skills.

Those with poor social skills are the easiest to recognise because their behaviour is off-putting and irritating. Doctors often use the term personality disorders (PD) and the descriptions which go with them.

The descriptions for antisocial and emotionally unstable PD are highly insulting and are likely to antagonise the person. Psychiatric diagnosis is unhelpful because the treatments are generally unavailable and it underestimates the amount a person with a PD can change. Most prisoners with poor social skills do not have a diagnosis, anyway.

Emotional control

Many perpetrators of serious violence did not intend to commit an offence and will say that it just happened. Some people enjoy fighting and others will hurt people as part of other criminal activities, but there are many who lost control. Even those who undertake repeated violence are often remorseful the next day – for example in cases of domestic violence. Violence is often a crime without any direct benefit to the perpetrator. In those cases the parole board needs to understand the person’s triggers.

The pattern of loss of control can suggest a trigger which goes beyond ‘intoxicated’. Being drunk lowers the threshold for a trigger but does not change the trigger itself. They will often not be able to remember what the trigger was. Minor losses of emotional control such as arguing can indicate the trigger. Looking at several examples of lost control, however minor, will allow all the triggers to be identified.

In conclusion, as there are no right answers in disability, it is difficult to game. Those who try to game get insight into their behaviour and improve.

The report can therefore be written with clear advice given in how to improve. If the prisoner follows the advice they will become safer as they overcome their functional restrictions. Psychiatric reports are limited because they depend upon symptoms in a biomedical model of disease. Disability analysis uses patterns of behaviour, emotions and explanations in the biopsychosocial model. That model provides better explanations of behaviour because it does not focus on diagnosis. q • To contact Dr Mark Burgin call 0845 331 3304, email drmarkburgin@gmail.com or visit www.drmarkburgin.co.uk

Digital forensics: how data can reveal incriminating evidence [INTERPOL DESCRIBES digital

forensics thus: “Digital forensics is a branch of forensic science that focuses on identifying, acquiring, processing, analysing and reporting on data stored electronically. Electronic evidence is a component of almost all criminal activities and digital forensics support is crucial for law enforcement investigations.

“Electronic evidence can be collected from a wide array of sources, such as computers, smartphones, remote storage, unmanned aerial systems, shipborne equipment and more.

“The main goal of digital forensics is to extract data from the electronic evidence, process it into actionable intelligence and present the findings for prosecution. All processes utilise sound forensic techniques to ensure the findings are admissible in court.”

For most applications in the domestic setting, that means uncovering financial crime, cybercrime, sinister uses of the dark web for such nefarious purposes as child pornography, terrorism or drug crimes or placing suspects at a crime scene using analysis of their devices.

In an interview with Forensic Access, Christine Hall, technical manager at IntaForensics, described the practice thus: “Digital forensics is the recovery, analysis and reporting of data from any device capable of storing digital data – from computers and mobiles to drones, smart watches and TVs. “While a lot of the time it is focused on preserving evidence, it isn’t

reserved solely for criminal case work.

The skills and processes involved in digital forensics can also be used commercially, for example to support internal investigations or to recover someone’s personal photographs from a corrupted memory card.”

On the issue of the difference between civil and criminal cases, she said: “For criminal investigations, technical findings are reported using streamlined forensic reporting or MG11 witness statements. This data needs to be considered reliable and relevant for it to be admissible before use in court. It also requires the burden of proof to be beyond all reasonable doubt.

“While civil cases do not necessarily require the same level of exhibit handling, we treat all cases as if they are criminal. This is so that if a civil matter progresses to a criminal investigation, we already have the bases covered. The burden of proof for a civil matter is based upon the balance of probability.”

She pointed to areas where digital forensics is problematic.

“In most cases, we can’t place a person physically in front of a device. We can show what account was logged in to and what activity took place, but from that evidence alone we cannot prove who was physically using the device at the time. Because of this, digital evidence relies upon corroboration, supporting information such as CCTV, who had access to the device, knowledge of passwords and eye-witness accounts.” q

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Access a device for data without the cost of a full forensic analysis [

VIRTUAL FORENSIC COMPUTING (VFC) software was developed by digital forensics specialists MD5 over 15 years ago to assist law enforcement agencies and digital forensic analysts in their investigations of computer devices.

MD5 have now developed that software to assist with corporate cases such as insolvency, forensic accounting and fraud investigations, providing a simple cost-effective solution to accessing computer devices in a forensically sound manner without switching on the original machine.

Triaging

Using the VFC triage function an investigator is able to quickly identify if a machine contains any potentially relevant information that may assist their case. That is particularly useful when a number of devices are involved, as it can quickly eliminate non-relevant devices – saving time and money and allowing investigators to concentrate on the devices of interest. A triage of a device will provide information on: • Usernames and profiles • Last used date • Installation date • Recent files accessed • Installed programs such as Sage, • QuickBooks and other applications

• Recent internet history, including recent • searches • LNK files – a shortcut to a recently • accessed Windows file

Stand-alone virtual machine

MD5 are able to forensically create a standalone virtual machine (VM) using VFC which is an exact replica of the original computer. An investigator is then able to access and view the virtual machine. In addition to the triaging information, a stand-alone machine allows: • Login passwords to be bypassed • View of the device as the original user would • have done using everyday computer skills • Access to files and documents stored on • the device • Access to accounting applications installed • on the device • Screenshot evidence such as data • location, folder structure, recently • accessed files, browsing history, saved • passwords etc • Export of data from the VM to your own • computer There is no expensive software required.

VFC has proven invaluable to many cases, using acquired screenshots of complex evidence that can be presented in court in a simple and understandable way. q

Commissioner writes to authorities on new surveillance camera code [

AN UPDATED Surveillance Camera Code of Practice came into force on 12 January, having been laid before Parliament in November, pursuant to Section 31(3) of the Protection of Freedoms Act 2012 (PoFA).

The code provides guidance on the appropriate use of surveillance camera systems by local authorities and the police and reflects the government’s commitment to empowering the police to use technologies like biometrics and surveillance cameras to protect the public while maintaining their trust.

Before laying the code before Parliament the Home Office conducted a statutory consultation.

The new Biometrics and Surveillance Camera Commissioner, Professor Fraser Sampson, wrote to all police and local authorities regarding the new Code of Practice.

He wrote: “The main changes are updated references to subsequent legislation, in particular the Data Protection Act 2018, and to address the issues in the Court of Appeal judgment on the use of live facial recognition. The text has been shortened to make it easier for users to follow and is intended to enable the legitimate and accountable use of surveillance capability by relevant authorities. The updated Code does not place any additional burden on users.”

The commissioner continued: “I have a statutory function under the provisions of PoFA to encourage relevant authorities to comply with the Code which, if properly adopted, will ensure that any operation of surveillance camera systems by relevant authorities is proportionate, justified, transparent and for a legitimate purpose. The Code relates to overt surveillance camera systems such as automatic number plate recognition, facial recognition technology, body worn video cameras, drone borne cameras, helicopter borne cameras and CCTV systems (both static and mobile). This is by no means a definitive list and surveillance cameras used in or on vehicles may also attract the provisions of the Code.” q

Construction gets first industry-focused cyber advice [BUSINESSES IN the construction

industry have been offered the first of a new kind of cyber security guidance from UK experts to help build up their resilience to online threats.

The new Cyber Security for Construction Businesses guide from the National Cyber Security Centre (NCSC) – a part of GCHQ – provides tailored, practical advice for the industry on how to protect their businesses and building projects. The guidance, launched with the Chartered Institute of Building (CIoB), is aimed at small and medium-sized firms as businesses rely more on digital tools and ways of working, such as using 3D modelling packages, GPS equipment and business management software.

Construction businesses of all sizes continue to be targets for cyber attackers due to the sensitive data they hold and high-value payments they handle.

The guide offers practical advice for each stage of construction, from design to handover, and sets out the common cyber threats the industry faces, including from spear-phishing, ransomware and supply chain attacks.

Sarah Lyons, NCSC’s deputy director for economy and society engagement, explained: “As construction firms adopt more digital ways of working, it’s vital to put protective measures in place to stay safe online – in the same way you’d wear a hard hat on site. That’s why we’ve launched the new Cyber Security for Construction Businesses guide to advise small and medium-sized businesses on how to keep their projects, data and devices secure.

“By following the recommended steps, businesses can significantly reduce their chances of falling victim to a cyber attack and build strong foundations for their overall resilience.”

Caroline Gumble, chief executive of the CIoB, said: “The consequences of poor cyber security should not be underestimated. They can have a devastating impact on financial margins, the construction programme, business reputation, supply chain relationships, the built asset itself and, worst of all, people’s health and wellbeing.

As such, managing data and digital communications channels is more important than ever.” q

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What is the market price of oil for calculating quantum?

By LIZ BOSSLEY, CEO of the Consilience Energy Advisory Group Ltd

[ WHEN OIL COMPANIES and oil trading companies get into

disputes about the sale and purchase of crude oil, the question that is often put to an independent expert is: What is the difference between the price that would apply under the contract between the buyer and seller, and the relevant ‘market price’ at the time when the oil in question ought to have been delivered if the contract had been performed as envisaged?

That assumes that the oil in question passes the ‘available market’ test of the Sale of Goods Act 1979. If there is such an available market, damages are calculated as the difference between the contract price and the market price.

The price of oil

Physical oil cargoes are commonly priced by reference to a price formula, rather than expressed as a fixed and flat price such as $X/barrel. Oil price formulae often refer to the average price of a benchmark grade, as published by a price reporting agency (PRA), typically on the 3-5 days around or just after the bill of lading (B/L) date.

A key prerequisite of a benchmark grade of oil such as Brent, West Texas Intermediate or Dubai/Oman is that it is traded and reported at a fixed and flat price. That means that the benchmark value can be plugged into a cargo price formula to solve the price equation in simple $/bbl terms to multiply by the cargo volume and put on the cargo invoice.

The benchmark price used is adjusted in the often-complex price formula for any and all differences between the characteristics of the benchmark grade oil and the oil that is the subject of the contract. Those adjustments will include: • Quality differences • The size and logistics of the cargo • The delivery location • The delivery basis – eg • FOB, CFR, CIF or DAP • The delivery date • Whether the benchmark • price averaging period • is the standard 3-5 • days around or just • after the B/L date, or • averaged over some • other period, such as • the whole month • average of the delivery • month • Credit terms • Any other factors that • the parties to the deal • consider relevant

The secret of pricing: it’s all in the timing

The value of a barrel of oil varies with its delivery date. The same barrel of oil can be worth many dollars

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difference in price depending on whether it is to be delivered next week, next month or next quarter. That is not because oil prices are moving up and down all the time, although they are, it is because buyers of oil will value identical oil at a higher or lower price today depending on when it will be delivered. So, at any given moment in time a buyer will be prepared to pay a completely different price for the same cargo, depending on when the seller will deliver it.

So, if the contract price formula uses a benchmark price on the 10 days before the B/L date, rather than a typical averaging period of 3-5 days around or just after the B/L date, the market price to be used in establishing quantum needs to be adjusted to reflect early pricing.

If the price of oil for delivery soon is greater than the same oil for delivery later (‘backwardation’), then pricing early in the contract will increase the contract price. If the price of oil for delivery soon is less than the same oil for delivery later (‘contango’), then pricing early in the contract will decrease the contract price – see graph.

The market price comparator used to calculate quantum should take that into account and adjust the market price to reflect backwardation or contango.

In the case of oil, working out the difference between the contract price and the market price is not as straightforward as it sounds. q • Liz Bossley established the Consilience Energy Advisory Group in 1999. Her oil trading career spans more than 45 years in the international crude oil, refined product and freight markets. Her new software product, Revenue Analysis Apportionment and Hedging (RAAH), is to be launched in March. She is a certified expert witness for oil and freight trading and logistics and has acted in more than 50 disputes.

Learn more about Liz at ceag.org/founding-partners and about RAAH at ceag.org/oil-field-hedging-software.

Farmer cleared after cow tramples walker [ A CATTLE FARMER has been successfully defended in civil proceedings

brought under Section 2(2) of the Animals Act by a woman who was trampled by one of their cows while walking her dog on a footpath through a local nature reserve. The defendant’s herd of British Beef Shorthorns were being grazed on the reserve under a licence agreement with the local authority.

On the day in question, the claimant entered the field where the herd were grazing and walked along the permissive path. As the field levelled off, the claimant saw a cow to the right of the path, which she estimated was about 14 feet away from her, and immediately turned around to retrace her route. The sequence of events that followed was a matter of some dispute; however, the claimant was ultimately trampled by the lone cow and sustained injury.

The behaviour of the cow before, during and after the incident was considered by expert evidence. The only area of disagreement between the experts was how the cow came to knock the claimant over – whether it was the claimant being in the path of the cow returning to the herd or the cow moving forward inquisitively and knocking the claimant over.

A MAN AND A WOMAN from Wales were sentenced at Swansea Magistrates Court in Ben Bradley, for the defendant, argued February after both pleaded guilty to three offences under the Animal Welfare Act: causing that section 2(2)(b) should not apply on the unnecessary suffering to 12 dogs by failing to provide adequate or effective professional veterinary basis that the cow was displaying normal care and attention for their skin diseases; failing to meet the needs of 21 dogs by failing their characteristics, it did not act aggressively need for a suitable living environment; and failing to provide 10 dogs with suitable diet including and the accident did not arise due to the continuous access to an adequate supply of clean, fresh drinking water. cow displaying a particular (but normal) One person was handed a nine-week prison sentence on each charge to run concurrently, characteristic that arose at particular times or which was suspended for 12 months, a rehabilitation activity requirement of 15 days, a £120 particular circumstances. fine and a victim surcharge of £128, and was disqualified from keeping dogs for 10 years. The It was the claimant’s case that the presence second was handed a nine-week prison sentence on each charge to run concurrently, which of the claimant triggered an anxious or was suspended for 12 months, a 10-day rehabilitation activity requirement order, an order to aggressive response as the cow returned undertake 120 hours of unpaid work and a £128 victim surcharge, and was also disqualified from to the herd with no regard to obstacles in keeping dogs for 10 years. its path. Counsel for the claimant, Richard While delivering sentence the District Judge referred to there being a commercial element Stead, argued that the cow remained in a on what appeared to be a puppy farm. The court heard neither of the defendants had a state of high anxiety, causing it to keep its breeding licence. head up and return to the herd with fixed When RSPCA officers visited the site in March as part of a South Wales Police warrant the 21 intention regardless of going through or over dogs were found living in unhygienic and hazardous conditions. Many of them were found to be the person or dog. underweight with severe skin disease conditions.

The claim under section 2(2) Animals Act Inspector Gemma Cooper, who led the RSPCA investigation, said: “I was horrified by the animals’ 1971 was dismissed by Mr Recorder Bebb overall health condition and the environments in which they were being kept. It also appeared that a QC. Section 2(2)(b) of the Act had not been small-scale puppy farm was being run from this location. successfully made out due to the absence of “The conditions the dogs were kept in were not acceptable and the owners were failing to meet direct evidence on the behaviour of the cow their needs. One pen for example – which had eight dogs in – had no space for them to get away after the claimant had turned her back. q from each other, had no comfortable area for them to rest and was full of urine and faeces.

Couple sentenced for cruelty to dogs [

• A full report of the case can be found on the website of law firm BLM at www.blmlaw.com.

“Pens lacked sleeping areas and in one pen a heat lamp was placed dangerously as it hung very close to a water bowl.” q

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MEDICAL NOTES [

THE PERFORMING of illegal medical procedures has been in the sights of the regulators in past months, with the tabling of an amendment to the Health and Social Care Bill to introduce a licensing scheme for nonsurgical cosmetic procedures such as Botox and other dermal fillers, a proposal to outlaw conversion therapy, and a consultation by the General Optical Council among optometrists and other optical professionals on how to address the problem of illegal optical practices.

The former is a move long campaigned for by bodies representing aesthetic surgeons, who often have to pick up the pieces of the damage done by unscrupulous practitioners, while the second has the support of the psychological profession. The latter has drawn less applause from the professionals, with the College of Optometrists publishing its response to the GOC consultation, which is far from complimentary.

• When an injury is the result of inadequate treatment by a legitimate medical practitioner, a medical negligence case is of course the only way of gaining redress. When the case is contested, a great deal of time and expense can be expended – traditionally paid for by the guilty party. Now, proposals to limit the amount that can be claimed as costs in cases where the claim is of ‘low value’ have been advanced. The proposals are being fought by APIL and other organisations – significantly the charity representing patients.

• The less-than-perfect treatment of a young woman in prison was highlighted by an investigation by the Prisons and Probation Ombudsman. The investigation concerned the tragic case of a young woman giving birth to a stillborn child in a prison toilet at HMP Styal in Cheshire. The RCOG was scathing in its response, calling for improved access to maternal services for women in prison.

The case has highlighted the issues affecting pregnant women in all areas of social disadvantage. It follows research showing women in disadvantaged groups across society are at greater risk of maternal death.

• Women in Wales are at risk of a particular societal bias when it comes to heart disease. The population at large simply don’t believe that women suffer from heart attacks, and that includes women themselves, meaning many do not seek help. Health inequalities mean the situation is worse in Wales.

It adds to mounting failings in the treatment of heart disease, leading to record waiting lists.

• Waiting lists are also once again the major concern of the orthopaedic specialty. Throughout the pandemic the list of people waiting unacceptably long for orthopaedic procedures such as hip and knee replacements has topped the list of surgical specialties.

• One area of treatment the government has addressed is that of waiting times for urgent mental health treatment. It has long been an issue of concern across all of society that mental health has lagged behind physical health in recognition – a concern dating back many years. Now, new standards have been published for what patients can expect from their treatment.

• A more sombre set of standards has been established by a collaboration between paediatricians, pathologists and ophthalmologists regarding the examination of the eyes in the case of unexpected death of an infant. It is an event most of us do not wish to consider, but one which has to be addressed. Retinal haemorrhages are often found in cases of child abuse, so can be an indicator that further action is needed. 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 FHDI - Kathryn Thorndycraft-Pope Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Examining documents & handwriting • to determine authenticity • to expose forgery • to reveal aspects of origin. Electro Static Detection Apparatus and Mi-Scope used.

Mr Ashok Bohra MS MPhil MFSTEd FRCSEd FRCS(GenSurg)

Mr Kim Hakin FRCS FRCOphth

General & Laparoscopic Surgeon taking instructions on behalf of either claimant or defendant or as a Single Joint Expert.

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.surgeonexpertwitness.co.uk

www.kimhakin.com

David Bunker Arbitrator & Mediator

Mr Chris Makin

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

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

E: davidalbunker@outlook.com T: 07831 784006

www.chrismakin.co.uk

Dr Thomas C M Carnwath

N-Able Services Ltd

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

• Chronic pain • Brain injury • Spinal injury • Children & young people • Neurological conditions • Amputations • Complex orthopaedic multi-trauma

www.tomcarnwath.co.uk

www.nableservices.co.uk

Dr Lars Davidsson MRCPsych MEWI

Mr Sameer Singh MBBS BSc FRCS

www.abc-translations.co.uk

Consultant Psychiatrist and Accredited Mediator Reports within most areas of general adult psychiatry.

Specialist in PTSD, anxiety disorders & mood disorders.

www.angloeuropeanclinic.co.uk

www.forensichandwriting.co.uk

Consultant Orthopaedic Surgeon • All aspects of trauma – soft tissue and bone injuries • Sports injuries • Upper and lower limb disorders and injuries • Whiplash injuries Clinic locations – London, Milton Keynes and Bedford

www.orthopaedicexpertwitness.net

Chris Dawson MS FRCS LLDip

Dr Elizabeth J. Soilleux MA MB BChir PhD FRCPath PGDipMedEd

Consultant Urologist with over 18 years experience of medico legal report writing and expert witness work in personal injury and clinical negligence cases.

Expert Witness Pathologist with a particular interest in haematopathology. Short reports on specimens, full court compliant reports and expert biopsy reporting.

DentoLegal Ltd – Gary M Simon

Mr Bernard Speculand MDS FDS FFD FRACDS (OMS)

www.chrisdawson.org.uk

DentoLegal specialises in the preparation of evidencebased Breach of Duty & Causation and Condition & Prognosis Dental Reports on the instruction of solicitors.

www.expertwitnesspathologist.co.uk

Consultant Oral and Maxillofacial Surgeon. Personal injury and clinical negligence cases for claimant, defendant and as Single Joint Expert. Special interest is TMJ Surgery.

www.dentolegal.com

Yvette Young (Secretary) T: 0121 605 1884 E: info@medsecadmin.co.uk www.birminghamtmj.co.uk

Emma Ferriman Ltd

T Clinic Dental Legal Experts

Consultant Obstetrician and Fetal Medicine Specialist • Prenatal diagnosis • Obstetric ultrasound • First trimester screening • Multiple pregnancy and high risk obstetrics

www.emmaferriman.co.uk

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Professor Paul Tipton is a specialist in Prosthodontics and Professor of Cosmetic and Restorative Dentistry and one of the UK’s leading dental expert witnesses.

E: experts@tclinic.co.uk

www.tclinic.co.uk/legal-reports/

CQC research shows impact of COVID on care services [

NEW RESEARCH by the Care Quality Commission (CQC) has uncovered the impact of lockdown measures on the wellbeing of people who use care services. Nearly three quarters of carers say that the COVID-19 lockdown restrictions had an impact on the mental health of the person they care for, while over half (56%) said that the restrictions had an impact on the dignity and independence of the person they care for.

That situation is reflected in concerns CQC has received from loved ones, stakeholders and people who use care services about the impact of isolation and restrictions on visiting.

The research also showed the power and value that giving feedback on care can have.

Over half of those who provided feedback felt better as a result.

Kate Terroni, chief inspector of adult social care at CQC, commented: “We use feedback to inform our regulatory action, conducting 10,000 inspections since the pandemic began to ensure people are receiving highquality care. We could not do this without the concerns people raise, and the positive feedback on services which we are able to use to share good practice.”

Rachel Power, chief executive of the Patients Association, added: “The findings in the CQC’s survey echo what we’ve heard from patients about their recent experiences: increased waits to get appointments, poor communication from

Law firms awarded contracts

by NHS legal body [NHS RESOLUTION has appointed 11 law firms for the provision of health-related legal

services over three years.

The new legal framework consists of two panels of law firms and came into effect on 1 March. The panels will cover services related to clinical and non-clinical liabilities and complex, health-related issues. The current contracts expired at the end of February.

The first panel – known as Lot 1 – will provide support to NHS Resolution to manage claims under clinical and non-clinical indemnity schemes for NHS members and beneficiaries across hospital trusts, GP practices, independent sector providers and in support of healthcare arrangements put in place to respond to coronavirus. The second panel (Lot 2) will provide specialist legal advice to NHS Resolution and other arm’s length bodies of the Department of Health and Social Care, covering a complex portfolio of health-related issues.

Announcing the appointments, NHS Resolution said: “Contracts were awarded following a rigorous, competitive procurement process to ensure firms are appointed that can provide a high-quality service at a competitive price, ensuring maximum value for money.

“NHS Resolution has a longstanding partnership relationship with panel firms on the existing panel, which was awarded in 2017, and wishes to thank the firms and their staff for their support during this period, particularly during the pandemic when their agility and commitment ensured continuity of service during a challenging period.” q

health service providers and cancellations.

The survey also shows patients understand all services are struggling to cope with the pressures the pandemic has caused and accept this is behind much of the current disruption to care.”

Her comments were not all positive, however. She pointed to people’s fears they are not being listened to.

“What concerns me,” she added, “is the finding that three in five are not confident that feedback they give about their experience of health and social care services is used to help make care services better. We think it’s vital that patients and carers tell services about their experiences – whether that’s been a fantastic or terrible experience – because that’s how services can learn and improve what they do. If we want patients and carers to share their experiences, then health and care services have to do more to show how they’re using that feedback to improve services for all patients.”

Sir Robert Francis QC, chair of Healthwatch England, echoed her concerns: “As we continue to live with the pandemic the NHS continues to face huge pressures across the whole system. NHS staff are grappling with many difficulties, including increased COVID demands, while trying to tackle the backlog in elective care and diagnostics that the pandemic had made so much worse.

“It is important that this is managed as well as possible, to make sure that the risks and distress to patients are minimised. That’s why it is vital people have the opportunity to share their views and experiences of care whether they have needed treatment for COVID or other illnesses. Their feedback will help services understand both key national and local issues and the steps they can take to serve patients better.” q

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PI lawyers slam fixed costs proposals [

THE Department of Health and Social Care (DHSC) is currently consulting on proposals to introduce fixed recoverable costs in clinical negligence claims up to a value of £25,000 in England and Wales, together with a new streamlined process.

The DHSC says the aim of the new scheme is to enable claimants and defendants to achieve faster resolution of ‘lower value’ clinical negligence claims at a lower, more proportionate cost than under the current system.

It would limit the amount of legal costs that can be recovered by claimant lawyers for lower value clinical negligence claims. The proposals would only affect the amount of legal costs that claimant lawyers can recover following a successful claim, the department says, not the compensation that a claimant could receive.

The proposals have been roundly condemned by organisations representing injured patients. Suzanne Trask is a brain injury claims specialist and a member of the executive committee of the Association of Personal Injury Lawyers (APIL). She commented: “Justice for patients suffering needless harm must be the priority in plans to fix legal costs in clinical negligence claims. It is extremely disappointing that the starting point of these proposals puts a significant hurdle in the way of patients seeking the compensation they need to rebuild their lives after needless injury. This includes the families of people who have sadly died.

“If an injured patient or their family is forced into the position of having to claim compensation, something has already gone very wrong. Costs must allow for a proper investigation and fair resolution of a claim.”

APIL claims that government’s ‘obsession’ with the cost of clinical negligence claims means it is failing to address the patient safety issues that lie at the root of clinical negligence.

The charity Action Against Medical Accidents (AvMA) was, if anything, even more scathing. Its chief executive Peter Walsh declared: “It is shocking that the government is still pushing to bring in these illogical and potentially unfair proposals rather than looking at the root causes of high costs and addressing them. They consulted on the main thrust of these proposals in 2017 and the ideas were rejected by a majority of respondents.

“The government seems to have ignored the fact that the likely effect of these proposals would be that many people whose lives have been devastated by perfectly avoidable, negligent treatment will not be able to challenge denials or get access to justice. In effect, the very people that the NHS has harmed through lapses in patient safety will have to pay again by losing access to justice. If lawyers are unable to claim for time they spend overcoming denials of liability, injured people will not be able to get legal representation.

“The best way to save the NHS money is to improve patient safety to prevent these incidents in the first place, and when mistakes do happen investigate them properly and make early, fair and appropriate offers of compensation without costly litigation. These proposals, as well as being unfair and uncaring, would create a perverse incentive for the NHS to simply deny and defend and could actually make treatment less safe, as many mistakes will no longer come to the surface or be learned from.”

He accused the government of being ‘disingenuous’ by claiming that legal costs are unreasonable: “The government itself is responsible for the no-win no- fee system it is now complaining about. It abolished Legal Aid in clinical negligence cases in spite of the fact it was known to be cost effective. We are all for reducing unnecessary costs in clinical negligence, but the government have repeatedly refused get around the table with stakeholders and discuss solutions. Instead, they seem obsessed with pushing through these flawed proposals.”

APIL’s Suzanne Trask proposed an alternative way forward. She explained: “What is clearly needed now is an independent Patient Safety Commissioner to be a champion for patients, with wideranging powers to look at the patchwork quilt of initiatives, reports and recommendations, and use them to create a cohesive strategy to reduce needless harm to vulnerable patients.

“We still hear of shocking failures, leading to human misery. It’s only when we break the cycle of repeated investigation and reports – and carefully assess the learning taking place – that we can reduce avoidable harm and the cost of putting it right.” q

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Pilot aims to address biases in healthcare AI [

THE NHS IN ENGLAND is engaging in a groundbreaking pilot into algorithmic impact assessments (AIAs) in healthcare. A new process will ensure potential risks such as algorithm biases must be addressed before they can access NHS data.

It is the latest in a series of efforts to eradicate health inequalities by tackling biases in systems which underpin future health and care services.

AIAs designed by the Ada Lovelace Institute will be used to support researchers and developers to assess the possible risks and biases of artificial intelligence (AI) systems to patients and the public.

While AI has the potential to support health and care workers to deliver better care for people, it could also exacerbate existing health inequalities if concerns such as algorithmic bias aren’t accounted for, the DHSC says.

Innovation Minister Lord Kamall said: “While AI has great potential to transform health and care services, we must tackle biases which have the potential to do further harm to some populations as part of our mission to eradicate health disparities. This pilot once again demonstrates the UK is at the forefront of adopting new technologies in a way that is ethical and patient-centred.

“By allowing us to proactively address risks and biases in systems which will underpin the health and care of the future, we are ensuring we create a system of healthcare which works for everyone, no matter who you are or where you are from.”

The pilot complements on-going work by the ethics team at the NHS AI Lab on ensuring datasets for training and testing AI systems are diverse and inclusive. Taken together, they will result in better health outcomes for everyone, and in particular minority groups.

To ensure best practices are embedded in future technologies, the NHS will support researchers and developers to engage patients and healthcare professionals at an early stage of AI development, when there is greater flexibility to make adjustments and respond to concerns. Supporting patient and public involvement as part of the development process will lead to improvements in patient experience and the clinical integration of AI. It is hoped that in the future, AIAs could increase the transparency, accountability and legitimacy for the use of AI in healthcare.

Brhmie Balaram, head of AI research and ethics at the NHS AI Lab, said: “Building trust in the use of AI technologies for screening

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and diagnosis is fundamental if the NHS is to realise the benefits of AI. Through this pilot, we hope to demonstrate the value of supporting developers to meaningfully engage with patients and healthcare professionals much earlier in the process of bringing an AI system to market.

“The algorithmic impact assessment will prompt developers to explore and address the legal, social and ethical implications of their proposed AI systems as a condition of accessing NHS data. We anticipate that this will lead to improvements in AI systems and assure patients that their data is being used responsibly and for the public good.”

Following a commission from the NHS AI Ethics Lab, the Ada Lovelace Institute has published research which maps out a detailed, step-by-step process for using AIAs in the real world. It is designed to help developers and researchers consider and account for the potential impacts of proposed technologies on people, society and the environment.

The NHS AI Lab introduced the AI Ethics Initiative to support research and practical interventions that complement existing efforts to validate, evaluate and regulate AI-driven technologies in health and care, with a focus on countering health inequalities. q

Statement clarifies process for post mortem eye examinations of children [

THE Royal College of Paediatrics and Child Health, the Royal College of Pathologists and the Royal College of Ophthalmologists have issued a joint statement to set out clarity on the examination of the eyes in the sudden unexpected death of a child. There is a recommendation that the statement be included as an addendum to the 2016 Kennedy Report.

That report, Sudden unexpected death in infancy and childhood: Multi-agency guidelines for care and investigation (known as the Kennedy Report) was developed by a working group convened by the Royal College of Pathologists and endorsed by the Royal College of Paediatrics and Child Health. It provides guidelines for all professions involved in the examination of the sudden unexpected death of a child and outlines best practices for each part of the investigation process.

The original guidelines, published in 2004, followed high-profile cases of miscarriages of justice involving the prosecution of mothers for causing the deaths of their babies. Those events raised serious concerns about the role of the expert witness in court, issues about standards of proof, the quality of evidence and the procedures adopted for the investigation of sudden unexpected deaths of infants.

The latest statement says: “We believe it is of extreme importance that the child’s eyes are examined as soon as possible after any unexplained death and therefore can be carried out by any senior clinician, which would most likely be a paediatrician. When practicable and where swift examination can occur, the senior clinician can contact

an ophthalmologist, following locally agreed protocols.

“The expectation is that the clinician records what it is possible to see, including the presence or absence of retinal haemorrhages in each eye, with an accompanying proviso about their degree of expertise and that they are unable to make any comment on the interpretation of significance. Other professionals will use this information to help inform the most appropriate next steps in the investigation process of the child’s death.”

The authors point out that retinal haemorrhages in living infants are generally accepted to be a possible indicator of abusive head trauma.

“Although there are a number of alternative aetiologies, retinal haemorrhages are such an important feature of child abuse, they require evaluation within the context of a thorough clinical assessment. In many cases, a clear view of the retina may not be possible due to corneal clouding following death.”

The statement concludes: “Little has been published on ophthalmological examination in the early post mortem period.

However, the presence of multiple retinal haemorrhages could imply that the infant has died of unnatural causes. The detection of retinal haemorrhages immediately post mortem, particularly where there are no other immediately obvious concerning features of unnatural death, may lead to a formal forensic post mortem process. Importantly, this will include the engagement of a forensic pathologist to perform the autopsy and the initiation of the process that adequately protects any living siblings.” q

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Optometrists’ body critical of new approach to illegal practice [THE COLLEGE OF OPTOMETRISTS has published its response

to a consultation by the General Optical Council (GOC) on the illegal supply of eye care services and optical appliances. The consultation ran from 27 October to 19 January and proposes a number of changes to the council’s approach.

Illegal optical practice is conduct that amounts to a criminal offence under Part IV of the Opticians Act 1989. The GOC’s mission is to protect the public and, although not a specific statutory duty, it may act on reports about alleged illegal practice when necessary to protect the public.

Commenting on the proposals, the GOC Director of Casework and Resolutions, Dionne Spence, said: “We really hope the revised strategy and protocol will provide clarity and raise awareness about our remit

MPs debate eye health and macular disease [

ON 11 JANUARY a debate in Westminster Hall focused on Eye Health and Macular Disease. Members of Parliament from across the political spectrum discussed how better to support eye care services, including addressing workforce shortages in ophthalmology and the need for better integration and a national strategy for eye health.

Citing data from a 2018 census carried out by the Royal College of Ophthalmologists, Margaret Ferrier MP stated that: “Recruiting and retaining staff in the ophthalmology workforce needs to be a primary consideration.”

Jim Shannon MP, who led the debate, highlighted research from the British Ophthalmological Surveillance Unit on vision loss due to delays to follow-up appointments, when arguing that: “We must invest in the workforce we need to deliver current and future eye care.”

The cost to society of sight loss was emphasised by Mr Shannon, who said: “The cost of eye conditions to the UK economy has been estimated at £25.2bn per year, and without action that is forecast to rise to £33.5bn per year by 2050, so there is clearly a financial equation to this issue. It is about prevention and about reducing the costs for the health service as well.”

He pointed out that there are more people living with macular disease than with dementia, and outlined some of the effects of the condition.

“Patients with macular disease, who are at risk of losing their sight, report feelings of isolation, shock, anger, anxiety and hopelessness. Those feelings may grow as individual sight deteriorates, with patients increasingly cut off from the world as they had previously experienced it. Losing one’s eyesight makes one particularly lonely; those who lose their eyesight do not know what is happening around them.”

Speaking on behalf of the government, Health Minister Maria Caulfield MP pointed to recent NHS funding that will help to support ophthalmology including new surgical hubs that will drive through high-volume services, such as cataract surgeries. She also emphasised the role of the National Eye Care Recovery and Transformation Programme in working across all systems to address workforce issues and improve service delivery.

The Minister also outlined that the National Clinical Director for Eye Care ‘will oversee services at a national level, which will filter down to tackle inequalities and disparities’. q

and about when we can bring prosecutions and when alternatives to prosecution will be the preferred route.

“We believe that more collaborative working to prevent illegal practice from occurring will provide the best outcome for the public and our sector. We encourage our stakeholders to respond to the consultation before we implement the revised approach early next year.”

In its response the College of Optometrists was critical of the proposals, seeing them as being inadequate to tackle the problem of illegal activity.

In its summary, the college said: “The illegal supply of eye care services and optical appliances has always been a concern for our members. We welcome the updated protocol as it rightly provides guidance on when the GOC will open an investigation following a report of alleged illegal practice. However, we recommend the GOC do more to stop illegal activity by adopting a more proactive approach in tackling illegal practice from overseas suppliers that do not comply with UK legal requirements, and by leading regular public awareness campaigns on the risks of sourcing optical appliances from these overseas online suppliers, to help protect patients and the public.”

The response can be read in full at www.college-optometrists.org/news. q

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Why does a total hip replacement dislocate?

By Mr NIKHIL SHAH, consultant trauma and orthopaedic surgeon at Wrightington Hospital, Lancashire Total hip replacements (THR) are highly successful orthopaedic operations. They have been shown to improve the pain and the quality of life of patients suffering from painful arthritis of the hip joint. However, they can be associated with certain complications, such as hip instability or dislocation. This brief review covers some of the basic principles surrounding that important condition.

[

IN CLINICAL PRACTICE DISLOCATION after THR is one of the leading causes of early revision surgery. That complication also not uncommonly features in a clinical negligence scenario where the question asked is often about component positioning and surgical performance.

In its simplest form, a hip replacement is basically a ball and socket joint which consists of a metallic or ceramic femoral head articulating with a plastic or ceramic shell. A dislocation occurs when the femoral head or the ball of the hip joint completely moves away or separates from the acetabular component which is the socket of the hip joint. When that separation is partial and does not lead to a complete dislodgement of the femoral head from the socket, it is referred to as subluxation.

The incidence of dislocation after primary total hip replacement is approximately stated to fall within 0.2% to 7.5%. The risk is much higher after revision hip replacement – between 10-25%.

There are many aetiological or risk factors that lead to dislocation. For ease of understanding they can be divided into patient factors, surgical factors and prosthesis or component factors.

Certain patient factors are associated with an increased risk of dislocation. They include higher body mass index, age, gender and the primary diagnosis for the hip replacement, such as hip dysplasia. Certain neurological conditions which cause muscle weakness or abnormality of muscle balance and tone, such as Parkinson’s disease or stroke, are also important risk factors.

The common surgical factors that are associated with dislocation may include the surgical approach, surgeon experience and the orientation of the components. During surgery, the surgeon tries to implant the components in what is considered to be an appropriate version and inclination, and then performs several checks to ensure that the hip joint is stable.

There is no defined angle of component positioning that is considered ideal for every patient. However, many studies have shown that there is an acceptable range of orientation of the acetabular and the femoral components that is compatible with good function and optimal hip stability.

The component factors that may predispose to dislocation include design features of the component that may cause impingement of the prosthesis against prosthesis. That causes a dislocation by levering the hip outside the socket. Impingement of the prosthetic components can be caused by malpositioning of the component and is an important cause of dislocation. Impingement can also occur between host bony surfaces.

Late dislocations can also be seen when the polyethylene or the plastic component wears out or due to soft tissue laxity associated with ageing.

It must be noted that not every component that is beyond a certain range of version or inclination will necessarily dislocate. It is also recognised that dislocations can happen even when the components have been appropriately positioned.

The treatment of dislocation revolves around identifying the problem where possible. The initial acute treatment is usually a closed or an open reduction. A brace may be used in certain patients. Physiotherapy and patient re-education are important management techniques. The treatment of recurrent symptomatic instability is usually further operative intervention, which may involve revision of one or both components.

While breach of duty in the surgical performance of a hip replacement is often called into question when such a complication happens, it must be appreciated that dislocation is also a recognised non-negligent complication after hip replacement surgery. q

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New care pathway helps alleviate post arthroplasty pain, study finds [

RESEARCH FUNDED BY the National Institute for Health Research has shown that a new treatment pathway can reduce long-term pain for people who have had knee replacement surgery, or knee arthroplasty.

Over 100,000 knee replacements are carried out every year in the UK, usually to treat pain caused by osteoarthritis. However, around one in five patients find that they still have long-term pain after the operation.

The new study, published in The Lancet Rheumatology, found that the STAR care pathway (Support and Treatment After joint Replacement) can reduce the severity of the pain and reduce the impact on patients’ everyday lives. The treatment could also save the NHS up to £14m every year by reducing the number of patients who need to be admitted to hospital because of pain after their knee replacement surgery.

The researchers designed and tested the STAR care pathway in eight UK hospitals, randomly assigning patients to either follow the new care pathway or have standard care after their knee replacement. The research, funded by the NIHR programme Grants for Applied Research, also looked at how likely patients are to have on-going pain after their surgery, and investigated why they might not seek help.

Patients following the new care pathway were invited to an hour-long clinic three months after their surgery, where they filled out questionnaires and had X-rays and blood tests to check for any infection. If necessary, they were referred for further treatment and they also had up to six followup phone calls over the next year to check how they were doing.

Rachael Gooberman-Hill, Professor of Health and Anthropology and Director of Bristol’s Elizabeth Blackwell Institute, is the lead researcher for the STAR programme. She explained: “People have a knee replacement to relieve their pain and it’s immensely disappointing

T&O surgery tops waiting list figures – again!

if they find that they have long-term pain afterwards. As a research team we wanted to do something that would help. We found that our new STAR care pathway had a positive impact on people’s pain.

“People who had long-term pain after their knee replacement and who were given STAR had less pain and the pain interfered less with their lives one year later. People told us that STAR helped them to feel supported to find out more about their pain and meant that they were able to get further treatment that was tailored to their pain.

“We are enormously pleased with our research findings because it should make a real difference to people who find that they have pain after their knee replacement.”

Brenig – a participant on the STAR trial – commented: “As part of the STAR trial you have tailored physiotherapy appointments. At my threemonth review with a STAR physiotherapist I was having a problem not being able to straighten my leg out. She gave me some simple exercises, which worked and straightened the leg out. Occasionally I have problems at the back of the knee; then I do the exercises and it goes back to normal. So that was a very positive side of what we actually did.

“I felt that being part of the STAR trial gave me access to a specialist physiotherapist. Her knowledge was far, far superior and specific to my issue. Some mornings I get up and feel on top of the world and then the following day I have leg pain. Eventually you get to accept it, but doing the exercises helps.” q

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ELECTIVE trauma and orthopaedic (T&O) surgery has once again topped the waiting list data published by NHS England and Improvement.

The long waits are for a variety of different surgeries, such as children waiting for life-changing surgery to allow them to live more normal lives and adults awaiting hip and knee replacements to alleviate constant pain.

The waiting list figures, published on 10 February, reflect the situation on 31 December. The total T&O waiting list was 700,888: the largest total for over a decade. Of those, 60,028 had been waiting for over a year – compared to just 436 in Jan 2020 – and 290,757 had been waiting for over 18 weeks.

The British Orthopaedic Association said that the figures reveal the scale of the devastating impact on patients continually waiting for surgery.

Its president, Professor John Skinner, declared: “T&O patients continue to make up a significant proportion of those on waiting lists: 60,000 are waiting over 52 weeks, a 21% increase on last year, and the numbers over 104 weeks continues to rise. These figures reinforce the need to move quickly to implement the recovery plan and prioritise patients waiting for their muchneeded surgery.

“Prolonged waiting has a significant impact on patients’ mental and physical health. Patients in severe pain lose mobility and independence; their health deteriorates; they are unable to work, require more GP support and increasingly rely on stronger and stronger painkillers.

“Surgical hubs are vital for delivering reliable year-round services to eliminate these enormous waiting lists. We are pleased to see this reflected in the long-awaited recovery plan but any plan will need the nurses, trainees, surgeons, anaesthetists and all the associated staff that enables surgery to happen.

“We look forward to the government setting out with greater clarity what the plan will mean for both finance and workforce to allow hospitals to respond and plan effectively.” q www.yourexpertwitness.co.uk

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Passing the baton: the challenges and cost implications for SLT training

By LISA HUMBERSTONE, Consultant Speech and Language Therapist in Acquired Brain Injury

[

THE ROLE OF A speech and language therapy (SLT) expert in brain injury is to provide the costed model of intervention for therapy and to identify as appropriate any equipment that will support that and/or improve the client’s ability to communicate.

Therapy can be simplified into two areas of potential need: to improve a person’s communication or to address swallowing difficulties. In either case there are three main stages – beginning with assessment, then impairment-based intervention (the rehabilitation period) and finally transfer of skills to the support workers and family so that they can maintain the client’s optimum level of ability in the long term.

The intervention model is front loaded, scaling back as the client’s abilities plateau. Where skills can be lost – which can be the case with more severe brain injuries – the focus will shift to staff training and review. Outside of a need arising from a change of circumstances or the client’s condition, the SLT’s role will reduce to periodic training to maintain standards of care and support.

That basic model varies enormously around the specifics of the individual’s brain injury. Intervention for a mild traumatic brain injury (TBI) might be limited to a short, intensive course of therapy with no training or implications for long-term provision.

The transfer of skills to support workers can be problematic and can lead to the need to allocate many more hours of training provision to the treating therapist – often more than that which can be readily appreciated from the available medical evidence. Risks may arise

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from a change in condition, either physical or emotional, or as a result of recovery leading to emerging insight into their own limitations.

Where the cognitive skills of the client remain below those of the care team then there is in the most part little problem with training.

If a client’s recovery results in reattaining some measure of their premorbid skills, then these may exceed those of their care team. If their behavioural abilities remain severely affected, that can create all manner of unforeseen difficulties.

In my experience the SLT can find themselves trying to discharge their role to staff whose interpersonal skills, language and topic knowledge is inferior to the client with whom they are required to communicate. With the shortages in the care sector the SLT will likely have no choice but to work with whoever is appointed and attempt to address the deficits in their skills in order for an effective handover to take place. Training needs thus become a function of the standard of the support workers provided affecting the estimation of costs. That uncertainty highlights the importance of funding for rehabilitation before settlement of the case, so that stability in support team and their ability to support the client can be reached. That ensures better accuracy in projecting costs.

Support worker and family training is an essential part of the SLT’s involvement in the multidisciplinary team and one that I strongly advocate is embarked on earlier rather than later in the rehabilitation programme.

This allows the therapeutic approach to be carried into all aspects of the client’s rehabilitation, facilitating a better outcome for communication. q

Psychologists back conversion therapy ban [

THE BRITISH PSYCHOLOGICAL SOCIETY (BPS) has published its response to the government’s consultation on introducing a legislative ban on conversion therapy.

The response details the BPS’s position on the need for an urgent ban on the practice, the psychological evidence behind its position and areas of concern where it sees the proposed package of measures as lacking.

BPS chief executive Sarb Bajwa commented: “The society has long called for swift action to outlaw conversion therapy practice because it is unethical, potentially harmful and not supported by evidence.

“Our response raises a number of concerns and we currently don’t believe the proposals go far enough towards a full ban of conversion therapy. We have serious reservations about their effectiveness to protect many of those who undergo conversion therapy from all of its associated harms.

Research is on-going into intimate partner violence

“We will continue to work closely with our members and partners to continue to engage with this process as it moves forward to ensure a full and proper ban is achieved.”

In its published response, the BPS says: “There is a growing body of evidence that conversion therapy may be harmful (Jowett and others, 2021). A systematic review undertaken by a task force of the American Psychological Association highlighted serious methodological concerns regarding the designs of Sexual Orientation Change Effort (SOCE) studies, and concluded that enduring change to an individual’s sexual orientation is uncommon, and identified evidence to indicate that individuals experienced harm (Glassgold et al., 2009).

“Furthermore, the National LGBT Survey found transgender people were more likely to report having undergone or been offered conversion therapy and that one large study found that transgender people who had undergone conversion therapy were more likely to experience harmful outcomes than transgender people who had seen a professional about their gender identity but had not undergone conversion therapy (Turban, 2020).

“The central role of a psychologist, counsellor and therapist is to relieve suffering and to promote wellbeing. Therefore, practising conversion therapy is not in line with the basic tenet of providing care in an ethical manner.” q

[

DR DELPHINE THEOBALD is currently Associate Professor of Forensic Psychology at Kingston University. Her main areas of research are in life course transitions and offending behaviour, intimate partner violence, and the psychopathology associated with violence perpetration. More specifically, her work examines the effects of marriage, cohabitation and parenthood on offending behaviour, and the antecedents of violence perpetration.

Dr Theobald (pictured) explained: “Recently, my main focus has been on intimate partner violence (IPV) – a term used to define what is commonly described as domestic violence but is considered to include a wider range of contexts and behaviours specifically with regard to partners in dating, cohabiting and marital relationships.”

According to the World Health Organisation, IPV can be conceptualised as a continuum of abuse that includes homicide, physical assault, sexual assault and psychological abuse including threats, harassment and coercion. It can be considered a gendered crime that can be rooted in social and cultural attitudes, stereotypical roles and values which can be passed from generation to generation.

Dr Theobald continued: “My work on the intergenerational transmission of IPV investigates the factors that mediate the association between psychosocial risk factors and the perpetration or victimisation of IPV. It is also important to consider how young people respond to witnessing violence, both in their family of origin and their wider social networks.

“I have recently gained funding from my university to investigate young people’s attitudes and values with regard to these behaviours and gain understanding of what they consider to be ‘healthy relationships’ in order to break the cycles of abuse that impact our society.” q • For further information visit www.expertpsych.co.uk. www.yourexpertwitness.co.uk

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Mental health access standards published [ON 22 FEBRUARY the NHS published

its new standards for patients to have timely access to community mental healthcare as it faces record demand following the pandemic.

The publication of the new standards follows a consultation carried out between July and September last year. Respondents included patients, charities, carers, members of the public and health professionals.

More than 80% of respondents ‘agreed’ or ‘strongly agreed’ with the proposal to introduce several additional mental health access and waiting time measures.

The proposals are part of the NHS Long Term Plan’s commitment to service expansion and improvement for mental health. Developed with clinical leaders and NHS staff, the proposed bundle of standards include: • Those who present to A&E with mental health needs should have a face-to-face assessment by specialist mental health liaison teams within one hour of being referred by an emergency department.

• An ‘urgent’ presentation to community-based mental health crisis services: patients should be seen within 24 hours of referral, or within four hours for those triaged as ‘very urgent’.

• Adults and older adults accessing community-based services for non-urgent mental health care should start to receive help within four weeks of referral.

• Children, young people and their families/ carers presenting to community-based mental health services for non-urgent care should start to receive help within four weeks of referral.

That may involve immediate advice, support or a brief intervention, help to access another more appropriate service, the start of a longer-term intervention or agreement about a patient care plan, or the start of a specialist assessment that may take longer.

Minister for Mental Health Gillian Keegan, said: “Improving access to mental health services is a top priority. These new standards would help patients get support faster – including having a face-to-face assessment within one hour of being referred from A&E. “I know there is more to do and that’s why

we’re transforming mental health services in England with an extra £2.3bn a year and will soon be launching a national conversation to inform a new long term Mental Health Strategy later this year.”

A pilot and early-implementer sites fieldtested the proposed standards from 2019, with 11 NHS trusts testing the urgent and emergency mental health care standards. A further 12 areas piloted and helped further develop the four-week waiting time standard for Children and Young People Services’ community mental health support teams and 12 local health and care systems tested new models of integrated and primary and community mental health care for adults and older adults.

The president of the Royal College of

Psychiatrists, Dr Adrian James, said: “Mental health services have been under intense pressure for many years and it only stands to get worse as the full impact of the pandemic is beginning to be seen in services.

“These new standards will help patients get the treatment they need when they need it, by setting more rigorous standards and generating vital data, helping to put mental health on a more equal footing with physical health.

“The standards will only have this impact if matched with similarly ambitious investment and action on the workforce crisis to ensure that no-one has to wait too long for the treatment they need. It's vital the government provides further clarity on how it will support the implementation of these standards as part of the broader recovery from COVID-19.” q

Young people with eating disorders being failed [

THE NUMBER OF UNDER-19s waiting for routine eating disorder treatment has reached record levels, despite services treating fewer people than at the same point last year, says the Royal College of Psychiatrists (RCPsych).

New NHS data analysed by the RCPsych also show that those waiting for urgent care is the second-highest on record. And while the number receiving treatment fell compared to last year, services are treating many more people than before the pandemic.

Disordered eating behaviours include limiting food consumption, eating very large amounts of food, purging, fasting or excessive exercise in response to eating, or a combination of those.

Dr Agnes Ayton, chair of the Faculty of Eating Disorders Psychiatry at the Royal College of Psychiatrists, said: “The eating disorders crisis engulfing our children and young people shows no signs of letting up. Many young people have not received support early enough, causing their eating disorders to become much worse and harder to treat.

“Delays to treatment can put lives at risk. Services are struggling with soaring demand, fewer beds because of social distancing, and an on-going shortage of specialist doctors.

“The government made an ambitious commitment on waiting times, but the pandemic has set us back years. Urgent action is needed to ensure children and young people with eating disorders get the help they need, when they need it.”

Eating disorders are complex and life-threatening mental illnesses, the RCPsych says.

Anorexia has one of the highest mortality rates of any mental illness. Despite that, eating disorders remain poorly understood. They are a mental illness, not a ‘lifestyle choice’, and full recovery is possible with access to the right specialist help and treatment. q

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Campaigners call for better awareness of female heart disease in Wales [

FEBRUARY WAS designated National Heart Month and BHF Cymru used the occasion to raise awareness of heart attacks in women in Wales and to tackle the unconscious bias and health inequalities which leave them at a disadvantage at every stage of the heart disease journey.

The pandemic has highlighted health inequalities and the urgency of getting cardiovascular care right, says BHF Cymru, and it's never been more important to ensure equitable care for women.

Coronary heart disease is the leading cause of heart attacks and Wales has the second highest female death rate from the disease of the UK’s four nations, with around 1,300 women dying every year – double the number of deaths caused by breast cancer.

Research funded by BHF suggests that the deaths of at least 8,000 women could have been prevented through equitable cardiac treatment over a 10-year period in England and Wales.

There are long-standing societal biases and misunderstandings which assume that women are not at risk of heart attacks. As a result, when they do experience the symptoms of a heart attack their symptoms might not be taken seriously by themselves or those around them.

A survey of 1,000 people in Wales last year showed that women are not seen as being at risk of heart disease by the Welsh public, with 65% of people in Wales unable to identify heart disease as one of the leading causes of death for women.

Each year, around 1,700 women are admitted to hospitals in Wales due to a heart attack; yet the survey found that over a third of women in Wales do not feel confident in recognising the symptoms of a heart attack and only 7% feel ‘very confident’.

There are already plans to address health inequalities faced by women in England and Scotland and BHF Cymru’s policy and public affairs manager Gemma Roberts would like to see the same commitment from the Welsh government.

She commented: “Welsh government should commit to a women’s health plan which addresses inequalities experienced by women with heart disease. The plan should seek to improve outcomes for women with heart disease through improved public awareness, timely diagnosis, equitable treatment and equitable access to cardiac rehabilitation.”

BHF Cymru cites the story of Mandy Swift from Rhyl, who was 51 when she had her first heart attack, but didn’t recognise the symptoms so didn’t seek medical attention.

She said: “My whole life has changed since my heart attacks. I’ve had to give up my job and my life in Bulgaria and move back to the UK. “I didn’t recognise the symptoms of my heart attacks and didn’t know what was happening to me. I’m now on a lot of medication; I take nine tablets each morning and six each night.

“I can no longer work because of my condition, I’m very tired a lot of the time, I feel the cold more and some days I can barely walk. It’s hard adjusting to my condition as I’ve always been busy and active. I had no previous heart issues and there’s no history of heart attacks in my family.

“I know I am very lucky and that it could have been a completely different experience if I’d delayed treatment any longer. That’s why I’m backing BHF Cymru’s call for more women to better understand their risk of a heart attack and its symptoms.” q

Cardiac waiting times up one quarter since start of pandemic [WAITING LISTS for heart procedures and heart operations are

25% longer than before the pandemic began, latest NHS England figures show. The number of people on cardiac waiting lists grew to 291,000 people at the end of December in England, the figures reveal.

The data also show: • Waiting lists for heart operations and other heart procedures are • nearly 100,000 longer than they were a year ago.

• 3,907 people had been waiting over a year by December – 140 • times as many as there were before the pandemic began, when just • 28 people were waiting that long.

• Nearly 100 people have been waiting over two years.

• 29% of people on waiting lists for potentially life-saving heart care in • England have been waiting over four months (18 weeks).

The latest NHSE figures include emergency, urgent and elective or ‘routine’ heart surgery and other heart procedures, such as stents or balloons to open narrow or blocked arteries.

Dr Sonya Babu-Narayan, Associate Medical Director of the British Heart Foundation and a consultant cardiologist, said: “Behind these record numbers are hundreds of thousands of real people at higher risk of avoidable heart attacks, disabling heart failure or even premature death as they face dangerous delays for potentially life saving heart care. They can’t wait any longer to hear how and when this care will be delivered.

“This week’s plan to tackle the backlog of elective care didn’t tell us what will happen to the vast and ever-increasing number of heart patients waiting for time-critical cardiac care. We must urgently see a specific plan for cardiovascular care recovery that commits to addressing the shortage of heart disease doctors, nurses and physiologists.” q

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Blocked arteries and veins: thrombosis and embolism

By PHILIP COLERIDGE SMITH DM MA BCh FRCS Consultant Vascular Surgeon, Medical Director of the British Vein Institute and Emeritus Reader in Surgery at UCL Medical School

[

DISEASES OF arteries and veins cause most problems when the affected vessels become blocked.

That can happen when a blood clot (thrombus) forms at a particular location and stops the blood flow.

Examples of that in the arterial system include heart attack and stroke, when thrombosis affects blood vessels already narrowed by atheroma.

In the venous system, deep vein thrombosis may occur in the legs following injuries or hospital treatment.

However, blocked arteries may occur when thrombus forms in one part of the circulation and then detaches from the point of formation and travels as an embolus.

This blood clot formed in the large arteries in the abdomen and travelled to the heart and then to the lungs causing fatal pulmonary embolism

Pulmonary embolism

A common problem in the venous system is pulmonary embolism, which gives rise to respiratory and circulatory failure. In that condition, a blood clot forms in the leg or pelvic veins and then detaches to travel via the large veins to the heart. The embolus reaches the right side of the heart and passes readily through the atrium and ventricle. It emerges in the pulmonary artery, which normally returns deoxygenated blood to the lungs. The embolus encounters progressively smaller pulmonary arteries and eventually gets stuck, blocking the artery where it comes to rest. The symptoms include chest pain and shortness of breath. Sudden death may occur if the major arteries become blocked in the lungs.

Extensive advice has been published by NICE on preventing deep vein thrombosis which may occur following hospital treatment. Patients presenting at hospital with pain and swelling in the legs may have deep vein thrombosis. NICE has published advice on how that should be investigated and treated in order to avoid fatal pulmonary embolism.

I have advised in cases where inadequate prophylactic measures were provided following hospital treatment, allowing deep vein thrombosis and pulmonary embolism to occur. The required standards are well defined in NICE guidelines, making it clear what standards of care are required.

Arterial embolism

A blood clot forming on the arterial side of the circulation may also cause problems. That may originate in the heart under a number of circumstances, including following a heart attack or in patients with irregular heart rhythms. Following a heart attack, the muscle on the inside of the heart may become damaged – leading to blood clot forming inside the left ventricle. In more elderly patients, coronary heart disease may give rise to atrial fibrillation: a condition in which the atria of the heart beat in a disorganised and irregular manner. That allows blood clot to form inside the left atrium of the heart. Blood clot forming on the inside of the left side of the heart may detach and flow into the aorta, the main artery to the body.

The consequences of an embolism from the left side of the heart entering the circulation depends upon the artery into which it flows. Where an embolism travels via the carotid arteries supplying the brain, a stroke may result. Blocked arm arteries are occasionally seen and the result is upper limb ischaemia. Sometimes an embolus reaches the mesenteric arteries supplying the intestines, leading to mesenteric ischaemia: a condition which is frequently fatal if not rapidly diagnosed and treated.

The lower limbs are a common site at which embolism from the heart may come to rest. That leads to acute limb ischaemia, necessitating emergency surgical intervention if gangrene and the need for amputation is to be avoided. As a result of the potential for catastrophic consequences of systemic embolisation, NICE advice recommends lifelong oral anticoagulation in patients with irregular heart rhythms.

The advice from NICE on treatment required to prevent systemic embolisation in patients with irregular heart rhythms is clear and failure to provide that may comprise substandard care.

Embolisation in patients with atheromatous disease

Lower limb arterial disease occurs commonly in smokers, in advancing age and in diabetic patients. Irregular plaques of atheroma form inside the arteries. That potentially affects all the arteries in the body, although those supplying the brain, heart and legs are most commonly affected. If thrombus forms on one of these atheromatous plaques the blood vessel may become blocked, leading to ischaemia of the region supplied by the artery.

However, the combination of the atheroma and thrombus is unstable and pieces of atheroma or thrombus may detach from the artery where they have formed and travel further along the artery. That is frequently seen in the lower limb arteries, where smaller arteries become blocked by atheroma or thrombus travelling as an embolism from larger arteries in the abdomen or pelvis. That in turn may block major arteries in the thigh or calf. Sometimes urgent removal of an embolism from a blocked artery is necessary to restore blood flow to the limb. That can be achieved with a ‘balloon catheter’, in which a balloon is passed beyond the blocked segment of artery, inflated and withdrawn pulling the embolism with it. Alternatively, various methods of breaking up the embolus with so-called clot-busting drugs are available.

Tiny emboli may travel into the feet and toes. That can happen from an atheromatous plaque that becomes unstable and releases a shower of emboli. The result is sometimes known as ‘trash foot’, whereby several or many small areas of the foot become ischaemic and die, leading to multiple ulcers. Sometimes, only one or two toes are affected.

Current techniques in vascular surgery do not readily allow restoration of blood flow in the small arteries of the feet and toes. Anticoagulant treatment is useful, but toes or a section of foot become gangrenous and have to be amputated even when the main arteries in the leg are intact.

Expedient treatment is required to manage sudden onset of limb ischaemia and delayed care leading to the need for amputation or ischaemic damage to the limb may be regarded as substandard care.

In conclusion, thrombosis and embolism are common events in the vascular system. In many cases, good standards of medical care should prevent those. Where major embolism occurs, expedient treatment will minimise the effects on the patient. The expected standards of care are defined in NICE advice documents, which provide considerable detail on the methods of management. In many instances that advice will assist in establishing whether substandard care was provided. q www.yourexpertwitness.co.uk

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RCOG calls for better maternity care for women prisoners following Styal report [ON 11 JANUARY the Prisons and Probation Ombudsman published the independent investigation

into a stillbirth at HMP Styal on 18 June 2020. The investigation found that a woman prisoner – referred to as Ms B – gave birth to a still-born baby in a prison toilet, without specialist medical assistance or pain relief.

The Ombudsman said she was satisfied that prison staff did not miss any obvious signs that Ms B was pregnant during her three-and-a-half months at Styal, but found there were missed opportunities to identify that Ms B needed urgent clinical attention in the hours before she gave birth.

In response to the investigation, Dr Edward Morris, president of the Royal College of Obstetricians and Gynaecologists, said: “It is very upsetting to hear about the stillbirth of a baby at HMP Styal and our sympathies go out to the baby’s mother and wider family. The report by the Prisons and Probation Ombudsman identifies the opportunities that were missed in caring for the mother and highlight major failures in the system which need to be urgently addressed.

“The investigation found gaps in prison nurse training about reproductive health, long-acting reversible contraception and recognition of early labour. It’s vital all prisons implement the government’s policy framework and that all staff in women’s prisons receive the right training to provide women with the information and support they need.

“Alongside strong links to the local midwifery team, all maternity services located near to a women’s prison should have a designated obstetrician with responsibility for ensuring high-quality care for women in prison. This is vital for ensuring women have access to the right professional when they need it.

“We believe all women, regardless of their background or whether they are in prison, should have equal access to high-quality maternity and perinatal care at the right time. It is unacceptable that being in A NEW Scientific Impact Paper (SIP) has been published which prison often leads to poorer maternal and neonatal outcomes.” q aims to inform those involved in the care of pregnant women in the UK about the relationship between social determinants of health and the risk of maternal death.

Understanding the Relationship Between Social Determinants of Health and Maternal Mortality is the result of research led by Leeds Beckett University in collaboration with the University of Sheffield and the University of Oxford. It was commissioned by the Royal College of Obstetricians and Gynaecologists.

The research shows current models of care are still failing pregnant women who have lived in adverse social circumstances prior to, during and after pregnancy. Maternal outcomes are particularly poor for socially disadvantaged women affected by pre-existing physical or mental health problems as well as those who misuse substances, those who have a lower level of education, are overweight, undernourished or poorly sheltered, and those who are at increased risk due to the threat of abusive and unsupportive partners, families and peers.

The report makes a number of recommendations aimed at helping prevent disadvantaged and vulnerable women dying during and after pregnancy.

Professor Georgina Jones of the School of Social Sciences at Leeds Beckett University – the lead author of the SIP – said: “I hope our findings play an important role in reinforcing the message that more needs to be done to improve access to better care and support for those living in adverse and complex social situations.

“The pandemic has raised public awareness about the ways in which health inequalities can adversely affect health outcomes. This is the message at the heart of our paper as well. We are highlighting that adverse social determinants of health affect maternal clinical outcomes, leading to an increased risk of maternal mortality and morbidity. Despite the provision of free reproductive and maternity services, the women who need the most care, because they are at highest risk, often have the poorest access to care and this needs to change. I hope the extensive recommendations that we have made in this SIP will help facilitate this change more quickly.” q

Report highlights increased risk of maternal death among disadvantaged groups [

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Government moves to license non-surgical procedures [ AN AMENDMENT to the Health and Care Bill has been tabled

that will give the Secretary of State for Health and Social Care the power to introduce a licensing regime for Botox and fillers. The scope and details of the scheme will be determined via extensive engagement including a public consultation.

The move will ensure consistent standards in the industry and protect individuals from those without licences, including from the potentially harmful physical and mental impacts of poorly performed cosmetic procedures.

It is the latest move by the government to safeguard those who access non-surgical cosmetic treatments and follows on from legislation making it illegal to administer such treatments to under 18s and banning adverts on all forms of media, including social media, influencer advertising and traditional advertising, for

BAPRAS receives historic patient’s notes

cosmetic procedures which target under 18s.

Health and Social Care Secretary Sajid Javid said: “While most of those in the aesthetics industry follow good practice when it comes to patient safety, far too many people have been left emotionally and physically scarred after botched cosmetic procedures. I am committed to protecting patient safety by making it an offence for someone to perform these cosmetic procedures without a licence.

“We’re doing all we can to protect patients from potential harm, but I urge anyone considering a cosmetic procedure to take the time to think about the impact on both their physical and mental health and ensure they are using a reputable, safe and qualified practitioner.”

The licensing scheme will introduce consistent standards that individuals carrying out non-surgical cosmetic procedures will have to meet, as well as hygiene and safety standards for premises. It will focus on those cosmetic procedures which, if improperly performed, have the potential to cause harm, such as Botox and fillers.

The amendment is in addition to on-going work with the Medicines and Healthcare Products Regulatory Agency on the potential to bring certain devices, such as dermal fillers without a medical purpose, into the scope of medical device regulations. The government is currently analysing responses from a public consultation which ran to last November and will publish a formal response in due course.

Further details on a public consultation on the licensing scheme will be set out in due course. q

[

SINCE 2016 the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS) has held in its collection the microsurgery instruments used by pioneering plastic and hand surgeon John Cobbett for the first microsurgical toe-to-hand transfer in 1968. Last December the association was delighted to add to them the patient’s case notes, as annotated by Cobbett himself. They were donated by Mark Pickford, who had described the case – along with Ian Whitworth – as a 30-year follow-up for a paper published in the Journal of Hand Surgery in 2000.

He accidentally forgot to return the notes, ultimately saving them from destruction when the records were digitalised. Along with the instruments themselves, they allow BAPRAS members, researchers and the public to gain a visceral connection to the historic procedure, by viewing and handling them.

John Robey Cobbett was a consultant plastic surgeon at Queen Victoria Hospital, East Grinstead. Between 1975 and 1977 he served on the BAPS council and was honorary secretary. It was at Queen Victoria Hospital that he performed the first free toeto-hand transfer on 18 April 1968. The patient was a 31-year-old woodworker, whose accident with a circular saw left him with amputated index and middle fingers, and his thumb through the base of the proximal phalanx.

“The patient’s convalescence was stormy,” said Cobbett; however, after eight months he had returned to work, being once again able to create the strong pinch grip so vital to his profession. His new thumb was warm, pink and growing a nail! He had no trouble picking up small objects, tying shoelaces or fastening buttons.

The patient case notes will be scanned at high resolution and catalogued, to enable easy access for study, and will be available for online search via the BAPRAS collection database. The fragile original documents will be stored in line with museum and archive standards for best practice in the BAPRAS office, along with the rest of the collection. q www.yourexpertwitness.co.uk

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What are the medicolegal challenges of nerve injuries in the upper limb?

By Mr PUNDRIQUE SHARMA, consultant plastic surgeon

[

THE NERVOUS SYSTEM comprises a network of nerves and nerve cells that carry messages between the brain and spinal cord and other parts of the body through a series of chemical and electrical changes. Nerves, which are made up of bundles of fibres, may be classified into one of three types: motor, sensory or a combination of both of those. Motor nerves control movement or allow an action to occur, such as the involuntary contractions that allow food to move through the gut. Sensory nerves transmit information from the environment back to the brain and thus allow us to feel temperature, pain and touch.

Injuries to the hand and upper limbs are extremely common and occur at a rate of 7-37 per 1,000 population each year. Around half of those injuries involve fractures. While only around 3% of incidents result in damage to the nerves, the consequences of such an injury to the patient can be devastating, causing varying degrees of paralysis and loss of sensation and in some cases severe pain. Treatment of nerve injuries can be extremely challenging, as delays or inappropriate care can have a detrimental effect on functional outcome. It is vital that a correct diagnosis is made, so that the optimal course of treatment can be chosen. If surgery is indicated, the technique and timing are crucial to a successful outcome.

Nerves can be damaged by cutting, stretching or crushing. Once damaged, signals may not be able to travel along the nerve properly, resulting in paralysis if a motor nerve is affected or alterations to sensory information – such as numbness or tingling in the skin – if a sensory nerve is damaged. Treatment of damaged nerves depends on the type of injury: each nerve injury is unique and there is a wide variation in symptoms at presentation.

The mechanism of injury must be carefully evaluated as it will determine the course of treatment. Injuries resulting from crushing or stretching may heal by themselves in time; however, if a nerve is cut and the two ends are not realigned it is likely that a scar, known as a neuroma, will result which will prevent the transmission of nerve signals. Neuromas can also arise from stretching or crushing injuries, so it is important to monitor the injury site carefully so that the recovery of the nerve can be evaluated.

Nerve injuries in the upper limb usually arise as the direct result of accidents, but fixation of fractures can also lead to nerve damage.

In babies, a difficult delivery can lead to stretching or tearing of the nerves that serve the muscles of the arm, leading to damage which results in restricted movement. That is known as obstetrical brachial plexus injury. Movement of the shoulder and elbow is most commonly compromised, although in severe cases the wrist and finger joints can also be affected. In extreme cases, the whole arm is paralysed.

While nerves have the capacity to regrow, the healing process can be very slow. Growth occurs at a rate of about 1mm per day, so it can be many months before recovery is complete. If a motor nerve becomes damaged it is important that function to the affected muscle is restored within 18 months, or permanent paralysis will result. Therefore, the patient should be regularly monitored for signs of functional recovery: if none is apparent, further investigation of the nerve is warranted in a timely manner. In addition, patients usually need to undergo a programme of occupational or physiotherapy during the healing process, to prevent the joints and muscles from becoming stiff.

Once it becomes clear that a nerve will not heal itself, surgical management is the final option. After an initial exploration to assess the problem a variety of repair techniques are available. The simplest procedure is to re-join the two ends of a cut nerve, by stitching them together. That repair needs to be tension-free, otherwise the blood supply to the nerve may be compromised.

If the gap between the two ends is too big, and therefore a tensionfree repair is not possible, a nerve can be taken from elsewhere in the body and used as a graft. Alternatively, a nerve nearby that is functioning well can be transferred onto the damaged nerve. Issues resulting from excessive scarring around the nerves can be resolved by releasing the nerve and improving its function. Neuromas can also be excised and the cut ends of the nerve re-joined to restore function.

Rehabilitation after a nerve injury is challenging, and an intensive programme of physiotherapy will almost certainly be needed to give the best chance of a good outcome. Early mobilisation may result in tension at the site of the repair, but immobility can create scar tissue which adheres to the nerve. Children often experience better outcomes than adults after nerve damage. That is in part due to the brain’s capacity to adapt to injury to the body, known as cerebral plasticity – which is age-related. However, in some cases a nerve injury cannot be repaired, usually because the patient is seen too late or the distance of regrowth required is too long. In those cases, physical therapy or musculoskeletal reconstruction techniques, such as joint fusions and muscle or tendon transfers, may help to compensate for the resulting loss of function. q • Mr Pundrique Sharma is a consultant plastic surgeon. He accepts instructions as an expert witness in adult and paediatric cases involving general plastic surgery, reconstruction and burns surgery. He has a special interest in limb reconstruction and nerve injuries, including those following trauma and obstetrical brachial plexus injury.

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Missed testicular torsion – the clock is ticking…

By consultant urologist CHRIS DAWSON MS FRCS LLDip

[TESTICULAR TORSION occurs when the spermatic cord, which

provides blood supply to the testicle, becomes twisted, blocking the arterial blood supply to the testis and blocking the venous outflow from it. The resulting lack of oxygenated blood to the testis leads to a condition called ischaemia, which ultimately may lead to death of testis tissue, known as infarction.

As well as being a surgical emergency, torsion – when it is missed – is a frequent cause of litigation.

There is typically a four to eight-hour window before significant ischaemic changes occur. Those changes can have harmful effects on sperm production. Successful restoration of the blood flow may not prevent the harmful effects on sperm production.

The key question in medicolegal cases is when did the symptoms start? While that might be an obvious question, the medical notes are not always clear on the point, leading to issues when considering causation. Issues of liability will be determined by the facts in the case.

A common scenario is when the episode of torsion is misdiagnosed as infection – epididymo-orchitis.

Testicular torsion should be excluded by surgical exploration, and the sooner that is performed the more likely it is that the testis will be salvaged. Studies have quoted different rates of salvage according to the time since the onset of symptoms. One study quoted a salvage rate of 90% if the spermatic cord was untwisted within six hours of symptoms, falling to 50% by 12 hours and less than 10% after 24 hours. Another series showed that only 4% of testes would be removed where the torsion was less than 12 hours in duration; but after 12 hours more than 75% of patients would need removal of the testis.

A study in 2017 looked at the degree of twisting and the duration of symptoms as factors in the salvage rate of the testis. In this study, a

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15-hour duration of symptoms and/or 860 degrees or more of torsion led to a 50% chance of the testis being non salvageable – either being removed at surgery because of obvious infarction or because of visible atrophy of the testis at follow up.

A further study in 2019 reviewed over 2,100 patients undergoing exploration for testis torsion. The results suggested that 90.4% of testes were salvaged with surgery in the first 12 hours, 54% between 13 and 24 hours and only 18.1% after 24 hours. However, a distinction needs to be drawn between the testis being apparently viable at surgery and whether the testis remains viable in the long term.

Loss of the testis causes significant psychological distress to the patient, and there is also evidence that fertility may be reduced subsequently. A study in 2021 showed that approximately half of men undergoing a torsion event develop subsequent problems with sperm production. Another study looked at semen quality at least four years after torsion and found that 64% of men had abnormally low sperm motility or morphology – and 39% would be classified as subfertile.

In summary, torsion is a significant event for affected men and is a frequent cause of litigation when the diagnosis is missed. Recent papers suggest that the window of opportunity for salvaging the testis at surgery may be longer than previously thought, although prolonged ischaemic damage to the testis tissue may cause abnormal sperm production in a significant proportion of affected men, even if the testis is salvaged. q

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