MEDICO LEGAL M A G A Z I N E I SS U E 2
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Contents:
Medico-Legal Magazine Welcome to the second issue of the Medico-Legal Magazine, produced by SpecialistInfo and publishing partner Iconic Media Solutions Ltd.
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SpecialistInfo Medico-Legal Services Lisa Cheyne
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SRA Proposed Change to the Definition of What is Client Money. Who Benefits? Ben Elsom
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Vascular Surgery – A Medico-Legal Overview Part II Mr Michael Gaunt
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Interview with an Expert Witness Mr Aruni Sen
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An Infinite Capacity for Courting Disaster – the Mental Capacity Act Jonathan Dingle
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Medico-Legal VAT Liabilities – Further Details to Explore the Correct VAT Liability John H Barnes
Specialistinfo maintain a database of contact details for 90,000 UK doctors and provide medico-legal training courses for expert witnesses.
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Endocrine Aspects of the Traumatic Brain Injury: Medico-Legal Implications Professor Gordana Prelevic
We welcome feedback from our readers, so please contact us with any suggestions for areas you would like to see covered in future, or share your news and experiences with us.
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Litigation Culture Under the Microscope Dr Robert Baker
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Prognosis of Chronic Whiplash – is the Evidence Convincing? Mr Sunil Garg
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Whistleblowing in the Healthcare Sector Juliette Mellman-Jones & Judith Davison
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A New Approach to Causation in Clinical Negligence Claims Judith Kelbie
Building on the very positive reaction to our inaugural issue, we present articles covering whistleblowing in the NHS, tests for mental capacity, and a landmark recent case study on the division of responsibility when more than one doctor is negligent. From the medical point of view, we include excellent summaries on the implications of evidence in the vital areas of microbiology and endocrinology. You will also find a follow-up article on VAT liabilities for expert witnesses, as well as the second part to the medico-legal overview on vascular surgery. Once again the magazine will be circulated to over 40,000 people in the industry, including doctors, insurance companies, law firms and medico-legal agencies. It is published on the Specialistinfo.com website, and printed copies can be ordered from Iconic.
Lisa Cheyne SpecialistInfo Medico-Legal Magazine Presented by:
SpecialistInfo t: +44 (0)1423 727721 e: magazine@specialistinfo.com www.specialistinfo.com Medico-Legal Magazine is published by Iconic Media Solutions Ltd. Whilst every care has been taken in compiling this publication, and the statements contained herein are believed to be correct, the publishers do not accept any liability or responsibility for inaccuracies or omissions. Reproduction of any part of this publication is strictly forbidden. We do not endorse, nor is Iconic Media Solutions Ltd, nor SpecialistInfo affiliated with any company or organisation listed within.
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MEDICO-LEGAL SERVICES: By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo
GP and Consultants Look Up Services
Tr a i n i n g C o u r s e s f o r E x p e r t Witnesses
When applying for insurance products, there is often a need for the applicant to supply the name and address of his or her GP.
The dates and locations for the five types of ML courses that we are holding during the rest of 2016 and into 2017 are listed below and opposite with links to our booking page.
This can present a problem, potentially resulting in delay, where the applicant does not immediately know how to spell their GP’s name, Surgery name or the correct address and postcode. SpecialistInfo can help insurance companies, and other firms such as health screening organisations that need to know clients’ GP details, to solve this problem by providing a “GP Look Up Service” that can be embedded directly in the companies’ systems. For example, by using appropriate “API” (Application Program Interface) calls in their systems, a relevant selection of GP names and practice addresses can be presented online while the applicant is present enabling the right selection to be made immediately. The service is up-to-date, fast, simple to use, cost effective and well proven through use with several major organisations. A similar service is available from SpecialistInfo for looking up Consultants’ details. For more information, to discuss your requirements and see a demonstration, please contact Emma Taylor at emma@specialistinfo.com or Hugh Whiteside at hw2@specialistinfo.com or phone 01423-562003.
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Standard (Personal Injury) Medico-Legal Course (a general overview for anyone starting a medico-legal practice): • • • • • •
14th September 2016 – London (limited places left) 16th November 2016 – Manchester 31st January 2017 – London 8th June 2017 – Birmingham 13th September 2017 – London 22nd November 2017 – London
£330 (plus VAT) For further information about the Standard course, please visit: www.specialistinfo.com/a_ml_standard.php
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Clinical Negligence Medico-Legal Course (we recommend moving onto this course only after some basic training has been completed): • • • • • •
15th September 2016 – London (limited places left) 17th November 2016 – Manchester 1st February 2017 – London 9th June 2017 – Birmingham 15th September 2017 – London 23rd November 2017 – London
£355 (plus VAT) For further information about the Clinical Negligence course, please visit: www.specialistinfo.com/a_ml_clinicalneg.php
Advanced Medico-Legal Course (for those who want to update their knowledge): • •
11th May 2017 – London 6th December 2017 – London
Mediation Training Course (5 days or can be split into 3 Modules - please call for details): • • • • • • •
19th-23rd September 2016 – Leeds (*NEW VENUE* limited places left) 17th-21st October 2016 – London 12th-16th December 2016 – London 9th-13th January 2017 Manchester 6th-10th February 2017 – London 6th-10th March 2017 – London 3rd-7th April 2017 – Birmingham
£1,600-2,000 (plus VAT) (or £400 per day if split into Modules) For further information about the Mediation course please visit: www.specialistinfo.com/a_ml_mediation.php
To book your place on one of the above courses please complete the booking form on our website by clicking on one of the above links (discounts are available for multiple bookings – please call Lisa to discuss or to book over the phone). Please contact me, Lisa Cheyne, on 01423 727721 or email me at lisa@specialistInfo.com
£355 (plus VAT) For further information about the Advanced course, please visit: www.specialistinfo.com/a_ml_advanced.php
Numbers are strictly limited so early booking is advised to make sure you do not miss out on these enjoyable and highly informative courses. I look forward to hearing from you soon
Court Room Skills Medico-Legal Course (mock court sessions with realistic cross examination): • • •
12th October 2016 – London 2nd February 2017 – London 15th September 2017 – London
Kind regards Lisa Cheyne Medico-Legal Course Manager
£440 (plus VAT) For further information about the Court Room Skills course, please visit: www.specialistinfo.com/a_ml_courtroom.php
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SRA PROPOSED CHANGE TO THE DEFINITION OF WHAT IS CLIENT MONEY. WHO BENEFITS? By Ben Elsom, Managing Director, Medical Reports Ltd
In short the Solicitors Regulation Authority (SRA) and administrators of firms in administration will benefit. The SRA recently launched a consultation on changes to the Solicitors Accounts Rules. Of particular significance to medico-legal organisations and solicitors is the proposed way that professional disbursements will be dealt with. The SRA has proposed that “Payments for professional services for which the firm is liable should in our view be treated as any other liability of the firm.” The SRA goes on to say that “We accept that the proposal removes some protections for those other than the clients (for example Counsel and other experts). We consider that these risks in relation to Payments for which the solicitor is liable are adequately addressed through clear duties to act in the client’s best interests.” So what might the potential impact on medico-legal companies be? 1. Medical report fees will become the responsibility of the firm and not the client. This will prevent medico-legal companies from recovering their fees ultimately from the client who had the benefit of the services provided or from the Solicitors Compensation Fund where the solicitors practice has misappropriated the money.
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2. In an intervention scenario the outstanding medicolegal fees will become part of the administration and when recovered will go into the general administration pot. Medico-legal companies will only get paid a tiny percentage of the fees with preferential creditors such as the SRA and the administrator using the fees recovered to get paid first! 3. Lenders will be less inclined to support medicolegal businesses as the risk of failure of a medico-legal company will be greatly increased. This will ultimately massively impact the availability to the consumer of deferred payment for medical fees, the commercial write off arrangements and introduce stringent risk control by medico-legal companies. The Solicitors Disciplinary Tribunal in 2015 heard 140 applications, of which 58% involved allegations of Solicitors’ Accounts Rules Breaches, Client Money:Improper utilisation, Misappropriation; Failures:Failure to pay counsel’s/agent’s fees (Source Solicitors Disciplinary Tribunal Annual Report). So what might the potential impact on Solicitors Practices be? 1. Cash flow:- Suppliers are unlikely to offer the same credit facilities to defer payment on the cases resulting
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in law firms having to pick up the costs and carry the burden themselves. 2. Accounts:- Solicitors accounts will need to show their liability for disbursements within their annual accounts affecting the balance sheet and subsequently their ability to obtain funding from their banks. 3. Credit Risk Assessment:- Many firms will be unable to gain access to credit or will find their credit facility capped by suppliers to ensure they are not unduly exposed by an individual firm closing. In 2015 745 law firms closed representing 7.2% of all solicitors firms in England and Wales. (Source SRA Website). 4. Increased administration:- Suppliers will engage in more credit control to ensure fees that are due are paid increasing the administration costs on the law firms in dealing with the queries.
for clients without interest charges being applied. It has enabled ‘access to justice’ for many thousands of consumers through readily available deferred payment schemes operated by medical reporting organisations, experts and barristers. It has provided the necessary protection and certainty for suppliers to enable them to provide external investment into law firms, alleviating cash flow problems that law firms would have otherwise incurred. I can see no justified reason to change the definition and strongly urge all stakeholders to make their views known to the SRA by completing the consultation paper by the 21st September deadline, details of which can be found at: www.sra.org.uk/sra/consultations/accounts-rules-review. page
5. Consumer Credit Agreements:- Suppliers may insist on the client signing a credit agreement before providing services. Given that none of the issues above has been identified in the SRA’s impact assessment the SRA needs to reexamine its proposal.
t: +44 (0) 2476 586 881 e: ben.elsom@medicalreportsltd.co.uk w: medicalreportsltd.com
The current definition of client money has been instrumental in building easy access to funding Sp o n s o re d by:
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VASCULAR SURGERY – A MEDICO-LEGAL OVERVIEW PART II By Mr Michael Gaunt MA, MD, FRCS. Consultant Vascular Surgeon, Cambridge
As discussed in the last issue, focussing on arterial conditions, vascular surgery is a high risk speciality for medicolegal claims, primarily because when problems occur within the vascular system they can do so quickly and with severe limb and lifethreatening complications. This article will concentrate on conditions of the venous and lymphatic systems.
Ve n o u s C o n d i t i o n s The veins are the low pressure vascular structures that return blood to the heart. One of the commonest venous conditions is varicose veins which can affect up to 1 in 4 of the adult population and their treatment is one of the commonest procedures performed in UK hospitals and clinics. Varicose veins occur when the one way valves inside the veins become incompetent resulting in abnormal blood flow which produces
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a spectrum of symptoms from mild cosmetic issues to non-healing venous ulcers. Treatment ranges from injection sclerotherapy to surgical ‘stripping’ of the veins. Traditional surgery can be associated with significant complications such as damage to nerves, major arteries and veins and deep vein thrombosis. Newer techniques include the less invasive endothermal ablation techniques such as the endovenous laser (EVLA) or VNUS Closure methods which appear to be associated with a lower incidence of such problems, however complications and poor outcomes still occur. Thrombosis can occur in arteries or veins. Thrombus forms in flowing blood whereas clot forms in blood that has ceased to flow. Thrombosis can occur to block or partially block an artery or vein in one part of the body and then a piece of thrombus can break off and be carried in the blood stream to lodge
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in another part of the body – an embolus. One of the commonest examples of this process is deep vein thrombosis (DVT) where thrombus forms in the major veins of the legs or pelvis. Frequently, an embolus or several emboli breakaway from the DVT and lodge in the lungs causing a pulmonary embolus. DVTs can occur spontaneously or be ‘provoked’ by surgery, immobility or trauma. The National Institute for Health and Clinical Excellence (NICE) guidelines state that any DVT or PE occurring within three months of surgery, immobility or trauma should be considered as provoked. The risk of DVT/PE can be reduced by the appropriate use of blood thinning medication such as heparin, warfarin or one of the novel oral anticoagulants and other mechanical measures. All patients admitted as an inpatient should have a DVT risk assessment and receive thromboprophylaxis according to published guidelines. A major DVT affecting the veins in the leg can permanently damage the deep veins resulting in lifelong leg swelling, pain and venous ulceration. Pulmonary emboli can cause symptoms ranging from mild chest pain and shortness of breath to sudden death or long term pulmonary hypertension. Some decades ago, in order to try and prevent pulmonary emboli, clinicians began inserting metal filters into the main vein leading to the heart and lungs; the inferior vena cava. Many of these caval filters were designed to be removed once the risk had decreased but many were left in situ. These are now causing problems such as migration, fracture of the struts, perforation of the vena cava and occlusion of the cava. Failure to assess DVT risk, failure to provide adequate thromboprophylaxis and caval stent complications can give rise to claims, as can DVT occurring after accidents and trauma.
Ly m p h a t i c C o n d i t i o n s Lymphoedema is the accumulation of fluid in a limb due to damage to or gradual deterioration of the lymphatic vessels. Lymphoedema can be primary with no underlying cause or secondary caused by trauma, cancer, infection, radiotherapy or surgery. Swelling can range from minor foot, swelling restricting choice of footwear, to enormous leg swelling, causing lifelong
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disability. Claims arise from failure to give informed consent to patients undergoing interventions that carry a risk of lymphoedema, failure to investigate underlying causes, and iatrogenic or accidental damage to the lymphatic vessels. Finally, a wide range of iatrogenic or accidental injuries can give rise to vascular damage with significant consequences. Generally, in any circumstances resulting in damage to or conditions affecting the arteries, veins or lymphatics anywhere in the body, apart from the heart or brain, then a vascular surgeon may be able to provide advice and an opinion.
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INTERVIEW WITH AN EXPERT WITNESS By Mr Aruni Sen MS, FRCS, FRCEM, DipMedEd, Consultant in Emergency Medicine, Princess Elizabeth Hospital, Guernsey and Grosvenor Medical Clinic, Croesnewydd Hall, Wrexham with over 20 years experience in medico-legal work. Please give us a short background of your own specialties and current medical practice? My professional training consists mainly of General Surgical specialities, Orthopaedics and Accident & Emergency (since 1992). I moved to Guernsey as a lead consultant in 2015.
When and why did you decide to start a medico-legal practice? I have been involved in medico-legal work since 1992, earliest as a senior registrar in the Emergency departments of Glasgow. I had to write numerous “pre-cognition” reports for the Procurator Fiscal in Scotland, which taught me how to adhere to facts and justify one’s opinion. During this time, I also attended the City Sheriff, Magistrate and High Court as a crown professional witness.
How did you go about setting up your first ML practice and how did you source clients? The bulk of the medico-legal work started since my consultant appointment at Wrexham in 1996. I have worked in this busy DGH catering for 70,000 patients annually. I established my contacts with the local solicitor network in Wrexham, Liverpool and nationally in the UK. I have done so in Guernsey and enjoy a good relationship. I attended relevant training courses, networked with agencies and solicitors to receive regular instructions from the national medicolegal agencies, Welsh Risk Pool, UK solicitors and the GMC for professional negligence reports. This includes mediation, joint expert meetings and Court appearances.
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Does ML work fit well with your other professional commitments? Indeed, it does and actually enhances my clinical and professional practice. Because of clinical and medico-legal work, I am obliged to keep up to date with current evidence and standards of practice. I can bench mark my own practice with another clinician in negligence claims. The practice of precision in comments and having to justify my opinion enforces a discipline I benefit from.
What kind of cases do you come across most often – can you give us an example of a ‘typical’ case? Most of the personal injury report instructions are related to whiplash and workplace accidents. Contrary to the recent Government regulations around MedCo, I have not come across any fraudulent claimants. This might be because the solicitors who instruct me possibly vet the claimants before asking me for a report. I do not write large volumes of reports in one sitting. Most workplace injury claims reveal unsafe work environments or a lack of apology from management after an unfortunate accident. The clinical negligence claims of course vary. Most of the consequences are tragic and cause suffering. A typical claim will arise from missed diagnosis of Cauda Equina Syndrome due to central disc prolapse. The history and examination are often incomplete, urinary retention (commonest) is overlooked while looking for incontinence (rare) and patient returned home as they managed to walk. I am still impressed how often, despite glaring and indefensible omissions in clinical management (not doing a CT scan after a head injury presenting with
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confusion, blaming the same on alcohol/drugs), the negligence claims are defended until almost a week before the court date. Unfortunately, all prolonged NHS legal action comes at a price to the tax payer.
Have you undertaken any medico-legal training over the years and do you find it helpful? I trained with SpecialistInfo and Bond Solon. A lot of training is now available on-line. I am a member of: SpecialistInfo’s Faculty of Expert Witnesses (FEW), Association of Personal Injury Lawyers (APIL) database, Law Society Member, Society of Expert Witnesses Member, Expert Witness Directory, Registration Council of Medical Experts Member, Waterlow Solicitors & Barristers Directory. I find all the training invaluable and would suggest that all medical experts undertake at least ONE yearly update or attend a conference.
What advice would you give colleagues who are thinking of starting a medicolegal practice? Please do NOT start any practice without suitable training. It helps to network with local, regional and national solicitors or MRO. You should prepare
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a brief medico-legal CV to highlight experience, credibility, training and accreditation. Solicitors prefer to know your terms and conditions and payment arrangements. Membership of accrediting bodies, often after suitable training or online courses, help. Advertising in medico-legal magazines will help – but best not to overstate the case. A sample report, best vetted by a reputable solicitor/barrister, will help receive instructions.
Finally, how do you think the industry has changed since you began your ML practice and how do you think it will evolve in the future? When I started, there were many solicitors and MROs instructing me. Over the years, the number of claims have fallen. Solicitors are now selective on which claim they take on, especially for clinical negligence. I often get asked to comment on whether there is a case worth pursuing at all. More training is now available leading to accreditation. Annual conferences are of educational value. Although I write fewer reports, the quality and thoroughness have improved. I prefer this to the past.
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AN INFINITE CAPACITY FOR COURTING DISASTER – THE MENTAL CAPACITY ACT By Jonathan Dingle, FRSA, MCIArb, Barrister Middle Temple
Your correspondent was in Kingston-upon-Thames, just opposite the police station, in the offices of a well known national firm of solicitors. His eye had turned slightly longingly to the menu boards of the pub opposite, advertising farm-smoked ham nestled in a joyous tuber, but his mind was focussed on the client. This veritable bastion of the Surrey Hills was rambling: something about fairies, and the spirit of her dear departed dog. Suddenly, her hitherto timid husband perked up. “Sorry” he interjected, “She has these ideas and loses the plot quite a lot. I never know if she is really with us.”
Readers of this organ, however, will know the two-stage test is at the heart of good practice. The professional must ask: (1) Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn’t matter whether the impairment or disturbance is temporary or permanent.) (2) If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? A lack of capacity will likely be established if the person cannot achieve any of these requirements:
Praise be! For early lashings of Wiltshire’s finest with mashed potato were almost guaranteed. How so? Why was the conference about to end?
(a) Understand information about the decision to be made
It is, perhaps, surprising that lawyers on both sides of the bar, expert witnesses, and even some mental capacity assessors are not fully aware of the correct test or tests for mental capacity. Some think Dunhill is a product of Alfred’s Duke Street emporium and Mastermann-Lister the inventor of the Double-Cross system of counter espionage (which as also about smoke and mirrors). They may recognise the 2005 Act but not its capacity for confusion and disaster.
(c) Use or weigh-up the information as part of the decision process
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(b) Retain that information in their mind
(d) Communicate their decision If a person lacks capacity in any of these areas, then this may represent a lack of capacity. Useful guidance is set out in the Mental Capacity Act 2005: Code of Practice 1 which can be found in the footnote.
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Section 2(1) of the Act states: “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This means that a person lacks capacity if: •
they have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and
•
the impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made.
An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. Section 2(2) states that the impairment or disturbance does not have to be permanent. A person can lack capacity to make a decision at the time it needs to be made even if: • • •
the loss of capacity is partial the loss of capacity is temporary their capacity changes over time
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A person may also lack capacity to make a decision about one issue but not about others. It is easy to make a mistake in this area, particularly given the five statutory principles, which are: 1. A person must be assumed to have capacity unless it is established that they lack capacity. 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. The loss of capacity need not, in a legal case, be throughout the case – if there is a temporary loss then a Litigation Friend must be appointed. A failure to do so, or even to recognise the loss of capacity,
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may invalidate a settlement. So held the Supreme Court in Dunhill (by her Litigation Friend, Paul Tasker) v Burgin [2014] UKSC 18 On 25 June 1999, the Claimant was crossing the A635 close to a roundabout, with her son, Mr Sam Tasker, and his girlfriend, Miss Carole Rogers. They are about five foot four, five foot nine, and five foot five inches tall respectively. The road was not a dual carriageway, but on the approach to the roundabout, level with a roughly triangular traffic island, the road widens into two lanes in order to enable two lines of traffic to approach the roundabout. The road bends to the left shortly before it approaches the roundabout. It is likely that the group was crossing from the kerb to that traffic island at a point where the kerbs are dropped to help pedestrians to cross. Mr Burgin, who was riding his motorbike, collided with the Claimant. She was emerging from between the first and second vehicles which were queuing in the nearside lane. Mr Tasker was able to yank Ms Rogers out of the way. There must have been at least four vehicles in the queue, as Mr Burgin’s two witnesses were in the third and fourth vehicles. The Claimant suffered a serious closed head injury, and soft tissue injuries to her legs. She has no memory of the accident. The police investigated the accident, but Mr Burgin was not prosecuted. By the time it came before the Supreme Court it was accepted by the defendant that the claim was worth £800,000 (the claimant said it was worth much more). The claim as actually pleaded was limited to £50,000 and at the first day of a liability trial was compromised by the claimant and her counsel (assisted by a trainee solicitor) for £12,500 when a key witness did not attend without good reason. There was a consent order, but no one considered that the claimant lacked capacity. Subsequently, she took fresh advice and sought to set aside the Consent Order. Given that capacity is “issue specific” an issue arose as to whether she did have capacity, when judged against the simple case originally pleaded, whereas she may not have had capacity in relation to the more complicated case she now presented.
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The court acknowledged it had to balance the need to protect individuals who lack capacity from making settlements which are unfavourable to them against the presumption of capacity; individuals should only be deprived of the right to make their own decisions to litigate in clear cases. The Court had to consider the public interest issue in upholding agreements to settle which everyone thought were valid when entered into. Whilst there was undoubtedly a need for finality in litigation, children and protected parties require and deserve legal protection, not only from themselves, but also from their legal advisers. Ms Dunhill lacked litigation capacity, and her settlement should have been approved by the court under CPR 21.10(1). The compromise was therefore set aside, and the case sent for litigation afresh. Dunhill case therefore decided that capacity must refer to the actual decisions which a claimant (pre-proceedings, as well as after a claim is started) must be capable of making and the actual instructions she should be giving in relation to that claim. An underlying principle is the protection of the “protected party” not only from the other party, but from her own legal advisers. It is no good that she had capacity at a mediation, for example, when she has lacked capacity at times during the preparation for that settlement day. It followed that after due words of solicitous caution, the delightful lady went to see one of her psychiatrists for an assessment with the conference adjourned. In due course, she returned, several weeks later, being found to be in possession of adequate understanding – but one cannot be too careful or in too great a hurry when it comes to litigation. Nor yet with ham: luncheon was outstanding and all the better for knowing the claim would not turn into a pig’s ear. www.gov.uk/government/uploads/system/uploads/ attachment_data/file/497253/Mental-capacity-act-codeof-practice.pdf 1
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MEDICO-LEGAL VAT LIABILITIES – FURTHER DETAILS TO EXPLORE THE CORRECT VAT LIABILITY By John H Barnes, AIIT, CTA, Director, Dispensing VAT Advice Ltd In the introductory article on this subject in Issue 1, I explained some basic rules about the VAT treatment of “medico-legal” services. This follow-up article covers some of these issues in more detail. To recap on the basic rules, the VAT liability of various “non-therapeutic” services supplied by doctors was changed from 1st May 2007, due to the European Court decision in the Dr D’Ambrumenil case. The court had ruled that the exemption from VAT for supplies by medical practitioners could only apply to services where the principal purpose was to protect, maintain or restore the health of the individual. Since 2007, the medical VAT exemption no longer applies to certain “non-therapeutic” reports whose principal purpose is to enable a third party to make a decision. For example; in respect of claims for compensation, benefits, or expert witness reports for the court (even if the case concerns the well-being of an individual), because the principal purpose of the report is to enable the court to take a decision, such services are subject to VAT and, if a medical practitioner has VATable income in excess of £83,000, they will need to become registered for VAT and charge VAT on such supplies.
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Certain services have given rise to confusion about their correct VAT liabilities, so I will explore these in more detail.
1 . VAT o n c o p i e s o f m e d i c a l r e c o r d s HMRC initially regarded this as a standard rated photocopying service. However, after further consideration they concluded that the copying of patients’ notes is a “subject access request”, which is a statutory requirement under the Data Protection Act 1998 and the Access to Medical Reports Act 1988. Therefore, as it is a statutory requirement, the service is deemed to be non-business and consequently any charge made is outside the scope of VAT. Full details are published by HMRC in VAT Notice 701/57, Paragraph 4.1
2. Medical Certificates and Reports Supplies of certificates and reports are liable to VAT if they allow a third party to make a decision and contain no element of therapeutic care. For example, VAT is applicable to reports leading to claims for compensation, benefits or entitlement to special services (e.g. disability services). VAT also applies
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to fitness certificates that relate to a person being able to take up a particular profession (e.g. to join a professional register or a pre-employment medical) or fitness to undertake a sporting activity, or fitness to drive or fly. However, where the principal purpose of the certificate or report is to protect, maintain or restore the health of an individual, then they are exempt from VAT, such examples being: • •
•
sick notes, reports to an employer explaining that certain tasks should not be undertaken by an employee in order to protect their health certain adoption reports which relate to health care plans.
3. Insurance services Medicals and reports for insurance companies are covered by a different VAT exemption. So although they do not qualify as exempt medical services, HMRC consider that they can qualify for exemption under the rules relating to the exemption of insurance services. Therefore, reports that are provided to insurance companies concerning the setting up of an insurance policy by a patient, or the handling of insurance claims, are exempt from VAT.
4. Medico-Legal Reports in connection with medical negligence claims The fees for such services are subject to VAT. Those firms that specialise in making medical negligence claims are all likely to be registered for VAT. However, they may obtain medical reports from GPs who are not VAT registered in connection with such claims. GPs who provide such reports do not have to charge VAT if they are not VAT registered and their income from such taxable services is below £83,000 per year. Many queries have arisen about whether the cost of the GP reports needs to form part of the onward taxable charge to the claimant by the medical negligence firm. Under normal VAT rules, if the medical negligence firm has contracted with a doctor to provide it (the firm) with a report that it
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will use in its services on behalf of the claimant, then the doctor’s fee becomes a cost component of the medical negligence firm’s supply of services to their client and VAT must apply to the whole charge. Some medical negligence firms have set up a procedure whereby the claimant has a choice of GPs to provide reports, and the contract for such reports is between the GP and the claimant. In these circumstances, even if the medical negligence firm pays the GP on behalf of the claimant, the GP’s fee can be treated as a non-vatable “disbursement” when it is eventually recharged to the claimant. The normal “disbursement” rules must apply, i.e. the recharge must be separately identified, it must be for the exact amount of the cost and the client must have received the service directly from the GP and must have been obliged to have met that cost.
5. Expert Witness Reports. The services of providing expert medical evidence for use by the courts is subject to VAT as the principal purpose is to enable a third party (i.e. the court) to make a decision. VAT is applicable to such fees even if the court case concerns the health or well-being of a patient.
6 . E d u c a t i o n a n d Tr a i n i n g Education and Training is exempt from VAT when supplied by an individual doctor or a member of a partnership. The exemption is based on the rules for education and training which specify that exemption applies to educational tuition in a subject ordinarily taught in schools or universities (which includes medicine) by an individual or partner who is acting independently of an employer. The VAT liabilities described in this article relate to the position current at the time of writing (July 2016). As VAT liabilities may change due to new legislation (and the possible re-drafting of VAT rules when the UK leaves the EU), care should be taken to ensure that changes have not occurred when following this guidance.
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Areas Of Exper6se: • Miscarriage • Ectopic Pregnancy • Pregnancy Scans • Prenatal Diagnosis • Fetal Medicine • Antenatal Care • Intrapartum Care • Postnatal Care • S;llbirth Dr Bryan Bea<e MD FRCOG
• full ;me NHS Consultant in Obstetrics and Fetal Medicine for over 20 years • founder and owner of Innermost Healthcare (a women’s healthcare private medical clinic in Cardiff) • provider of expert medico-‐legal services for over 15 years including provision of reports, court medical expert witness and advice for medical protec;on socie;es
Ashtree Medicolegal Practice Ashtree Medical Clinic 3 Ashtree Court Woodsy Close Cardiff CF238RW Tel: 0345 2303386 mail@ashtreeclinic.co.uk
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ENDOCRINE ASPECTS OF THE TRAUMATIC BRAIN INJURY: MEDICO-LEGAL IMPLICATIONS By Professor Gordana Prelevic, MD, DSc, FRCP, CUEW Consultant Endocrinologist, London Claremont Clinic, London
Introduction Traumatic brain injury (TBI) is a very common injury, particularly among children and young adults. The commonest causes of TBI are: falls (28%), traffic accidents (20%), struck by/against (20%), assaults (12%). It is well known that TBI could be associated with various pituitary hormone deficiencies in more than 25% of patients. Among multiple pituitary deficits, the most common ones are: growth hormone (GH) deficiency present in approximately 25% of patients, adrenocorticotropin hormone (ACTH) deficiency present in approximately 20% of patients and gonadotrophin (LH and FSH) deficiency in approximately 12%. In older age, TBI severity and skull fractures appear to be risk factors for pituitary disorders. The signs and symptoms associated with pituitary hormone deficiencies (hypopituitarism) are nonspecific and often mimic the sequellae of TBI. Because of this, pituitary hormone deficiencies could result in sub-optimal rehabilitation for patients with TBI-induced hypopituitarism. Fatigue is a major symptom and it is also a major symptom of TBI. It is often difficult to differentiate to what extent the symptoms like memory loss, decreased concentration, mood disturbances, increased anxiety and depression, irritability, insomnia and a sense of social isolation are the result of TBI itself and to what extent hypopituitarism might be contributing to these symptoms.
Background The pituitary gland is situated at the base of the brain and connected to the hypothalamus (part of the brain) with numerous nerves and a delicate and
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fragile network of blood vessels. The hypothalamus controls the production and secretion of the pituitary hormones by releasing substances into those fragile blood vessels. The pituitary gland in turn, secretes hormones which control other endocrine glands (adrenal, thyroid, gonads). Because of their anatomical position and delicate network of blood vessels, both the hypothalamus and the pituitary are vulnerable structures and at risk of injury with any severe head trauma. Pituitary dysfunction as a result of TBI may be partial (deficit of one or more pituitary hormones – partial hypopituitarism) or complete (deficit of all pituitary hormones – panhypopituitarism). A systemic review which examined 14 studies including over 1000 patients showed the prevalence of endocrine dysfunction in 15% to 68% of TBI patients (severe 35.3%; moderate 10.9% and mild 16.8%).
Pituitary hormone deficiencies Growth hormone (GH) deficiency is the most common pituitary hormone deficit found at one and three years after TBI and could often be found as an isolated pituitary hormone deficiency. GH deficiency resembles post-traumatic stress disorder including profound fatigue, anxiety, depression, irritability, sleep disturbance, sexual dysfunction, cognitive deficiencies and decreased quality of life. Evaluation for GH deficiency should be considered during the rehabilitation phase after TBI. ACTH deficiency is the second most common hormone deficiency after TBI. This results in low cortisol levels (secondary adrenal insufficiency) or in some cases only in inadequate cortisol responses to stimulatory tests (cortisol level of 500nmol/L or less in response to Synacthen stimulation). In case of the latter cortisol values are in the normal range
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but the body’s ability to respond adequately to stress is impaired. Of all the pituitary hormones, only the loss of ACTH is likely to be lethal, particularly during various stresses such as infection, surgery or major trauma. Some 80% of patients have secondary hypogonadism immediately after TBI but gonadotrophin deficiency was the most likely to recover completely in most patients by six months after injury. TSH deficiency is relatively rare disorder after TBI and results in underactive thyroid (secondary hypothyroidism). In a large cohort, 21.6% of patients developed diabetes insipidus in the immediate post-TBI period whereas only 6.9% had permanent diabetes insipidus (more than half had partial diabetes insipidus). Patients who developed permanent diabetes insipidus were more likely to have lower GCS scores, indicating more severe brain injury.
Prognosis There is a general trend toward improvement in pituitary function with time, but in some cases, new deficiencies may evolve later on. Most of earlier studies reported a transient pituitary dysfunction recovering within the first year after TBI. Twelve months after TBI nearly 60% show fully normal pituitary function. A recent systemic review which examined 66 studies with over 5000 patients showed that approximately 30% of TBI patients have persistent anterior pituitary disorders.
what happens beyond three years or whether the pituitary function recovery reaches a plateau around that time. In the ideal world everybody who had TBI should have assessment of pituitary function but this has serious financial implications and is unlikely to happen in an overstrained NHS. From the medico-legal point of view, a history of skull fracture and an initial Glasgow Coma Score of less than 13 should always justify evaluation for possible hypopituitarism. Investigation should be undertaken by an endocrinologist with experience in pituitary disorders. Once diagnosed with pituitary deficiency, patients could be treated by appropriate hormone replacement therapy which in some cases could be lifesaving (ACTH deficiency) or in many cases significantly improve the quality of life (growth hormone deficiency). Selected references:
Conclusion Deficiency of one or more pituitary hormones as a result of TBI is relatively recently recognized entity. Although there are several studies published over the past few years, most of them relate to patients assessed immediately after TBI, six or 12 months later. Only one prospective study followed up the same group of patients one and three years after TBI. The authors reported significant recovery in pituitary function, so that only a relatively small proportion of those who had deficiency at one year still had deficiency after three years. It is not known at present
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Aimaretti G & Ghigo E: Should every patient with traumatic brain injury be referred to an endocrinologist? Nature Clinical Practice Endocrinology & Metabolism 2007; 3: 318-319 Ghigo E et al: Consensus guidelines on screening for hypopituitarism following traumatic brain injury. Brain Injury 2005; 19: 711-724 Klose M et al: Prevalence and predictive factors of posttraumatic hypopituitarism, Clin Endocrinol, 2007; 67: 193-201 Personnier C et al: Prevalence of pituitary dysfunction after severe traumatic brain injury in children and adolescents: A large prospective study. J Clin Endocrinol Metabol 2014; 99: 2052-2060 Tanriverdi F et al. Three years prospective investigation of anterior pituitary function after traumatic brain injury. Clin Endocrinol 2008; 68:573-579
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LITIGATION CULTURE UNDER THE MICROSCOPE By Dr Robert Baker MSc PhD MRCP FRCPath DipGUM Consultant Senior Lecturer, Medical Microbiology and Virology, Musgrove Park and Yeovil Hospitals
Do you honestly understand microbiology? Few do, and the same applies in litigation. We microbiologists occupy a backstage, geeky niche. The definition of an extrovert pathologist is someone who looks at your shoes when they’re talking to you rather than their own. Nevertheless, our clinical colleagues often need our nerdy advice about obscure bacteria whose names they never learned at Medical School. Why remember the susceptibilities of Stenotrophononas maltophilia when you could be fixing bones, delivering babies or implanting cardiac devices? Which is fine, until it all goes wrong. Since the early 1900s Infectious Diseases have slipped down the list of causes of death and disability, despite emerging resistance to antibiotics. That means patients do not expect to get infections, and, when they do, they expect them to be curable. Otherwise they may sue, and sometimes on good grounds. I have advised early settlement in several indefensible cases, some fatal.
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It may go the other way. Here’s a recent extreme example – a baby born with brain damage whose mother sued the Trust many years after delivery. The final settlement was £4m – yes four million pounds – less than the original claim, and that reduced sum was largely based on my microbiology evidence; the mother had obvious intrauterine infection of a sort that has only recently been recognised as causing foetal brain damage. Four million pounds is several multiples of a Consultant’s NHS lifetime earnings plus pension. Basically, I am in credit with the NHS for my salary and more. As with any expert witness, you would not get far if your reports were biased. Nevertheless, as a committed supporter of the NHS I get some pleasure from challenging the obvious chancers – an increasingly common phenomenon in the world of “no win no fee”. It isn’t always the NHS either – in a recent case two families developed infectious
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diarrhoea on a Mediterranean holiday, and sued the hotel, saying among other things that wild birds were unreasonably allowed in the outdoor cafes. How the hotel could have excluded them is unclear…but I concluded on good evidence that the probable source of infection was the swimming pool, not the food. The claimants’ lawyers urged me to say otherwise – but I would have been a fool to waver. The case collapsed. I have had no more instructions from those solicitors – their loss. As it says in The Bible – “the truth will set you free”. Solicitors ask what proportion of my reports are for claimant or defendant. I answer “They are all for the Court”. Following excellent advice on a ”SpecialistInfo” medico-legal course, I literally and metaphorically point my feet firmly towards the Judge in preparing my comments. I also have to hold my head up in the august company of experienced microbiologists on the other team. Most doctors like to get things “right”; my wife will tell you I am no exception and that is just dandy for expert reports. The witness box can be very uncomfortable if you are wrong. It’s meticulous attention to detail that pays off and that can revolve around a single letter. One lawsuit involved the “wrong” antibiotics for a man with sepsis after a nephrostogram; hidden among 1600 pages of notes was a report from the lab stating the bug was crucially “R” – resistant – to gentamicin. Notes are harder to read than they used to be, and I am not surprised the defendant’s expert missed it. Finding the microbiology evidence among the physiotherapy and nursing entries can be time-consuming; I can’t be alone in wishing the medical documentation was separate. Thirty years of poring through notes pays off. Thoroughness and rigorous reference to the published evidence do not always pay off. One report I completed challenged the received wisdom about bacterial sepsis following weeks after an uninfected, trivial puncture wound – the claimant said it was her employer’s fault for not maintaining the workplace floor correctly. Her lawyers did not like my conclusion. There is no clear evidence that bacteraemia is more common after uninfected puncture wounds, which are very, very common.
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“It’s meticulous attention to detail that pays off and that can revolve around a single letter” The lawyers quietly commissioned another report that was more sympathetic to the claim. I thought those days, where experts are paid to put forward any convenient point of view, were gone. I decided early on I wanted a long medico-legal career and an easy conscience. If you’re thinking of writing these reports, here’s how I got into it – by chance. Our Trust asked me to write one; the lawyers said they liked its clear English style and offered me paid work. I haven’t really looked back – every report is read by many people and word of mouth has guaranteed more and more instructions. On LinkedIn I found a first rate medicolegal secretary, Sue Wilcox of The Medical Secretariat (www.med-sec.net) who set me straight about fees, layout etc. I would welcome any microbiologist into the fold; I enjoy mental jousting with colleagues and the world of microbiology expert witnesses is small and shrinking due to retirement. Pathology is the “science behind the cure” and sometimes the science behind a heap of NHS money and anguish for the doctors who are named in the lawsuit. If you’re a doctor reading this and you want to avoid such an infection lawsuit, here’s my advice: Write down clearly what you did and why, especially if you diverge from guidelines. If in doubt – call a microbiologist and write the conclusions down. Even if we do talk to your shoes. Robert can be contacted on: bakermedicolegal@gmail.com
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PROGNOSIS OF CHRONIC WHIPLASH – IS THE EVIDENCE CONVINCING? By Mr Sunil Garg, Consultant Orthopaedic Surgeon at James Paget University Hospital NHS Foundation Trust, Great Yarmouth Whiplash claims cost the country about £2billion every year and motorists collectively pay about £1billion more than they need to because of high levels of claim. Britain has been described by some as the whiplash capital of Europe, with 80 per cent of personal injury claims following a road accident involving whiplash – compared to just three per cent for France. What is Whiplash? Whiplash is a mechanism of injury, consisting of acceleration-deceleration forces to the neck. The ‘Whiplash’ event usually lasts less than half of a second. In 1995, the Quebec Task Force on Whiplash Associated Disorders (WAD) coined the term ‘WAD’ to describe the symptom sequelae of this injury. This cluster of symptoms includes neck pain, along with other symptoms of the injury such as dizziness and pain in other parts of the body. Although the resulting pathology from WAD is not clearly established, WAD is thought to result from cervical sprain or strain, probably from soft tissue damage to ligaments and muscles in the neck.There is no generally accepted objective test for a whiplash injury or ‘pain’ in general. Pain is a personal experience. The ‘course’ of recovery from WAD refers to 2 key questions: Are neck pain and associated symptoms likely to resolve, and, if so, within what time frame? These questions are of vital interest to all stakeholders, including individuals with WAD and their families, their health care providers, those who develop and implement policy and regulations, and researchers who study WAD. A plethora of widely varying evidence and opinion exists on these issues, resulting in a certain amount of confusion. This makes it imperative to conduct a considered and thorough examination of the existing scientific evidence and also look at the strength of that evidence. Most of the available evidence can
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be described, at best, as moderate in quality simply because there are too many variables to predict one outcome. The preponderance of evidence indicates that, in adults, recovery of WAD is prolonged, with approximately half of those affected reporting neck pain symptoms 1 year after the injury. However, some studies indicate more rapid recovery, a study of Lithuanian traffic injuries reported the maximum duration of neck pain was 17 days, a study of Greek traffic injuries in which almost 90% of subjects had recovered by 1 month and 99% had recovered by 6 months and a Swedish study reporting that 52% of WAD injuries had resolved by 6 weeks. Similarly, a study of WAD insurance claims in 1987 in the Canadian province of Quebec reported that 50% of WAD claims had been closed within 1 month and that 87% had been closed within 6 months, however, the same authors reported much slower claim closure in a subsequent study which found that 40% to 50% of claims were still open 1 year post injury. Neither the rapid recovery reported in some studies, nor the prolonged recovery reported in other studies is well understood. Differences in culture, beliefs and attitudes are an interesting potential explanation. Most studies quote complete recovery rates of around 60%, with less than 5% affected by severe chronic pain. Researchers argue that chronic whiplash pain may not be a ‘new’ pain. The best evidence suggests that 20% and 40% of the general population has experienced neck pain during the previous month, and it is possible that some of the symptoms attributed to the whiplash injury simply reflect the background prevalence of neck pain one would expect in the local general population. Several systematic studies have tried to investigate factors that could affect the prognosis of WAD, however there is insufficient evidence to make firm
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conclusions on many potential prognostic variables. The best available evidence suggests that recovery is slower in those with greater initial symptom severity. Interestingly, collision-specific factors including position in the vehicle, whether the head was turned or straight ahead, awareness of the impending collision, use and type of headrest, direction of the collision are not prognostic for recovery in WAD. A summary of the literature on crash tests on human subjects concluded that a change of velocity of 2.5 mph was sufficient to cause symptoms and that a speed of 8.7 mph was needed to cause damage to a vehicle. Psychological factors such as post injury psychological distress and passive types of coping were prognostic of poorer recovery. There is evidence that compensation or legal factors are associated with recovery. There is also consistent evidence that, on average, frequent, early health care use was associated with poorer recovery. Existing evidence suggests that a past history of ‘other’ musculoskeletal disorders (other than neck, shoulder, headache or low back pain) is a risk factor for prolonged recovery; that older age may prolong recovery from nonspecific neck pain; and that regular physical activity has no clear effect on outcome. Evidence exists to support an understanding of some manifestations of WAD as a neuropathic pain condition, or as a consequence of some change at the level of central processing of pain. Evidence also exists, and continues to build, for the role of acute post-traumatic stress reactions as a predictor of poor outcome, and the relationship of such reactions with objective signs dysfunction. Amongst those at high risk of poor recovery, attempts to prevent transition from the acute to the chronic stage of the condition or reverse chronicity once established are largely unsuccessful. Existing evidence provides moderate confidence in their prognostic ability, but more research with consistent predictors, duration of follow-up and outcomes is required for firm conclusions. Claimant’s physiological and psychological stress response remains a key driver in persistent symptoms following whiplash injury.
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References Hogg-Johnson S, van der Velde G, Carroll LJ, et al. The burden and determinants of neck pain in the general population. Results of the Bone and Joint Decade 2000–2010 Task Force on Neck Pain and Its Associated Disorders. Spine 2008;33(Suppl):S39 –S51. Obelieniene D, Schrader H, Bovim G, et al. Pain after whiplash: a prospective controlled inception cohort study. J Neurol Neurosurg Psychiatry 1999;66:279–83. Partheni M, Constantoyannis C, Ferrari R, et al. A prospective cohort study of the outcome of acute whiplash injury in Greece. Clin Exp Rheumatol 2000;18:67–70. Suissa S, Giroux M, Gervais M, et al. Assessing a whiplash management model: a population-based non-randomized intervention study. J Rheumatol 2006;33:581–7. Miettinen T, Airaksinen O, Lindgren KA, et al. Whiplash injuries in Finland–the possibility of some sociodemographic and psychosocial factors to predict the outcome after one year. Disabil Rehabil 2004;26:1367–72. Suissa S, Harder S, Veilleux M. The Quebec whiplashassociated disorders cohort study. Spine 1995;20:12S–20S. Gargan MF, Bannister GC. The rate of recovery following whiplash injury. Eur Spine J 1994;3:162–4. Sterling M, Pedler A. A neuropathic pain component is common in acute whiplash and associated with a more complex clinical presentation. Man Ther 2009; 14(2): 173-9. Spitzer WO, Skovron ML, Salmi LR, et al. Scientific monograph of the Quebec Task Force on whiplash-associated disorders: redefining “whiplash” and its management. Spine 1995;85(Suppl 20):1-73. Davis CG. Rear-end impacts: vehicle and occupant response. J Manipulative Physiol Ther 1998;21:629-39.
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WHISTLEBLOWING IN THE HEALTHCARE SECTOR By Juliette Mellman-Jones, Partner and Head of Health and Care Sector, and Judith Davison, Associate Professional Support Lawyer at BLM Law The role of whistleblowing to highlight issues within organisations has become increasingly common in recent years, especially within the healthcare sector. What are the key lessons learnt? Can the healthcare sector claim best practice that other industries may follow? The healthcare sector is arguably ahead of the game when compared to other industries which are only recently developing whistleblowing strategies and policies.
What triggered the healthcare sector’s focus on whistleblowing? The focus on whistleblowing resurfaced following the Mid Staffordshire Inquiry and the Freedom To Speak Up Review, both chaired by Sir Robert Francis QC, a passionate advocate of transparency and openness in the healthcare sector. After the Mid Staffordshire Inquiry exposed unacceptable levels of patient care and a staff culture that deterred staff from raising concerns, the Review emphasised that in order for staff to feel comfortable in challenging poor practice or behaviour, wholesale culture changes in the way the NHS operated were necessary. Focus needed to be on patient care and safety rather than finances and targets.
What lessons were learned? The NHS has acted on a number of the recommendations made by the Francis Review and significant progress has been made. A statutory duty of candour has been introduced, Freedom to Speak Up Guardians have been created and an overarching whistleblowing policy has been published by NHS Improvement, in conjunction with NHS England. The statutory duty of candour, which applies to all NHS bodies and other health and social care providers registered with the CQC in England, requires the
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provider to be open and transparent with patients including providing detailed information and an apology when things go wrong with the patient’s care and treatment whether or not a complaint has been made. The duty has been expanded upon by the healthcare regulators to encompass openness and honesty within the provider organisation itself. Healthcare professionals are required to support and encourage each other to be open and honest and not stop someone from raising concerns. Freedom to Speak Up Guardians are specific individuals within an organisation to whom staff can go to raise concerns and NHS Employers offer a “guardian map” indicating which organisations have appointed their guardians already. The overarching policy, “Freedom to speak up: raising concerns (whistleblowing) policy for the NHS”, published by NHS Improvement in April 2016 for implementation by March 2017, is intended to provide a consistent approach across the sector, setting minimum standards whilst allowing organisations an element of flexibility in relation to finer details, when it is implemented. There has been acknowledgement that a ‘one size fits all’ approach would not be appropriate across the whole healthcare sector, given that smaller settings, such as GP practices, could make it more difficult for employees to feel comfortable raising concerns. Consequently, NHS England has drafted separate guidance on whistleblowing for primary care, which was consulted upon earlier this year.
What challenges remain? Whilst significant progress has been made, ongoing news reports of mistreatment of whistle-blowers at work and ruined careers show that there clearly remains room for improvement. Legal protection is provided for employees by the
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Public Interest Disclosure Act 1998 (PIDA) which protects whistleblowers from dismissal from their job or detrimental treatment where they have made a “protected disclosure” in the public interest and followed the correct procedure. Only certain categories of disclosures are protected, including reporting a criminal offence or practices which may be a danger to health and safety. Often, disgruntled employees seek to misuse the PIDA for raising personal grievances against colleagues or the organisation. These are not covered by whistleblowing law and careful redirection of concerns may be required. The fundamental challenge is legislating for culture change. Many will agree that it takes years or even decades to change the culture of a monolithic organisation like the NHS yet that is exactly what the new law, roles, policies and procedures seek to impose in an extremely short timeframe. Given the renewed focus on patient safety and care, one could argue that whistleblowing interventions come too late. Culture change will only have been achieved when individuals feel free, or even encouraged, to raise concerns and challenge behaviour within an open and supportive organisation such that the language of “blowing the whistle” on poor practice disappears from the lexicon entirely.
Whistleblowing issues in other industries In the wake of the financial crisis, concerns were raised about how the Financial Conduct Authority (FCA) safeguarded whistleblowers in the financial services sector. The FCA published new rules on whistleblowing in October 2015 applicable only to specified organisations regulated by it, which are due to take effect from September 2016. Similar to the NHS, affected organisations are required to appoint a “whistleblowers’ champion” responsible for overseeing the steps taken by the organisation to implement the new rules including the introduction of internal arrangements to protect the confidentiality of the person raising the concerns. Even the UK Government is not immune. In March 2016, the Public Accounts Committee declared itself “disappointed at the slow progress” made by the
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Cabinet Office and other government departments implementing effective whistleblowing procedures. In response, the UK Government committed to introduce improved processes by the summer of 2016, however we expect that this will have been derailed by extremely recent events.
What aspects of the healthcare sector’s approach can be adopted by other industries? Qualifying disclosures in the healthcare sector generally relate to health or safety concerns and/ or their concealment, whereas in other industries disclosures may be focussed on other issues covered by PIDA. However much of the language of the guidance remains the same – the focus is upon changing culture, so people feel comfortable and encouraged to raise concerns within an open and supportive environment. Similar challenges present themselves as for the healthcare sector in respect of changing culture and behaviour. The Freedom to Speak Up policy addresses a number of questions that a potential whistleblower may have and may prove a useful foundation for organisations outside the healthcare sector creating their own policies: •
With whom should I raise my concern?
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How should I raise that concern with them?
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What will happen after I have raised my concern?
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When will a conclusion be reached regarding my concern?
Robust, effective and embedded policies and procedures for whistleblowing will be important irrespective of the nature of a business. Staff training can be useful to ensure employees are aware of and understand new processes and are confident that their concerns will be dealt with appropriately and without retribution. Engagement from the Board and throughout the organisation is essential if culture change is to be achieved. For further information, visit www.blmlaw.com
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A NEW APPROACH TO CAUSATION IN CLINICAL NEGLIGENCE CLAIMS CASE REPORT [2016] EWHC 1604 (QB) JOHN RAGGETT V KINGS COLLEGE HOSPITAL NHS FOUNDATION TRUST AND OTHERS By Judith Kelbie LLP, Managing Partner, 7 Solicitors LLP This medical negligence case explores the cause or causes of the above-knee amputation of the claimant, Mr John Raggett (deceased), arising from the failures of three medical professionals. In summation, all three professionals failed to consider a vascular explanation for Mr Raggett’s pain, instead adamantly pursuing neuropathic solutions. This case provides an interesting perspective on causation within a medical negligence claim, as one must determine whether the responsibility for Mr Raggett’s substandard treatment lay solely with one defendant or if it was a coincidental and consistent chain of medical negligence. From the age of 36, Mr Raggett had suffered two strokes resulting in left sided hemiplegia and significant eyesight issues. Mr Raggett was thus identified as an ateriopath, a prime candidate for peripheral artery disease (PAD).
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After intense foot pain and a diagnosis of Achilles Tendonitis by his GP, Mr Raggett was referred to the Second Defendant, Mr F, an orthopaedic consultant, for an investigation into the source of pain. Mr F’s negligence lay with the ambiguity surrounding a pedal pulse test. The judge criticised the ‘slapdash attitude to his practice of medicine’ and his lack of note-taking, thus doubting the occurrence of any pedal pulse test. Mr F’s alleged claim of the presence of a pulse in the foot meant that he discounted the possibility of vascular ischaemia causing the pain, kick-starting a total misdiagnosis. If Mr F had excluded the possibility of vascular ischaemic causes, it seemed inevitable that he would have passed this onto Dr H, a pain specialist and consultant anaesthetist, during referral. Additionally, when questioning his medical competency, expert witnesses highlighted that the claimant’s unrelenting pain on five occasions should have indicated an incorrect diagnosis. This multitude
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of factors led the Judge to determine that Mr F had been negligent from the outset. The allegations of negligence against Dr H mirror those of Mr F. However, Dr H did make a note of ‘secondary ischaemia’ an inaccurate use of medical terminology and an unlikely pairing with severe neuropathic pain. Dr H failed to explore vascular origins, deeming a pedal pulse test ‘inhumane’ due to Mr Raggett’s pain levels but equally not undertaking a Doppler blood flow test. Furthermore, Dr H justified his actions with the indistinct information that previous stroke victims could develop neuropathic pain at any time. Expert witness, Dr Simpson, a pain consultant, discredited this, arguing neuropathic pain was unlikely sixteen years after a stroke. Dr H’s over-confidence and failure to revisit his misdiagnosis resulted in him being found negligent from the outset. Dr G (a consultant rheumatologist to whom Mr Raggett was referred having asked for a second opinion) also failed to diagnose ischaemic pain, instead identifying plantar fasciitis. He provided a steroid injection and local anaesthetic. Ultimately, Dr G failed to utilise proper medical practices such as investigating loss of vascular insufficiency or again checking for a pedal pulse before administering the injection. The difficulty within this case lies with apportioning medical causation through assessing the alternative outcomes if each medical professional had acted competently. Worth noting is the dismissal of the claim against the Fifth Defendant, BMI Healthcare, as their incompetent record keeping was found to have immaterial causal contribution. Three vascular surgical expert witnesses were conflicted over the impact of the defendants’ medical negligence with regards to the life-span of Mr Raggett’s leg. Professor Bradbury, a vascular surgeon, concluded that the leg could have remained viable for three to five years; a view adopted by the judge. The absence of any classical signs, such as no tissue loss up until the condition was well advanced, indicates that the arteries were not completely occluded and thus an early referral would have permitted a successful revascularisation. The other
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experts failed to reach a conclusion on the life-span of the leg due to a lack of medical images conveying when the foot had run-off. Thus, in conclusion, all three defendants were found medically negligent from the outset due to their continual failure to diagnose vascular ischaemia and its effect in triggering the amputation. The key element within this case is the division of responsibility, with the judge ultimately concluding an amassed accountability with incompetency flowing equally from three different parties.
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