The Expert Witness

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THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS

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THE EXPERT WITNESS ISSUE 10 WINTER 2015

PLASTIC SURGERY

RICS - TRAUMA - NEUROLOGY Vol 1 Issue 10 - Winter 2015 UK £5.00 Euro 6.00

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Editorial Those of you who like us attended November’s Annual Bond Solon Expert Witness Conference in November will have been stimulated by the opportunities posed by the post-Jackson environment.

Lord Neuberger’s keynote address underlined the pivotal role of the expert witness in the new landscape. The full speech can be accessed on the Bond Solon website. You can read our review and catch up on all developments in News Archive section of our sister website expertwitness.co.uk.

Also recently, a new tranche of the whiplash reforms were announced including the introduction an industry-led IT system to assure independent commissioning of medical evidence, as well as developing an accreditation scheme and implementing an industry-driven data sharing arrangements to require ‘previous claims’ checks to be conducted on all potential whiplash claimants.

As always, the Journal seeks to amplify the voice of the expert in key areas, and this issue is no exception.

Dr Carrie Pemberton Ford explores the challenges of child exploitation in an in-depth article concluding with resources to assist response readiness.

Professor Stefan Buczacki examines the role of the expert witness in the fields of botany, horticulture and plant pathology, illustrating inputs with some curious cases.

Consultant Plastic Surgeon Lena Andersson argues how the mismatch between Patients’ Expectations and Outcomes requires firmer definition of Aesthetic/Cosmetic Plastic Surgery Procedures.

John Eaton, an experienced construction industry expert witness who regularly acts in the capacity of expert witness in building disputes gives a personal account of his concerns with the RIBA Plan of Works.

From forensic meteorology to orthopaedics, there is no better place to read up on key developments and follow the thoughts of your fellow expert witness registrants.

Des Griffin Editor This Journal and any related website and products are sold and distributed on the terms and condition that: The publisher, contributors, editors and related parties are not responsible in any way for the actions or results taken any person, organisation or any party on basis of reading information, stories or contributions in this publication, website or related product. The publisher, contributors and related parties are not engaged in providing legal, financial or professional advice or services. The publisher, contributors, editors and consultants disclaim any and all liability and responsibility to any person or party, be they a purchaser, reader, advertiser or consumer of this publication or not in regards to the consequences and outcomes of anything done or omitted being in reliance whether partly or solely on the contents of this publication and related website and products.

No third parties are to be paid for any services pertaining to be from ‘The Expert Witness Journal’ The publisher, editors, contributors and related parties shall have no responsibility for any action or omission by any other contributor, consultant, editor or related party. ABC audit applied for 2015.

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News & Events

Six Banks Fined £2.6bn by Regulators over Forex Failings According to a report on the BBC website, six banks have been collectively fined £2.6bn by UK and US regulators over their traders' attempted manipulation of foreign exchange rates.

Barclays, which had been expected to announce a similar deal to the other banks, said it would not be settling at this time.

FCA boss Martin Wheatley told the BBC: "This isn't the end of the story." "The individuals themselves will face the consequences," he said.

HSBC, Royal Bank of Scotland, Swiss bank UBS and US banks JP Morgan Chase, Citibank and Bank of America have all been fined.

A separate probe into Barclays is continuing. The fines were issued by the UK's Financial Conduct Authority (FCA) and two US regulators.

Several senior traders at the banks have already been put on leave and the Serious Fraud Office is in the process of preparing potential criminal charges against those alleged to have masterminded the scheme.

The country's Commodity Futures Trading Commission (CFTC) issued fines of $1.4bn to five banks, while the Office of the Comptroller of the Currency (OCC) added $950m in further fines to three lenders.

The fines follow a 13-month investigation by regulators into claims that the foreign exchange market - in which banks and other financial firms buy and sell currencies between one another - was being rigged. ■

Separately, the Swiss regulator, FINMA, has penalised UBS 134m Swiss francs.

Billion-Dollar iPod Lawsuit According to an article in the Daily Telegraph, attorneys for consumers and electronics retailers will claim in a California federal court that Apple used software in its iTunes store that forced would-be song buyers to use iPods instead of cheaper music players made by rivals.

The fact that this case is still going 10 years later is a sign that technology often outpaces law," said Mark Lemley, a Stanford law professor.

The case harks back to the early days of digital music and portable devices, when Apple quickly became the world's biggest legal seller of downloaded songs after launching its iTunes store in 2003. By agreement with major record companies, which were wary of unauthorised copying and file-sharing services like Napster and Kazaa, Apple encoded the songs sold through iTunes with "digital rights management" software that prevented unauthorised copying. The same software, known as FairPlay, was also built into iPods. ■

The software is no longer used, but the plaintiffs argue that it inflated the prices of millions of iPods sold between 2006 and 2009 - to the tune of $350m (£222m).

Under federal antitrust law, the tech giant could be ordered to pay three times that amount if the jury agrees with the estimate and finds the damages resulted from anti-competitive behaviour.

The case was originally filed in January 2005, and one of the key witnesses will be Mr Jobs, who died in 2011 but will be heard in a videotaped deposition. Attorneys took his deposition on April 12, 2011, six months before his death.

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Contents

Some of the highlights of this issue News and Events

Page 2

Cardiff Law School Makes History

Page 13

Bond Solon Annual Expert Witness Survey and Conference Review

Page 15

Tree Health - Being Equipped to Respond by Mark Chester

Page 25

The Horticulturist as Expert Witness by Professor Stefan Buczacki

Page 29

Resolving Construction and Engineering Disputes by Martin Burns Head of ADR R &D at RICS

Page 33

The Completion of Construction Projects by John Eaton RIBA

Page 36

Scalding by Stephen Walsh

Page 45

Crash Investigation - A History by Rob Newton of RN Associates

Page 52

When Ability Matters by Ability Matters

Page 57

An Expert’s Guide to Designer Drugs by Dr Bernard Leddy

Page 61

Expert Evidence in Chronic Pain by Dr H Koch, Mr J Mackinnon, Dr C Harrop and Dr E Boyd

Page 66

The Quality and Efficency of Care by Cathie Bree-Aslan

Page 70

Failure to Examine the Evidence by Dr Angus Strover

Page 76

Head Injuries in the UK

Page 81

Treatment of Early Osteoarthritis by Mr Ian Forster

Page 86

Four Steps to Rebuilding Emergency Medicine by Gordon Miles

Page 92

Whiplash in Dentistry by Dr Edwin Bonner

Page 96

Missed Opportunity and Lost Vision by Mr Kim Hakin

Page 100

Cataract Surgery Negligence by Professor Charles Claoue

Page 103

Mismatch Between Patients Expectations and Outcomes

by Lena C Andersson

Page 107

Scarring in Plastic Surgery by Mr J M Porter

Page 110

Bystander Coronary Artery Disease by Dr Duncan Dymond

Page 115

The challenge of Contemporaray Child Sex Exploitation and Internal Sex Trafficking by Dr Carrie Pemberton Ford

Page 117

All rights reserved, material in this publication may not be reproduced without written consent.

Editorial material and opinions expressed in The Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal. The publisher does not accept responsibility for advertising content.

The information in this magazine does not constitute a legal standpoint. Printed in England 2014.

The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk

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News & Events New Dogs Law Bites The Government has introduced stronger laws about dangerous dogs, and increased the penalties that can apply to people who allow dogs to be dangerously out of control.

They apply if a dog is causing a nuisance to people, for example by repeatedly escaping from a garden, or by acting aggressively towards visitors or other animals.

If someone complains to the council or police about a dog, its owners could be ordered to do any or all of the following: • attend dog training classes • muzzle the dog or require it to be on a lead in public • require the dog to be microchipped and or neutered • repair fencing to prevent the dog leaving the property

It’s now against the law to let a dog be dangerously out of control anywhere. This change came into force in May 2014 so that people could be prosecuted if their dogs carried out an attack anywhere, including in the owner’s own home.

It increased the maximum prison sentences to: • 14 years for a fatal dog attack • 5 years for injury • 3 years for an attack on an assistance dog

Police and local authorities can demand that owners take action to prevent a dog attack; if the owners don’t do so, then they will risk a fine of up to £20,000. ■

It has also introduced new laws to help local authorities or the police to prevent dog attacks, which came into force on 20 October 2014.

£2 Billion Needed to Prevent NHS Crisis says The King's Fund The King's Fund has called for an additional £2 billion in funding for the NHS ahead of the Autumn Statement.

increasing numbers of vulnerable patients with mental health problems are being admitted to hospital, held in police cells and sent a long way from their local area for treatment.

The think tank argues that the settlement agreed for the NHS in 2015/16 should be re-opened to prevent a financial crisis. Unless this money is found, it says patients will bear the cost as staff numbers are cut, waiting times rise and quality of care deteriorates.

Chris Ham, Chief Executive of The King's Fund said: 'There is scope to improve productivity in the NHS, but this will not be enough to respond to unprecedented pressures on budgets and meet rising demand for services. Recent pledges from the main political parties to increase funding are welcome but it is clear that none of them have yet addressed the scale or the urgency of the financial challenge facing the NHS. With deficit reduction still a high priority, finding an additional £2 billion in the Autumn Statement is a very big ask. However, unless more money is found, a financial crisis is inevitable next year and patients will bear the cost as waiting times rise and quality of care deteriorates.'

Figures published in November show that, halfway through the year, provider trusts are in deficit by £630 million, significantly worse than at the end of the first quarter. At the same time, NHS performance is beginning to slip, with A&E waiting times at their highest levels at this time of year for a decade and target waits for hospital treatment, diagnostic tests and cancer treatment being breached on a regular basis.

The NHS faces huge pressures as a result of an unprecedented funding squeeze, rising demand for services and the need to safeguard quality of care following the Francis report into the tragic events at Mid Staffordshire NHS Foundation Trust. In addition to the challenges facing hospitals, the briefing highlights pressures on general practice and mental health services, with evidence suggesting that EXPERT WITNESS JOURNAL

The King’s Fund’s briefing on the Autumn Statement was published on Wednesday 26 November. To request a copy of the briefing or an interview with one of their spokespeople, please contact the Press and Public Affairs team on 020 7307 2585 (if calling out of hours, please ring 07584 146035). ■ 4

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News & Events

Boris Johnson Seeks Judicial Control Boris Johnson wants to secure control of the courts and the prosecution service, a move which would put London’s mayor in charge of the criminal justice system in the capital, according to the Guardian.

He is quoted as saying: “The criminal justice system should be held to account as the Met is in London, otherwise these are unaccountable agencies not answering to the people of London.” The different parts of the justice system “play pass the parcel” when it comes to problem solving, he said.

It states that the plans would see a New York-style system, where its mayor holds to account those responsible for investigation and arrest, through to charging, prosecution and sentencing.

Greenhalgh said savings would come from getting the police, courts and prosecutors answerable to the same goals and by “co-locating them in the same buildings, working off the same IT systems, with the same priorities.”

It says that Stephen Greenhalgh, Johnson’s deputy mayor for policing, believes devolution would deliver a better service and allow a greater focus on the holy grail of the justice system: reducing repeat offending.

He said the justice system was stuck in the past: “It is a 19th-century construct with 19th-century technology which needs to move into the 21st century.” ■

3D Printed Heart to be Showcased EuroEcho-Imaging is the leading congress for clinicians and scientists to present and discuss the latest research and clinical findings on echocardiography and other cardiovascular imaging techniques. In early December 2014, it will reveal state of the art technologies for choosing implants and guiding procedures.

echocardiography, has become the primary method for diagnosing patients with unstable cardiovascular disease in the acute setting.” ■

Professor Patrizio Lancellotti, EACVI President, said: “The heart is a 3D structure that we traditionally analysed using 2D imaging including echocardiography, cardiac magnetic resonance imaging (CMR) or cardiac computed tomography (CT). But with the advent of 3D imaging, now we can clearly evaluate the structure of the heart in different planes.”

Consultant Cardiologist

Dr Khalid Mahmood MB ChB MRCP (UK) Mr Khalid Mahmood is a Consultant Cardiologist and the clinical lead for cardiology at The Solihull Hospital in the West Midlands.

He has experience in Non Invasive and Invasive Cardiology including a lead role in the Transoesophageal Echocardiography service, supportive roles in stress Echocardiography, pacemaker clinics and cardiac CT service.

Mr Mahmood is proficient in permanent pacemaker insertion, cardiac catheter work, diagnostic catheterisation (left and right heart) and has experience in interventional cardiology.

He added: “An amazing advance in this field is the ability to print a 3D model of the heart. This will help clinicians doing surgical and percutaneous interventions on the mitral or aortic valve to choose the perfect size of device and plan the procedure according to the patient’s anatomy. Also new is the ability to create a 3D computational model of the heart which will assist with interventions but also improve our understanding of the heart’s physiology. With this novel technology we will gain insights into the interactions between the valves and the ventricles, the valves and the aorta, and the valves and the left atrium.”

Mr Mahmood has clinical governance expertise as lead in quality control of transoesophageal echocardiography. He is involved in audit, informal appraisals with senior colleagues and attendance at grand rounds/MDT meetings.

Imaging in acute cardiac care is the second theme, with hot topics in the programme including stress imaging to rule out myocardial ischaemia. Prof Lancellotti said: “Imaging, especially

EXPERT WITNESS JOURNAL

Tel: 07795 460 224 Email: khalidmahmood99@hotmail.com Spire Parkway Hospital 1 Damson Parkway, Solihull, West Midlands B91 2PP

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News & Events

Changes to Employment Law have come into Force on 1 December 2014 Bond Dickison have released a brief summary of changes which came into force in December. • Shared parental leave regulations come into effect on 1 December 2014 and will apply to those whose expected week of childbirth begins on or after 5 April 2015.

In earlier briefings, they have reported that the Government was planning to bring section 56 of the Data Protection Act 1998 into force on 1 December 2014. This section prevents employers from requiring people to use their subject access rights under the DPA to obtain and then provide certain records, eg criminal records, as a condition of employment.

• Employees will be prevented from taking paternity leave if they have already taken shared parental leave for the same child.

It has now been announced that there will be a delay to the proposed date for commencement of S56. No new date has been announced yet. â–

• Amendments will be made to the right to return after paternity or adoption leave as a result of shared parental leave regulations.

If you would like to discuss any of these issues, please contact Karen Plumbley-Jones, Associate Practice Development Lawyer on +44 (0)1752 67 7903 Or visit www.bonddickinson.com/insight

• The new Fit for Work scheme is expected to start being rolled out some time in December.

Update on commencement of Section 56 of the Data Protection Act (DPA) 1998:

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News & Events

Mental Health Taskforce to Tackle £100 Billion Problem • 2.3 million people with a mental health condition are out of work and mental health conditions are the primary reason for claiming health related benefits

In November 2014, the Deputy Prime Minister announced that he will establish and chair a new Mental Health Taskforce, following news of a £120 million investment commitment in mental health the month before.

• Mental illness costs the country as much as £100 billion each year through lost working days, benefits and treating preventable illness

Nick Clegg said: “Mental health affects every aspect of our lives. One in 4 people in the UK will experience a mental health problem and it costs the country more than £100 billion. This is too big an issue for the NHS to deal with alone. The whole of government needs to combine its efforts and pool its resources to help the millions of people whose mental health condition is preventing them from getting on in life.

• The most common mental health problem is depression which is experienced by 8 to 12% of the population The Taskforce will examine improving services for young people as well as the crisis of the alarming numbers of people with severe mental health problems ending up in police cells and prisons. Too many people in the middle of a mental health crisis end up locked in police cells after being turned away from hospitals, because of full wards, staff shortages or because they are too young or too drunk, according to the Care Quality Commission.

Mental health statistics released at the time of the Taskforce announcement reinforce the severity of this care and support challenge: • 1 in 4 people in the UK will experience a mental health problem each year • 3 children in every classroom have a diagnosable mental health condition

Police cells are inappropriate and make people feel "punished for being unwell", according to the charity ‘Mind ‘. It is estimated that between 2012 and 2013, in total 21,814 people were detained by the police under Section 136 of the Mental Health Act. ■

• Only a quarter of people with a common mental health problem get treatment, mostly in the form of medication • 90% of prisoners have at least one mental health disorder, including personality disorder, psychosis, neurosis, alcohol misuse and drug dependence

The Actuary as an Expert in Legal Proceedings: New Actuarial Profession Standard The Institute and Faculty of Actuaries (IFoA) is introducing a new mandatory Actuarial Profession Standard (APS) in relation to members instructed (or contemplating instructions) to act as an expert in legal proceedings:

relating to actuaries instructed as expert witnesses or expert advisers.

Actuarial Profession Standard X3: The Actuary as an Expert in Legal Proceedings

Version 1.0 of APS X3 comes into effect on 1 January 2015. This replaces the existing Information and Assistance Note: The Actuary as an Expert Witness, which will be withdrawn at the same time.

The Professional Standards Directory is designed to permit members and others to access the IFoA Actuarial Profession Standards, together with the current Financial Reporting Council Standards.

The APS is accompanied by a detailed guide, which is intended to assist those who are instructed as expert witnesses or expert advisers, as well as those thinking about accepting such instructions.

The IFoA had previously consulted upon a proposal to introduce a new Actuarial Profession Standard (APS)

The guide is focused primarily upon UK legal proceedings, but the Institute anticipates that the guidance might be useful in other jurisdictions as well.

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Events improve the connection with your supply chain adding immense value to your projects.

To find out more or to book, contact RICS Training: Web: www.rics.org/uk/training-events Tel:0207 695 1600

Talking Life Court Skills and Expert Witness Training (2 day) Starting 12th February 2015 09:00 in Manchester Starting 17th June 2015 09:00 in London Starting 19th june 2015 09:00 in Bristol Contact: Tel: 0151 632 0662 Web: www.talkinglife.co.uk

RICS BIM Conference 2015 London, 12 February 2015 Returning for the 4th year with clear guidance from experts on how BIM is used on projects, in various sectors, and the experiences of the practices on their journey of implementing BIM

Bond Solon Courtroom Skills (1 day) Starting 08 Jan 2015 09:30 in London Starting 03 Feb 2015 09:30 in London Starting 24 Feb 2015 09:30 in Manchester Starting 10 Mar 2015 09:30 in London

The Law Society Legal Aid Annual Conference 2015 London, 19th March 2015, 9.00am-5.00pm The Law Society’s fourth legal aid conference will provide up to date information and relevant business advice to help support practitioners operating in difficult times. This essential event, presented by subject matter experts, will include two plenary sessions and practical breakout sessions covering: • Digital working in crime and civil • Financial health check for your firm • Managing your legal aid contract • Maximising your criminal fee • Benefits of in house advocacy • Operating under LASPO’

Cross-Examination Day (1 day) Starting 09 Jan 2015 09:30 in London Starting 04 Feb 2015 09:30 in London Starting 25 Feb 2015 09:30 in Manchester Starting 11 Mar 2015 09:30 in London Civil Procedure Rules for Expert Witnesses Certificate Starting 05 Feb 2015 09:30 in London Starting 26 Feb 2015 09:30 in Manchester Excellence in Report writing Starting 07 Jan 2015 09:30 in London Starting 02 Feb 2015 09:30 in London Starting 23 Feb 2015 09:30 in Manchester Starting 09 Mar 2015 09:30 in London

The Law Society – Recent Developments at the European Court of Human Rights London, 12th March 2015, 6.00-8.00pm

Experts Meeting Overview Starting 21 Apr 2015 09:30 in London Contact: Tel: 020 7549 2549 Web: www.bondsolon.com

The Law Society – The European Court of Human Rights and international criminal law London, 5th March 2015, 6.00-8.00pm

RICS Dispute Resolution Conference London, 28 Jan 2015 Practical contract, risk and relationship mechanisms for avoidance The annual RICS Dispute Resolution Conference will focus on practical contract, risk and relationship mechanisms for a quick resolve or dispute avoidance in your commercial projects. Each session will examine in depth current successful and unsuccessful practice in order for you to take back practical knowledge of dispute resolution for immediate implementation. Speakers will present new options in contracts, best practice case-studies and essential skills around negotiation, engagement and relationships. Ultimately, you will gain a commercial perspective to manage and mitigate risk, EXPERT WITNESS JOURNAL

UCL On the Historicity of Financial Crime London, UCL Laws, Bentham House 10th February 2015, UCL – Common Law and Statute in the Law of Employment London, UCL Laws, Bentham House 12th March 2015, 6.00-7.00pm

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Events The Academy of Experts

Forensics Expo

All courses based in London TAE offers a comprehensive range of training programmes for Expert Witnesses and Mediators.

This enables both TAE members and others to develop their skills, and undertake Continuous Professional Development activity.

Courses range from basic Role and Responsibilities through to the requirements of Procedure Rules and the practice of Giving Evidence.

Forensics Europe Expo, 21 - 22 April 2015, Olympia, London is the only premier dedicated international exhibition and conference for the entire forensic sector and supply chain.

17th Feb 18th to 19th Feb 25th - 26th Feb 27th Feb 19th Mar 22nd to 23rd Apr 12th May 13th May 12th Jun 24th - 25th Jun 16th - 17th Sep 18th Sep 30th Sep 01-Oct 17th - 18th Nov 25th Nov 26th Nov

The 2014 edition of the show was a huge success with leading UK and International forensics professionals coming together to network, learn, and source new products and innovations. The event was a hive of activity with numerous show floor product demonstrations running alongside a top-level conference programme.

The 2015 event promises to be bigger and better with over 100 global exhibitors showcasing their latest innovations to an audience of senior buyers and specifiers. www.forensicseuropeexpo.com

Advanced Courtroom Skills Expert Determination Foundation Course Procedure Rules Into Court Foundation Course Law Procedure Rules Into Court Foundation Course Foundation Course Procedure Rules Into Court Law Foundation Course Into Court Procedure Rules

Chartered Institute of Arbitrators 10 Feb 17 – 18

Introduction to Mediation Feb - Accelerated Route to Membership (International Arbitration) 10 March Introduction to Alternative Dispute Resolution 12 March Introduction to Construction Adjudication 16 – 23 March Commercial Mediation Training The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP T: +44 (0)20 7421 7439 F: +44 (0)20 7404 4023 E: education@ciarb.org W: www.ciarb.org

The Academy of Experts 3 Gray's Inn Square, London WC1R 5AH DX 283 - London, Chancery Lane www.academyofexperts.org

Talking Life is the No.1 choice for high quality training in the Public, Private and Voluntary sectors. Established for more than 15 years, we offer a portfolio of over 1000 in-house courses and a small number of specialised open-access courses which we can deliver from as little as £250 (+ vat) for a half day training course.

Talking Life has developed a high quality range of legal courses in recent years which has attracted outstanding feedback across our client database. Our Achieving Best Evidence (ABE) course uses highly innovative techniques, including the use of actors and our Court Skills training is second to none (though we say it ourselves!).

Our Court skills and Expert Witness training team is led by a senior practising Barrister and our ABE course is led by a former senior specialist police officer.

At Talking Life we pride ourselves in exceeding our clients’ expectations.

Through our training courses we believe that we can make a positive difference in today’s workplace.

Download the current Legal brochure from our website at www.talkinglife.co.uk or call on 0151 632 1206

Telephone: 0151 632 1206 Fax: 0151 632 1206 Email: info@talkinglife.co.uk or enquiries@talkinglife.co.uk Website: www.talkinglife.co.uk Talking Life Ltd 36 Birkenhead Road, Hoylake, Wirral, CH47 3BW

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Association Focus The Society of Consulting Marine Engineers and Ships Surveyors (SCMS) In this issue we focus on The Society of Consulting Marine Engineers and Ship Surveyors (SCMS) which was was founded in 1920 to provide a central organisation for Consulting Marine Engineers, Naval Architects and Ship Surveyors.

In late 1919 a number of distinguished Marine Consultants in the UK thought that their profession would benefit from the creation of an appropriate professional Society to set standards and represent the active practitioners in the field.

In March 1920, after agreeing it’s Memorandum and Articles of Association, The Society of Consulting and Marine Engineers and Ship's Surveyors was legally established as a professional body. Its founders insisted that it should be an association of experienced and established professionals who would be committed to the pursuit of excellence in the execution of their professional expertise.

the full range of services may not be offered by every member it is shared by the total membership, and whatever service may be required it is sure to be available in the repertoire of some member or members.

In 2005 the Society became a member of Federation of European Maritime Associations of Surveyors and Consultants (FEMAS). The main benefits of FEMAS Membership are to enable the Society to have a say in the deliberations of the European Parliament and to help ensure high standards for European Marine Surveyors are maintained. SCMS have also been appointed as an Authorised Certifying Authority by the Maritime and Coastguard Agency (MCA) for statutory surveys of small commercial vessels, police vessels, pilot boats and small workboats; and actively participates within the various MCA working parties in their policy of delegation of statutory surveys and certification. The Society is actively involved in harmonising the various MCA Small Vessel Codes. â–

Members' clients include ship owners, marine underwriters, average adjusters, P & I clubs, ship and engine builders, salvage associations, class societies, statutory authorities, offshore industry, harbour authorities, legal profession and others.

Many of the Society's members act as Expert Witnesses , participating in arbitration either as arbitrators or as expert witness, advisers in charter party disputes, and as technical advisers to the Chair or Enquiry Panel in marine enquiries and investigations.

SCMS The Society of Consulting Marine Engineers and Ship Surveyors The Society of Consulting Marine Engineers and Ship Surveyors (SCMS) was founded in 1920 to provide a central organisation for Consulting Marine Engineers, Naval Architects and Ship Surveyors.

Our website provides details of the Society's aims and objectives, activities, membership, services, and includes a Members Directory.

Members are spread around the world. Clients include ship owners, marine underwriters, average adjusters, P & I clubs, ship and engine builders, associations, class societies, statutory authorities, offshore industry, harbour authorities, legal profession and Owners of workboats and small charter vessels. The Society is an authorized Certification Authority for the Marine & Coastguard Agency's Small Vessel Safety Codes..

One of the principal objectives of the Society has been to ensure that its members should have both the academic qualifications and the practical experience necessary for the proper execution of the professional services they are offering, this objective being secured by requiring applicants for Membership to submit acceptable CV supported by three Members or Fellows of the Society having personal knowledge of the applicants as sponsors.

EXPERT WITNESS AND TECHNICAL ADVISERS SCMS members may also act as expert witnesses, participate in arbitration either as arbitrators or as expert witness, advisers in charter party disputes, and as technical advisers to the Chair or Enquiry Panel in marine enquiries and investigations.

While the Total range of service may not be offered by every member it is shared by the total membership, and whatever service may be required it is sure to be available in the repertoire of some member or members.

Every year a Members directory is sent to every member and industry contacts worldwide. The Society's members offer a comprehensive range of technical marine services, academic and practical capabilities derived from extensive expertise. While EXPERT WITNESS JOURNAL

Offices: 202 Lambeth Road, London, SE1 7JW Telephone: +44 (0)207 261 0869 Fax: +44 (0)203 292 1581 Email: sec@scmshq.org Web: scmshq.org

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The Academy of Experts In this issue we focus on The Academy of Experts (TAE). Now located in Gray’s Inn Square in London, TAE was founded in 1987 with the objective of providing, for the first time, a professional body for Experts to establish and promote high objective standards. Although there is representation on the Academy’s Council from the legal profession the majority of the officers, including the Chairman, are practising Experts TAE is run by Experts for Experts and those using them. All applicants to The Academy who wish to become Accredited Practising Expert Witnesses undergo a rigorous vetting procedure to ensure standards of excellence are maintained.

Procedure Rules The optimum timing is as soon as convenient after attending the Foundation Course. Because this course covers the procedures which must be followed, it should be ‘sooner’ rather than ‘later’.

Attendance on the Foundation Course or suitable prior experience is advisable to gain maximum advantage from this course.

Practical Law for Experts This is not a particularly time sensitive course in that it supplements knowledge of a general legal nature and so it can be taken at any time.

The Academy offers a comprehensive range of training programmes to enable members to develop their expert skills, and undertake Continuous Professional Development activity.

Courses range from basic Role and Responsibilities through to the requirements of Procedure Rules and the practice of Giving Evidence. The Academy is also a training and accreditation body for ADR Neutrals, including Mediators, Conciliators and Expert Determiners. It publishes and maintains The Register of Qualified Dispute Resolvers and awards the designatory letters QDR to those achieving the approved standard. Standards are enforced in exactly the same way as for experts.

This course can be of value to you in everyday commercial life as well as for your Expert practice.

Into Court…

There is more than one ‘best’ time for this course.

This course is designed for those starting their Expert careers although everybody benefits from honing their skills.

Into Court... should not normally be undertaken before the Foundation Course or without some other appropriate experience.

The Academy’s training courses for Expert Witnesses cover a wide range of subjects all valuable for the practising Expert Witness from the experienced to the new practitioner. Expert Witness journal takes a look at some of the of courses available at TAE.

You will gain the greatest benefit by attending this course shortly after the Foundation Course and/or as a refresher/confidence builder just before a court or arbitral appearance.

Expert Determination Expert Determination is a form of Alternative Dispute Resolution involving the use of an independent Expert to investigate the referred matters and to give his Determination which is binding on the parties.

Foundation Course This is a two day course before for those who have not undertaken any Expert Witness work before, It would probably be useful to attend this course before you accept instructions.

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Although not strictly an ‘Expert Witness’ training course Expert Determination is included here as it is a valuable adjunct to the other courses.

Details of all the courses available can be viewed on the Academy’s website www.academyofexperts.org which also has information regarding TAE, its work, and membership along with many resources useful to the practising expert; courses are also available as in-house or bespoke courses. ■

This can be undertaken at any time but ideally before accepting an Expert Determination appointment!

The Judicial Committee TAE’s Judicial Committee is chaired by a former Supreme Court Judge, and consists of Lords Justice of Appeal and other Senior Judges from the United Kingdom (including Northern Ireland) and Hong Kong.

The Judicial Committee has been responsible for a number of important documents and guidance notes for experts.

The Judicial Committee’s publications have included: The Model Form of Expert’s Report (as commended by Rt Hon Lord Woolf), Guidance Notes on The Meetings of Experts and Guidance Notes on Contingency Fees for Experts.

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All Members are vetted by our experienced panel before being accepted as an accredited member of the Academy gaining the prestigious AMAE, MAE and FAE accreditations.

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Cardiff Law School Innocence Project Makes History Cardiff Law School Innocence Project made history in December, as the Court of Appeal announced its decision that Dwaine George’s conviction for murder was unsafe. wanted - I have lost a lot of my life that I can't get back, but I just want to get on with my life now. I hope the Cardiff innocence project will get all the recognition it deserves for this. I want to thank all those who helped me - the students and staff at Cardiff, my solicitor David McCorkle, James Wood QC and Tunde Okewale from Doughty Street Chambers".

Last year, Cardiff became the first university innocence project in the UK to successfully have a case referred to the Court of Appeal after submission to the Criminal Cases Review Commission (CCRC). After almost ten years of investigative work by students and academics on dozens of cases in innocence projects in more than twenty universities across England and Wales, this judgment is the first appeal success.

Cardiff University’s Innocent Project was launched in 2006 and was one of the first three innocence projects in the UK. The project allows students who are passionate about investigating alleged miscarriages of justice to work, often under the supervision of practising solicitors and barristers, on cases of long-term prisoners who maintain their innocence of serious crimes for which they have been convicted.

The case of Dwaine George, who was convicted of murder at the age of 18 and has since served 12 years in prison, was heard at the Royal Courts of Justice on 6th November.

Professor Julie Price and Dr Dennis Eady jointly run the project. They were joined at the Royal Courts of Justice by thirty Cardiff law students, past and present, to see the result of the students’ investigative work presented by barristers to a panel of appeal court judges, chaired by Sir Brian Leveson.

Referring Dwaine George’s appeal, the CCRC said “Cardiff University Law School Innocence Project has made a very significant contribution to the case and to the referral of Mr George’s convictions".

Hearing the decision, Dr Dennis Eady said: “It has taken nine years of hard work since the project was launched to get to this point, and based on our students’ efforts the Court of Appeal has decided that Mr George’s conviction is unsafe. This is a very sensitive matter as a young man was murdered. We appreciate that today’s decision will be difficult for Daniel Dale’s family, but if the wrong person was jailed then the right outcome has today been achieved.”

Tunde Okewale, a barrister at Doughty Street Chambers in London who acted for Mr George in the appeal said, “It was a pleasure to work with the Cardiff Innocence Project. Their hard work and commitment to justice was an integral part of this historic outcome”.

James Wood QC said, “The work of the Innocence Project of Cardiff University essentially contributed magnificently towards overturning this abiding miscarriage of justice. Dwaine George had been convicted upon flawed voice identification evidence, and flawed microscopically minuscule gunshot residue on an item of clothing seized from

Dwaine George said, “First and foremost, my thoughts go out to Daniel Dale's family. He lost his life in this tragic event and I always said I wasn't responsible for that. Today I have got the result I EXPERT WITNESS JOURNAL

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his cellar, which science now discloses could not bear the burden of his conviction. Dwaine protested his innocence throughout his long imprisonment and obtained a degree whilst incarcerated. He can now seek to put his life together gain as an innocent man wholly vindicated by this judgment”.

to work with universities to press for changes in the law we argue they need. The appeals system is problematic – just look at how long it’s taken with this case, and this is the first of its kind. There are many meritorious cases that will not be overturned as the law currently stands. “Beyond reasonable doubt” goes out of the window at appeal stage. But miscarriages of justice attract little political and public interest, and with the attack on legal aid the problem is going to get worse. University projects are a sticking plaster only and cannot replace a properly-funded legal aid system. Where there is a wrongful conviction, there is more than one victim and acknowledgement of this fact this does not detract from the absolute respect and sympathy we have for the plight of victims of crime”.

According to The Independent, the students who took on the case studied court papers and examined scientific papers while studying for their own law degrees. “They visited Mr George in prison and secured their own expert witness reports that questioned the confidence that the residue could used to prove his guilt.”

Professor Julie Price said, “For Cardiff Law School Innocence Project, and other university projects working on alleged wrongful conviction cases, this is a significant day. It demonstrates that universities are about more than research, and can show public impact from innovative teaching and learning”.

Caitlin Gallagher who worked on the case as a student and on the appeal as a trainee solicitor said, “Dwaine inspired the team at Cardiff Law School to join his long journey to clear his name through a scheme that doesn't just educate, but enthuses and assists students to pursue a career in criminal law. I feel extremely lucky to have been part of such a unique and driven team of staff and students, all working towards overturning miscarriages of justice.” ■

She continued, “This result has been achieved by collaborative effort; a huge thanks to our many supporters, and students past and present. Also to the CCRC for their hard work here - we urge them

Is your opinion worth a million?

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Many of the witnesses in the case were professionals who specialised in user interface technology, patent protection and wireless communications.

Obviously this was an exceptional case.

But the UK is almost certain to follow suit in terms of an increasing demand for forensic specialists and digital technologists capable of rising to new investigative and disclosure challenges.

Make yourself available by starting with your profile on the No.1 Google ranked website www.expertwitness.co.uk and complementary platforms.

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The Bond Solon Annual Expert Witness Survey Conducted at the Bond Solon Annual Expert Witness Conference, 7th November 2014. Published: 14 November 2014.

186 experts completed the survey Expert witnesses say they are under increasing pressure to change their reports, according to the latest Bond Solon Annual Expert Witness Survey.

In a survey of 186 expert witnesses, 55 respondents said they had been asked to, or felt pressurised to, alter a report, in a way that damaged their impartiality.

for wasted costs.” Another expert reported how he experienced: “the salami technique of redaction (until) gradually the essence of my argument was lost”. Yet another was asked to change a claimant’s past medical history while others were asked to remove damaging comments or take out certain evidence.

Witnesses’ experiences ranged from being asked to remove sections of reports which were seen as damaging to the client’s case to being asked to re-write in their favour. Other experts said some solicitors had even refused to pay them if they felt they had written an “unhelpful” report. One said: “A leading firm of solicitors tried to pressurise me on more than one occasion as the client didn’t like my conclusions.” Another expert witness said: “Solicitors were asking for the report to be changed materially to the client’s advantage. Other solicitors were asking for quoted GP notes entries to be changed. I always refused.”

The duty of an expert witness to the court rather than client is highly topical as it follows on from a BBC Panorama investigation broadcast this summer. The programme found experts in handwriting, CCTV analysis and animal behaviour prepared to help clients hide the truth in breach of their professional obligations. Following on from this, the subject of the “hired gun” was raised in the Bond Solon survey and an overwhelming 45 per cent of expert witnesses said they had encountered what they believed to be hired guns in the last 12 months.

This raised the question of greater regulation of the profession. As an industry, expert witnesses have never been regulated, although there have been calls in the past for greater powers to police them. In recent years, miscarriages of justice such as the cases of Sally Clark and Angela Cannings, both convicted of killing their babies and then cleared on appeal, have highlighted the difficulties.

The survey found that an overwhelming majority of respondents believe better regulation is needed of expert witnesses. A total of 82 experts said they believe in some form of regulation, while just over a third disagreed. Similarly, around a third of respondents believe mandatory accreditation will improve standards of expert witnesses.

Expert witnesses are currently bound by civil, criminal and family procedural rules. The civil and criminal procedural rules state that those giving expert evidence must have a duty to justice above their duty to the person paying for their services.

The survey found that contrary to these rules, experts were being put under varying amounts of pressure to disregard their objectivity.

One expert witness wrote: “A case of overt bullying.

Solicitor had a weak case and was clutching at straws. Solicitor told me: “You have a duty to the court to do as instructed by solicitor”. I knew that to be wrong. Solicitor threatened I would be liable

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4 The government is carrying out a consultation on accrediting experts who undertake soft tissue personal injury (whiplash) claims. Do you feel that mandatory accreditation within your area would improve standards?

Yes 64 No 70 Don't know 48 No answer 4

1 Over the last 12 months, have the number of your instructions: Gone up 94 Gone down 31 Stayed the same 59 No answer 2

Comments Nearly half of respondents reported that the number of their instructions had increased this year. A total of 94 experts said their workload had risen. This is a large increase on last year’s survey where the number was 75. Fewer experts reported their caseload decreasing this year.

Comments Around a third of respondents believe mandatory accreditation will improve standards of expert witnesses. However, a greater percentage felt accreditation would have no effect.

2 What is your average hourly rate for report writing?

Average £177 Lowest hourly rate £32 Highest hourly rate £500

5 In the last 12 months, have you come across an expert that you consider to be a ‘hired gun’?

Yes 84 No 101 No answer 1

Comments The average hourly rate for report writing increased slightly this year, from an average of £174 last year to an average of £177. The lowest hourly rate also increased from an average of £30 last year to £32 this year. The highest hourly rate rose from £480 to £500.

3 How does this relate to your average hourly rate in 2013?

Higher 29 Lower 15 The same 135 Did not work as an expert in 2013 2 No answer 5

Comments Nearly half of respondents (45 per cent) encountered what they believed to be “hired guns” in the last 12 months, a huge number and particularly significant in the wake of the Panorama investigation into fraudulent experts. In contrast, 101 experts confirmed that this was something they had not come across in the course of their work.

Comments Rates are fairly static, showing only a minor increase on last year.

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NOTES: In questions 7 (In the last 12 months have you been asked to, or felt pressurised to, change your report in a way that damages your impartiality?) we also asked a follow-up question.

If yes, please give an example: (Below are some examples)

6 Do you think better regulation of expert witnesses is needed?

Yes 82 No 73 Don't know 31 No answer 0

Client direct phone call, which was rebuffed, wanting me to change an element of my report.

The barrister asked me to redact a passage in my report which described what the defendant had told me about the alleged events. The barrister said I had not been asked about this (I was asked about fitness to plead) and it was problematic as it differed from what the defendant had previously said.

Most lawyers try this but none succeed!!

A report scanned, emailed back with alterations to the opinion handwritten into the margins.

Comments An overwhelming majority of respondents (44 per cent) believe better regulation is needed of expert witnesses. A total of 82 experts said they believe in some form of regulation, while just over a third disagreed.

A leading firm of solicitors tried to pressurise me on more than one occasion as the client didn’t like my conclusions.

Sometimes asked to leave out.

Solicitors asking for the report to be changed materially to their client’s advantage. Always refused unless they provide evidence. Solicitors asking for quoted GP notes entries to be changed. Always refused no matter what.

7 In the last 12 months have you been asked to, or felt pressurised to, change your report in a way that damages your impartiality?

Yes 55 No 129 No answer 2

I wrote a negative medical negligence report for a claimant’s solicitor. 2 years later I was approached by a different solicitor for the claimant, I was presented with over 300 questions on my original (40 page) report to answer. Included in the questions were questions from the claimant asking whether I had sufficient experience as “an expert witness for a claimant” because I had produced a negative report. I thought the solicitor acting for the claimant should have informed the claimant of the need for the expert to be impartial, and that I was being placed under unreasonable pressure to change my report to be more favourable to the claimant.

Given evidence to consider, written a report and then counsel asked me to disregard that particular piece of evidence which damaged the clients’ case. I refused.

I have had a phone call from another consultant who was clinically in charge of a patient who was claiming negligence against a previous consultant. The phone call was to pressurise me into coming down more firmly against the defendant. Because of his pressure the claimant also wrote to me to pressurise. It is back in the hands of his solicitor – I have not changed my opinion!

Comments Nearly a third of expert witnesses reported being asked to change a report which affected their sense of neutrality. A total of 55 witnesses said this was something they had felt pressurised to do in the last 12 months. Encouragingly, 69 per cent said this was something they had not experienced.

EXPERT WITNESS JOURNAL

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task at conference for making the defendant’s case for them. I was asked to rephrase the report to make it more favourable and I refused.

Disagreed with medical opinion, was asked to change recommendations without any firm evidence to support medic’s view.

Been asked to remove sections of report which were deemed non relevant as they were not within my area of expertise. I pointed out this should be mentioned and referred to the appropriate experts in that field. Despite not being my expertise I nevertheless realised that this was a significant factor to be taken into account and needed to be mentioned as it was inappropriate not to take this into account. I pointed out the report was done for the court.

I am often asked to read the initial often undated witness statement and consider it in forming my opinion but NOT refer to it as a document I have read as my initial report will not be disclosed but probably amended following discussion with counsel and then disclosed! I decline to read the witness statement!

Removing damaging comments and conclusions in a drink driving case.

I was asked to omit a reference to an entry in medical records that contradicted claimant’s account in a small but significant way. I refused to make the change. The solicitor argued that the claimant has misunderstood my questions.

I said I would be happy to write a letter saying that such were the solicitor’s instructions and that they could be correct, or to see the claimant again to go over the point.

The solicitor accepted a supplementary letter.

Add or subtract material to a report. E.g. diagnosis of “Nervous Shock” as a medical entity rather than commenting on the symptoms as being potentially reflective of a “horrifying/shocking” experience.

In personal injury cases, the claimant misunderstands the role and duty of the expert, misunderstands the experts opinion (to the court) and pressures the solicitor who then pressures the expert to change a conclusion to fit the claimant’s perceptions.

Instructed by a new firm of solicitors who, as always, pushed the boundaries. Made it clear they were wasting their time.

But I felt the requests were fairly made in the clients best interest. What varied was the subtlety which the points were put. Were I a less experienced expert I may have mistaken an attempt to try it on for a legally obliged alteration.

I do medico-legal work. Solicitors (claimant) were angry at me for agreeing to take an instruction for personal injury where I did not want to offer an opinion on certain injuries, which I felt were outside my area of expertise. I recommended other specialities for the claimant to see. The solicitors did not want to pay for the other experts and felt I should comment on the other injuries and I refused. They threatened not to pay me (this was all via an agency).

Instructed by defendant. Asked to remove recommendations as not in Claimant’s report.

The solicitor asking to take out certain evidence/findings.

Told by claimant’s solicitor I should write off the costs as they were not going to use my report as they didn’t like the opinions. Instructed via an agency (large one) in process of complaint. (They had not given me up to date GP records nor other expert (diff. discipline) report which didn’t support my clinically derived opinion).

Difficult to remember the detail but revolved around a patient with delayed diagnosis of scabies… tried to claim for damages and loss of job!

Asked to reword my opinion that the operation notes made were of reasonable standard. V. young solicitor (acting for defendant).

Incremental changes with 2-3 iterations.

They ask; it never happens.

Asked to reconsider my opinion in favour of claimant in clinical negligence case (on 2 occasions) – I resisted.

Sorry, case is ongoing. It’s around ignoring evidence that is in my opinion relevant.

Instructing solicitor asked to remove several paragraphs relating to the facts as presented – asked to remove some “detail facts” in order to give the client a different slant on the evidence. The result being that one of my opinions on the cause had to be removed as it related to the facts removed. I wrote to the solicitor formally advising that if called to court that I would express my view to the court if it went to trial!

Personal injury cases. Asked to alter what the client told me at consultation – “client has remembered something”, “client ‘forgot’ to mention” etc. Usually matters that would alter my opinion.

I was asked by a solicitor to leave out one of my lines of enquiry, when I refused he said he wouldn’t instruct me again. I continued to refuse (3 days later he instructed me again anyway). I was asked by a different solicitor to the one above to change my wording in a report and leave out my suggestions for further work. I refused and they agreed to keep the report as it was with minimal hassle.

Being asked to remove reference to other expert reports.

A QC requested a CPR35 compliant report to be altered.

4 times all civil law – all dealt with and all refuted by me.

Removing references, deleting sectors.

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Lawyers attempted to guide expert meeting agenda.

prognosis (without additional evidence).

Solicitor refusing to pay for a report which he considered unhelpful. Rare but it is still happening. In the past referred to SRA – not very effective in taking this matter forward. I now threaten them with legal action to recover fee.

To omit evidence from my report that I have been provided with but then is not being relied upon. To list (amended) reports that I have not yet been provided with at the time of completing and signing by report – I refused.

Solicitor didn’t like my care recommendations so gave my draft report to a medical expert (who didn’t list it or refer to it) who then rubbished some of my recommendations. It did NOT cause me to change my view which was in my opinion appropriate, reasonable and based on sound assessment and the evidence including written, face to face assessment and oral evidence of the claimant, family, case manager and OT. ■

Client wanted past mental health problems kept out of a report, which was all highly relevant to her symptoms which she misattributed to an accident.

A case of overt bullying. Solicitor had a weak case and was clutching at straws. Solicitor told me ‘you have a duty to the court to do as instructed by solicitor’ (I knew that to be wrong). Solicitor threatened I would be liable for wasted costs if I didn’t provide an acceptable report ‘as instructed’.

Result: I confirmed I was not able to say what I had been asked to say. I confirmed I was not competent to opine on the specific point in question (ie the cost of something at a time 4 years earlier). I resigned the engagement. I heard no more. I will not accept instructions from the firm or its associates.

About Bond Solon Bond Solon is the UK’s leading expert witness training company. To date over 250,000 expert witnesses have attended these courses and in excess of 1,000 have completed, or are in the process of completing, the Cardiff University Law School Bond Solon Expert Witness Certificates.

Salami technique of redaction gradually until the essence of my argument was lost. Report being effectively rewritten by a barrister who was formerly a clinician (not in the UK courts).

This survey was completed by delegates attending the Bond Solon Annual Expert Witness Conference in London on 7 November 2014.

For more information on Bond Solon and training, either: • Visit www.bondsolon.com • Call 020 7549 2549 • Email info@bondsolon.com Please contact us to view previous survey results.

Being asked to remove reports I consider to impact on my opinion.

Asked to ignore reports sent to me. Change past medical history after medical records review. Asked to change

Mr Simon Fulford

Mr Terence J Duffy

MBBS, FRCS (Eng), FRCS (Urol)

Consultant Urologist

MA, BM, BCh, FRCS

I have been Consultant Urological Surgeon at James Cook University Hospital, Middlesbrough since 2001.

I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I have a private and medico legal practice based at Woodlands Hospital, Darlington.

Consultant General & Breast Surgeon Consultant Breast and General Surgeon North Staffordshire Nuffield Hospital Previously Lead Clinician (Breast) University Hospital of North Staffordshire

Within my clinical practice I specialise in neuro-urology (including spinal cord injury), urodynamics and reconstructive surgery for incontinence and bladder dysfunction. I regularly teach on national courses about these topics. I also regularly perform radical cystectomy for bladder cancer and pelvic exenteration for advanced gynaecological and colorectal cancer.

I also maintain a general urology practice.

Appointed in 1984, I have a special interest in Breast Disease (benign and malignant including delay in diagnosis, breast injury and breast surgery) also in Hernia Surgery.

I have over 20 years experience of Medico-legal reporting.

I have been preparing expert witness reports since shortly after appointment and have attended training courses in medico legal report writing. I have appeared in court as an expert witness. I currently receive four to six instructions per month including medical negligence and criminal cases. I have worked for both claimant and defendant and have acted as a single joint expert.

Address: Merry Tree, Baldwins Gate, Newcastle-under-Lyme Staffordshire ST5 5ES Tel: 01782 680 199 Fax: 01782 680 199 Mob: 07734 601 881 Email: tjduffy@merrytree.net

BMI Woodlands Hospital, Morton Park, Darlington DL1 4PL T: 01325 341 700 M: 07855 312 901 E: simonfulford@nhs.net

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Review of the 2014 Expert Witness Conference The largest annual gathering of expert witnesses in the UK took place in November with Lord Neuberger, president of the Supreme Court, as the keynote speaker.

This was the 20th Annual Bond Solon Expert Witness Conference, boasting many prominent speakers and featuring specialist sessions for family, criminal, commercial and medico-legal experts.

be tempted to “over-egg” their evidence.

He indicated that ‘hot-tubbing’ might be better in other cases. But he said it would be wrong to form a view until there is more evidence about the merit of the two systems.

In his keynote speech, Lord Neuberger cautioned against the use of a ‘single joint expert’, assisting both sides in a case. He said: “One thing that worries me is if you have a single joint expert, that is who decides the case. Is the judge there only as a figurehead?”

Another speaker, Timothy Dutton QC, a leading barrister in Professional Discipline and former Chairman of the Bar Council, explored witness ethics and regulation. He said anecdotal evidence of expert witnesses acting as "guns for hire" or involved in "industrial scale" abuses of the justice system required a government study. But he added that in his experience, "charlatan forms of

He added that where the expert’s opinion evidence is not tested by cross-examination, the expert may

Main Picture Lord Neuberger and audience Insert: Church House venue of the Conference

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behaviour" were rare and there was no immediate need for regulation.

Dutton, who practices from Fountain Court Chambers, took part in a BBC Panorama documentary earlier this year that exposed instances of misconduct by several expert witnesses.

While experts often complain of pressures from instructing solicitors to change their reports, Neil Dooley, a partner at Steptoe and Johnson specialising in contentious commercial work, emphasised that independence and backbone were two of the most important characteristics he looked for in an expert.

He told the parallel commercial session that experts in commercial litigation should help solicitors. An expert can clarify in the issues and even help the solicitor decide whether expert witness evidence is needed at all.

Above: Catherine Willson addresses the conference

Other speakers included occupational therapist Dr Catherine Willson who told the audience that the Jackson Reforms had had a significant effect on budgets and deadlines, causing conflict between expert witnesses and instructing solicitors.

She said: “The deadlines have affected us in terms of report turnaround and also referred work. We are increasingly pressurised in terms of the timescales we have got to produce documents and consider referred work.”

However Rod Appleyard, a chartered building surveyor, warned that experts must not be bullied by solicitors into meeting unrealistic report deadlines and should not have to “share the pain” when courts cap legal costs. “When it comes to expert reports, experts are in charge,” he told the conference.

This annual conference is sponsored by Expert Witness.

Above: Lord Neuberger delivers his speech

Next year’s conference will be held in Westminster on Friday 6 November 2015. To be part of it, visit www.bondsolon.com/expert-witness/conference. ■

Above: Delegate Richard Emery asking question Opposite: View of the Assembly Hall All photographs courtesy of Bond Solon EXPERT WITNESS JOURNAL

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Dreamspace Chester-le-Street 23rd July 2006, A Meteorological Investigation

by John Greetham, Coates-Greetham, Forensic Meteorologist The 23rd. July 2006 dawned bright and sunny with the promise of a warm summers day. People flocked to the park in Chester-le-Street during the morning and afternoon enjoying the warm weather with children splashing in the pool without a care in the world. At lunch time many enjoyed a picnic on the grass, many others paid to walk through the Dreamspace structure with music playing and a kaleidoscope of changing colours.

Witness statements called the experience "It's very womb-like and trippy. It's dreamy, a really nice vibe," one said. "Previous visitors have likened the experience of walking through the labyrinth of coloured caverns to standing inside a rainbow fish" (Independent newspaper 25th. July 2006). Air temperatures were of the order of 23 to 25 degrees C. at the three weather stations at about 3.30 p.m.

metre by 5 metre "rooms" and 5 metres high. Each 5 by 5 metre room was a different colour.

At about 3.40 p.m. the structure suddenly rose into the air from the east side whilst still being tethered with ropes on the west side, these too gave way as it stretched upwards into the sky. The structure rose clear of the ground and folded over and drifted over the park, coming to rest against a CCTV tower. At the time there were about 30 people inside, two tragically died and the others injured to various degrees.

There was a very early indication that there was a risk of it lifting, hence the ropes tying it down.

CCTV was available throughout the day and before the structure was inflated by air blowers, the structure lay flat on the ground. Prior to inflation about 8 a.m. the CCTV showed ripples affecting the structure, yet the CCTV showed almost no wind.

Dreamspace was a giant plastic structure erected in a park at Chester-le-Street in July 2006. It was about 50 metres by 50 metres. and comprised 5 EXPERT WITNESS JOURNAL

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There was therefore a disparity between the wind conditions at the stations and the evidence of many of the witnesses, the CCTV coverage and the data from the upper air ascent. However an examination of the topography of the area, showed that the park was sheltered by high ground to the West with the town being on the high ground.

Indeed the CCTV coverage showed very little wind all day.

Just prior to it lifting at about 3.30 pm, the sides of structure were sucked in and then out for a matter of minutes rather like a wobbly jelly but with an up and down motion too. At the same time, trees just to the West were being quite vigorously blown about, where before they were almost still. This indicated a flow of quite a strong wind towards the structure. Where there is a strong vertical motion, air is sucked in to replace the rising air. (Sea breezes and tornados are good examples.)

Convection occurs when differential heating is caused by the proximity of hot and cooler areas. In this case the top of the structure would have been much hotter than the surrounding grass in the park all day. At about 3.30 p.m. the cloud was well broken with a long period of bright sunshine. It is possible that the temperature of upper surface of the structure exceeded 35 degrees C.

Mr. Agis, the designer was charged with manslaughter and breaking health and safety rules, he pleaded guilty to the latter and not guilty to the former. The case was heard in the Newcastle Crown court.

The meteorologist acting for the prosecution, gave the cause as a fresh to strong wind. The one acting for the defence put the cause down to a strong convection current forming on the top of the structure during a period on bright sunlight and sucking it into the air.

As part of the report for the defence, the defence expert examined other occasions in a number of countries. Some of these were in much warmer countries and on windier days. On occasions the show was closed for safety reasons due to strong winds. Despite the occasions when it was closed because of strong winds there was no mention of it lifting clear of the ground.

Both experts used the data from three weather stations, Durham, Newcastle Airport and Albemarle, (upper sir sounding station). There were many witness statements and CCTV footage available for examination. Almost all of the witnesses described the wind as being light and only two referred winds stronger than light. (one witness said a light/moderate breeze (BF 2 to 4 ) and one at approx. 3.30 p.m. “A very moderate breeze was blowing across the park. This last witness did not refer to moderate breezes before 3.30 p.m. One witness said the wind was too light to fly a kite. Some of the witnesses said that it became very hot inside Dreamspace.

The defence alleged that two of the ropes holding it down had been cut, an act of vandalism if indeed this was the case.

The case went to trial in Newcastle in January 2009 and lasted for a few days. In the event although the prosecution expert gave evidence, the defence expert did not. The jury were undecided and Mr. Agis was found not guilty of manslaughter.

In my experience meteorological evidence is vital in only a few cases, it is always useful where there is doubt concerning the effect of the weather on incidents in both criminal and civil cases. In this case the witness and CCTV evidence was vital whereas the weather station data suggested a rather windy day whereas the CCTV evidence showed very little wind. However the meteorologists were vital in interpreting the evidence from the CCTV and witnesses.

Mean wind speeds were of the order of seven to eleven knots at 10 metres above the ground from the West. Durham the nearest station, showed 7 to 9 knots. The wind at 1 metre is about 0.8 the wind at 10 metres. This gives mean speeds of 6 to 10 knots at 1 metre. (7 to 11 knots is force 3 to 4 on the Beaufort wind scale, gentle to moderate breeze.

However gusts were almost and at times more than double, the mean speed).

In Penhaligon -V- Cornwall CC, Fatal road traffic accident ) Goodes -V- E. Sussex CC ( House of Lords appeal ), the weather report was important in establishing when ice formed and the likely air and road surface temperatures. The two cases concerned ice on the roads and salting. In a case of rape in a secure mental hospital in London, it was alleged that the victim had identified the attacker

An examination of the upper air sounding from Albemarle for 1 p.m. showed an unstable air mass to about 5000 feet and winds of 14 knots at 3000 feet. The surface wind is normally about one third the wind at 3000 feet. That is the wind at 10 metres would have been about 5 knots. In fact, the wind at the surface at 1 p.m. from the ascent, was only 3 knots from the West.

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by sunlight through the window just about sunrise.

The window faced West not East. A site visit was made at which it was discovered that there was a security light just outside the window which would have lit the room up. A case where the weather evidence was totally unnecessary. The case was dropped by the CPS â–

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John Coates-Greetham has 30 years’ experience as an expert witness. His consultancy was started in 1988 after 37 years in the Meteorological Office as observer, forecaster and head of the legal and insurance enquiry section.

Cases over the last 18 years include, on the civil side, road traffic accidents, storm damage, construction, flooding, personal injury, slipping accidents in the wet and on ice/snow, insurance claims, agricultural matters, public enquiries into building matters, as well as criminal cases requiring forensic meteorology in criminal cases.

EXPERT WITNESS JOURNAL

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Tree Health: Being Equipped to Respond

by Mark Chester - Cedarwood Tree Care amongst a population of, for example, Larch, has been to fell all trees of that species within an area, regardless of their health. This approach is being taken by the Forestry Commission in the UK, for Larch. It is drastic!

Tree health issues have been in the headlines in recent years, with Chalara in Ash, Horse Chestnut Bleeding Canker affecting that tree, and a species of the Phytophtera bacterium affecting Larch being particularly prominent. It can seem very concerning seeing trees being affected by diseases, and one can be worried about those trees near to home or work potentially becoming unsafe.

However, there are ways to minimise the potential impact on our trees.

Whilst clear-felling plantation Larch may be the pragmatic solution, and is ensuring that a crop of usable timber is being harvested, albeit earlier than was planned, such an approach is less straight forward when managing urban trees, where their contribution to the visual amenity of the locality is often highly valued. In the latter situation, there is greater scope to manage the individual tree.

Tree safety is often cited as justification for felling trees, and it can be unnerving during stormy conditions to watch large specimen trees, with their spreading branches, moving freely with the gusting winds. To re-assure: in terms of safety, the risk of being injured, or worse, by a falling tree or branch is very low. Indeed, the tree moving with the wind is actually a design strategy which enables it to grow spreading branches and resist the occasional storm.

I previously worked for a local authority in the industrial Midlands. The authority surveyed all of its street trees (some ten thousand specimens). Of these, fewer than one per cent (just eighty of the ten thousand trees) needed work to make them safe. Safety is just one aspect of tree health. Indeed, I find that it can be applied as a convenient tool, to justify the removal of trees which someone would prefer were removed.

A starting point is to understand how a pathogen attacks its host, and the impact that it may have.

There are some pathogens which have limited influence on the tree. Tar Spot on Sycamore is an example. The fungus causes black ‘tar’ spots to form on the upper surface of the leaf, which seems to suffer little ill effect. I have ‘fond’ memories of this fungus, as it generated one of my first commissions as a freelance consultant. I was helping an oil company responding to some concerns raised by neighbours to one of their storage depots. This was in the early days of ‘Polluter Pays’ and they needed to establish whether a claim was legitimate or spurious. The question was, ‘Is Tar Spot in Sycamore an indication of pollution?’ The answer is that the tree is largely unaffected by the fungus, whose presence is actually an indication of clean air (the sulphur in smog kills the fungus).

There are two elements to tree health, proactive and reactive. Whilst the former requires planning ahead, the reality is that it is often the latter where I am called to help. I will explore proactive management later. Faced with a pathogen ‘on the march’, probably the most drastic solution is to fell all affected trees. Some pathogens are species-specific and one option to pre-empt the spread EXPERT WITNESS JOURNAL

There is also the issue of how readily a tree can respond to the pathogen attack. If we encounter a warm, wet spring, especially during May, a fungus 25

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can cause wilting of the leaves on London Plane.

The leaves hang limply, and are then shed. I recall being approached, during my days at Dudley Council, by a councillor who wanted to know when the affected London Planes were going to be felled.

The reality in this situation is that the tree produces a second flush of leaves during the summer, and there is little impact on the host.

Some pathogens take advantage of favourable conditions. For others, our management of trees can provide them with the platform. Cherry trees, members of the Prunus genus, are particularly vulnerable to attacks. Chondostereum purpureum is a fungus which attacks the equivalent of the nerve system of the tree (the vascular system which is just below the bark). The tree can defend itself, but only when it is actively growing and in leaf.

Pruning during the winter, when it is unable to respond, leaves in vulnerable, and often sounds the death knell. The fungus decays the tree, but actually kills it first, which is an unusual turn of events. Death can be so swift that the tree is unable to shed foliage, which turns silver and hangs limply.

This gives the fungus its common name of ‘Silver Leaf’.

Above: Tar Spot (Rhytisma acerinum) has little impact, not even reducing photosynthetic activity. amenity trees. The Horse Chestnut has been under attack for the past decade or so. It faces a threat from several fronts. Phytophtora Bleeding Canker (PBC) which is transported in soil water and enters via the roots, has kiiled many thousands of Chestnuts. Leaf Minor has become increasingly prevalent in recent years. Eggs of the minor are laid just under the surface of a leaf. They hatch out within the leaf and ‘mine’ the nutrients and sugars to be found there. They have become more prolific and whilst a single infestation should not prove too problematic, on-going attacks reduce the ability of the tree to generate sugar reserves through photosynthesis. It also becomes harder for the tree to resist the other attacks that it may face.

Birch are another family of trees which can be vulnerable, again to ill-considered pruning. The trees colonise abandoned sites, and grow quickly.

Compared to trees such as Beech and Horse Chestnut, which can live for two to three centuries, few Birch live to reach their first century. They are called the ‘rock and rock’ trees, living fast and dying young. As such, they focus on reaching maturity and producing seed, and do not have a strategy to respond to the attack by pathogens such as fungi. Birch can reach heights exceeding twenty metres, and are often found in residential settings, where their open crowns and small leaves cast a light, dappled shade. However, the height can unnerve residents, and there is the tendency to reduce this, usually resulting in ‘topping’. Not only is this not good practice, but the pruning wounds which result often leave the host ill-equipped to resist pathogen attack. The Birch Polypore is often on hand to take advantage. It decays wood fibres in the trunk, usually leading to the trunk failing, at a point above the area of decay. Careful management of each tree can help to avoid this problem, at least until the tree has attained a good age.

Dieback on edge – also affects the ability of the tree to photosynthesis, especially during the key summer months of August and September. In 2007, when I was managing trees in Birmingham for the local authority, one of the sites I was responsible for was a cemetery, with an avenue of Horse Chestnuts lining either side of a driveway with a gentle slope. I monitored changes in the condition of the trees as those higher up the driveway were showing the symptoms of the pathogen, and then gradually neighbouring trees lower down showed signs of infection. At the time, I pondered whether the Horse Chestnut had a future.

Ash (Fraxinus excelsior) has been in the headlines in the past several years, with the seemingly inevitable march of Chalara fraxinea, a fungus which can be particularly damaging among younger trees. As the fungus spread, there were

Having looked at some of the health issues where poor management has a role, I will now look at some of the fresh challenges being faced with EXPERT WITNESS JOURNAL

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headlines suggesting the consequences could be as devastating as Dutch Elm Disease was among Elms.

However, there is hope for the Ash, and for some of the other trees, which I shall now explore.

The main difference between Ash and Elm is that the former reproduce sexually, via seeds, which introduces genetic variation in to a given population. It is likely, within the population, that some individuals will have a natural resistance to the fungus. Elms reproduce asexually, either from cuttings or layering, where a shoot from the parent plant will produce roots, become established, and form a new plant. Asexual reproduction forms clones, which are genetically identical to the parent, and thereby vulnerable to any attacks. In the absence of genetic variation, it becomes harder to develop resistance within the population.

Above: The Birch Polypore, Piptoporous betulinus, which weakens wood in the trunk, is usual fatal on Birch, with the trunk breaking above the fungus

With Horse Chestnuts, it became evident as we monitored the response of individual trees to the various attacks, with PBC being particularly virulent, that some were more tolerant than others.

This led to a focus in research. What made those who could resist different to those that succumbed more readily? Dr. Glynn Percival, a plant pathologist who undertakes research in the field of arboriculture, discussed his thoughts with me. He wanted to explore this particular issue. He started with the premise that the tree does not want to die, and will try to resist the pathogen as far as it can.

A healthy tree is better equipped to resist than a tree under stress. He has explored the impact of encouraging vigorous root growth on resistance, both with regard to PBC, and to the other virulent pathogen Honey Fungus. Improving soil conditions through increased aeration (the use of an air jet can be effective here) along with the addition of compost, mulch and micchorizae, has shown that the trees involved respond well, and are equipped to resist the pathogens which would previously have been more potent.

is a useful tool in limiting the spread of a pathogen, with a maximum of 10% of any one species (or genus when a pathogen affects species across the genus, as can be the case with Prunus and Malus) being recommended. This provides an additional challenge to those who prepare the schedules, as it will inevitably lead to the selection of trees from species previously not used.

The journey can also begin when planting the next generation of trees. Selecting species suited to the setting, and ensuring the trees planted are of good vigour, and equipped for the journey ahead, is important. It is now possible to assess vigour using the Plant Health Index via a test of a plant’s chlorophyll fluorescence. If a tree is not of sufficient vigour, it should not leave the nursery.

Ensuring a good root ball, with vigorous roots able to become established and support future growth, is important. Equally important is the situation in to which the tree will be planted, ensuring adequate space for root development through to the tree becoming mature, and providing a good supply of growing media (which need not be soil), equip the tree for its future, and help it to be able to respond to pathogen attacks.

Good biosecurity is also important, although the political need to maintain open borders to aid free trade does not help in the effort. It is not possible to enforce placing trees and other plants in to quarantine before they can cross a border.

Another factor which can be overlooked is the development of the branches which form the crown. Failure can be built in to a tree whilst it is on the nursery, if it is not properly pruned. This involves the development of a strong central leader (and not multiple leaders, which will compete for space and light, and may develop included bark,

There are, however, other ways to limit the potential for pathogens to spread. These are the proactive measures mentioned earlier. Timing pruning to the needs of the individual tree is a starting point. There is the suggestion that encouraging diversity of species within populations EXPERT WITNESS JOURNAL

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intervals of one metre both in height and moving from the outer crown inwards. Across the readings, the variation was measured at two decimal places!

In other words, the lowest reading was 20.34 and the highest 20.37. Even Glynn was impressed with these findings.

which can snap later in life). When a tree grows in open space, lateral branches can compete with the leader, and become too substantial.

I advise on the management of trees within a hospital site. Some of the trees are ornamental specimens which have not historically been managed this way. They lack central leaders, but have large lateral branches. It is possible to prune the tree to correct this, although the process can take up to a decade to fully implement, which often does not fit within the management timescales and budgets of such an organisation. A group of these trees are near to the landing pad for the helicopter, and during otherwise calm conditions during one August afternoon, the downward force of the helicopter cause a lateral branch to break. It had become long and heavy but lacked the strength to resist this unexpected event. I was asked to inspect trees nearby to see if any other trees were in a similar condition, as the hospital did not want another branch to fail. In such a scenario, it is difficult to provide the sought after assurance without implementing an intensive pruning programme which would not otherwise be sought!

Why does this matter? Because it now enables the arborist to assess the health and vigour of established trees within the landscape while they are in situ! Previously, the only ways to assess were to look for external signs of internal decay, or to try to assess the extent of possible internal decay using invasive methods such as a drill, measuring the resistance to wood fibres. This can be useful in evaluating the locating of a cavity, or decayed wood.

However, one tree can be hollow but still in good vigour, whereas another may die with sound timber. Measuring chlorophyll fluorescence against what would be expected for a species enables the health of a population of trees to be assessed, and more informed conclusions drawn.

Meanwhile, work continues to find solutions to the various pathogens we are encountering, and to exploring ways in which the trees which may be affected can be equipped to resist. Plantations of Larch may have been lost, but there is hope for the others. â–

I mentioned earlier about the Plant Health Index and chlorophyll fluorescence. In one sense, the technology is not new; it has been used since the 1970s to assess the condition of cut flowers, which can be affected by being chilled. The basis of the technology is that the chlorophyll within each leaf will respond the same way. The test is non-invasive and takes but a few seconds. It can detect physiological problems such as drought stress or damage from a herbicide weeks before the effects are visible within the plant.

Principle Consultant

Mark Chester BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.

Dr. Glynn Percival, who has been instrumental in its development, shared with me some of the more dramatic moments he has experienced testing the technology. In one case, he used it on young trees which had been planted recently. The trees seemed to be in good vigour, but the test indicated drought stress, which would take about three weeks to show.

He was very relieved when his forecast came to pass. Needless to say, he is not always popular when using the technology to assess deliveries of nursery trees, especially when stock is rejected due to its condition.

Mark has experience in Tree Preservation Orders, boundary disputes, amenity tree valuations, planning permissions and tree works.

He can provide feasibly assessments, support mediation and produce technical reports, and can guide your case through to a court hearing. Mark has undertaken specific training in cross examination and has an excellent track record of successful courtroom witness cases.

Mark Chester holds the Cardiff University Law School Bond Solon Civil Expert Certificate, enabling him to provide Expert Witness support for court cases and tree disputes, including Tree Preservation Order breaches and compensation for tree damage. A recent case summary described Mark as "a very impressive and authoritative witness."

Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk

He has explored the accuracy of the readings, from leaf to leaf and within a tree. He did tests on a mature oak tree, taking readings from leaves at EXPERT WITNESS JOURNAL

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The Horticulturist as Expert Witness Professor Stefan Buczacki BSc, DPhil (Oxon), Hon DUniv, C Biol, FSB, FCIHort, ARPS, VMM, FLS For over thirty years Professor Buczacki has worked as an expert witness successfully assisting clients, their lawyers and insurers under Civil and Criminal Rules guidelines in the fields of botany, commercial and domestic horticulture, mycology, algology and plant pathology. He is able to advise and gives evidence in all relevant areas including commercial insurance claims, personal accident, public liability, identifications and valuations.

If in your mind horticulture equates to gardening and conjures up images of lawn mowing, window boxes, Gertrude Jekyll and the Chelsea Flower Show, think again. Horticulture and the botany that lies behind it is represented by an industry worth many billions of pounds annually.

I first became aware of this over thirty years ago when I left my full time post in horticultural research to become self-employed and was almost immediately approached to advise on a complex case concerning the origin of a plant disease problem on which I had just spent some years studying. The cause was a soil-inhabiting organism and numerous batches of commercial potting compost appeared to be contaminated. After a painstaking investigation involving visits to peat producers in Yorkshire and Ireland, I was eventually able to trace the source of the contamination to weeds growing on the bog where the peat used in the compost originated.

Even the UK garden retail market that caters principally for the amateur grower is worth around ÂŁ5 billion. And where there is money, there is the potential for the loss of money, dispute over the cause of the loss, the involvement of insurance companies and lawyers; and the need for an expert.

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greater and the efficacy of the cleansing would by then have been significantly reduced.

Finding the causes of crop losses such as this are my commonest type of case but my background, not only in horticulture and plant pathology but also in botany/mycology and forestry, in both of which I have degrees, has resulted in an increasing number of increasingly varied cases coming my way from the UK and beyond. With few exceptions, if there is litigation or the threat of litigation and plants or fungi are involved, I can usually assist.

In many instances, the analysis needs to be genuinely forensic and there are numerous questions I must answer. Take a major commercial crop loss for instance. First, what are the symptoms on the plants and how do they vary individually?

If the effects are manifest – as they often are – by lesions, where are the lesions situated – on the leaves, stems, buds and /or flowers? This is important because different pests and pathogens may affect different parts of the plants.

Almost always, as in that first instruction, my work is in 'cold cases'; in trying to elucidate the causes of problems that occurred some years, sometimes many years previously. And almost invariably, I have to feed off scraps of evidence in trying to reconstruct the events. Take for example a fairly typical case involving a multi-million pound loss of a field crop and the need to discover who and what was responsible. Did anyone take the care to produce a detailed photographic record at the time, to collect and deep freeze plant samples for possible later analysis or map the pattern of diseased plants in the fields? No, of course not; and the absence of samples and good photographs is often my most significant difficulty. And in my experience – for I work in criminal as well as civil cases – police photographs, and above all police photographs taken at night, are the least helpful of all.

Do the symptoms vary from one plant variety to another which might indicate an inbuilt genetic differential susceptibility; or are they spread uniformly across all? Many pathogens and pests are peculiar to certain plant species and some, especially some pathogens, to certain varieties of certain species. Are any pests or pathogens present? Quite commonly pests move on to other plants after having caused the damage; or indeed the damage may be caused by larvae that have then metamorphosed into adults and hence disappeared. All this would help to pin-point the timing of the event.

How are any lesions dispersed – on a small group of plants or on all plants – which information may point to the focus of the initial infection? Or are the lesions confined to one side only of the plants in a manner than might indicate some correlation with the prevailing wind? Could pests or pathogens have been blown by the wind; or might the cause be non-pathological and perhaps be brought about by hail damage or the result of an air-borne pollutant? And if it was a pollutant, might it be the result of a genuine accident, the malfunction of machinery (in which case, by whose fault) or by carelessness – spraying a herbicide on a windy day for example? It is in fact in the area of herbicide damage that gardeners may be all too tempted to paint neighbouring farmers as bogey-men; or worse, may be tempted to 'try it on'. A recent case illustrated this perfectly.

In my hugely varied career, I have proved that the mysterious death of trees in a large garden could not have been due to malicious poisoning by a neighbour as the owner suggested; I have demonstrated the growth rate of shrubs on the central reservation of a dual carriageway over a period of many years to show how much they may have obscured a pedestrian's view and contributed to a serious personal injury claim; I have valued horticultural material allegedly stolen from an employer; I have shown the inadequacy of the police's identification of alleged cannabis plants; and I have identified the green slime on which a claimant slipped in a rugby stadium and gave my opinion on whether the stadium's cleaning process should have removed it. The latter case demonstrated just how far forensic botany can take you because the rugby club claimed the stadium had been cleaned according to the directions of the cleansing chemical manufacturers two weeks before the start of the season; hence the cleansing should have been effective. But they forgot to say that the 'season' in fact began with a series of pre-season friendlies so the length of time involved was far EXPERT WITNESS JOURNAL

Thoughts in a garden An attractive, large and expensively created domestic garden was situated adjacent to farmland where a contractor had recently sprayed a cereal crop with selective herbicide. The garden owners made claim against the farmer for damage to their plants resulting from his contractor's negligence.

The farmer's insurers approached me to 30

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The losses of fruit due to storage malfunction can be enormous.

Problems with trees may range from the illegal felling of a protected specimen to major losses in commercial forest production.

A large commercial production facility may produce over a quarter of a billion valuable vegetable transplants per year.

pear tree nearby showed some signs of both scab and pear leaf blister mite. Mature beech and other trees showed signs of leaf injury as a result of late frost and wind damage. And several herbaceous plants showed characteristic signs of various fungal leaf spotting diseases.

investigate. There was certainly widespread damage to the garden plants as the garden owners were only too willing to show me and the damage was not confined to one type of plant; most were affected to some degree, evidence it might be thought of some common external factor because almost no plant disease affects more than a small number of related species.

I concluded it was highly improbable herbicide played any part in any of the damage, the owners therefore failed in their attempt to have their garden re-stocked and no doubt went away somewhat chastened.

But my experienced plant pathologist's eye told me a different story and the garden was in fact riven with a legion of different problems. Some were just possibly of herbicide origin but certainly none were typical of it. Laburnums throughout the garden had a peculiar symptom but my careful examination of the foliage went no way to confirming herbicide as the cause of damage. It was nonetheless not due to pest or disease attack, to wind damage or to any physiological disorder.

Another recent case involved a commercial field crop and highlighted an important aspect of disease pattern in the field and indicated the value of having photographs or plans at an early stage.

A valuable vegetable crop had been affected by a fairly clearly defined and recognisable disease problem but its origin was disputed and I could have learned much from an accurate plan. If for instance the diseased plants were in lines or rows or could otherwise be related to the track and progress of the planting machine it would be strong evidence for the problem having originated on the transplants. If the pattern was in rows or lines but periodically stopped abruptly, this would be evidence that the origin may have lain in individual trays or batches of transplants. If the pattern of the diseased plants in the field however was not regularly geometric but in an irregular patch or patches unrelated to the path of the transplanting machine, it would suggest the cause of the problem was already present in the field soil. And of course in any or all of the above situations, if the pattern of disease was confined to certain varieties this would be highly indicative either of some environmental factor, like seed contamination, to which those particular varieties were subjected during their production; or of course, that there was significant difference between cultivars in their inherent susceptibility to the pathogens.

That plants should be selectively damaged at such distance from the presumed source of the chemical was also curious. A clematis growing on the boundary fence was ailing but this too was not entirely typical of herbicide injury and could have been caused by a number of other factors, and it was somewhat characteristic of clematis wilt, the commonest cause of clematis failure. Ornamental maples growing throughout the garden showed some signs of leaf tip browning and death, but I was unconvinced that chemical injury played any part in this and it was exactly the type of injury I would expect maples to display in so exposed a situation.

Then there were plants displaying signs of damage or distress certainly not caused in any way by herbicide. A large mature weeping willow close to the boundary of the garden displayed the severe leaf browning, spotting and twig cankers typical of willow anthracnose disease. Apple trees close to the boundary displayed leaf and fruit blotches caused by scab and the leaf disfigurement of mildew. A EXPERT WITNESS JOURNAL

Defective growth on plants of all kinds requires expert analysis.

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Sometimes it is necessary to try and reconstruct the events on which a claim is based although the risk is in being hoist by one's own petard because it is difficult ever to reproduce everything exactly and any competent lawyer will be swift to point this out.

It served me well however in a case involving imported Danish Christmas trees that although supposedly of a species that does not drop its needles, were in fact being returned with bare branches by disappointed customers. 'Not us' said the Danish growers, 'they were all right when they left Denmark'. I went to Denmark to check and felt they were correct but was then able to set up an experiment to reproduce the warehouse conditions in which the trees had been stored at the British port of entry. The fluctuating temperature and humidity reproduced exactly the needle drop effects and the importer's insurers paid up.

needed; and then charged around a quarter of a million pounds for their efforts.

I was instructed by the client's lawyers to assess the quality of the work and the validity of the charges.

I spent two days going over their workmanship with a fine tooth comb and produced a 10,000 word report detailing its multiplicity of shortcomings. I also made enquiry of the plant nurseries throughout Europe from where the plants had been obtained, compared the prices with those of comparable nurseries in the UK and with the charges made to the client and hence revealed gross over-charging. Eventually I was able so systematically to dismantle their invoice that the charges were reduced almost to nought; and I learned later that the firm had gone into liquidation. An expert's opinion can have far reaching consequences. ■

And although I suggested at the beginning that domestic gardening was not on the same monetary scale as commercial horticulture, large sums can nonetheless be involved. A few years ago, the owner of a magnificent country house had spent handsomely in engaging the finest designer to produce a garden to match; but had employed contractors to execute the design whose work fell abysmally short of the standard of execution

All photographs courtesy of Professor Stefan Buczacki Professor Stefan Buczacki is a world wide expert in horticulture (commercial and domestic), plant pathology, botany, botanical identification, mycology, microbiology, algology and garden design.

Tel: 01789 298 106 Fax: 01789 292 450 Email: info@stefanbuczacki.co.uk Website: www.stefanbuczacki.co.uk

JONATHAN DAVY DipLS FRICS

Chartered Land Surveyor My specialism is in Rights of Way and Boundary Disputes and I have been reporting on these for over thirty years.

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Resolving Construction and Engineering Disputes It’s time for arbitration to make a comeback The TCC decides disputes according to the law and decisions are binding and enforceable.

Claimants and respondents generally understand the potential consequences of litigation, including the potential liability for costs. However, despite continuous reforms over the past 20 years or so, litigation remains a lengthy and costly exercise.

The emphasis of litigation is on a thorough examination of the issues in order to arrive at the correct answer. Reaching a quick and commercial resolution is less of a priority. Litigation is not confidential. Hearings are open to the public and the media. This can be a hindrance to parties who would rather avoid an open examination of their commercial activities, or the gaining of an undesirable reputation.

Litigation Construction and engineering projects often involve many relationships and contracts, all of which contain the potential for disputes. Resolving disputes can be costly and inordinately slow.

Disputes damage commercial relationships and cause harm to reputations.

Litigation has historically provided the authoritative forum for investigating the often complex and multi-issue disputes in construction and engineering. In fact, the resolution of disputes in construction and engineering has advanced building contract law to such high levels of sophistication that they have their own specialist court, the Technology and Construction Court (TCC).

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Over the years, judicial intervention has answered moot questions around how adjudication operates in practice. This has been helpful in that we now know what happens if a decision is not issued by an adjudicator within the 28-day timescale, and we know the extent to which adjudicators’ can (or in reality cannot) determine issues concerning their jurisdiction. In other aspects though, the law has developed to make adjudication more complicated.

Just to give one example, a TCC decision in November 2014 (Eurocom v Siemens) established that a party needs to be very careful in what they put in their application when applying for an adjudicator to be nominated, or they might find themselves in court answering allegations of fraudulent misrepresentation.

Arbitration The process of arbitration is similar to litigation. An independent tribunal makes a decision, which is an evaluative opinion based on the persuasiveness of evidence submitted by the parties. The Arbitration Act 1996 makes an arbitrator’s decision, called an “award”, enforceable in the same manner as a judgment or order of the court. Parties are bound by an arbitrator’s award and cannot refer the same dispute to the courts. The Arbitration Act also imposes an obligation on parties and their arbitrator to obtain a “fair resolution of disputes“, “without unnecessary delay or expense”.

Arbitration clauses are common in many standard forms of building contract in the UK and, until the advent of adjudication in 1998 it was widely used to resolve construction and engineering disputes.

Arbitration is meant to be quicker, cheaper and more informal than litigation, but by the late 1990s it had become seen as a long drawn out and expensive process.

Adjudication has been particularly useful when issues in dispute are relatively straightforward and can be dealt with in short order. However, where the value of disputes is high, and issues are complex, the speed that makes adjudication attractive can lead to rough justice. Perhaps even injustice. Big value, complex disputes need greater deliberation and they do not lend themselves to a rapid process like adjudication. A process that is limited to 28-days simply does not allow enough time for parties to make out their case and deal with that of their opponents.

Regardless of the statutory obligations under the Arbitration Act to avoid delay, parties, and perhaps also those who acted as arbitrators, would sometimes contrive to make the process expensive and lengthy. It came to be that arbitrating disputes was taking just as long as court proceedings. Where speed and containment of expenditure was a priority, arbitration, like litigation, was not seen as an efficient way to resolve construction disputes.

Arbitration It is often said that “what goes around comes around” and it seems there is increasing interest in an arbitration comeback. The results of a recent online survey conducted by RICS suggests that whilst costs, and the length of time it takes to get a resolution, remain key issues for parties when deciding on a method to get their disputes resolved, there is nevertheless growing demand for more comprehensive deliberation of issues.

Adjudication In May 1998 adjudication came along and promised a simpler way to resolve disputes that was also quicker, cheaper and less formal than litigation and arbitration.

S.108 of the Housing Grants Construction and Regeneration Act 1996 introduced a 28-day procedure for resolving disputes on construction contracts, and it led to far fewer disputes ending up in the courts or arbitration.

The highly technical nature of complex construction and engineering disputes, and demands for commercially focused outcomes, rather than legal positioning, means parties are increasingly keen to refer to decision-makers who have genuine technical expertise and subject matter knowledge. There is evidence parties are once again seeing arbitration, by arbitrators who are highly experienced construction and/or engineering professionals, as the best way to resolve disputes.

Adjudication was received with great enthusiasm by disputants and eventually by their professional advisers too. In the last 2 years of the 20th Century it grew in popularity and by the early 2000s it had become the most widely used dispute resolution procedure for the UK construction and engineering sectors.

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But if arbitration is going to make a comeback it will need to be structured in a way that addresses the concerns of previous years. Arbitrators must use the powers given to them under the Arbitration Act to robustly manage costs. The process needs to be (and be seen to be) faster and cheaper than the courts. At the same time arbitration must prove itself better than adjudication by allowing a detailed examination of the issues, and routinely resulting in arbitration awards that are commercially sensible and better value than judgments from the courts.

arbitrations within a set maximum period of time, say 12 months, and at a proportionate cost.

Underpinning a new arbitration regime for construction and engineering there must be excellent arbitrators who are wholly independent.

They must be completely up to date with the relevant law and practice, and able to discharge the role of arbitrator sensibly and without delay.

It is time for arbitration to make a comeback in construction and engineering. The development of a new approach to arbitration in the UK will not only provide domestic parties with a fresh and viable alternative to the courts and adjudication, it would establish the UK as a world player in international arbitration, alongside the likes of world regional arbitration centres such as Singapore and Hong Kong. ■

Arbitrators and the bodies that appoint them will need to provide high quality “customer services” which target parties’ expectations in terms of quality, standards and overall client experience.

In the 1990s, arbitration of a dispute could easily stretch out over 2 to 3 years. Often, by the time a decision was made by an arbitrator, the parties had forgotten what the dispute was about in the first place. It would appear reasonable then that arbitrators and service providers who appoint them should provide a commitment to concluding

Martin Burns Head of ADR Research and Development Royal Institution of Chartered Surveyors 15 December 2014

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The Completion of Construction Projects

by John Eaton, MA PhD Dip Arch RIBA MCIArb FRSA When is a building complete? What is the difference between Completion and Practical Completion.

Most construction professionals, if asked would suggest an answer and it is probable that they would be wrong. The completion of building work is problematic and it is noteworthy that Keating1 prefaces a discussion of this topic with the observation that “Practical Completion is perhaps easier to recognize than to define.�

Issues arising at the two extremes are common and persistent.

Where a building is not complete and a contract administrator is over-generous and grants completion with either significant amounts of work outstanding or defects in that work then there is risk to both the building owner and the professional concerned. Over payment may occur and, in the event of the insolvency of the contractor it will prove very difficult to set matters right. Conversely, where a building is compete, subjective evaluations of the quality of the work executed can be manipulated by Employers (often by cynically pressurising their professional agents), to avoid conceding that the building work is satisfactory and therefore not complete - this has obvious advantages for the developer in difficult market conditions. The building process often extends over a very long period from the inception of the work to the completion of a building and a development ordered in a favourable financial climate may well be finished is a less favourable climate. If the building can be held to be incomplete this can shield the developer from making payments, releasing retentions and paying charges on empty properties. Again, the professionals involved can be severely compromised and placed at risk where, all too often, their professional indemnity insurances will be regarded as a potential source of compensation

Such a state of affairs is plainly unacceptable. It should be possible to establish a better common understanding. It is in the interest of the construction industry that there are practical definitions that are commonly understood and may be applied with confidence. My long-range objectives are to propose a clear definition of what completion entails and to suggest a framework for how it may be achieved with greater certainty.

In the course of a long career both as a practicing architect and expert witness, I have been invited to give my opinions in a large number of disputes that have arisen concerning both the completion and the non-completion of building projects. While the problems that arise in this area are always particular to the individual project certain common problems emerge and these fall along a broad spectrum. At one end is the incomplete building that is certified as being complete and at the other, the building which though complete, is argued to be incomplete.

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notion that Practical Completion is in some sense a preliminary stage on the journey to the actual or final completion of the work. Many entertain the view that Practical Completion is a sort of nearly but not-quite completion and the defects liability period that follows Practical Completion being a long-stop or period of grace during which incomplete work may be mopped up and contractual loose ends tidied up. This view is dangerous and quite wrong.

The completion of the building work and all that goes with it such as the production of the supporting documentation required under the terms of most building contracts must be complete in toto at Practical Completion.

Architect as contact administrator My concern here is to open up and discuss certain underlying problems that contribute to the disputes that arise. These are broadly twofold. On the one hand there is a lack of understanding shared by clients, their professional agents and building contractors as to what the completion of a building actually involves and, on the other, the competencies of those that administer contracts for building work are inadequate. Often these two types of problem go hand in glove with lack of knowledge, ambiguity and uncertainty leading to error and disagreement.

In what follows the focus of my remarks tends toward the architect acting as contract administrator as this is my particular area of expertise. Having said that, I consider that most of the ground that I cover will apply in equal measure to other professionals when undertaking the duties involved in administering building contracts.

Defects liability periods are periods when the completed work is effectively on trial and if work is incomplete before this period starts then it defeats the object - this period is the time during which defects latent at Practical Completion may emerge and are remedied as a condition precedent to the contract being discharged. It is not a period in which to complete unfinished work.

The language used to describe the completion of construction projects is problematic. There is no clear consensus of what completion entails and many of the printed form contracts are content to speak about completion but give no clear definition of what this means. It is almost as if there is a tacit understanding that construction professionals share a common knowledge of this key concept which, though inadequately expressed, is nonetheless understood and forms part of the accepted lingua franca of their industry. To compound this, standard forms of specification are drawn up to define the quality of the work undertaken and often do not provide objective guidance as to the quality of the work. In many cases the contract documentation incorporates reference to standards that are used globally and not selectively to inform the judgements which contract administrators make as to completeness and quality. Too often the key decisions that are made about the completion of the work reduce to the subjective experience of what practitioners consider to be acceptable and what they do not. This, in my experience, is fertile ground for misunderstanding and dispute.

This being the case, it would be far better if the term Practical Completion were to disappear altogether and replaced with the simpler term Completion.

This would helpful if it served no other purpose than to reinforce the idea the completion meant what it said. Clearly there is a distinction between the completion of the work and the discharge of the

It is a helpful point of departure to consider an important distinction and source of difficulty that is found in most printed form building contracts. This is the convention that there are seemingly two forms of completion. There is both Practical Completion and there is Completion. This, in my view, is unfortunate and an obvious source of confusion.

There exists a common misunderstanding that somehow wrapped up in this distinction is the EXPERT WITNESS JOURNAL

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contract and to reflect this, I consider that the terms completion and contract completion should be used. Many printed form add to this confusion when they identify the Contract Completion date with the date of Practical Completion. In my view this is both confusing and unnecessary - a simpler use of words would serve with far greater clarity.

The recognition that only relatively very minor defects may be tolerated is pragmatic. There may be issues concerning minor or alleged defects that would unreasonably hold up the hand over and beneficial use of a building. In such cases where occupation can sensibly take place, the withholding of certification would be unreasonable and unfair.

The law is clear is to what constitutes completion The leading case of Jarvis & Sons -v- Westminster Corporation [1970] 1 W.L.R, (Jarvis) is clear in that if there is any significant omission or defect to the Works that affects the functionality of the development at the time that completion is sought then the work incomplete and should not be so certified.

Thus, if a building project exhibits any such omission or defect then it should simply fall at the first hurdle. In addition, and following Jarvis, Practically Complete means what it says – the building project must be complete in all respects and free from anything other than de minimis defects. It therefore follows by definition, that any and all defects at completion must be either latent defects or patent defects classified as de minimis.

The third part is more problematic. It involves an assessment of the standard of the work, and may be seen as an assessment of what de minimis means.

Various bodies within the industry have addressed these problems and give sensible guidance.

However, these standards are often not sufficiently understood nor, in most cases are they incorporated into most sets of contract documents. This problem is further compounded where the architect or designer does not write the contract specification.

It is often the case that quantity surveyors write contract specifications independently of the designer. In my experience, this often results in an inadequate document. This is nothing to do with the general competence of quantity surveyors but more to do with the need for the designer to ensure that what is designed is properly described and follows the design intentions. The designer is best placed to do this and less likely to errors of omission and lack of detail.

Thus, I suggest a three part test – 1 All the work contemplated under the building contract inclusive of the required documentation must be finished.

Race against time To return to our major and long term objectives, a general and common cause of the problems that arise is the fact that the completion of the building work comes to a sharp focus in the final stages of the construction programme where there is often a race against time to complete the work on the appointed date. Most building contracts include a damages clause for non-completion and there is, understandably a great incentive the finish the work on time.

The role of the professional administering the building contract is to make inspections in advance of the completion date and to issue lists of outstanding and unsatisfactory work or, as it is commonly known, “snagging”. While the most building contracts are silent as to the process of snagging and the production of snagging lists, the process is common practice within the UK construction industry. Contracts are silent concerning many common practices that construction professionals habitually adopt in order to give their dealings practical effect and, snagging is one such procedure. The recording and reporting of unfinished work and of defects is and important part of the duties of the contract administrator.

2 Where items of work are not complete they must be de minimis in character.

3 The quality of the work must conform to the standards required under the building contract This, I consider, provides a clear template for what is necessary to establish whether a building is complete or not.

In the first place, if any significant part of the work is incomplete or has not been commissioned and documented then Completion cannot be certified – the building is simply not complete. A growing importance is now placed on documentation and demonstrations of compliance form an important element of the completion of the work. Many contractors are poor at providing this information and the contract administrator is placed in a powerful position to ensure that the information is provided. Many are not sufficiently robust in demanding the production of the information and many disputes would be avoided if they were so.

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Perhaps the most comprehensive guide to the Plan, the RIBA Architect's Job Book,2 devotes less than 15% of its content to the management of the activities and procedures which take place while the building is being constructed. This is not an arbitrary criticism but an indication of the emphasis that consultants, and architects in particular, have given to the construction process. I consider this to be a fundamental deficiency. The consultant, as the administrator of construction contracts, is placed in a pivotal position and by definition, an active position. It is not sufficient to think that once the building contract is let the construction process, apart from some tedious paperwork and attendance at monthly site meetings, is predominantly the concern and responsibility of the builder.

However, as this process tends to be concentrated at the time that the construction work is nearing completion many problems which could have been picked up at an earlier stage are overlooked during the construction work.

I suggest that appropriate inspections should be made not merely toward the end but systematically throughout the construction of a building. In order to manage the administration of the building contract as effectively as possible I argue that the contract administrator needs to be more actively engaged in the building process, to undertake the management of the contract in greater depth and to possess a range of skills greater than those commonly found within the construction professions.

The problems associated with the completion of building projects are common and many would be avoided if greater attention was been given to importance of the construction process as a whole.

This does not mean throwing the Plan over but improving it in the construction phase. By doing so not only could improvement be made in achieving the timely completion of the work but improvements could also be gained in build quality and cost control.

While the Contactor is properly charged with the management of the work, the contract administrator from whatever profession has pivotal managerial role which is different and parallel to that of the Contractor. The RIBA Plan of Work (in what follows reference is made, for the sake of brevity, to "The Plan") is a convenient staring point for a discussion of these parallel activities. The Plan has for fifty years served as a well established model for the process of designing and managing building projects and for administering building contracts.

The Plan which was originally developed in 1963 has been recently revised.

It would be misguided to consider the Plan does not do what its original authors set out to do. Since its introduction in the mid-1960’s it has provided the

The latest version, dating from 2013 is a reorganisation of the original model and follows in most important respects the intention and ordering of the original. The central purpose of which is to provide a model, in work stages, for the design and implementation of building projects from their inception to their completion. It is noteworthy that the construction phase, Stage 5 (formerly stage K) receives comparatively little emphasis in certain influential guides to working with and implementing the objectives of the Plan. Part of the difficulty emerges from the relative importance that the construction phase is given in comparison the other activities typically undertaken by the design team.

The importance of stage 5, in my experience is seriously underestimated. A useful way to think of its relative importance is to consider the constituent parts of the Plan geographically. By way of example, the list of the States of the USA will give no clue as their size. It is only when we consider them by some other measure that we see that Texas is by far the largest and much larger than a state such as New Hampshire. I consider that this metaphor applies in equal measure to Stage 5.

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architect in particular with a practical blueprint for the organisation of most small to medium sized projects and it conforms, in important respects, to the commonly held expectations of the client, the professional team and the contractor. However, the Plan to has serious limitations and these limitations stem not from what it includes but more from what it does not include. In the face of increasing complexity the development of a more structured approach to the management of the contract during construction is, I consider, long overdue.

prototype models have been carefully tested and problems eliminated enables us to see that the construction model is more closely allied to these preliminary processes - in many important respects design problems for the construction industry belong to the same family as prototype designs in product manufacturing or indeed, for the development of many other generically related systems. Thus, constructing a building can be usefully thought of as making a prototype and it is a fair bet that problems will emerge in the making.

The Plan divides the project life cycle of architectural projects into discrete stages from the inception of the project to its completion. The Plan anticipates that the stages will be progressive and consecutive. The completion of each stage is considered as sort of leap frogging where each completed stage “will have the objective of launching the next.”

The Plan is a classical model, and its implementation will give rise to a number of tendencies. The classical system has the following characteristics 1) Nothing is done in the succeeding stage until all is done in the preceding stage.

2) Consequent upon 1), trivial problems tend to be discovered in the succeeding stages and serious problems will often not be uncovered until it is often too late to do anything fundamental about them.

The stages of the Plan are fleshed out with sets of check lists for the range of typical functions which are expected to be undertaken within each stage.

The system indicates what is to be done but it does not say how it is to be done. How things are to be done is assumed or implicit. The system may thus fairly be described as static and prescriptive. This classical model has two major characteristics. The implementation of the system is (literally) from the ground upwards i.e. it is a “bottom up” system; and, it is a simple with progress toward the project goals being marked by a sequential progression from one stage to the next.

3) Late changes are likely to occur during production.

4) Late changes are likely to prove expensive as the cost to change tends to increase as a function of the time already spent on the project 5) No opportunities exist within the system for feed back and feed forward.

In addition, there are a number of other serious conditions and issues which we should consider as important influences on a design based system and which the Plan neither recognises nor accommodates. Among these are 1) We are not very good at producing a complex solution perfectly at the first attempt. We are however, very good at making repeated improvements to an imperfect one.

The Plan is sometimes thought of as providing a similar model to the production line in industrial manufacturing where each stage is assumed to follow its predecessor smoothly and exactly. This may seem on its face to be a reasonable comparison, and certainly the idea of reducing the range of complex issues that a building project will generate to the sort of model which is on all fours with the building of a motor car, is very seductive. A building is after all a product, all that goes into assembling that product is rightly be described as a process and the production line model is commonly regarded as the most efficient process.

2) Those facilitating the design are not placed in a flexible environment where they can easily manage change during the process.

These problems lead us to a search for a heuristic system that will be appropriate to the tasks being undertaken and tolerant to adaptation and modification.

Construction as making a prototype However, when we consider the comparison between the construction process and the industrial production line more closely, a fundamental problem soon arises. Understanding that the motor car assembly line only performs as it does after EXPERT WITNESS JOURNAL

It is a commonly held view among those that practice architecture that the Plan functions well as a basic framework for the project life cycle but is seldom rigorously followed. The fact that the process of design development is carried out often throughout the construction phase is, it is argued, 40

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end result and here, the completion of the work is of paramount importance. But it is not however completion per se. The Employer wants a project that is not only completed on time, but to a satisfactory standard, and on budget. I propose that the structuring of stage 5 should provide a system which will improve the likelihood of these objectives being achieved.

symptomatic of the nature of complex environments where systems if they are not appropriately structured either become chaotic or re-organise until they become stable once more. In practice, it will be argued that the construction life cycle is often subject to a far more subtle development processes to achieve the objectives of the design and further, these objectives are often achieved in ways not prescribed in documents such as the Plan. Thus, in many cases, instead of recognising the fundamental characteristics of design realisation, problems are not solved in a flexible and adaptable environment but are treated as conflicts. An expansion of this problem is part of a much larger canvas - I am able here merely to advertise its importance.

There exists strong arguments for an approach to Stage 5 that is not static but dynamic. It is useful to take as a starting point for such a system the recommendations of the RIBA Architect's Job Book (2008). Here, we find a range of checklists for the information which is needed at the outset of the construction of the project, the available information and the information required is defined and, when required by the form of contract being used, the contractor's programme is established as a benchmark for measuring the progress of the work.

The focus of our discussion is the range of activities which take place in Plan Stage 5 and the contractual management of the construction process. It is clear that one cannot propose an exact formula or scheme for the organisation of all the things that should take place within this period. There is, as such, no proper scheme. There are, as I hope to show, advantages in extending the scope of the sorts of things that can beneficially achieved in an advanced and better structured framework for Stage 5. Our particular gaze is cast upon the completion of the work but I consider that this is not the only benefit to be gained. The opening up and expansion of Stage 5 reflects the need for a sub-system within the overall domain of the Plan.

Such an expansion can usefully be seen as the definition of a system in its own right

Activity planning The activities which the contract administrator is required to perform are  Confirming the programme and procedure for site visits  Confirming the programme and procedure for site visits and briefing the site inspection staff of their duties and procedures to be followed.  Preparing an inspection plan which identifies when site visits should be made and when checks can be made on tests which the contractor is obliged to make.

The importance of stage 5 is particularly relevant when viewed from the perspective of the Employer.

The relative lack of emphasis given in the Plan to construction arises from the particular focus on the activities of the design consultants. To architects in particular, the majority of the their work is complete before the building work commences. To the Employer however the primary focus is with the

 Keeping records of site visits and the results of tests witnessed or reported.  Inspecting the contractor's progress measure against the programme and making general inspections of goods and materials delivered to the site.  Checking the quality of the Contractor's work.

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importance of the programme and how it can be adapted to better suit the needs of the contract between the Employer and the Contractor. The contractor's programme is the critical starting point.

It should, in the first instant, be thoroughly examined to establish whether it is realistic. While the production of a programme is the responsibility of the contractor it is in many cases little more than inspired guesswork and is accepted at face value.

Often it does not reflect a well-tailored plan to deliver the project on time. The contractor's programme is in essence a prediction. The more carefully it is prepared the more reliable it will be and in considering the contractor's programme, I consider that it should be structured to provide key milestones giving rise to a number of what may usefully be regarded as sub-completions throughout the construction process. By this mechanism it is possible to ensure that the critical stages of the construction have been completed satisfactorily and on time.

On their face, these activities may be thought to be a comparatively few and there is little that is missing apart from, crucially, guidance as to how to do it.

We see what is to be done but not how it is to be done. If undertaken systematically and rigorously the proper organisation of these activities form the basis for the management of the construction contract which, we argue, can be dynamic and integrative. Our primary interest is the completion of the work and, establishing an integrated framework to achieve this objective I argue can not only improve the chances of the completion being achieved but also, concurrently, give greater security to the other main Employer objectives of cost and quality.

To enhance the success of these primary Employer objectives, I consider Stage 5 should be organised in greater depth and in such a way as to ensure that the architect, or contract administrator is more actively involved in defining the management process. Far closer detail is needed in order to have better control over the process. This will certainly involves an earlier involvement with the Contractor than many are accustomed to and this involvement, I argue, should start before the Contractor sets to work. It also involves the architect (and other construction professionals) acquiring a greater range of managerial skills than most are equipped for by their education and training.

The assessment of the build quality is a further major cause of disputes affecting the completion of the work. The assessment of build quality is generally considered to be covered in the contract specification. Many contract specifications follow national and international classifications for describing the constituent parts of the work. Here, individual parts are divided up into elements and each element is described in two main ways : descriptions of the standards required of the materials to be used and descriptions of the standards of workmanship necessary to install or build the particular elements. The introduction of objective tests for the assessment of the completed work is a major problem. Many specifications are drawn up with an optimistic blanket coverage referring to British and European standards and the like which often have little relevance to the work being undertaken. This becomes painfully apparent when disputes arise as, in many cases, the looseness of this practice can work against the practitioner.

The introduction of a system of systematically organising and completing sub-sections of work throughout the building process has the advantage, of providing an objective basis for checking progress and quality. This, if operated intelligently, can contribute greatly to the prevention of the type of dispute that arises where the adequacy of the work in the earlier sections can affect the completion of the later parts. It also provides a mechanism for establishing extensions of time as delaying events occur.

While the later parts of the completion of the work will always tend to be the principal focus of completion problems, the system can be operated to take out at least one very significant and persistent cause.

The introduction of a model for Plan Stage 5 which divides the Stage into a number of simple sections has a number of advantages. Appropriate tests can be carried out successively and key parts of the construction can be approved before the next part commences. In effect, a number of staged completions of constituent parts of the work can implemented.

The Plan as it is currently constituted is largely static and prescriptive - it offers few insights as to how objectives can be introduced into the management of the construction work to minimise problems.

Characteristically there is little emphasis on the

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Common Construction Manual The construction process generally follows a fairly predictable pattern - this being sub-structure, superstructure and finishes and in that order. I consider that, with a degree of refinement, the major activities can be ordered into what I propose to call the Common Construction Model (CCM). I suggest this model with caution as it is clear that there will be no model that will be appropriate to all circumstances in much the same way at there is no one key that will open all locks. However, sufficient family resemblances are present across a wide range of types of construction projects to enable a reasonably reliable and robust common framework to be imposed. It is perhaps helpful to think of this as managerial or organisational scaffolding. It is also clear that as each project will (apart from obvious repetitions, such as house types), be different then part of the skill of those organising the management of the work is to design and operate within a framework which is more likely to avoid problems than to cause them.

perhaps of greatest benefit to the smaller and medium sized project. More complex projects will demand an approach which may well be non-linear.

However, they will, I argue, still be characteristically modular and, as such, the modules will be capable of the same sort of completion regime albeit in a more sophisticated form.

I propose a basic structure for the contractual organisation and management of Stage 5 in eight parts as follows Part 1 - Groundwork Part 2 - Building shell

The common construction model outlined above has to be fleshed out and the certification as to cist and quality has to be agreed in advance. The implementation of such a framework would require a significant restructuring of many of the accepted contract management models and current thinking by the relevant parties involved in the construction process It is also clear that much more resource and time will be needed to understand and plan the management of the construction process for each project than is customary. From a professional point of view this will have a bearing on the fees that are charged and, it is suggested, a long overdue restructuring the level of fees appropriate to each Stage of the Plan.

Part 3 - First fix Part 4 - Internal finish Part 5 - Second fix Part 6 - Finishing trades Part 7 - External works Part 8 - Commissioning A central feature of each part is that each part the work executed should be checked and certified as being completed. Thus, completion of each part is not merely completion per se but completion that satisfies an agreed standard of workmanship. The advantages of working in this way, with individual completions of the parts of the work is that not only is the programme monitored carefully and quality controlled but payment may be geared to the completion of each part. So, instead of interim payments being made, for example, on the Contractor's claim and an independent assessemnt of cost on say, a monthly basis, the certification of the completion of a pre-identified part could automatically trigger a pre-approved payment.

Thus, to structure Stage 5 in this way would involve a number of changes in attitude and practice. The commitment to an enhanced and systematic framework for managing the contract would involve the consultants and the contractor working together much more closely than at present and this has to be achieved without compromising the underlying legal framework of the contract which is, in essence an agreement between two parties - the Employer and the Contractor. The failure to manage construction project effectively often results in

The incentive to the Contractor are, is consider, obvious. This proposal is linear and modular and EXPERT WITNESS JOURNAL

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operated systematically throughout the construction of buildings.

employers, contractors and consultants becoming bogged down in non-productive and often acrimonious arguments, and against this background I consider that a constructive reappraisal of accepted practice is long overdue.

1, These conditions are largely to be found in Keating on Construction Contracts (eighth edition) Sweet & Maxwell, London 2006 19-113 p. 774).

It might be argued by the cynical among construction professionals that a system such as the model proposed is a nice theoretical idea but it would never work in practice. The simple fact is that many mainstream volume house builders are already operating similar systems and have been doing so for a considerable time. The cost of construction disputes can be prodigious. The time, energy and resources they are expended is often out of all proportion to what is in dispute and I have often been struck by the thought, while retained to give advice in contractual disputes, that if the energy expended on the dispute had been channelled into the building project it would have represented time and money well spent. It is a glaring statement of the obvious that time is money and in any complex system the primary objective for all parties is not to waste money. If a building contract remains in an incomplete state it is important to understand that there are costs to both the Employer and the Contractor. Put simply, neither party to the contract gains from delay. The Employer cannot make his investment begin to pay and the Contractor's profit is eroded by any delay and the compounding problem of damages which are a direct consequence of not completing on time.

Thus, to return to main objects of this paper, the completion of projects will be helped in the first instant, if those responsible for the management of the building contract have a clear understanding of what completion actually means. And here, it is important to grasp something that is, in essence, not complicated at all. Completion means what it says.

It means complete in all material and contractual respects. The aim of building contracts is to deliver up a building to the building owner of an appropriate quality, on time and on budget.

1, Architect’s Job Book 2008, London RIBA Publishing When the parties to a construction contact are unable to agree, litigation, arbitration or adjudication may be unavoidable. In this event, it is often necessary to have expert opinion in order to support or defend a claim. Dr Eaton is an experienced construction industry expert witness.

He regularly acts in the capacity of expert witness in construction disputes and has appeared on numerous occasions at court proceedings, construction arbitrations and construction adjudications.

He is trained and experienced in the preparation of expert reports and is used to meeting with other experts to narrow the issues in dispute. His experience and training extends to giving evidence at court and at other tribunals.

He can be contacted at: Natural House Stoughton LaneStoughton Leicester LE2 2FH T: 0116 271 8776 F: 0116 271 5443 E-mail: john.eaton@clara.net

To achieve these ends many present approaches to contract management would, in my view, benefit from the introduction of a comparatively simple management structure which, if implemented during the construction stage, would define and provide a blueprint the construction process that could be followed with clarity and greater reliability.

The modularization of the construction phase would enable completions to be achieved in well-defined and successive activity groups. To achieve this, completion has to move away from being an end-game activity. It has to become part of an active, integrated and successive process EXPERT WITNESS JOURNAL

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Scalding

By Stephen Walsh MSc, CEng., MCIBSE, FCIPHE, CMIOSH, MAE, Founding Member EWI and Accredited Expert Witness.

Forensic Chartered Engineer and Expert Witness, Chartered Occupational Safety and Health Practitioner.

This is a Non-Medical article reflecting the Scalding experiences from my Plumbing, Public Health (Building Services) Engineering and Occupational Safety and Health investigations.

were recommendations handed down from Plumber to Apprentice and continuum together with NHS requirements for their properties..

Initially when a victim had been scalded the Medical Expert would give the degree of tissue depth destroyed without having knowledge of the water temperature. In Litigation cases there was always a dispute as to the water temperature the victim had received. Then, as now, the only trusted data available to the Forensic Engineer being Dr.JP Bull of the Industrial Injuries and Burns Unit Medical Research Council “Temperature and Duration of Exposure Sufficient to Cause Burns in Thin Areas of Skin”. This information displayed in

Scalding is damage to the skin caused by wet heat.

Excessive scalding to the victim’s body surface area can be FATAL. During the 1980 period when I became a Forensic Engineer / Expert Witness after 20 years of Plumbing and Public Health (Building Services) Engineering experiences in the UK and overseas there was no statutory or standards requiring control of hot water to sanitary appliances. There EXPERT WITNESS JOURNAL

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A gravity hot and cold water system is one with an atmospheric cold water cistern installed at a higher level than the hot water cylinder. The cistern supplies cold water (cold feed) to near the bottom of the cylinder and hot water supplied from the top cylinder to the points of demand. The cylinder has a “Vent” pipe from the hot water supply pipe at near the top of the cylinder to allow the cold water to expand when heated inside the cylinder and to balance the atmospheric pressure in the water system when water supplied from the cylinder.

The cylinder can have a primary heating source of a boiler. This primary water could be the same as the radiator heating system. This water does not mix with the domestic water used by the user of the domestic hot water. The cylinder could also have a standby/summer heating source provided by an electric immersion heater. The cylinder should also be provided with a thermostat to control the domestic internal water temperature. That was the easy principles now for the details which if not correctly installed can cause serious personal injury and a fatality.

graph form with Time against Temperature in Degrees Celsius (°C) with the graph showing the “Partial Thickness Burns” and “Full Thickness Burns”. Using this graph together from the information given within the Medical Expert’s Report it was possible to establish the range of temperature and duration of the victim’s contact.

This information would be used to investigate the plumbing associated with the scalding incident with the view of finding the cause of the excessive hot water. The majority of my investigations were undertaken without the knowledge of the Medical Expert’s findings leaving me to assess the hospital notes of treatment and solicitor’s letter of instructions with or without photographs of the victim’s injuries.

With my personal interest in facilities for the disabled I wrote the first issue of the Institute of Plumbing (now the Chartered Institute of Plumbing and Heating Engineers) “Designing for the Disabled” within the Plumbing Engineering Services Design Guide which was published in 1988 and I set the temperatures for Wash Basins, Bidets and Baths at 38°C and lower for the user’s medical condition with the supply water being controlled by a thermostatic device. In 1998 with the death of 10 month old Rhianna Hardie, when a plasticised cold water cistern within a roof void collapsed onto this child sleeping in the bedroom below, I voiced my opinion for mandatory control to the Health and Safety Executive. They replied they would prioritise working to support the voluntary schemes for plumbers run by the Institute of Plumbing. Unfortunately volunteer schemes have no statutory control.

1. The primary heating source to the cylinder heat exchanger has a flow and return pipe. The flow pipe from a boiler might have a thermostatically controlled maximum temperature of 82°C. The primary heat exchanger traditionally positioned towards the middle of the inside of the cylinder.

The top of the cylinder containing the domestic hot water might reach the same temperature as the primary flow water should the cylinder thermostat be installed too close its base, equally the thermostat temperature might have been set too high. This thermostat should be connected to a solenoid control valve on the primary flow to stop the supply when the domestic hot water pre-set temperature reached.

In March 2006 there was a private members’ Bill tabled in Parliament Mary Creagh, MP for Wakefield, to stop Scalding Injuries and calling for all homes to be compulsory fitted with Anti-scald taps and controls on baths and showers setting the bath tap temperature maximum of 48°C. More than 600 people suffer from severe scalding injuries with a possible 75% being children.

2. The cylinder thermostat should not be set at a temperature higher than 65°C and not lower than 55°C. The BS 6700:1997 recommends not higher than 65°C and the Water Regulations Advisory Scheme (WRAS) Water Regulations Guide guidance states hot water be stored at a temperature of not less than 60°C. On larger vertical and horizontal Calorifier stratification can occur. This is when the hot and cold water volumes inside the vessel do not mix resulting in hot water to the top and cooler water at the bottom. There are plumbing engineering solutions to resolve this situation. The situation can occur with the cylinder thermostat in the cooler water zone and the top of the vessel has

Scalding according to the NHS for healthy people without having a sensitive to heat medical condition can commence at approximately 40°/42°C. The causes of scalding from hot water have occurred during my investigations from Electric Showers, Combination boilers both condensing and non-condensing, gravity vented and unvented hot water systems.

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plasticised material which can also collapse spilling hot water into the roof construction and the living spaces below. The final failure concerning the cistern being the float valve (ball valve). The plastic float fails due to the high temperature which results in continuous supply of mains water into the cistern for which the warning pipe cannot accumulate resulting in the water over spilling the cistern into the roof construction and the living areas below.

excessively hot water. The distributed water temperature should not be less than 55°C. The water temperature of 50°C should be supplied at the point of demand within 30 seconds after opening the tap full. The distribution temperature in excess of 50°C shall control microbial growth such as Legionella bacteria and unfortunately it shall also cause scalding.

3. An unvented hot water cylinder has its control valves set below 100°C. This system having its cold water supply provided directly from the water mains or similar high pressure source.

6. When the vent bend has not been installed correctly and the electric immersion heater’s own thermostat fails in the on position, the immersion heater continues heating the water with 3 kilowatt of energy which can result in the domestic water reaching boiling temperature.

In this case steam will vent out of the open pipe installed at the correct height. However, the incorrect installed vent pipe shall result in boiling water flowing into cistern and causing circulation as previously explained.

4. The supply pipe at the top of the cylinder must have a 90 degree bend immediately after the pipe connects to it. This bend is required to stop internal circulation within the vertical pipe which is extending the vertical capacity of the cylinder and the highest temperature the user of the system might come into contact after 30 seconds when fully opening the tap. This bend has an historical emergence (“Old” plumber’s technique handed down to apprentice), which has been found by present day investigations to be very important for energy conservation.

I have investigated too many cases of collapsed cold water cisterns and warning pipes which have resulted in serious medical conditions and fatality.

With the vent pipe bend being too low the cold water supplied to the tap or shower is hot and again I have investigated many scalding causes where the user had operated the cold supply only to be covered with hot water. Thermostatically controlled showers might have stopped this type of scalding incident.

5. Another important issue is the height of the vent pipe top bend level above the cold water cistern.

With the correct height as the water in the cylinder becomes heated it expands and the expanded water volume rises up the vent pipe.

When the vertical pipe has been installed with insufficient height and/or reduced internal pipe diameter the expanded water flows from the open end of the vent pipe into the cold water cistern. This flowing motion has now created a circulation of hot water entering the cold water cistern. To replace this hot water, cold water flows from the cistern into the cylinder. This situation can continue until the cold water cistern contains very hot water for which it was not designed and the vertical walls and/or base collapse spilling the hot water contents into the roof space and the bedrooms below. However, not all cisterns collapse as might be made of metal or other temperature resistant material.

In some situations the cisterns do not reach failure temperature. There is a plumbing engineering formulae for calculating the correct vent pipe height. Also should there be a circulation situation and the water not used from the cistern or cylinder the water expands and discharges hot water through the cistern’s warning pipe (overflow pipe). The domestic warning pipe normally manufactured of a EXPERT WITNESS JOURNAL

There have been incidents where people have turned the taps of the bath on and hot water was supplied from both. The users failed to check the water temperature before entering the bath resulting in serious scalding especially when one young mother put her young baby in the water before carrying out the “old grandmother’s test” of putting her elbow in the water. Yes the old tests are still the best. Another user had her feet amputated due to killing the tissue. Another where a disabled person in a nursing home was lowered in a hot bath and they died due to the degree of scalding and shock. A mother connected the two ends of a plastic hose to the taps and showered her child resulting in serious scalding requiring plastic scalp and facial medical surgery.

The Building Regulations 2000 Approved Document “G3” Bathrooms, 2010 Edition, paragraphs 3.65 and 3.66 now states the water supply to a bath should be limited to 48C by using in-line blenders or similar approved device.

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Below: View of an older type “Combined” Cold Water Cistern and Hot Water Cylinder” showing the Open vent and hot and cold water supplies.

Another “old” plumbing tradition in England and Wales was to install the cold water and drinking water on the right hand tap of the appliance and the hot on the left except for the bath where the cold is always on the side close to where the user stands. This has been now written into the Building Regulations 2000 Approved Document “G5” Bathrooms, 2010 Edition, paragraph 5.5, “Where hot and cold taps provided on a sanitary fitting, the hot tap should be on the left.” Where the hot tap had been provided on a bath close to the standing edge I have investigated too many cases where young children have been allowed to play in the bathroom and it has resulted with them being scalded after turning the hot tap on. I can investigate the water temperature and plumbing system but the Court has to decide on whether there was negligence.

Hot Water Service Open Vent.

Pressurised Primary heating pipes from boiler

I have also investigated cases where plumbers have undertaken work on systems without isolating the water supply which resulted in personal injuries due to being covered in hot water.

There have been cases I have investigated where the personal injuries could not have resulted from the installed plumbing. Unfortunately for unknown reasons to me persons have in the past been prepared to submit themselves to personal injury and create an allegation for personal injury claims.

It is possible to investigate such claims and provide plumbing technical evidence to the Court to substantiate a defence.

for domestic installations together with being a practicing Member of the Academy of Experts and a Founding Member and practicing Member of the Expert Witness Institute.

As an Expert I have a duty to the Court and to support the Court.

I entered the profession as an indentured student apprentice Plumbing, Gas and Public Health (Building Services) Engineer during August 1964 and qualified as an Engineer in 1969. I continued my academic training and “hands-on” work development to complete my professional qualification when I was awarded my Chartered Engineer status in 1983. I became an Expert Witness during 1984. I have completed the Academy of Experts and Expert Witness Institute courses for Expert Witness. During 2005 I gained the Cardiff University Accredited Expert Witness Certificate by their examination. During 2000 as part of my on-going professional development I gained MSc. in Occupational Safety and Health.

I specialise in personal injury caused by plumbing systems related accident investigations in the home and work place and accidents occurring to disabled people.

I am a Chartered Engineer and Chartered Health and Safety Practitioner. I am an Independent Consulting Engineer since 1984. I have a wide experience of domestic plumbing, building services and maintenance issues relating to personal injury scalding accidents .

I have gained MSc Occupational Safety and Health specialising in the plumbing personal injury and industrial services accidents. I am a member of the Chartered Institution of Building Services Engineers, Fellow Institution of Public Health Engineers, Fellow of the Chartered Institute of Plumbing and Heating Engineers, Member of the Worshipful Company of Plumbers, Chartered Member Institute of Occupational Safety and Health, also Gas Safe registered in compliance Gas Safety (Installation and Use) Regulation 1998 reg.3 EXPERT WITNESS JOURNAL

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Since 1984 I have been instructed as an expert witness and given oral evidence in Civil and Criminal Courts. I have given oral evidence as an Expert Witness at High Courts in UK for gross negligence cases and at the Royal Courts of Justice, Technology and Construction Court London, together with regional County Courts.

My Expert Witness duties are completed in compliance with B.S.EN. ISO 9001: 2008 “Quality Management” and BS.EN.ISO 14001: 2004 “Environmental Management” and BS EN ISO 18001:2007 Health and Safety systems to ensure compliance with CrPR Part 33 or C.P.R. Part 35 to the Instructing party’s instructions.

S.A.WALSH Specialist Consulting Engineers and Expert Witness

Public Health Engineering, Building Services Engineering Occupational Health and Safety Practitioner and Carbon Monoxide Investigations Gas Safe Registered Engineer Drainage, Water, Central Heating Rainwater Ingress and Flooding Scalding and Burns Forensic Chartered Engineer Investigations, Reports, Court Attendances 27 Passey Place Eltham, London SE9 5ZH. DX 32515 ELTHAM Tel: 0844 850 1918 Fax: 020 8850 6869 Mobile: 07786 070 333 e-mail: sawalsh@btconnect.com Web: www.sawalsh.com

Stephen Walsh S.A.WALSH Specialist Consulting Engineers and Expert Witness Ltd., 27 Passey Place, Eltham, London SE9 5ZH

The Complete Expert Witness Service

Tel; 0844 850 1918 Mob; 07786070333 Fax; 0208 850 6869.

Email; sawalsh@btconnect.com

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Additionally, we can monitor computer usage and search for abuse, as this is becoming an increasing problem in the current age.

Finding the right Forensic Consultant can be challenging, but engaging the wrong one can be catastrophic. You need a Consultant who has relevant forensic experience, industry knowledge, and, of course, familiarity with the role of the expert witness within the various legal forums.

Forensic Engineering Solutions has the background and knowledge to help you or your client find the answers to the myriad questions encountered in litigation, criminal defence, and industrial process problems.

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Aviation Litigation GMR Consulting take a brief look at what's involved in being an aviation expert witness.

Litigation is a fact of life in aviation, and aviation litigation relies heavily on the use of expert witnesses to analyse the technical facets of an accident or incident and to explain them clearly in terms that judges and authorities can easily comprehend.

The aviation industry is very complex and those involved in the litigation process may therefore need to retain experts in several different areas.

For instance, expert pilots may well be schooled in aviation weather but they are usually not meteorologists, so an expert meteorologist may be needed to provide vital evidence. If the case is one arising from an accident or incident, a piloting expert (recognised for their relevant knowledge of the particular aircraft) could be asked to analyse the crash and provide opinions on the causation and whether or not airmen breached their standard of care or the relevant regulations.

If you're involved in aviation and especially if you're an aviation professional, you might find yourself in the role of either an “advisor” or an “expert” to lawyers, insurance companies or the aviation authorities.

Qualified aviation professionals are frequently retained in order to investigate, analyse and possibly perform tests regarding the issues involved, or to give an initial overview of a case. This normally occurs in the early stages of a claim and the advice will often be delivered in a more informal manner, i.e. helping either the Claimant or Defendant lawyers to establish the merits of a claim. However, if formally instructed as an expert, the Civil Procedure Rules which govern expert evidence in the English Courts will apply.

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After evaluating all relevant evidence, aviation experts can also often be involved in the creation of demonstrative evidence. This can be as sophisticated as a computer animated re-creation of the accident or incident with real time tapes and flight data, or merely a collection of photographs which may be useful in explaining aviation concepts establishing how an incident may have occurred.

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The most convincing experts are usually those whose experience is most relevant. The pilot expert who has recently flown the type of aircraft involved in the accident or incident may be more persuasive than the one that merely studied the Flight Manual and the reconstruction expert who has examined the wreckage may be better than the one who studied the photographs.

assessing, air traffic control, meteorology and aerodrome management. All consultants are up to date on the latest international aviation regulations and flight procedures.

GMR Consulting provide expert witness services worldwide and have been instructed by Claimant and Defendant lawyers in highly complex civil and criminal aviation litigation. This has involved commercial, military and private flights, together with airshow flying incidents. More information can be found at: www.gmrconsulting.com ■

Many aviation professionals have full time jobs within the aviation industry, (keeping their expertise current) and render expert services on a part time basis. However, those retired from the aviation industry can also use their knowledge as an expert, especially if they have retained links in their specific field.

This article originally occured in issue 9 of The Expert Witness Journal, due to an internal Editorial error we have reprinted a corrected version. EWJ apologise for any misundertanding this may have caused.

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Crash Investigation: A History

by Rob Newton of Rob Newton Associates The inquest under Coroner William Percy Morrison heard that the incident took place on a terrace in the grounds of Crystal Palace in London and, while the driver was reported to be doing 4mph, witnesses stated that the vehicle was travelling at “a reckless pace”, and "tremendous speed" when she was struck and she died minutes later of head injuries. At the time of the crash, the car was being driven by Arthur Edsell, an employee of the company. He had been driving for only 3 weeks. He had apparently tampered with the belt, causing the car to go at twice the intended speed and was also said to have been talking to the young lady passenger beside him.

The start: In 1886 two major events happened; it was the year the house in which I live was built and the year the first motor car from Mr Benz hit the roads. For 10 years things were relatively quiet and then it all started.

On the 17th August 1896, Mrs. Bridget Driscoll of Old Town, Croydon was the first person to die in a motor car accident, and the first pedestrian victim of an automobile accident in the United Kingdom.

As she crossed the grounds of the Crystal Palace in London while attending a folk dancing festival, she was struck by an automobile belonging to the Anglo-French Motor Carriage (Roger-Benz) Company that was being used to give demonstration rides.

After a six-hour inquest, the jury returned a verdict of "Accidental Death". No prosecution was proposed or brought against the driver or the company. The Coroner at the enquiry is reported to have remarked: “I trust that this sort of nonsense will never happen again”.

Less than three years later came the first death of a driver and passenger of a motor car. On the 25th February 1899, Edwin Sewell and Major Richer were thrown from their vehicle on Harrow on the Hill, Middlesex, London, and killed. Sewell's death was the first fatality of a driver recorded. The driver, Mr. E.R. Sewell had been demonstrating the vehicle, a Daimler Wagonette, to 63-year-old Major James Stanley Richer, Department Head at the Army & Navy Stores, with the view to a possible purchase for the company. As they drove down the hill at 14mph, a wheel shed its rim. Both Sewell and Richer were thrown from the car onto the road. Sewell died instantly, and when Major Richer died four days after the accident without regaining consciousness, it became a dubious double-first; the

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first death of a driver in Britain, followed by the first death of a passenger in a motor car.

On the corner of Grove Hill there is a plaque commemorating the first car driver ever to die in a road accident.

studies of car occupant injury causation. Each year the project teams investigated more than 1,200 crashes involving cars. Accidents underwent detailed investigations, and examinations of the damaged cars were carried out to determine the performance of the vehicle during the crash. The examinations we carried out included the role of seat belts, airbags and other safety devices. Injuries sustained by the occupants were then matched to the vehicle and documented in an anonymous electronic database.

The research years Since then over 30million people worldwide have lost their lives in road traffic collisions as they are now called. Statistics show however that in the UK the number of people killed and seriously injured has decreased steadily since the introduction of front seatbelt legislation. For more than 25 years Loughborough University’s Vehicle Safety Research Centre (VSRC) had been helping the Government and motor industry ensure the cars of today and tomorrow offer the best possible protection to occupants. Established in 1982 within the University’s Ergonomics and Safety Research Institute (ESRI), the VSRC was the largest dedicated real world crash investigation research group in the world. The Centre examined the causes of accidents and injuries, investigating real life crashes, and over the years has made major contributions to European road and vehicle safety, as well as important advances in the science of crash analysis. I was privileged to be part of the team involved in this vital work.

The CCIS sample criteria ensured that the data collected was relevant and comparable. We only investigated crashes which had resulted in the death or serious injury of a vehicle occupant, which involved a car that was seven years old or less and where the vehicle has had to be towed away from

One of the VSRC’s longest running projects was the Co-operative Crash Injury Study (CCIS). The study was launched by the Department for Transport (DfT) in 1983 amidst growing concern for the safety of car drivers and passengers.

The VSRC and the Birmingham Automotive Safety Centre, based at the University of Birmingham, were selected to work on the project alongside the DfT’s Vehicle and Operator Services Agency (VOSA) and Transport Research Laboratory (TRL).

The Co-operative Crash Injury Study, CCIS was one of the world's largest and most well respected EXPERT WITNESS JOURNAL

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the scene of the incident. Where several cars had been involved in an accident we examined all the vehicles concerned as they all had an important part to play in helping us to understand how a collision occurred and how injuries were sustained.

A proportion of slight injury collisions that involved cars that were five years old or less were also investigated to learn from cars that had performed well in accidents.

actual accidents. A mechanical dummy in an artificial environment doesn’t react like a human would in a car crash and real accidents are much more diverse than can be replicated in laboratories.

However, by combining all these methods of investigation, you can make real advances in car safety. Very early on the CCIS was able to illustrate just how effective seatbelts were in saving lives and preventing serious injury.

When examining vehicles we used a very strict methodology that had been developed over many years to ensure we collected the exact same data from each investigation we carried out. During each examination we gathered very detailed information about the exterior and interior of the vehicle to help us determine how someone was injured, and then correlate our findings with information gathered by the police at the scene of the crash and medical data collected from hospitals.

When we had all the information we put together a precise picture of what happened in the accident, how injuries were sustained and how the car performed. This methodology continues to be used at Rob Newton Associates.

As well as the Government, the motor industry also used the data collected through the CCIS to get guidance on what new car safety devices are needed, how current devices were performing and how they could be improved. The feedback to industry was an incredibly important part of the CCIS. The investigations we carried out enabled industry to make informed decisions and provided specific data on where and what type of protection new safety devices needed to offer. For example, in side impacts, should car manufacturers focus their efforts on trying to protect the lower part of the body or the chest and head? We were able to tell them, from our findings, where the most serious injuries occur and what area of the body needed the most protection. Feedback on where current safety devices were failing or having little impact was also vital for industry to ensure they moved forward in the right direction.

There were many different organisations that made use of the CCIS data. The Government, for example, wanted to know what rules or regulations relating to car safety were likely to be of benefit and should be introduced, and what had been the effect of the regulations it had already introduced.

Initially the main remit of the CCIS was to establish whether the DfT’s decision early in the 1980s to make the wearing of seatbelts in the front seats of vehicles mandatory was the correct one. All indications were that this would help save lives but there was no scientific research to back this up.

You can use computer simulations and laboratory tests to help assess the effectiveness of car safety devices, but you can only truly know if they are saving lives by looking at how they perform in EXPERT WITNESS JOURNAL

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mathematically modelled or animated in 3D using various software.

Analysis of the CCIS data provided a unique view on how car structures, restraints and advanced safety systems influence car occupant injury. This real world injury and vehicle information was the foundation for many of the car safety improvements that have occurred since the study began. CCIS data directly influenced vehicle design improvements, legislation, consumer crash test programmes and test tool injury criteria. Thus the project made many positive contributions to the development of safer vehicles.

Systematic examination of a vehicle interior can reveal much about what occurred during the final few milliseconds of a crash. With in-depth knowledge of what happens in most common instances the investigator is able to focus their attention on the most probable events and is able to predict injury outcomes. Thorough assessment of vehicle to occupant interaction enables assessment of seatbelt use, probable seat position for occupants and much more.

It was very rewarding to know that the work we carried out each day was ultimately saving lives.

When we examined vehicles we knew that a life had been lost or someone had been seriously injured, but the CCIS enabled something positive to come from those many tragedies and helped prevent future ones from occurring.

Seatbelts are now an integral part of the vehicle’s safety system and systematic research has demonstrated what happens when car occupants have collisions with and without wearing them. In the majority of cases it can be determined whether an occupant was wearing their seat belt correctly or not. It can also be accurately predicted, for a given collision scenario, the expected injury pattern for belted and unbelted passengers.

From Research to Safety Consultancy For many years at the VSRC, Rob Newton and his team were able to assist other clients utilising the skills and experience learnt from the research and when the government contract ceased in 2010 Rob set up a private company offering those skills to Solicitors, Insurance companies and the Police. Rob Newton Associates now offers expert forensic biomechanics and occupant kinematics expertise for litigation, insurance and prosecution. Collision reconstruction is the scientific process of investigating, analysing, and drawing conclusions about the causes and events during a vehicle collision. Rob Newton Associates are employed to conduct in-depth collision analysis and reconstruction to identify the collision causation and contributing factors in different types of collisions, including the role of the driver, vehicle, roadway and the environment. The laws of physics and engineering principles such as the conservation of linear momentum and kinematics are the basis for these analyses and collisions can be

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All Vehicles are now fitted with an array of sophisticated equipment (not just on top-of-therange models). This can range from Predictive Assist Braking to Advanced Adaptive Cruise Control. Very soon the investigator’s question will not be “Who was driving?” but “Was there a driver?” ■

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Matthew Long

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MD, FRCOG

Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW Consultant C onsultant Orthotist Orthotist and and Orthotic Orthotic Expert Expert Witness Witness

Consultant Obstetrician, Gynaecologist & Mininmal Access Surgeon

Chris C hris h has as 30 30 years years of of experience experience in in the the field field of of orthotics orthotics and and over over 18 18 yyears ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth principles and he kknowledge nowledge of of orthotic orthotic p rinciples a nd practice practice h e has has specific specific expertise expertise iin: n: Â&#x192; Post Post trauma trauma orthotic orthotic rehabilitation rehabilitation Â&#x192; Neuro-rehabilitation Neuro-rehabilitation Â&#x192; Complex Complex disabilities disabilities Â&#x192; Orthopaedic Orthopaedic conditions conditions Â&#x192; Adult and Adult a nd paediatric paediatric orthotics orthotics Â&#x192; Lower biomechanics Lower limb limb b iomechanics Â&#x192; Lower Lower limb limb orthotics orthotics Complex ffoot oot a nd a nkle conditions conditions Â&#x192; Complex and ankle Foot orthotics orthotics Â&#x192; Foot Specialised o rthopaedic a nd b espoke footwear footwear Â&#x192; Specialised orthopaedic and bespoke

Mr Long is a consultant in obstetrics and gynaecology with over 25 years experience in looking after women with related health issues.

Mr Long has medico-legal experience preparing expert witness reports in cases related to: â?&#x2013; The obstetric management of labour and delivery â?&#x2013; Urinary incontinence and pelvic floor problems, including prolapse â?&#x2013; Minimal access surgery including hysteroscopy, laparoscopy and treatments for menorrhagia.

He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the claimant, claimant, defendant expert.

He has Expert Witness d efendant and and as as a single single joint joint e xpert. H eh as undergone undergone full full E xpert Wi tness with Bond Solon and holds Expert Witness ttraining raining w ith B ond S olon a nd h olds tthe: he: Certificate Certificate of of E xpert W itness Accreditation byy Bond Law A ccreditation (CUEW) (CUEW) iissued ssued b Bond Solon Solon and and Cardiff Cardiff University U n iv e r s ity L aw School.

Registered S chool. R egistered with with the the Health Health & Care Care Professions Professions Council Council (HCPC).

(HCPC).

Mr Long is fully compliant with the GMC and RCOG regulations on specialist registration and continuing education.

Consulting C onsulting a at: t: 1 152 52 Harley Harley Street, Street, a able ble to to travel travel throughout throughout the the UK UK for when for cclient lient vvisits isits w hen rrequired. equired.

Orthotic O rthotic Experts Experts Ltd Ltd 52 5 2 Beresford Beresford Avenue, Avenue, Surbiton Surbiton Surrey, 9LJ Surrey, KT5 KT5 9 LJ Tel: +44 7721-514568, Tel: +4 4 ((0) 0) 7 7 2 1 -5 1 4 5 6 8 , Fax: +44 20 7192 3339 Fax: +4 4 ((0) 0) 2 07 192 3 339 E-mail: E-mail: iinfo@OrthoticExperts.co.uk nfo@OrthoticExperts.co.uk

P. O. Box 302, Horley, Surrey RH6 9TB T: 01293 822 344 E: matthewlong@nhs.net

w: www.specialistgynaecologist.co.uk

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When Ability Matters Ability Matters Clinic is a part of Ability Matters Group, an international group of companies, whose principal activity is to supply products and services that enhance the lives of those who require devices to improve their mobility and accessibility.

The group has 30 years experience in providing enablement product and services throughout the UK and Ireland and has a fast growing international profile with direct operations in both Holland and France. In 2014, we were pleased to be ranked 22nd on the Sunday Times HSBC International Track 200. Our continued growth means that we now employ more than 450 staff.

Ability Matters Clinic has formed a part of the Group’s organic growth over the past ten years.

We are proud to be able to offer fast access to a team of highly experienced clinicians, all proven experts in their fields. This enables us to offer a complete range of private prosthetic and orthotic care.

We can formulate medico-legal reports in relation to prosthetic or orthotic treatment as well as provide patient care and support in terms of the prescription of devices following personal injury and limb loss. Our reporting can also include treatment justification, cost justification and future cost justification for all aspects of Prosthetic/ Orthotic requirements.

The Group enjoys extensive partnership arrangements with the NHS for the provision Prosthetics, Orthotics and Wheelchair Services. This is complemented by our strong reputation as product supplier under our Ortho Europe brand. More recently we have established a chain of Ability Matters Mobility/Independent Lifestyle stores at strategic locations within the UK alongside a specialist wheelchair lift access company – Ability Matters Lifts.

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We work to the international medical quality standard ISO 13485, which is specific for medical devices and related services to meet both patient and regulatory requirements. Ability Matters Group is also member of the British Healthcare Trade Association – BHTA.

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Our team of highly qualified and experienced Prosthetists and Orthotists work in conjunction with an affiliated panel of healthcare professionals, including consultants, physiotherapists, podiatrists, occupational therapists and counsellors.

are able to select the most appropriate prosthesis to match the clientsâ&#x20AC;&#x2122; requirements and enhance their ability. Ability Matters is able to draw upon an excellent working relationship with all major component manufacturers and suppliers.

We welcome referrals from Consultants, Doctors, Physiotherapists and Occupational Therapists as well as direct referrals. Our Ability Matters clinics are conveniently located in 7 locations â&#x20AC;&#x201C; Abingdon, Belfast, Bradford, Dublin, Manchester, Oxford and Wimbledon. In addition we can offer appointments in a number of other satellite clinics throughout UK and Ireland.

The value of a prosthesis is directly related to the way in which the prosthetist develops an understanding of the clientâ&#x20AC;&#x2122;s needs and is able to provide the time, care and equipment to satisfy the clientâ&#x20AC;&#x2122;s requirements. This can be the most technologically advanced microprocessor knee joints, such as the GeniumÂŽ, C-Leg, or sophisticated myo-electric arm units.

We opened our brand new state-of-the-art clinic in Manchester late last year â&#x20AC;&#x201C; this also boasts an excellent retail outlet giving high quality access to a comprehensive range of orthotic products, specialist seating, wheelchairs, mobility scooters, daily living products and specialist footwear.

Equally important to the function of a prosthesis is the comfort and the ability to use it to enhance everyday activities including sport where appropriate. We are therefore able to supply a wide range of lightweight artificial limbs or specialist prostheses for sports activities.

Ability Matters Prosthetics We offer a complete range of prosthetic care for both upper and lower limb loss. Our prosthetists

Our prosthetist will discuss all of the available options with the client.

EXPERT WITNES EXPERT WITNESS SS SERVICES SERVICES & MEDIC MEDICO-LEGAL CO-LEGAL REPORTS REPOR TS FROM M ABILITY MATTERS MA ATTTERS Ability Matters has 30 yea years ars experience in providing providing enab enablement blement pr product oduct and services throughout throughout the UK U and Ireland.

Ireland.

We LQ WKHLU Ă&#x20AC;HOGV who W e have highly experienced experien nced clinicians, proven proven experts LQ Q WKHLU Ă&#x20AC;HOGV who can formulate formulate medico-legal medico-le egal reports reports in relation relation to orthotic c treatment treatment and the prescription expert pr escription of orthotic d devices following personal injury. We We also provide provide expe medico-legal services in relation relation to orthotics.

All experts trained by Bond Solon

Cost-effective Cost-effective reports reports with quick turnaround turnaround

Experts in all areas areas of prosthetics pr osthetics

F infor For iinformation f mation ti about abo boutt our experts t or to t book b k a consultation, co onsultation, lt ti contact t t us today. TTelephone: elephone e e: 0800 0723 122 2 Email: info@a info@abilitymatters.co.uk abilitymatters.co.uk

ABILITY MA MATTERS ATTERS T CLINICS: ABINGDON â&#x20AC;˘ BELFAST BELFFAST A T â&#x20AC;˘ BRADFORD â&#x20AC;˘ DUB DUBLIN BLIN â&#x20AC;˘ MANCHESTER R â&#x20AC;˘ OXFORD OXFO ORD â&#x20AC;˘ WIMBLEDON

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Above: A small selection of our life-like silicone prosthetics Above: Vertical Platform Lift

Ability Matters can also offer clients access to our very own high-definition silicone service. Our sister company is a leader in the field of producing high quality custom made cosmesis. Using our SkinMatch technology we are able to produce the most life-like cosmetic finish possible. We can offer cosmetic covers for upper and lower prosthetic limbs, manufacture hands and feet, single digits and reconstructive silicone.

Above: Our new Specialist Ability Centre in Manchester Ability Matters Orthotics Our experienced team of Orthotists use the latest in technology and biomechanical assessment equipment to assist in the prescription of specialist orthotics such as knee braces, orthopaedic footwear, insoles, sport orthotics and other support products.

We are able to supply a wide range of advanced private orthotics solutions, including E-Mag Control & E-Mag Active Orthoses, Donjoy and Ă&#x2013;ssur braces. A growing number of clients with complex, short or long term conditions and rehabilitative needs rely on this service to enhance their mobility and improve their quality of life.

For further information please contact us on 0800 072 3122, info@abilitymatters.co.uk or visit our website www.abilitymatters.co.uk

Above: Biomechanical Assessment EXPERT WITNESS JOURNAL

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An Expertâ&#x20AC;&#x2122;s Guide to Designer Drugs

By Dr Bernard Leddy Ph.D. Leddy Consultancy Ltd www.leddyconsultancy.ie However, with the sophisticated sensitivity of most modern Forensic Toxicology laboratories many intoxicants which are not themselves illegal may be found in blood and urine samples.

General Considerations for the Practicing Lawyer.

Designer Drugs are often defined as synthetic analogues of a legally restricted or prohibited drug, devised and manufactured to circumvent existing drug laws. I am seeing an increasing number of cases in my Forensic Toxicology practice where the clients of Lawyers who instruct me are getting into trouble through the use, abuse and misuse of these substances whether legal or not. Persons involved in the manufacture, distribution and sale of these drugs are always trying to keep one step ahead of the legislation. In some jurisdictions the actual molecular form of the molecule including its isomers must be described in law.

Technical Considerations.

With improved technology in the very near future delivering accurate,hand held, roadside testing devices for testing drivers for drugs as well as alcohol I feel that Lawyers will find an increasing caseload of relatively complex cases which they havenâ&#x20AC;&#x2122;t had to deal with heretofore. In most jurisdictions presently a blood or urine sample is sent for toxicological screening after an accident or road traffic event which has come to the attention of the Police. In future when devices developed recently are used,routine roadside testing for drugs will be as common as roadside alcohol testing is now.The results of this for Lawyers is that you will have to deal with much more complicated toxicology and pharmacology in dealing with your driving under the influence cases.In many of the

In other jurisdictions more generic prohibitions apply where the authorities can ban a class of substance without first identifying all and any specific molecules. Also, in most jurisdictions it is illegal to drive or attempt to drive while under the influence of an intoxicant. In many cases the intoxicant does not have to be defined beforehand.

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cases which I deal with involving so called ‘’Designer drugs’’ it feels as if I have to hit a moving target as the inventiveness of the synthetic chemists who manufacture these substances is quite impressive. Quite small changes in molecular structure allow many of these drugs to retain their potency but lose their prohibited legal status. They may turn up in forensic blood and urine samples and make the toxicology quite challenging.The frightening thing for me is that most,if not all,of them have never been the subject of objective clinical trials so the adverse side effects may be completely unknown to the users.

How to Deal with Your Client.

The legal issues surrounding and involving these drugs are manifold. The first thing to address with your client is to establish what breaches of the Law are alleged in each case. It may be simple possesion or possesion with intent to supply, manufacture or even driving under the influence.

intoxicants which your client did not, knowingly, consume.These are often adulterants of street drugs some of which can have quite profound effects on behaviour or driving skills. The concentrations of these adulterants made be quite small as the analytical methods used in toxicology testing are very sensitive. So you will need to get the full screening picture. Many of these drugs are controlled substances under misuse of drugs legislation, however, quite a few are not. How you handle your client depends on the nature and quantity of intoxicant found. In cases where the drugs themselves are analysed I find that street drugs are often complex mixtures of substances some of them probably unknown. They are seldom if ever pharmaceutically pure and may be adulterated with quite dangerous additives. Again as the Lawyer you need to get the full analytical picture from a toxicologist as the penalties for possession,manufacture,sale and distribution will depend on the chemical nature of the drug.

It is important for you the Lawyer to get the exact name of the intoxicant complained of as it may affect the legal classification of any alleged offence.It is also important to obtain a full toxicology report if forensic samples have been taken. In my experience some toxicology reports on blood or urine can throw up the presence of

How Can I Help You. I offer a full toxicology and drug information service for Lawyers.It will be fully available online later in the year but in the meantime you can contact me through my new website www.leddyconsultancy.ie Dr.Bernard Leddy 2014.

Dr Roger Slater Consultant in Anaesthesia & Intensive Care

MBChB. BSc. MRCP. FRCA. FICM

DN A DEFEN CE Forensic Science Consultancy

Consultant in Anaesthesia and Intensive Care in NHS practice since 1989.

Preparing medico-legal reports for 15 years.

Independent specialist expert witness service to lawyers STR DNA profiling Y-STR Serology (body fluids) Crown continuity

DNA Mixtures Paternity Bloodstain patterns Crown methodologies

Low Copy Number Scene of Crime Hairs Crown accreditation

Has published peer review papers and articles in anaesthesia and intensive care practice.

We review and give expert opinion on Crown results and reports and where required re-examine exhibits and conduct further laboratory testing.

Our chartered experts: Bond Solon CUBS trained, many years experience in Crown and defence roles, University guest lecturers, advisors to the Crown, professionally cited and honest, objective, clear and helpful to the court.

Tel: 07710 280 348 E-mail: rogermslater@btinternet.com

With our knowledge we believe we offer a totally unique service.

Correspondence address: Church Lodge Little Wenlock Telford TF6 5BD

DNA Defence Ltd 1, Harley Place, Clifton Down, Bristol BS8 3JT DX 130678 CLIFTON 4 T 0117 370 2727 F 0117 911 8583 E info@dna-defence.co.uk W dna-defence.co.uk Registered No 6575771

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Experts Flag a Crisis in Drug-Resistant Infections Drug-resistant infections will cost the world 10 million extra deaths a year and up to $100 trillion by 2050, if the global increase is not stopped, according to a major new report launched by economist Jim Oâ&#x20AC;&#x2122;Neill on the 11th December 2014.

Health and Wealth of Nations. This outlines the sobering and escalating human impact of AMR between now and 2050, as well as its potentially enormous global financial cost.

Drug-resistant infections already kill hundreds of thousands of people globally every year, and the trend is growing. The importance of effective antimicrobial drugs cannot be overplayed. For example, E. coli is a widespread bacterial infection in rich and poor countries. It is a major cause of diarrhoea in children and can be lethal: it kills up to half of patients who get it as a bloodstream infection where antibiotics are not used.

Jim Oâ&#x20AC;&#x2122;Neill leads the Review on Antimicrobial Resistance (AMR), another term for drug-resistant infections or superbugs. The Review was established by the UK Prime Minister David Cameron in July.

It published its first paper in mid December: Antimicrobial Resistance: Tackling a Crisis for the EXPERT WITNESS JOURNAL

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1. The impact of antimicrobial resistance on the world’s economy if the problem is not tackled.

Today, doctors reserve a class of antibiotics called ‘carbapenems’ as a drug of last resort against E. coli, meaning they use it only in cases when the other antibiotics have become ineffective due to resistance. In an alarming development, doctors have had to use more and more carbapenems in the past years and now a strain of carbapenem resistant E. coli has emerged and spread around the world.

For patients infected with that bacteria, there are now no effective drugs available for doctors to use.

2. How we can change our use of antimicrobial drugs to reduce the rise of resistance, including the game changing potential of advances in genetics, genomics and computer science.

3. How we can boost the development of new antimicrobial drugs.

4. The potential for alternative therapies to disrupt the rise in resistance and how these new ideas can be boosted.

The analysis, produced by RAND and KPMG, with input from experts in the scientific community, estimates that failing to tackle drug resistance will mean around 10 million people across the world will die every year by 2050. This is likely to be an underestimate, as it excludes the indirect effects of AMR which could cast medicine back to the dark ages by making routine medical procedures far more dangerous through the higher risk of infection.

5. The need for coherent international action that spans drugs regulation and drugs use across humans, animals and the environment.

The Review will publish further papers looking at these and other themes set out in the December report, culminating in its final report in the summer of 2016.

Quotes about the report Nick Stern, President of the British Academy, IG Patel Professor of Economics and Government at the LSE and former Chief Economist of the World Bank, said:

The reduction in population and the morbidity impact would also reduce the level of world GDP by between 2% and 3.5% by 2050, creating a cumulative hit to global wealth of $60 - $100 trillion. This is approximately the equivalent of losing the UK economy from global output every year.

"Wise policy looks ahead and tries to manage risks, particularly the big ones. There can be no doubt now that antimicrobial resistance is one of the biggest that we, all of us, face. The work of the group led by Jim O'Neill is of profound importance and this paper shows very convincingly the great scale of the risks, in terms of human lives and the economy, that are posed by this deeply worrying phenomenon."

Jim O’Neill, Chairman of the Review on AMR, said: "Drug-resistant infections already kill hundreds of thousands a year globally, and by 2050 that figure could be more than 10 million. The economic cost will also be significant, with the world economy being hit by up to $100 trillion by 2050 if we do not take action.”

Lawrence H. Summers, Charles W. Eliot University Professor and President Emeritus at Harvard University, said:

“We cannot allow these projections to materialise for any of us, especially our fellow citizens in the BRIC and MINT world, and our ambition is such that we will search for bold, clear and practical long term solutions."

“This sobering analysis from Jim O’Neill’s Review demonstrates why the world needs to get serious about tackling the rise in antibiotics resistance.

We play with fire if we skimp on public health.

Ignoring the tide of drug resistant infections risks rolling back the hard won medical advances of the last century at precisely the first moment in history when we can actually go the other way and close the global health gap.”

However, the report makes the case that this crisis can be averted if global action is taken soon to address this huge problem and identifies that there is already cause for some optimism. This report provides the Review’s first assessment of the economic challenge of AMR and over the coming year, Jim O’Neill and his team will be exploring what action can be taken at a global level to address:

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Ramanan Laxminarayan Director at the Center for Disease Dynamics, Economics & Policy in Washington & New Delhi, said: 64

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the moment. I look forward to the ideas that Jim will recommend in due course for how we can begin to turn this tide globally.

“The timing of the release of this important Review coincides with the re-entry of one of the world’s largest pharmaceutical companies back into the antibiotics business. The Review emphasizes that we need to be smarter and can’t afford to repeat our earlier approach to antibiotics which has failed to taken into account the fact that these are medications like no other and are central to modern medicine. The consequences of not doing so are likely to be staggering.”

“The studies also demonstrate that there are simply far too many gaps in the monitoring and surveillance of bacterial infections across all parts of the world. Keeping track in real time of the emergence and spread of new resistant strains is essential if we are to act effectively at a global level to halt the rise of resistance.”

Jin-Yong Cai, CEO of International Finance Corporation part of the World Bank Group and the largest global development institution focused on private sector development said:

Allan Coukell, Senior Director, Health Programs, The Pew Charitable Trusts, said: “This report is a stark warning of the global human and economic costs if antimicrobial resistance is allowed to rise unchecked. However, this dire scenario can be averted if governments, industry, healthcare leaders and non-governmental organizations work together to develop new drugs and diagnostics and reduce overuse of antibiotics in healthcare and in agriculture.” ■

"This report raises in stark terms the economic and human toll that AMR is taking on global health, and the consequences of inaction. As a financial development institution, we are concerned that AMR may constrain economic progress in the world's poorest countries. The report sensibly calls for ideas and action on multiple fronts to avert a global crisis, and support progress the world has made in fighting infectious diseases and alleviating poverty."

Dr Jeremy Farrar, Director of the Wellcome Trust, said: “The medical community has long been aware that drug resistant infections are one of the biggest emerging threats to global health, with the potential to trigger new epidemics and to undermine the foundations of much modern healthcare. By highlighting the vast financial and human costs that unchecked drug resistance will have, this important research underlines that this is not just a medical problem, but an economic and social one too.”

Dr Paul Bell Consultant General Adult Community Psychiatrist MB Bch BAO, MD, FRCPsych

Consultant General Adult Community Psychiatrist in East Belfast since 1991 having extensive medical management experience and taking especial interest in Child Protection measures, Post Traumatic Stress Disorder, Schizophrenia and improving relationships between Family and Child Care and Mental Health.

Professor Dame Sally Davies, Chief Medical Officer for England, said:

I have acted as an expert witness in psychological trauma and other cases for 20 years

We all know that antimicrobial resistance (AMR) is important. This is a compelling piece of work, which takes us a step forward in understanding the true gravity of the threat. It demonstrates that the world simply cannot afford not to take action to tackle the alarming rise in resistance to antibiotics and other antimicrobial drugs we are witnessing at EXPERT WITNESS JOURNAL

Department of Psychiatry Knockbracken Healthcare Park Saintfield Road, Belfast BT8 8BH Tel: 02890 565 656 Email: yvonne.mccambley@belfasttrust.hscni.net

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Expert Evidence in Chronic Pain

by Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Mr John Mackinnon, Consultant Orthopaedic Surgeon, Hugh Koch Associates LLP Dr Chris Harrop, Chartered Psychologist, Hugh Koch Associates LLP Dr Liz Boyd, Chartered Psychologist, Hugh Koch Associates LLP Pain is ‘an unpleasant sensory and emotional experience associated with actual or potential tissue damage’ (International Association for study of pain). Duration and prognosis contribute to pain being categorised as Acute or Chronic.

explain a claimant’s ongoing pain experience and repeatedly encounter semantic and evidential difficulties.

Over 7 million people in the UK are affected by chronic pain, which is the second most common complaint cited by claimants on incapacity benefits.

Chronic pain is also associated with conditions such as arthritis and cancer as well as traumatic events such as road traffic accidents, work related incidents and medical accidents.

The overlap between orthopaedic and psychological/psychiatric opinion in cases of chronic pain, with significant functional impact, frequently cause lawyers and the court difficulties, in terms of diagnosis, severity assessment, causation and prognosis/treatment (Koch and Mackinnon, 2009). The authors have had considerable experience of chronic pain assessments, joint reports and/or joint cross specialty opinions to

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Psychological factors not only contribute to how pain is initially perceived but are also predictive of how individuals will cope long term with ongoing pain (Koch and Hampton, 2011).

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pain experience will be difficult to explain in organic terms or becomes a chronic condition which is so complex and confounded by social and psychological factors that the original cause has less, if any, meaning. It is at this stage that a psychological/psychiatric opinion is typically sought.

A further Pain Management report from an anaesthetist may subsequently also be commissioned. Referring to DSM V, one of the two main classification systems of mental disorders (APA, 2000), disorders involving pain fall into seven categories: • General medical condition Fully accounts for the physical complaints.

Medico-Legal issues associated with chronic pain A) Pre-existing pain When carefully distilling through the self-report and medical evidence associated with a claimant ‘in pain’, the medico-legal issues, which arise, include: 1. The ‘egg shell skull’ principle – a claimant must be taken ‘as they find him/her’, even if indexevent complaints are aggravated by previous health problems.

2. The alternative ‘ predisposition’ model in which a claimant’s vulnerability to ill health or pain could be considered causative of a post indexevent condition and that it would have been triggered by another further occurrence in any event e.g. somatoform personalities.

• Somatoform Disorder A history of many physical complaints over several years in different body sites, plus gastrointestinal and sexual/reproductive areas and not fully explained by a known general medical condition.

These two issues have been considered in a number of cases, e.g. Page v. Smith (1996); Giblett v. Murrays (1999). The key test of causation, arising out of these deliberations and in case law is whether the index-event, on the balance of probability, caused or materially contributed to or increased the risk of the development or prolongation of the symptoms of a pre-existing pain disorder, physical or psychological/psychiatric.

• Pain Disorder Typically pain is adversely affected by psychological factors such as anxiety and depression, in otherwise robust personalities.

• Generalised anxiety disorder Characterized by worry not limited to, but including, physical symptoms.

Claimant Vignette: Since the accident I have had excruciating pain in my lower back, and sharp pain down my left leg – they told me this is because of pressure on my sciatic nerve. It’s the worst pain I’ve ever had. I can’t sit still and can’t settle on anything. I can’t imagine how this pain could be worse than it is – on a scale of 1 to 100, the severity of the pain is 110! I’ve had back pain before but never as bad as this.

• Panic disorder Somatic complaints occurring only during panic attacks.

• Depressive disorders Somatic complaints that are limited to episodes of depressed mood.

• Schizophrenia or other Psychotic disorders Somatic concerns that are of a delusional nature.

Orthopaedic Expert Vignette: As soon as I saw Mrs Jones, she looked in pain. She had difficulty walking to the examination room and gasped a lot on the way. She got up several times during the interview to walk around. It was strange as one test I did on her resulted in two different results (one more mobile than the other) depending how I did the same test – medically this is unusual, if not impossible – I wonder if psychologically she is finding this pain so difficult to cope with that these ‘unusual medical results’ occur?

In addition: • A psychological organic pain processing disorder:- is recognised, but is very rare.

C) Assessment Issues When interviewing a claimant whose presentation has been described as one of chronic pain, the following areas require investigation: -

B) Diagnosis of pain-related disorders Typically much of pain experience will have an organic/medical cause, which will be assessed, and diagnosed by a ‘medical’ expert e.g. GP, Orthopaedic surgeon. In some cases, despite an initial medical diagnosis, the continuation of the EXPERT WITNESS JOURNAL

1. Clear history of site-specific pain onset.

This is obtained from claimant self-report plus GP (and other medical) attendance information.

2. Evidence of unrelated prior attendance to, typically, medical practitioners for one or more 67

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differentiates people’s relationship with the pain and significant others in terms of ‘primary’ and ‘secondary’ relationships. When the relationship the person (and the significant other) has with the pain is primary, it can mean the pain is all consuming and other important relationships become secondary to that primary relationship with the pain. In a sense the pain dominates and rules over the person’s life which can further impede and increase the severity and intensity of the pain but also accentuate the difficulties in pain management.

Interventions with patients who experience chronic pain can be assisted in exploring their relationship with the pain away from a primary relationship to a secondary and that important relationships remain at the foreground or primary thus improving the prognosis. Similarly the fit between the beliefs about the pain (e.g. how the pain should be managed by each of them, and their expectations of the other) between the person with the pain and significant others is also important in their experience and coping with pain. Assessment of the relational component therefore e.g. family members beliefs about pain management can be informative in assessments, management, treatment outcome and prognosis.

somatic complaints and associated frequency of such attendance.

3. Evidence of social factors including partner and family response to the pain and associated difficulties.

4. Interview data on how the claimant presents and verbalises his/her pain.

5. Claimants awareness of how psychological factors (ways of thinking, self-confidence, optimism, behaviour and social activity) impacts positively or negatively on the claimants coping strategies and perception /tolerance of pain.

6. Reliability of claimants history giving – many people have difficulty recalling or giving accurate history of their pain, due to memory and lack of specificity issues, rather than a wish to mislead. Untruthfulness of claimant’s history giving is differentiated from ‘Reliability’, although it is clearly at the end of the reliability continuum. This is typically for secondary gain such as financial gain and is ‘conscious’ ie, intended to mislead.

Since the gate control theory (Melzack and Wall, 1965) opened up the view that pain was not purely a physical experience a new definition of pain developed “an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage (Merskey et al, 1979, p.217). This definition acknowledges the role of meaning and subjectivity in the pain experience. Wall (1999, p.179) stated that the practical question of controlling pain cannot ‘be answer satisfactorily until we understand the context in which pain resides. Pain is one facet of the sensory world in which we live.

Assessment of a claimant’s experience of pain and their beliefs is important in the prognosis and or/treatment outcome (Skevington, 1995). Beliefs around coping with general adversity can be informative for how they cope and management with pain.

Cultural beliefs can be mediators of how pain is experienced. Shi’ite Muslims can believe the pain experience as enabling them to come closer to God whereas Sunni Muslims preferred to seek pain relief (David, 1998).

The chronic pain experience has also been described in relational terms in that Mason (2004) EXPERT WITNESS JOURNAL

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D) Treatment and prognosis of chronic pain Psychologists and pain management specialists are activity engaged in providing psychological (and medical) interventions in cases of chronic pain, addressing the several psychological (cognitive, emotional, behavioural) and social aspects of disability. This can be offered either on an individual (one-to-one) basis or as part of a multi-disciplining hospital –based pain management intervention.

Psychological • Psychological experience of pain.

Example Pain Assessment Trail during litigation process GP → Orthopaedic → Psychological/Psychiatric Pain Management (Anaesthetist)

Joint Opinion (orthopaedic/psychological) On occasion, the court will instruct an orthopaedic and psychological expert to discuss their separate, independent opinion and prepare a ‘Schedule of Agreement and Disagreement’ relating to the claimant’s chronic pain. Despite the different clinical background of the two experts, discussion views on the interface of physical and psychological explanations and prognosis can be invaluable to the court’s deliberations.

• Impairment in social and occupational functioning.

• Psychological factors in onset, severity, exacerbation and maintenance of pain.

• Exclusion of factitious disorder or malingering.

• Use of pain coping strategies and readiness to change.

→

↓

Multidisciplinary Management Treatment (Medical and Psychological CBT) Coping with pain: A Vignette Since my accident two years ago, my back continues to hurt and stops me doing things at home and work. In the first few months, I saw it as a medical/physical problem only, but since going to the local pain management clinic I have learnt how to use distraction, and other cognitive (thinking) techniques to put the pain into a context which doesn’t define me. I pace myself – stopping, resting and starting again. I take every opportunity to tell myself if I have achieved something. The pain has changed a little but the main thing is I think I’m managing the pain better.

Conclusion Ensuring accurate and reliable assessment of pain experience and associated level of social and/or occupational description require careful, often multi disciplinary expert opinions. In particular, the liaison and collaboration between psychologists and orthopaedic surgeons who understand each other’s view-point is essential. Currently these authors are looking at how reliability of both specialties and their joint opinions can be enhanced. Results will be published in due course. ■

Pain-related Joint Orthopaedic/Psychological assessment and opinion To address comprehensively the several medical and psychological aspects of chronic pain, some orthopaedic/psychologist teams are currently offering ‘joint appointments’ to lawyers. Such appointments have the advantage of: • Same day appointment with orthopaedic specialist and clinical psychologist.

References: Koch HCH & Hampton N (2011) The experience, evidence and opinion on pain. Your Expert Witness.

Autumn.

Koch HCH & Mackinnon J (2009) Understanding Ongoing pain. Legal and Medical, 13.

References Mason, B. (2004) A relational approach to the management of chronic pain. Clinical Psychology, 35, 17-20.

• Separate report with agreed conclusions following case discussion between experts.

Merskey, H. et al (1979) IASP sub-committee on taxonomy. Pain, 6 (3): 249-252.

• Appointment within 6 – 8 weeks.

Melzack, R. and Wall, P.D. (1965) Pain Mechanisms: a new theory. Science, 50: 971979.

These assessments cover: Orthopaedic • Location of pain – anatomical, organ system

Skevington, S (1995) Psychology of Pain. Chichester. John Wiley and Sons.

Wall, P.D. (1999) Pain: The Science of Suffering. London.

Weidenfield and Nicholson.

• Temporal characteristics of pain and pattern of occurrence.

All Authors can be contacted via www.hughkochassociates.co.uk They provide monthly clinics throughout the UK.

• Aetiology.

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The Quality and Efficiency of Care

by Cathie Bree-Aslan, MSc RGN DipN Independent nurse expert advice on standards of care and breaches of duty in cases of potential clinical negligence. co-morbidities. The Royal College of Nursing suggests however that these tools should not replace the nursesâ&#x20AC;&#x2122; clinical judgement when assessing their patients for the risk of pressure ulcer development7. Evidence also suggests that despite their widespread use, risk assessment tools frequently fail to aid in the prevention of pressure injuries8.

Abstract: In 2009, the NHS Institute for Innovation and Improvement published a list of 8 key High Impact Actions to improve quality and efficiency of care.

One of these actions was promoting skin care and in particular, reducing the incidence of pressure injury1.

Historically, it has been considered that as many as 95% of pressure injuries are avoidable2 and yet between 20-30% of patients admitted to UK hospitals will develop a pressure injury3. This creates a huge cost burden on the health services and the potential for increased costly litigation. The Department of Health has defined avoidable and unavoidable pressure injury (figure 5)4 and this should underpin strategies for the prevention of pressure injuries.

This may be partly explained by the fact that pressure injuries are multifactorial in their aetiology. Alongside the extrinsic forces of pressure and shear, other factors, which may be intrinsic or external, may compound or contribute to the breakdown of the tissues (figures 1 & 2)

A pressure injury can be described as â&#x20AC;&#x153;localised injury to the skin and/or underlying tissue usually over a bony prominence, as a result of pressure or pressure in combination with shear. A number of contributory or compounding factors, such as friction and moisture may also be associated with pressure ulcersâ&#x20AC;?5 There are numerous guidelines and Best Practice Statements available to health care professionals to aid in the prevention of pressure injury and yet despite this, the incidence of pressure injury does not appear to be falling.

Figure 1: Intrinsic factors affecting tissue viability

Risk Assessment: The National Institute for Health and Clinical Excellence (NICE) recommends that every patient is risk assessed within 6 hours of being admitted for an episode of care (24 hours for community patients)6. Nurses generally undertake this role and most clinical areas will use one of the recognised Risk Assessment Tools such as the Waterlow, Braden or Norton Scores which take into account factors such as mobility, age, continence and EXPERT WITNESS JOURNAL

Figure 2 above: External Factors affecting tissue viability.

The more factors present, the greater the risk of a pressure injury developing.

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In addition to the actual risk assessment is the requirement for the nurse to observe the patient’s skin and to monitor it closely throughout the patient’s episode of care. In reality, the risk assessment cannot be fully completed without the nurse observing the skin in the first instance.

However, ongoing monitoring is required if the early signs of potential pressure injury are to be observed.

Clearly some of these factors cannot be avoided, but if they are identified early and their potential impact understood, interventions can be implemented to mitigate the risk of pressure injury.

These risk factors should form part of the Risk Assessment and most of the common tools in use will incorporate some sort of calculation of risk set against these factors. Despite this, it is common to find cases where the risk assessment has failed to identify the ‘at risk’ patient; this suggests that nurses either do not assess their patient comprehensively or do not always understand how to use the tools.

If the early signs of pressure injury are observed, interventions can be instigated to mitigate the risk of the injury developing Pressure injuries occur when a person spends a prolonged period of time in one position. If the surface upon which the patient is being nursed (i.e. the mattress and/or chair) does not adequately reduce or alleviate the pressure, then injury can occur. The tissues becomes compressed by the firm surface and this deprives the skin of blood.

When a patient is first admitted into an episode of care there may be may many reasons why a risk assessment is not fully completed for example, the patient may be critically ill and their medical condition will (and should) take precedent over a pressure ulcer risk assessment; the nurse does not know the patient and/or the patient may not be able to provide a full history – therefore making accurate assessment difficult; the patient may be unwilling/unable/difficult to move so that the skin can be accurately assessed etc. So the ‘6 hour’ recommendation from NICE may be as impractical as it is vital to the prevention of pressure injury.

There should however be little excuse for a full and thorough risk assessment to have been carried out within 24 hours of a patient arriving for an episode of care. It must be considered though that by this time, the injury may already be developing.

Once deprived of oxygen the skin turns pale in colour but when the pressure is alleviated the area flushes red as the blood vessels are released and blood can rush back into the tissues. This is referred to as a blanching or reactive hyperaemia.

It is easily demonstrated when a person sits with their legs crossed – on uncrossing the legs there will be a red mark where the two surfaces were pressed

Cathie Bree-Aslan

It may be argued that the use of a tool just adds to the already burdensome paperwork that the nurse must complete. Should a nurse not be able to make a sound clinical judgement of likely risk without having to fill in a score card? This is a valid argument against the use of such tools but without them, the risk of pressure injury may not be well articulated and fully documented to form the basis of an appropriate care plan. The nursing care plan (in whatever form) is vital in supporting continuity of care and should be based on thorough patient assessment and consideration of the optimum care regimes.

MSc RGN DipN Independent nurse expert advice on standards of care and breaches of duty in cases of potential clinical negligence.

Our services are available to the legal profession on behalf of claimants, defendants or as joint experts.

We provide unbiased and professional reports which are compliant with Part 35 of the Civil Procedure Rules.

Areas of expertise cover all aspects of tissue viability and wound care; typical examples include: ❖ Nursing/professional negligence ❖ Breach of duty ❖ Standard of care, reporting on all aspects of Nursing standards ❖ Hospital, community and nursing/residential care ❖ Specialist in Tissue viability (wound care, prevention & management of pressure ulcers) Our services also include: ❖ Preliminary advice (up to 1/2 hour telephone consultation) ❖ Expert nursing opinion ❖ Report preparation, writing and submission ❖ Site visits/home visits ❖ Patient assessment ❖ Attendance at conference with Counsel/opposing expert ❖ Attendance at court

Understanding Pressure Injury Aetiology and Prevention Methods: When it comes to pressure injury, experience proves that frequently, little emphasis is placed on the importance of prevention and that more often than not, the risk assessment under-estimates the actual risk to the patient and hence, opportunities are missed to provide appropriate interventions.

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Please contact, Cathie Bree-Aslan Telephone: 01273 474441 E-Mail: info@nurseexpertwitness.org Web: www.nurseexpertwitness.org Nurse Expert Witness, Pendragon, Swanborough, East Sussex, BN7 3PQ

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appearance or a blackened area (this category is unstageable or ungradable; figure 4). This process can take from 5 days to several weeks, dependent on the type of pressure and whether there are periods of relief. Those that occur due to totally unrelieved pressure will be black within 5 days and it then can take weeks for the tissues to breakdown and open.

together. At this point there is no damage caused in the tissues but if the pressure were to be repeated, the tissues would again be deprived of blood and eventually, if the pressure is not relieved, the tissues will become inflamed. In the patient, this will present as a reddened or discoloured patch of skin.

In the case of reactive hyperaemia, if gentle finger pressure is applied, the area turns pale (blanches), flushing red again when the finger pressure is released. Once the tissues become inflamed however, this finger pressure test will not produce a blanching of the skin and this is referred to as a non-blanching (non-blanchable) erythema or redness, and this is the first stage of pressure injury.

For nurses this means that they have a very quick and simple test that can be performed to ascertain if the patientâ&#x20AC;&#x2122;s skin is at risk of injury. If they recognise blanching hyperaemia they can take steps to alleviate the pressure and the patient should not then go on to develop a pressure injury. This blanching hyperaemia should dictate the frequency of repositioning required because it is a measure of how the patientâ&#x20AC;&#x2122;s skin is tolerating pressure.

Any reddening of skin should alert the nurse to the need to reposition the patient. Two hour periods are often quoted as the time that a pressure injury will occur. However, this is dependent on many factors with some people able to withstand long periods without damage, whereas others can develop an injury in less than an hour due to comorbidities, such as arterial disease. Therefore, the best method of prevention is to relieve pressure as often as the individual requires based on reddening of the skin. Any redness requires repositioning more often.

Figure 3 above: The EPUAP Pressure Injury Categories Two further descriptions have also been added to the categorisation of pressure injury, those of unstageable (ungradable) and suspected deep tissue injury

The simplest method of pressure injury prevention is the use of specialist equipment that either redistributes the pressure (such as soft foam, static air, low air loss mattress) or relieves the pressure over small areas on a regular basis (dynamic air mattresses). To alleviate the pressure over the heels, devices known as heel protectors can be used.

The European Pressure Ulcer Advisory Panel (EPUAP) have categorised pressure injury into 4 stages (figure 3).

Pressure ulcers due to unrelieved pressure do not progress from category 1 to category 2 to category 3 and ultimately to category 4. Rather, they begin deep inside the tissues, close to the bone and finally erupt on the surface of the skin following a period of redness on the surface, turning to a bruised EXPERT WITNESS JOURNAL

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Figure 4 previous page: Additional descriptors for pressure injury (EPUAP/NPUAP, 2009)

Ulcers due to friction and shearing have a different appearance. They often commence as a blister and may be multiple surface wounds. Friction and shear occur when the individual constantly moves or slides over a surface. For instance, someone may involuntarily slide in a chair and be constantly lifted back into position by thoughtful carers, only to slide again. This causes pinching of the tissues as the bone slides against the internal surface of the skin and the skin in that area will die. The shape of this wound is often irregular in appearance and can be superficial to the surface leaving the lower muscle intact.

By the time the tissues have become blackened the breakdown is inevitable and cannot be prevented.

In fact, the necrotic (black and dead) tissue breakdown is usually encouraged by either dressings (such as hydrogels to rehydrate the area and encourage autolysis (natural tissue breakdown) or through the use of sharp debridement (cutting out the dead tissue with scissors or scalpel).

There are other types of pressure injury such as a moisture lesion (caused by skin made damp from sweat or urine) and friction injury (often caused by poor moving and handling techniques). This is a very simplistic description of a very complex condition.

The prevention of pressure injuries by frequent repositioning of patients is a widely accepted practice and nurses commonly reposition at risk patients every 2 hours. However, this is based on a myth that Florence Nightingale took 2 hours to reposition every injured soldier on her ward (Crimean War,1853-1856), thereby reducing the number of pressure injuries that occurred. Then, in 1961, a research study by Koziak, which examined a 2 hour turning schedule, also found this reduced pressure injuries10. This led to the belief that all at risk patients should be repositioned every two hours. Today we realise that every individual’s risk is different and each individual should be repositioned according to need11. The simplest method for this is to examine the tissues and view any reddening as a warning that pressure injury is inevitable if action is not taken to relieve the pressure12. This means that repositioning and equipment usage will be based on the individual’s personal requirements and pressure injury would be avoided in the majority of patients.

The wounds caused by unrelieved direct pressure are most often the shape of the bony prominence that is the cause of the damage with a round appearance (over the hip, heel or ischial tuberosities) or symmetrical shape over areas such as the sacrum.

Muscle requires more oxygen and being softer than skin would be damaged first and we know that pressure is five times greater at the level of the bone than it is at the surface. This is known as the ‘cone of pressure’ and means that any damage caused by unrelieved pressure will commence in the deeper tissues, closer to the bone and will work outwards to the less vulnerable skin surface while the skin remains red for days before this damage becomes apparent.

This method of prevention is supported by the NICE Guidelines and EPUAP Guidelines on prevention of pressure injuries. These guidelines are open to all and we can expect qualified nurses to have gained access to the recommendations or to have been informed of them by specialist nurses such as Tissue Viability Nurses, in order to prevent pressure injuries in their patients.

Repetitive tissue stress is an important contributor to ulceration in the more mobile patient and this can take weeks to manifest itself as the insult to the tissues is a constant pressure for long periods, with periods of relief which only partially recovers the tissues.

Coggrave and Rose9 studied 48 spinal cord injured patients and found it took nearly two minutes of pressure relief for reperfusion to take place. If the individual then repositions onto that area before the two minute recovery time, then there is not enough recovery to ensure irreversible damage is prevented. This constant pressure versus recovery will eventually lead to tissue injury. The appearance of this damage will not be symmetrical and often has a dark red and hardened appearance.

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Conclusion The aetiology of pressure injury development is well understood and all nurses are taught this as part of their basic nurse training. There are national guidelines and best practice statements upon which health care providers can base their own local policies and procedures for the nursing teams to follow and there is a huge variety of 73

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pressure relieving equipment available to meet all budgets. Furthermore, there is a vast bank of knowledge and expertise at health care providers’ disposal via specialised Tissue Viability Nurses.

Utilising sound and timely risk assessment and ongoing monitoring of the patient’s skin in conjunction with these resources, pressure injuries can be identified before they develop and with the provision of appropriate interventions the majority of pressure injuries should be avoidable

References: 1 NHS III (2010) 2 Hibbs PJ (1998) Pressure Area Care for the City of Hackney Health Authority. City and Hackney Health Authority, London 3 Clark M 4 EPUAP 2009 5 DH 6 NICE 2005 7 RCN 2001 PU prevention & Risk Ax 8 RCN 2005 management of PIs in primary & secondary care

The Department of Health has provided the health care profession with a definition as to what is deemed an ‘avoidable’ pressure injury: “Avoidable” means that the person receiving care developed a pressure ulcer and the provider of care did not do one of the following: evaluate the person’s clinical condition and pressure ulcer risk factors; plan and implement interventions that are consistent with the persons needs and goals, and recognised standards of practice; monitor and evaluate the impact of the interventions; or revise the interventions as appropriate.”

9 Coggrave MJ, Rose LS. (2003) A specialist seating assessment clinic: changing pressure relief practice.

Spinal Cord. ;41(12):692–5 10 Rosenberg, C. (2002). New checklist for pressure ulcer prevention. Journal of Gerontological Nursing, 28(8), 7-12 11 Hampton and Collins (2003) Tissue Viability.

Whurr Publications. London 12 Hampton S & Bree-Aslan C (2009) Pressure Care (Part 2) The importance of Assessment. Nursing &

Unavoidable Pressure Ulcer: “Unavoidable” means that the person receiving care developed a pressure ulcer even though the provider of the care had evaluated the person’s clinical condition and pressure ulcer risk factors; planned and implemented interventions that are consistent with the persons needs and goals; and recognised standards of practice; monitored and evaluated the impact of the interventions; and revised the approaches as appropriate; or the individual person refused to adhere to prevention strategies in spite of education of the consequences of non-adherence” The DH offers the following Guidance: “In determining whether the pressure ulcer is avoidable; commissioners, regulators or others could request to see evidence demonstrating the actions outlined in the “avoidable” definition are demonstrated”.

Figure 5 in box above: Department of Health Definition of Avoidable Pressure injury. ■

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Elective Hip and Knee Replacements Cancelled The BOA reported in January 2015 that hip and knee replacements are being cancelled in the light of increasing pressure on A&E.

are facing prolonged anxiety, discomfort and pain while they wait for a new date for their surgery.

Unprecedented demand has led to a third more elective operations being cancelled in England this winter than last year. A total of 12,345 were called off at short notice between 3 November and 4 January, a rise of 32% on the 9,320 seen in the same period in the winter of 2013-14.

Clare Marx, President of the Royal College of Surgeons of England, said: “The continued rise in the number of operations cancelled for non-clinical reasons remains of deep concern. Telling a patient that they cannot have the operation they have waited and planned for can cause considerable distress to the individual and their family. As surgeons we are doing our best to manage our patients’ conditions and to make sure they can have the surgery at a time when they need it.” The BOA fully supports this position.

It states that some 3,771 procedures such as hernia repairs and hip or knee replacements were cancelled in the three weeks before and during the festive season alone, as the NHS experienced some of the most intense pressure in its history.

More than 200 operations have been cancelled because of mounting pressure on the A&E services across Leicester’s three hospitals. Latest figures show that since the start of December there have been a total of 239 cancellations. Of these 65 were on the day the patient was due to have their operation. ■

NHS figures show a sharp rise in the number of planned operations being cancelled.

The Guardian reported that thousands of patients whose operations have been cancelled because of the growing turmoil in the UK’s A&E departments

Dr Zbigniew Kirkor

Dr Joshua Adedokun

Consultant in Pain Medicine Medico-Legal Expert and Mediator

FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

Dr Kirkor has been involved in medico-legal work since 2011. He has experience as a Consultant in Anaesthesia and Pain Medicine in regional district hospital (DRH). Work in DRH means a broad variety of cases seen in his clinic every week including, back and neck pain, whiplash injuries, Whiplash Associated Disorders, Neuropathic pain, Post-traumatic injuries and many more.

Dr Adedokun has extensive clinical experience in the management of various Chronic Pain Syndromes including persistent Neck, Back, Neuropathic or Complex Regional Pain Syndrome especially following Personal and Occupational Injuries. He also has wide experience in Medical Negligence claims.

Listed on the UK register of Expert Witnesses, an APIL expert, Member of Society of Expert Witnesses, Expert Witness Institute and is a Sweet & Maxwell accredited Expert Witness 2014.

Areas of expertise include: Chronic pain Acute pain Whiplash injury Whiplash-Associated Disorder Post-injury pain Postoperative pain Anaesthesia

Dr Adedokun accepts instructions from Claimants, Defendants and as a Single Joint Expert. He covers Manchester, Liverpool, Leeds, Birmingham & London. Other locations and Domiciliary visits can be arranged.

Dr Kirkor can offer the appointments for Polish customers in their native language.

Contact person:

Lisa (Medico Legal Manager) Tel: 01625 526 665 Mobile: 07885 913 912 Email: expertpainreports@gmail.com

Appointments available in three venues: Birmingham, Telford and Shrewsbury Evening and Saturday appointments. available and in some circumstances home visits (subject of additional fee.)

Suite 6, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG

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All correspondence to: Apley Clinic, Apley Castle Telford, Shropshire TF1 6TF Tel: 07724 928444 E-mail: medicolegal@pain3.org Website: www.drkirkor.com

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Failure to Examine the Evidence: The Importance of an Accurate Report of the Medical Expert (Part 2) The Case History: The Second Phase of 8 Months Dr Angus Strover FRCS gives an indeth overview 1. After the operation of tibial tubercle transfer for patella alta and the accident resulting in a comminuted fracture of the left tibia (see Part 1), the Claimant had a successful journey by Air to his home some 600 miles from the Hospital1.

9. Bloods were taken and the vital signs were recorded by the Triage Nurses.The temperature was recorded at 38degrees, pulse rate was 80 per minute and the C-reactive protein was (CRP) was recorded as 50.

2. The Claimant was transferred back to the care of his General Practitioner and the team of Physiotherapists who would visit him daily, mobilise him on crutches and apply ultrasound to the fractured area on the left tibia.

10. A radiograph was requested and was reported as “No change since the previous radiographs from Hospital 1.”

3. The first four days were uneventful but subsequent to his spending excessively long periods out of bed at his desk the fractured leg became painful and swollen.

4. The Physiotherapists and General Practitioner, having discussed the unsatisfactory situation decided to admit the Claimant to the acute unit of the local Hospital.

5. The GP thought it wise to contact the local Orthopaedic Surgeon (Surgeon2) and ask if he would take over the treatment of the Claimant.

6. Surgeon 2 was happy with the situation but was unable to attend to the Claimant on that day and asked the Triage team to contact the Trauma Surgeon (Surgeon 3) on call for acute admissions.

7. Surgeon 3 examined the Claimant as soon as he was admitted to the ward. A good detailed history was taken.

8. One of the written observations of the Senior Triage Nurse on duty that night was that the Claimant was “comfortable in bed, reading a book with the foot of the bed elevated”.

EXPERT WITNESS JOURNAL

These radiographs of the left leg were taken a week after the internal fixation of the fractures. The Fibula was not fixed and as usual it healed without being disturbed.

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11. Surgeon 2 discussed the situation by phone with Surgeon 3. Surgeon 2 (senior to Surgeon3) then asked the latter to take the Claimant to theatre, open the wound widely, remove any discoloured soft tissues, apply pulsed lavage and send soft tissue biopsies to the Pathology Department for microscopy, culture and sensitivity (MC&S).

and struggled on with his rehabilitation but found office work was difficult and painful.

21.With the continuation of pain and the need for painkillers and crutches he had little time to concentrate on his profession resulting in a significant loss of income . His partner who was employed in town was significantly stalwart in doing all the house work as well as looking after the Claimant and maintaining a demanding occupation in the town.

12. Following this surgery the next morning the Claimant was seen by Surgeon 2 who discussed the operation with the Claimant.

Please answer following questions by ticking the appropriate replies 1. Bearing in mind that all Medical personnel in this case were in Private Practice, the Surgeon 1 who had done the original operations had heard nothing of the operations that had taken place in the home town of the Claimant. Who, in your opinion, should have taken the responsibility to contact Surgeon 1 (at Hospital 1, 600 miles away), to give him updated information about the progress of the Claimant, and particularly about the hospitalisation and further surgical treatment of his patient ? a) The G.P. ❑

13. Surgeon 2 then said that he would need another operation 48 hours later “just to be safe” and to check on the internal fixation of the fracture as he felt that more screws would be needed beyond the plate.

14. 48 hours after the first operation, Surgeon 2 went ahead with a second operation to remove all subcutaneous sutures and all skin clips and to enlarge the incision so that he could place two more interfragmentary screws beyond the distal end of the plate into the tibial diaphysis.

15. Further pulsed lavage was used and more soft tissue and muscle biopsies were removed and sent to the laboratory for microscopy, culture and sensitivity.

b c) d) e)

16. The Claimant remained for a further four weeks in Hospital and was discharged on antibiotics for 6 weeks.

❑ ❑ ❑ ❑

2. Surgeon 2 had previously treated the Claimant for knee pain unsuccessfully. The Claimant had subsequently been referred by his G.P to the local Sports Medicine Consultant who, after having assessed the Claimant and having reported his findings to the GP., referred the Claimant to Surgeon 1 who operated 600 miles away.

17. On return to home the Claimant attended Physiotherapy appointments and the progress was diligently recorded by by the Physiotherapy team. The reports were regularly sent to Surgeon 1 who responded and admonished the Physiotherapists to increase the Claimant’s exercises and to introduce more diligent weight-bearing.

3. Technically therefore the Claimant, having arrived back in his home town, was still under the treatment of Surgeon 1 who was not informed of the take-over of his patient by Surgeon 2 and was expecting some feedback from his patient or someone who was keeping track of his progress.

18. Radiographs were taken at monthly intervals for the next five months and the reports repeatedly state that the fracture lines were still “clearly visible”, indicating that there was apparent delayed union.

19. Surgeon 2 apparently ignored the Radiologist’s reports and continued to encourage the Physiotherapists to increase weight bearing exercises in spite of the pain that the Claimant was suffering.

a) Would you regard that the take-over of the Claimant by Surgeon 2 could, in medico-legal terms, be illegal and consistent with an act of “supersession”?.

Yes

20. The Claimant ( who was a self-employed professional person with Clients of his own) regularly attended his Physiotherapy sessions EXPERT WITNESS JOURNAL

The Physiotherapist visiting the patient The local Orthopaedic Surgeon (Surgeon 2) The Claimant himself Any or all of the above

No Uncertain 77

❑ ❑ ❑

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b) Do you agree that the take-over without at least a telephonic discussion between the 2 Consultants would be regarded as a “failure of Good Professional Conduct” ❑ Yes No ❑ Uncertain ❑

c) have operated only if the clinical and laboratory results indicated that there was a definite infection, ❑ Yes No ❑ Uncertain ❑

4. The Orthopaedic Surgeon 2 reacted as if he were dealing with an emergency to treat a serious infection when the Claimant’s GP contacted him asking if he would admit the Claimant to the Acute Unit of the Local Hospital because the Claimant was not managing to be nursed at home under the daily supervision of a Physiotherapist from the GP Practice.

On the subject of ‘Pulsed Lavage’ and its effect on tissue damage. Spead of existing organisms into the deeper layers of tissues, damage to bone and non-union 1. Publications on the positive effects of effects of pulsed lavage indicate that its use is important for cleansing contaminated wounds and removal of sand, soil and other debris from compound fractures such as occur with war injuries, high velocity traffic injuries , mountaineering and accidents at work , in this case you may well have have advised the use of pulsed lavage.

2. However in this case there was no evidence of any injury with an open wound requiring the use of pulsed lavage.

Given the facts: i) that the operation wound had healed and there was no wound leakage although the leg was swollen ii) that the vital signs of temperature, pulse and respiration were within normal ranges, (slightly increased) iii) that the Triage notes indicated that the Claimant was reading comfortably in bed with the foot elevated.

3. When used to help clear the area of pus and bacteria pulsed lavage has again been shown to be useful when used with care.

iv) that the C-reactive Protein level was reported as being 50

4. When used with excessive pressure pulsed lavage has been shown to damage not only soft tissues but also bone. In the latter respect it has been shown to hinder the healing, causing delayed or non-union of broken bones both clinically in humans and in experimental studies using rats.

v) that Surgeon 3 was the Trauma Surgeon on call for emergencies and would be operating through the night vi) Would you, taking the part of Surgeon 2 (who was unable to operate that night)

5. In wounds that are badly contaminated and those that have already shown infection, not only is a low irrigation pressure advised, but saline has been shown to be less efficacious than soap and water, which has been shown to be superior in its effects on decontaminating the wound and removing bacteria and less damaging than saline and antibiotic solutions.

a) have reacted as in the history and called for the services of Surgeon 3 (the Trauma Surgeon on-call) to take the case to the operating theatre etc,?

Yes ❑ No Uncertain

❑ ❑

Was there really any clinical or laboratory evidence of a ‘Nasty deep infection’?

Yes clinical but no lab evidence

b) have waited for 12 hours with regular clinical TPR observations, 6-hourly blood tests with the option of telephonic conversations with the ward until you were able to attend a ward-round the following day EXPERT WITNESS JOURNAL

❑ ❑ ❑

Yes No Uncertain

No lab or clinical evidence

❑ ❑

Thank you for your participation. ■

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Trampolining Delight or Danger Trampolining is very attractive activity that appeals to a wide age group from three to four year old children to those almost in their sixties.

What is it that is so attractive?

For young children who most likely spent quite a bit of time jumping up and down on their beds indulging in attractive physical sensations with very little danger apart from the annoyance of their parents.

children from falling off. The net replaces the spotters normally part of the arrangements for the larger school, or leisure centre trampolines.

The large competitive trampolines are usually of the folding variety and are, when folded, mounted on roller stands so that they can be pushed around gymnasia or on hard outdoor surfaces. The large trampolines need four to six people to raise them from the floor since they weight about 15 cwt The garden trampolines are not usually on wheels but are of much lighter construction and can be moved around easily by a couple of adults. The large trampolines are used for pleasure, exercise and fitness, developing visual awareness and indulging in sensations not normally easily available elsewhere. They are the equivalent of the seven league boots commonly mentioned in fairy stories.

I am sure that is the ability for most active people to very easily jump up and down to heights that they could never reach naturally. One can also safely land on oneâ&#x20AC;&#x2122;s knees, seat, back or front. It is also common in competitive trampolining to perform twists to or from these landing and also somersaults with or without twists from them in addition to single and double front or back single and double somersaults from feet with up to three twists.

Trampolines are manufactured in rectangular and circular format and in sizes from twelve feet by nine feet to seventeen by ten feet for the top level competitive trampolines. The circular trampolines now very popular for garden trampolines range from eight feet to twelve normally with a safety net surrounding them above bed height. The net around them is to prevent performers usually EXPERT WITNESS JOURNAL

As a sport, trampoline competitions arrived in Britain from America in the late fifties and the first World Championships were held in the Albert Hall in 1964. Trampolining however was not included in the Olympic Games until the 2000 Games in Melbourne, Australia.

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shoulders to grasp their clothing behind the buttocks to help them raise them backwards and up to start the rotation. For backward somersaults the performers raise their hands forwards and upwards to shoulder height with the palms facing forwards. The supporters then place their hands behind the performers buttocks so that they can push their hips forwards and upwards to start the backward rotation

In competitive trampolining, the centre point of the bed is marked with a cross and a number of sections to aid the judges when determining where in relation to the centre of the bed the competitor is landing travelling away from the cross is gets a lower performance mark than staying close to when landing.

The normal set up in addition to the trampoline is the use of crash mats mounted on frames at the end of the trampolines and on the floor around them. The mats are usually eight to ten feet long and 6 inches thick and will absorb heavy or uneven landings and resist rebound. There are also push in mats which are about six feet by four feet by about three inches thick and quite light. They are used to push in under performers for their landings and are normally operated

They keep their hands in contact with the buttocks until the performer has passed the vertical and then transfer their hands to their shoulders help them to land upright. Supporters can also help with the learning of twisting somersaults. For somersaults with more rotation such as one and three quarter front somersaults and double back somersaults, the use of the belt supported by ropes held up with pulleys is the safest method.

Another important difference between garden and competitive trampolining is that for competitive trampoline training and performance the performers should be trained only by coaches trained and examined by the sportâ&#x20AC;&#x2122;s governing body, the British Gymnastics Association or itâ&#x20AC;&#x2122;s forerunner The British Trampoline Federation.

This should ensure that those taking part are not unwittingly engaging in dangerous practices.

Unfortunately, sometimes accidents are caused by the incorrect instructions or lack of proper supervision by the coach or person in charge of the session.

Thus it makes the learning of some very complicated moves such as double front and back somersaults with half up to three twists possible.

So the ordinary teenager can do things safely with skilled teaching that were only possible in the past to circus performers which is quite safe and exhilarating. â&#x2013; Robin C Walker December 2014

In addition to properly qualified coaches running the instruction sessions, there should be at least four spotters, one at each end and two along each side. Their role is to pay close attention to the performer and to move quickly to where the performers is likely to come off the trampoline and push them back in towards the bed. However if the performer is coming over the side very rapidly or at a height the advice is to get out of the way in case two people are injured.

Qualified coaches are also trained in hand supporting skills for teaching somersaults and twisting somersaults to learners using, officially approved methods. Sometimes there is a need for two supporters especially for front and back somersaults. For front somersaults, the supporters hold one hand each of the hands of the performer who holds them out forwards and slightly sideways.

The supporters then place their other hands on the performers shoulder to discourage them from dropping their shoulders down to start the somersault or they reach over the performers EXPERT WITNESS JOURNAL

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Alarming Cycle of Head Injury in the UK Cyclist casualties have risen in recent years as the amount of cycling has increased. The majority of cyclist casualties are adults, with less than one fifth being children. Cycling accidents increase as children grow older, with 10 to 15 year old riders being more at risk than other age groups, including adults until about the age of 60 years.

According to the Department of Transport, the number of cyclists killed or seriously injured on UK roads has increased 11% in the past three years.

Head injuries, ranging from fatal skull fractures and brain damage to minor concussion and cuts, are very common injuries to cyclists. Hospital data shows that over 40% of cyclists, and 45% of child cyclists, suffer head injuries. A study of 116 fatal cyclist accidents in London and rural areas found over 70% of the cyclist fatalities in London had moderate or serious head injuries in London, and over 80% of those killed in collisions on rural roads.

Cyclist Casualties 2013 [1] Child Killed 6 Seriously Injured 276 Slightly Injured 1,676 Total 1,958

Adult 103 2,867 14,510 17,480

To some extent, this reflects increased cycling as children grow older followed by a switch to motorised transport from the late teens onwards.

It also coincides with the age when children attend Secondary school, and may indicate riskier behaviour by this age group.

Males are far more likely to be involved in cycling accidents than females; four out of five cyclist casualties are male.

All 109 3,143 16,186 19,438

Most cycling accidents happen in urban areas where most cycling takes place. Almost two thirds of cyclists killed or seriously injured were involved in collisions at, or near, a road junction, with T junctions being the most commonly involved.

Roundabouts are particularly dangerous junctions for cyclists. Not surprisingly, the severity of injuries suffered by cyclists increases with the speed limit, meaning that riders are more likely to suffer serious or fatal injuries on higher speed roads.

Almost half of cyclist deaths occur on rural roads.

The alarming fact is that every year in this country around 19,000 cyclists are killed or injured in reported road accidents, including around 3,000 who are killed or seriously injured.

According to RoSPA, these figures only include cyclists killed or injured in road accidents that were reported to the police. Many cyclist casualties are not reported to the police, even when the cyclist is inured badly enough to be taken to hospital. The figures also exclude cycling accidents that occur away from the road. Although the number of deaths is accurate, there could be two or three times as many seriously injured cyclists and double the number of slightly injured.

EXPERT WITNESS JOURNAL

Around 80% of cycling accidents occur in daylight which is when most cycling takes place. For child cyclists, 90% of their accidents occur during the day. The most dangerous hours for cyclists are 3.00 to 6.00 p.m. and 8.00 to 9.00 a.m. on weekdays.

However, cycling accidents in the dark are more likely to be fatal.

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More cycle accidents occur during the Spring and Summer months (May to September) than the Autumn and Winter months (October to April).

However, the casualty rate in terms of miles travelled is higher over the Autumn and Winter period.

involve a collision with another vehicle, but are caused by the rider losing control of their bicycle.

In collisions involving a bicycle and another vehicle, the most common key contributory factor recorded by the police is 'failed to look properly' by either the driver or rider, especially at junctions. 'Failed to look properly' was attributed to the car driver in 57% of serious collisions and to the cyclist in 43% of serious collisions at junctions.

Cycling Accidents Around 75% of fatal or serious cyclist accidents occur in urban areas [2] Around half of cyclist fatalities occur on rural roads 75% happen at, or near, a road junction 80% occur in daylight 80% of cyclist casualties are male Almost one quarter of the cyclists killed or injured are children Around three quarters of cyclists killed have major head injuries.

Other common contributory factors attributed to drivers are 'poor turn/manoeuvre' (in 17% of serious accidents involving a cyclist) and 'careless, reckless, in a hurry (17%). Cyclists are more likely to suffer serious injuries when a driver is judged to be 'impaired by alcohol', exceeding the speed limit' or 'travelling too fast for the conditions'.

The second most common contributory factor attributed to cyclists was 'cyclist entering the road from the pavement' (including when a cyclist crosses the road at a pedestrian crossing), which was recorded in about 20% serious collisions (and over one third of serious collisions involving child cyclists).

Types of Accident Accidents involving child cyclists are often the result of the child playing, doing tricks, riding too fast or losing control. For teenage and adult cyclists, accidents are more likely to involve collisions with motor vehicles, but about 16% of fatal or serious cyclist accidents reported to the police do not

Dr Christopher R Plowman

Dr Marta Elian

Consultant Neuropsychologist BSc, MSc Clin Psych D, CPsychol, AFBPsS

Consultant Neurologist and Expert Witness

As Consultant Clinical Neuropsychologist, I am experienced in the assessment and treatment of a variety of neurological disorders, including; Acquired Brain Injury, Post-Concussional states, Multiple Sclerosis, Motor Neurone Disease, HIV, Dementia, Stroke, and Parkinsonâ&#x20AC;&#x2122;s Disease. I also have expertise in the assessment of Neuro-degenerative Disorders, Traumatic Brain Injuries, PTSD, Dissimulation, Mental Capacity, Fitness to Plead and Fitness to Work.

Dr Marta Elian has provided expert witness reports in neurology for over 20 years. Her specialist areas are epilepsy, motor neurone disease, multiple sclerosis and objective smell tests.

She is able to give evidence in court for either claimant or defendant and as a Single Joint Expert.

Her experience includes cases involving personal injury as well as disputes over medical negligence.

I have experience of assessing and treating individuals with PTSD and adjustment disorders as a result of, amongst other things; RTAâ&#x20AC;&#x2122;s, assault, sexual assault, industrial accident, and medical negligence.

To save paying for the use of an interpreter, and his/her time consuming service.

Consultations can be conducted in Hungarian, Romanian, German, French, or Hebrew.

I have provided medico-legal reports for over 12 years, and I am Expert Witness accreditation awarded by Cardiff University Law School and Bond Solon September 2009.

Tel: 0207

722 5508 Fax: 0207 483 1761

Contact: Rachel Plowman (Secretary) PO Box 15858, Solihull, West Midlands B91 9RN Tel: 0121 7070482 Mob: 07753619708 Email: DrPlowman@inbox.com

32a Queens Grove, London NW8 6HJ EXPERT WITNESS JOURNAL

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The most common vehicle involved in collisions with cyclists is a car or taxi, with the rider usually being hit by the front of the vehicle. In a quarter of fatal cyclist accidents, the front of the vehicle hit the rear of the bicycle.

people with a brain injury, their families and carers.

In addition, it campaigns to reduce incidence of brain injury. Here we reproduce its key cycle helmet facts as well as its bigger head injury picture.

However, heavy goods vehicles (HGVs) present a particular danger for cyclists, especially in London where around 20% of cyclist fatalities occur involve an HGV. These often occur when an HGV is turning left at a junction'. About one quarter of accidents resulting in serious injury to a cyclist involved an HGV, bus or coach 'passing too close' to the rider.

• The number of cyclists killed or seriously injured on UK roads has increased 11% in the past three years. (DoT)

Common Cycling Accidents Motorist emerging into path of cyclist Motorist turning across path of cyclist Cyclist riding into the path of a motor vehicle, often riding off a pavement Cyclist and motorist going straight ahead Cyclist turning right from a major road and from a minor road Child cyclist playing or riding too fast

• 22% of all UK cycling casualties are under 16.

The figure for child casualties in all forms of road traffic accident is only 10%. (DoT)

• Cyclist casualty and KSI rates per 100,000 people are highest for 12-15 year olds. For this age group, 1 in every 5 casualties in a road accident is a pedal cyclist. (DoT)

• It is estimated that 90,000 on-road and 100,000 off-road cycling accidents occur every year in the UK, of which 53%(100,000) involve children under 16 (Bicycle Helmets 1 - Does the dental profession have a role in promoting their use?

(Chapman HR, Curran ALM. British Dental Journal 2004;196(9):555-560)

Injury Patterns Limb Injuries Limb injuries are common in cyclist casualties, with over 40% suffering arm injuries and around 25% suffering leg injuries.

• The number of pedal cyclists killed or seriously injured (KSI) in road accidents in 2007 was 2,564. This included 136 deaths. 522 children were among the KSI total. (Cycle Helmets, Lee AJ, Mann NP, Arch Dis Child 2003)

Chest/Abdomen Injuries Chest and abdomen injuries occur much less frequently (5%), but are often serious. When they do occur they are often accompanied by head injuries.

• A Cochrane review considering five case-control studies from the UK, Australia and the USA illustrates a large and consistent protective effect from cycle helmets, reducing the risk of brain injury by up to 88% and injury to the upper and mid face by 65% . (Helmets for preventing head and facial injuries in bicyclists, Thompson et al..

Cochrane Database Syst Rev. 2000)

Head Injuries Head injuries, ranging from fatal skull fractures and brain damage to minor concussion and cuts, are very common injuries to cyclists. Hospital data shows that over 40% of cyclists, and 45% of child cyclists, suffer head injuries. A study of 116 fatal cyclist accidents in London and rural areas found over 70% of the cyclist fatalities in London had moderate or serious head injuries in London, and over 80% of those killed in collisions on rural roads.

• After introducing a helmet law for children under 14, the US state of New Jersey reported that bicycle-related fatalities for that group fell by 60%. For riders over 14, who were not required to wear helmets, the reduction was a mere 5% in the same period. (Trends in Pediatric and Adult Bicycling Deaths Before and After Passage of a Bicycle Helmet Law, Wessen et al)

Key cycle helmet fact Headway, the charity that works to improve life after brain injury, states as its mission to promote understanding of all aspects of brain injury and to provide information, support and services to

EXPERT WITNESS JOURNAL

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Cyclist’s life-changing brain damage In January 2015 the Manchester evening News reported that a cyclist who suffered severe brain injuries when he was thrown from his bicycle has won a £2million compensation payout. John Wellock, 65, from Greater Manchester, was left in a coma after a motorist pulled out in front of him on the A62 Huddersfield Road in Delph, Oldham in September 2010.

Acquired brain injury This includes all admissions for head injuries, strokes, brain tumours, meningitis, encephalitis, hydrocephalus, anoxia, CO poisoning, abscess and hyponatraemia.

1 million - Minimum estimate of people in the UK living with long-term effects of brain injury 558 - UK residents per 100,000 sustaining a brain injury

The former salesman spent nine months in hospital going through intensive rehabilitation.

His life-changing brain injuries mean he is now dependent on the care of his wife, Elaine, 58, and has been unable to work since.

Every 90 seconds - Someone is admitted to hospital in the UK with acquired brain injury 353,059 - UK admissions to hospital with acquired brain injury in 2011-12 661 - Northern Ireland residents per 100,000 sustaining an acquired brain injury in 2011-12, the highest rate in the UK

Following a long legal battle John has now been awarded a £2m out-of-court settlement after the driver’s insurers admitted liability. The money will allow John to continue with his rehabilitation

Head injury These indicate traumatic brain injury, ranging from minor brain injuries to severe injuries causing long-term disability.

Elaine, who was also forced to give up work following the crash, said: “The settlement is a massive relief and a weight off our shoulders.

213,752 - Total UK admissions to hospital for head injury in 2011-12

"We can now look to the future as we know that John’s care needs will be taken care of for the rest of his life. We know nothing will ever be the same again but at least now we have some comfort in knowing that we have the security provided by the settlement.”

169,673 - UK admissions to hospital with a non-superficial head injury in 2011-12

John, who used to work for an interior design company, believes he would have been killed had he not been wearing a bike helmet and is now campaigning to make the safety gear compulsory.

He said: “I believe wearing a cycle helmet saved my life, I’ve been campaigning to try and make them compulsory for all. Anything that can be done to improve safety for cyclists is extremely important.”

The driver pleaded guilty to driving without due care and attention at Oldham Magistrates Court in 2011. Geraldine McCool, who represented John for Irwin Mitchell solicitors, said the case should be a warning to motorists of the life-changing effects of careless driving. She said: “John’s life will never be the same again but at least now we have secured the settlement he will be able to access the expert support, care and rehabilitation he needs to help with his recovery.

MD, FRCP, FRCR

Tel: 01482 655 351 Email: malcolmrawson@hotmail.com 19 The Paddocks, Kirk Ella, Hull East Yorkshire HU10 7PF

Experience of;

Brain injury: the bigger picture

Medical Neurology Head Injuries Spinal Cord Injury Concussion Post Concussive Syndrone Brain Injury Whiplash Post Trauma Epilepsy Neck Injury Peripheral Nerve Injuries Brachial Plexus injuries Headache Post Trauma Headache Musculo Skeletal Trauma

Here we reproduce Headway’s key facts and statistics in relation to the bigger brain injury picture.

EXPERT WITNESS JOURNAL

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33.5% - Increase in UK head injury admissions in the last decade

placed under immense strain Relatives report that the ten most difficult problems are personality changes, slowness, poor memory, irritability, bad temper, tiredness, depression, tension and anxiety, rapid mood changes, and threats of violence. â&#x2013;

10,000 - 20,000 - Number of severe traumatic brain injuries per year in the UK 2x - More likely for men to sustain a traumatic brain injury than women - 15-24 year old males and over 80 year olds - Groups most at risk of traumatic brain injuries

For more detailed information, visit RoSPA at www.rospa.com and Headway at www.headway.org

Effects Behaviour and personality Anxiety, depression, loss of motivation, difficulty controlling anger, and impulsivity

References [1] â&#x20AC;&#x153;Reported Road Casualties Great Britain: 2013: Main Resultsâ&#x20AC;?, Department for Transport, 2014

Cognitive Problems with memory, attention and concentration, low tolerance of noisy or stressful environments, loss of insight and initiative

[2] â&#x20AC;&#x153;Collisions Involving Cyclists on Britain's Roads: Establishing the Causesâ&#x20AC;?, TRL Report PPR 445, 2009

Physical Loss of co-ordination, muscle rigidity, paralysis, epilepsy, difficulty in speaking, loss of sight, smell or taste, fatigue, and sexual problems Initial diagnosis of severity of injury is not a reliable indicator of long-term problems Relationships with family and friends can be

All Headway incidence statistics: NHS Health and Social Care Information Centre (England); Information Services Division (Scotland); NHS Wales Informatics Service; Hospital Inpatient System (Northern Ireland)

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EXPERT WITNESS JOURNAL

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Treatment of Early Osteoarthritis.

What Can We Do Before Total Knee Replacement?

Osteoarthritis (Dengenerative arthritis,Wear and tear arthritis) is extremely common. With increased activity and therefore trauma it is becoming much more common at a younger age. This raises considerations which depend on possible treatment at these earlier ages.

Total Knee Replacement (and other joint replacements) is a good option but not perfect, for instance 10% still complain of pain after it. As the life of a replacement is 10-15 years and this is the same for any subsequent revision if you start out with a replacement at 30 then you rapidly run out of options. By 70 you would have had 3 revisions and no more would be effective.

This coupled with the fact that the pain felt by patients may not correlate at all with any Xray changes then avoiding major surgery early on would seem to be a good plan. The decision to go for major surgery is a decision for a patient, the surgeonâ&#x20AC;&#x2122;s job is to dissuade him from that decision in the early stages.

Symptoms of OA can be minimal without causing too much distress and a sudden activity such as playing a very hilly golf course or running a marathon can make the symptoms so much worse.

I actually arranged a MRI scan for myself after a particularly painful round! In that particular instance a short course of anti-inflammatory drugs would be wise and helpful. Such drugs taken long term should be avoided because of side effects such as bleeding. I know golfers who always take anti-inflammatories before their round but this is not advisable.

Early arthritis is defined as pain with little to show for it. The status of the meniscus and the surface of the joint and the arthroscopic areas of deranged surface cartilage needed to be considered but are likely to be minor. No reasonable surgeon would perform a TKR in this situation.

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Other tests include Xrays preferably under load on standing. In early OA these signs would likely be very subtle and an MRI would be ordered. Again the signs would be subtle.There would be articular cartilage damage and possibly meniscal damage in the knee. There would be similar changes in other joints but I am concentrating on the knee in this editorial.

A number of conservative treatments have been suggested. Interestingly they all have a 50% success rate.

Quads exercises were shown in a paper from Nottingham to be highly effective.They were taught in groups of patients so the treatment is also cost-effective.

Glucosamine and chondroitin sulphate tablets had a wide following.Although easy to take and with few side effects it takes 3 months to know whether they had worked. There is little science behind these drugs.

The next stage is to consider is surgery. In the knee this would be an arthroscopy. This operation is widely performed but the results are variable.

There is a detailed paper in the New England Journal of Medicine which says that athroscopy doesn’t work. They compared arthroscopy with a sham operation,imagine that in the USA! This has been repeated. Unfortunately they excluded all patients with mechanical symptoms which most surgeons would expect to find prior the op. Such symptoms would be locking and catching rather than only pain. Such symptoms would be investigated by MRI. However tears of meniscus are very common in early OA. Recent papers have shown that removing a small tear is not effective.

Apart from all the normal complications to discus it is important to advise that pain may continue or even be worse after arthroscopy. The quoted success rate of an arthroscopy where there are no mechanical symptoms is 50% only. Making the joint worse is unusual but is devastating to patient and surgeon.

Paracetamol is effective in treating the pain but has no effect on its progression. After this the treatments get more invasive and look at injections.

Steroid injections are very commonly used around the joints.Repeat injections are frequently needed but more than three in six months is thought to be unwise. There is a risk of infection and a risk of fat necrosis at the site of injection.Again the success rate is only 50%.

Hylan injections (eg Synvisc) can be helpful.It is important to inject into the joint and not outside which would produce severe pain.This drug is certainly licensed for the knee but so far as I am aware not for other joint such as the hip. I have heard of it being used in the hip with success.

Knee braces have become fashionable. They off load the painful arthritic area by loading the knee onto the normal cartilage and jacking open (slightly) the arthritic part of the joint. Such a brace can be helpful and work in approximately 50% of patients.

When this happens there is a drive to move onto TKR but this should be avoided particularly as the joint may improve spontaneously and one should wait at least 6 months before any further surgery is contemplated.Rapidly repeated surgery usually gets worse and worse and can be the source of complaint.

The leg should always be considered as a whole.

Deformity is common and correction can be helpful. If a wedge is placed under the heel this can correct foot deformity which will alter the knee biomechanics and improve symptoms.

Sometimes surgeons advise to have an arthroscopy immediately prior to TKR to see if the TKR is necessary! This should be avoided as if you can’t tell whether a TKR is the best option on the symptoms and Xrays you shouldn’t be operating! There are few instances when such actions would be right.

There is another point. Arthroscopy is a clean and sterile operation but TKR is a superclean operation and infection in a TKR is a disaster and difficult to cure. I have never taken such a course of action.

If symptoms continue after simple treatments investigations are useful in differentiation from other types of arthritis which are inflammatory or autoimmune such as Rheumatoid or Psoriatic arthritis.The first would be blood counts and particularly C-Reactive Protein (CRP). This is high in inflammatory disease and low otherwise.

Treatment of inflammatory arthritis is very different compared to treatment of OA and inflammatory arthritis is much rarer.

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What can be done with a damaged knee with early degenerative arthritis? Is it possible to delay the progression of disease?

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The first stage would be an arthroscopy to define the damage. Simple trimming of meniscus and loose articular cartilage will help immediate symptoms but not the long term. The meniscus takes a lot of the load in the joint and removal has been shown over many years to be one of the main causes of arthritis. This is particularly true if the majority of the meniscus has been removed. It is possible, in regional centres, to implant a donated meniscus often together with other procedures.

This is in an early stage and is experimental.

However where the rest of the knee is in good condition or can be made so then the results can be worthwhile.

grows across the joint,not entirely the same as cartilage tissue but close to the original. This is a better outcome and may well delay progression of the disease. However it can take 2 years to incorporate the graft so recovery is slow and the patient may have to remain non-weightbearing for all this time.

More commonly, with the articular cartilage, the defect is small ,and the underlying bone can be drilled.This is called microfacture and the aim is that tissue resembling articular cartilage will grow from the bone. Where the defect is small this will usually relieve symptoms and possibly delay progression.

The final way to replace large areas of articular cartilage is to replace the whole condyle ( one of the large bulbous ends of the femur) with a donated condyle. This is very unusual and usually kept for patients with malignant tumours.

Any cartilage surgery may require nonweightbearing for 6 weeks. Interestingly it is in all such procedures it is important to move the knee as much as possible as this increases the quality of the cartilage which forms. Rehab is long but very necessary.

Deformity of the limb is a common precursor of arthritis. This can be inborn, usually bowlegs or knockknees, or can develop following progressive arthritic change in a single part of the joint, usually on the inside of the knee. This means that greater load is place in that area and arthritis is rapidly progressive. By correcting the deformity the load can be spread over the whole knee and both symptoms and arthritis can be reduced. This correction can only be achieved by operation.

Consent is vital. The operation may have been performed perfectly but the success rate is only around 70%. Also correction means that the leg will be at least straight or theorectically slightly overcorrected. This is necessary to spread the load over the whole knee rather than have point loading. The appearance of the change of deformity can be very upsetting for the patient particularly if the deformity is bilateral and the arthritis in only one leg! Skirts and shorts can be a problem and the resulting shape needs detailed explanation pre-surgery. This operation can be carried out a number of ways and the correction

Bigger defects up to 2 cms can be filled in various ways. Normal cartilage pegs can be taken from healthy parts of the knee and implanted in the defects. This means that areas of the normal parts are denuded of cartilage and these areas need to chosen for the least effect this will have. Thus the defects treated need to be small and few,less than three.

To avoid autotransplantion it is possible to implant an artificial piece of cartilage. This gives a smooth surface and can relieve symptoms but the longterm outcome is currently unknown.

Larger areas can be grafted by making a sheet of cells and placing in the defect. This is called Autologolous Cartilage Implantation. This technique is only approved in certain Regional Centres. It has advanced to a point where an artificial sheet of tissue is placed across the defect and stem cells are injected under the sheet. Tissue

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held by all the usual orthopaedic techniques.

Healing can take 6 months. Nerve and arterial damage is uncommon but more likely with this type of operation than others. Patients can be disappointed with the result and one of my patients demanded a TKR soon after I did the osteotomy although the result looked perfect and the cartilage seemed to be improved. Most will however progress still and in many years and require conversion to a TKR. This has been reported as being difficult or easy depending who you read.

It still remains that an early osteotomy when the patient is young followed by a TKR many years later is a good option.

difference. The rapid follow-on of arthroscopy on arthroscopy within months of each one results in a very disappointed patient with no relief and probably a worse knee. This is often a cause of complaint leading to action.

Clearly consent is very important. This would need to consider the usual complications (infection, DVT, PE) and failure and a full explanation of technique and possible outcome. The outcome needs to be fully explained and written down in a medical note as well as on a consent form. Osteotomy can be a particularly troublesome when the patient notices a sudden change in shape of his limb and didnâ&#x20AC;&#x2122;t expect it.

Many patients have TKRâ&#x20AC;&#x2122;s and some are very disappointed, usually from continuing pain. This can be associated with patients who have major pain and little Xray change. Patients when they are disappointed after TKR argue that they should have been given more conservative treatment. Its useful to know what is available in that area. Given the shorterm benefits of non-operative treatsment one wonders whether this would have made any

Early arthritis should be treated stage by stage and not immediately by a TKR. It is also an area where there are claimants looking at the courts for redress! By going into all the options in great detail and recording all this the surgeon may be able to protect him/herself. Sometimes suggesting internet sites for patients to visit in order to help the patientâ&#x20AC;&#x2122;s decision can be most useful. â&#x2013;

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Billâ&#x20AC;&#x2122;s training is in the assessment and surgical treatment of bone, joint and soft-tissue problems.

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He has undergone extensive training in medicine and surgery in general and Trauma and Orthopaedic Surgery in particular.

His work is divided between commitments for his practice at The County Clinic, Northampton, and academic commitments, particularly at the University of Northampton.

He works closely with a network of colleagues in medicine, surgery, radiology, anaesthesia, physiotherapy and podiatry, both locally and nationally, to try and provide for his patients optimal assessment, advice and treatment of musculoskeletal conditions.

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Bill was appointed as an Orthopaedic Consultant Surgeon in 1991 to the Royal Free Hospital in London. In 1996, he returned to his home town to commence work at Northampton General Hospital. He is Professor of Sports Medicine at the University of Northampton.

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Bill is also involved with a number of sporting organisations and acts as Honorary Orthopaedic Surgeon to the English National Ballet, he is Chief Medical Officer to Northamtonshire County Cricket Club and to Northampton Town FC The County Clinic, 57 Billing Road, Northampton NN1 5DB Direct Dial: Ms. Gill Stewart - Practice Manager: 01604 795414 Ms. Caroline Stewart- - PA: 01604 795415 Fax: 01604 795416 Website: www.thecountyclinic.co.uk

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Whiplash Reforms Update information on these changes as well on the ‘next steps’ for implementation.

Since early 2014 the Ministry of Justice has been working with a number of cross industry working groups on the implementation of the Government’s whiplash reform programme.

This second tranche of reform introduces a new system for obtaining initial medical reports for soft tissue injury claims brought under the RTA protocol.

It sought stakeholder views in May 2014 on the first phase which included a number of important reforms such as • fixing the costs of obtaining medical reports in whiplash claims

From 6 April 2015, medico-legal experts and MROs will need to be registered with MedCo in order to provide initial medico-legal reports for RTA soft tissue injury claims.

• prohibiting the reporting expert from also treating the claimant

Doctors must be registered with MedCo Registration Solutions in order to provide the initial fixed cost medical report in a soft tissue injury claim.

• allowing defendants to submit their version of events to the expert.

It continued work on the next phase of reform and on 4 September published a consultative document. This focused on rule changes required to implement further reforms relating to accreditation and commissioning independent medical reports.

Amendments have now been agreed to the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol) and to the Civil Procedure Rules. These amendments implement the second phase of the Government’s whiplash reform programme.

It also covered ‘previous claims’ checks to be conducted by claimant representatives.

The amendments bring into force the following procedural changes: • In respect of any Claim Notification Form sent

The Government response to this consultation has now been published. It provides stakeholders with

Mr A J M Birnie

Prof Charles M Court-Brown

Consultant Orthopaedic Surgeon FRCS GMC

MD, FRCS Ed (Orth)

Professor of Orthopaedic Trauma Professor of Orthopaedic Trauma at the University of Edinburgh.

He has a particular interest in the management of orthopaedic injuries, including both upper and lower limb injures and fractures of the pelvis, spine and neck (including whiplash injuries). He has extensive experience in the surgical management of all fractures and in the treatment of complications related to fractures.

Tel: 0191 373 4457 Fax: 0191 373 4457 Alternative contact Mrs Davison (Sec) Tel: 0191 584 4614 Fax: 0191 565 5998 Email: ajmb@ajmbirnie.com

He has considerable experience in emergency and trauma surgery and has extensive knowledge of the injuries caused by road traffic accidents, falls, trips, assaults and other hazards.

He has written 8 books and over 150 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.

Eshwood House, Acton Road, Esh Winning, Durham DH7 9PL

Contact: Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 Email: ccb@courtbrown.com

Rooms also at: 8 Grange Terrace, Stockton Road Sunderland SR2 7DF

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and the resources of local and public authorities and employers.

on or after 6 April 2015, the first report in a soft tissue injury claim must be a fixed cost medical report commissioned from a medical expert or medical reporting organisation sourced via the MedCo Portal.

• In respect of any Claim Notification Form sent on or after 1 June 2015, claimants’ legal representatives must undertake ‘previous claims’ checks on potential claimants and insert the unique reference number generated by that search in the additional information box in the Claim Notification Form.

This will supplement the work being undertaken by the insurance industry to tackle fraud, through initiatives such as the Insurance Fraud Enforcement Department (a specialist police unit dedicated to tackling insurance fraud) and the Insurance Fraud Bureau (created in 2006 specifically to tackle organised cross-industry motor insurance scams).

The Association of British Insurers have recently published figures (not verified by Government) showing that 59,900 dishonest motor insurance claims were uncovered in 2013, an increase of 34% on 2012, with a value of £811 million (up 32% on 2012). These dishonest claims represent around 8% of all motor claims registered with the Compensation Recovery Unit in 2013. There were around 775,000 motor personal injury claims registered to the DWP Compensation Recovery Unit in 2013/14, compared to around 520,000 claims in 2006/07, representing an increase of around 50% in claims.

• With effect from 1 January 2016, medical experts must be accredited by MedCo Registration Solutions in order to provide the initial fixed cost medical report in a soft tissue injury claim.

Following an announcement on 7 June 2014, the Government added an amendment to the Criminal Justice and Courts Bill to introduce a ban on the offer of inducements in personal injury claims. A further amendment was tabled in October 2014 to prevent the inducements being offered via third parties.

This increase has coincided with a 23% decrease in the number of road traffic accidents reported to the police - between 2006 and 2012 they decreased from 190,000 to 145,000, although trends in unreported accidents are unknown. ■

This clause reflects the Government’s concern at the increase in the number of fraudulent and grossly exaggerated personal injury claims and the effect that this has on motor insurance premiums

Mr Shahid Khan

Mr R N Brueton

MA (Cantab) FRCS (Tr&Orth)

Consultant Orthopaedic and Spinal Surgeon

Consultant Orthopaedic Surgeon MB BS, MRCS, LRCP, FRCS (Lon), MD (Lon), BA, MA

Mr Brueton is a Consultant Orthopaedic Surgeon, based in London.

With a particular interest in the management of trauma, especially pelvic and acetabular fractures.

He has operated on over 70 acetabular fractures.

Provides 400 medico-legal reports a year on all areas of personal injury specialising in trauma and otthopaedic injury, back pain and whiplash injury. Provides clinical negligence reports within the field of Spinal Surgery

His expertise in the treatment of fractures of the upper and lower limbs is considerable.

EXETERSPINE

Contact: Mr R N Brueton 45 Grosvenor Road London N10 2DR Tel: 0208 442 0464

The Avenue, Brampford Speke, Exeter, Devon EX5 5DW Tel: 07779 238366 Fax: 01242 708192 E-mail: karen_street_khan@yahoo.co.uk Web: www.oceanphysio.com

Email: bruetons@ar2.net

Consulting rooms/appointments available in Bristol, Exeter and Plymouth

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Four Steps to Rebuilding Emergency Medicine

By Gordon Miles, Chief Executive The College of Emergency Medicine Hardly a week has gone by in 2014 in the UK without there being a mention in the Press about the challenges facing Accident and Emergency Departments (A&Es) in the NHS. Some of the news is quite sensationalist but the underlying themes are that there are supply and demand issues in play that contribute to making the situation very challenging: the numbers of patients attending A&Es is increasing whilst the workforce is below its full compliment. However, the situation is driven by multi-factorial issues as I shall explain.

It is not simply the case that those experiencing a

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medical emergency or trauma come to A&E but there is a wider patient flow drawn from a wide range of conditions and to whom the definition of emergency may be quite different to a strict medical definition. The brand of A&E is a powerful one and its â&#x20AC;&#x2DC;offerâ&#x20AC;&#x2122; which is to be seen within 4 hours provides reassurance to the public and a service they value. The recent CQC survey results show 80% of those 40,000 people surveyed report almost 8 out of 10 rating their overall experience as good. (www.cqc.org.uk/content/accident-and-emergency-survey-2014)

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November the College has updated its call to action with the STEP Campaign. This focusses on four priorities which need to be addressed to resolve the challenges facing emergency departments.

These are: 1. Staffing: matching the people resources to the volume of patients, and so expanding the workforce, reducing emigration and improving retention of emergency physicians.

Before I discuss the challenges facing A&Es and the solutions we at the College of Emergency Medicine are advocating in more detail it may be helpful to first provide you with an understanding of the College of Emergency Medicine and its role. The College is established to advance education and research in Emergency Medicine. It is a membership organisation and has some 5,000 Members and Fellows who are Emergency Medicine Physicians working largely in the UK and Ireland, although some 9% of its membership works elsewhere in the world. It is responsible for setting standards of training and administering examinations in Emergency Medicine, for the award of Fellowship and Membership of the College as well as recommending trainees for their Certificate of Completion of Training in Emergency Medicine, so allowing them to enter the specialist register of the General Medical Council. The College works to ensure high quality care by setting and monitoring standards of care and providing expert guidance and advice on policy to relevant bodies on matters relating to Emergency Medicine.

2. Tariffs & Terms: getting the systems that pay hospitals for A&E work to fairly cover the costs involved whilst also getting the rights terms and conditions for the workforce in place to stop the leaching of talent 3. Exit Block: tackling the exit blocks to A&E departments that stop patients flowing on to hospital wards 4. Primary Services: co-locating primary care services with A&Es, a solution recently endorsed

by Monitor: Staffing: Training enough emergency doctors Key to understanding the capacity/demand issue is a realization that, through the haemorrhage of emergency medicine doctors in the last 4 years, we have lost the capacity to see 750 000 patients per annum in the UK, yet attendances and admissions continue to rise inexorably.

It is the policy agenda for Emergency Medicine that is now such a campaigning issue for the College. As our President puts it: the future of high quality patient care cannot be guaranteed without sufficient workforce and resources being in place.

That means it is right for the College to speak out in support of the specialty to argue for improvements in patient care resulting from addressing the underlying factors facing the place where our Members and Fellows work: Accident & Emergency Departments.

Some emergency medicine doctors choose other specialties, especially general practice and anaesthetics, but by far the greatest losses arise from emigration. In 2013, the Australasian College of Emergency Medicine discovered over 470 emergency medicine doctors working at registrar grade in the emergency departments of Australasia who had trained in the UK and Ireland. While 95% intended to pursue their emergency medicine career, 92% planned not to do this in the UK. It is thus obvious that the problem does not lie with emergency medicine as a specialty per se. The cost of training these doctors to work abroad is in the region of £130m+

The College saw the roots of the problem some years ago and has been campaigning for action over a long period. We have been advocating an expansion of consultant numbers for some time and whilst some growth has taken place it has not kept pace with growing patient numbers. When it became apparent that we needed to raise the volume on our messaging in 2011, we hosted a ‘crisis conference’ to discuss the imbalance between capacity and demand in the emergency departments of the UK. A seminal moment came in our providing evidence to the Select Committee for Health in 2013 on the crisis that was emerging.

Then, in November 2013, the College launched the ‘CEM-10’ (College of Emergency Medicine, 2013).

This set out a 10 point action plan, it was a defining document focused on a concise, clear and constructive set of proposals, that the College argued would essentially be self-funding. This EXPERT WITNESS JOURNAL

The cost of this leaching of talent is compounded by the expenditure on locums to backfill rotas. Last year in England alone, the NHS spent £150 million on locums in emergency departments. The problem has become a vicious circle in which the unequal and never-ending struggle between capacity and demand exhausts and demoralizes staff who therefore seek alternatives. The problem is not simply confined to trainees. Last year, 48 consultants also emigrated. Recognition of this issue 93

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the standard as a blunt instrument and one which is only a proxy measure for more important metrics such as outcomes, quality of patient experience and resource utilization, it remains the case that these other metrics have yet to have a standardized, readily-measured data set. The College Council recently debated the subject of the 4-hour standard and was unanimous in its support for its retention. Currently fewer than 6% of patients in UK departments remain in the emergency department beyond 4 hours; a figure almost unimaginably better than the situation 15 years ago.

has led to Health Education England allocating an extra £50 million to increase the number of Acute Care Common Stem (Emergency Medicine) (ACCS EM) posts by 75 per year for the next 3 years. However, unless we can improve retention, we will simply increase the supply of well-trained emergency medicine doctors to the Antipodes.

Keeping emergency doctors in the UK How can retention be restored and why do UK emergency medicine doctors leave? The answers lie in how we regard emergency departments in the UK and how we treat emergency medicine doctors.

The funding structures for emergency departments are rooted in an out-of-date mindset and ensure that all emergency departments lose money.

Consequent underfunding leads to underresourcing and staff that feel under-valued. In short morale is affected.

Nevertheless, the challenge of ‘exit block’ is a daily event in the emergency departments of the UK. In effect, the resulting lengthening of time in the emergency department and ambulance queues it is a nosocomial disease with a morbidity and mortality like any other.

Pressure also arises from the NHS 4-hour operational standard – a target that is dependent upon two key variables; capable and enthusiastic emergency medicine staff and bed availability.

Neither is in plentiful supply and often the equation is in negative balance. Tariff and funding reforms are a major priority for the College and indeed without such reforms, the whole infrastructure underpinning emergency care is inadequate for the task.

Over the past few years, there have been a significant number of national bodies, think-tanks and ‘armchair experts’ who contend that many patients attending an emergency department do not need to be there. In short they argue that this is a marketing problem. A few well intentioned bus advertisements and campaigns will be prescribed by such thinkers. Quite apart from the implied criticism of millions of patients, the most obvious critique of this opinion is the lack of credible available alternatives afforded to patients. The College’s own Sentinel Sites Study has debunked many of these myths and provided unequivocal evidence that only 15% of patients could be safely redirected from triage. This still represents over two million patients annually and is the basis upon which the College recommends a co-located primary care facility with each emergency department.

Work–life balance is a major issue affecting recruitment and retention. The College is committed to emergency medicine as a 24/7 specialty but sees no reason why its practitioners should not be treated equitably with those who work few or no evenings, nights and weekends.

This is not about salaries or special pleading for emergency medicine – the same is true for all high frequency, high intensity specialties. The College believes that a new contract is required for consultants, trainees and specialty doctors that restores fairness by delivering annual leave entitlements prorata with out-of-hours work. This will deliver a workforce fit for purpose both in terms of number and abilities, to match the needs of the UK patient population. The revenue consequences would actually save money. It cannot be over-emphasized that the combined effects of contractual arrangements that penalize both acute trusts and emergency medicine clinicians create a toxic synergy.

Many have called for the 4-hour standard to be relaxed but the College of Emergency Medicine is not one of them. Tempting though it is to regard EXPERT WITNESS JOURNAL

How big is the problem?

The link between what appear to be modest percentages and large actual numbers in the previous paragraph is obvious. Those who wish to minimize the scale of the problem in emergency medicine always quote percentages. For example, in the year 2012–13, attendances at UK emergency departments rose by ‘only’ 1.7%. The explanation that this equates to 240,326 patients is often omitted, as is the corollary that this workload is equivalent to four average-sized emergency departments and a further 80 doctors. While it is clear that the College is winning the arguments, it is noticeable that the necessary decisions and corrective actions have yet to be taken. Further 94

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delay can only mean that the cadre of the willing and able will be further diminished.

The reader might wonder how it is that anyone would choose a career in emergency medicine in the UK or Ireland? Emergency medicine still offers its physicians the opportunity to positively influence patient care and outcomes across the spectrum of ages, disease and injury. Every day, the potential to â&#x20AC;&#x2DC;make a differenceâ&#x20AC;&#x2122; and add â&#x20AC;&#x2DC;years to life and life to yearsâ&#x20AC;&#x2122; is unparalleled. Whether it is in the â&#x20AC;&#x2DC;life savedâ&#x20AC;&#x2122; or the professional and attentive stewardship of a patient's final living moments, emergency medicine offers a compelling career for doctors with a wide range of skills. In many countries, emergency medicine is one of the most popular career options; it is only in the UK has it ranked last for â&#x20AC;&#x2DC;workloadâ&#x20AC;&#x2122; and â&#x20AC;&#x2DC;work intensityâ&#x20AC;&#x2122; as evidenced by the annual General Medical Council training survey for the last 5 years. The College is working with undergraduate bodies, medical schools, deaneries and local education and training boards to remedy this situation and to promote emergency medicine.

Professor Christopher Raine Consultant Oto-Rhino-Laryngologist B.Sc. (Hons), MB BS, FRCS (Otol), Ch.M. Christopher Raine is a Consultant Oto-Rhino-Laryngologist, he has an active otological and rhinological practice, treating both paediatrics and adults He has a special interest in interest in otology, hearing and tinnitus.

He established the Yorkshire Cochlear Implant Service in 1990.

Professor Raine is involved in Intercollagiate Examinations, for the final part in Oto-Rhino-Laryngology Head and Neck surgery qualification. He is also a member of the Royal Court of Examiners at the Royal College of Surgeons of England. .

Christopher Raine has vast experience as an expert witness since 1986. He can discuss cases with council and solicitors alike.

Instructions are received from both Claimants and Defence and he can act as a single joint expert.

Independent cases can also be prepared for NHS tribunals as well as a medical expert for malpractice cases both for the patient and medical attendant.

Contact: The Yorkshire Clinic Bradford Road, Bingley, West Yorkshire, BD16 1TW Phone: 01274 550600 Fax: 01274 565349 Mobile: 07768 372748 www.professorchristopherraine.co.uk E-mail: chraine@btinternet.com

Conclusions The current system of emergency care provision needs fixing. A more sustainable system is needed that will be both more effective and more efficient.

The College of Emergency Medicine has set out its proposals for tackling the issues. â&#x2013;

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Whiplash in Dentistry: Is There a Problem?

by Dr Edwin Bonner BDS MDent, Specialist Prosthodontist in Dentistry however, the outcome of this consultation was to implement the notion of fixed costs medical reports, initially from general practitioners, and this has been seen by medical expert witnesses as a restriction on their ability to trade.

A hot potato If one is looking for a medico-legal ‘hot potato’, it doesn’t come much hotter at present than ‘whiplash’. In fact, that particular potato is sufficiently hot to cause burning of fingers and frothing at the mouth. Depending on your perspective it is either a common and oft-times serious consequence of motor vehicle accidents (MVAs), or a grossly exaggerated pseudo-medical condition. Either way, you will have had to have been in Outer Mongolia for the past several months not to have been aware that there has been, and continues to be, significant changes with regard to the medico legal reporting of whiplash claims.

This article will consider the following questions: • What is “whiplash injury”?

• Does it cause temporo-mandibular dysfunction?

• What is the cost of whiplash to motor insurance claims?

What is ‘whiplash injury’?

Whiplash is a relatively common injury that occurs to a person's neck and/or head following a sudden acceleration-deceleration force, most commonly from motor vehicle accidents. The term ‘whiplash injury’ describes damage to both the bone structures and soft tissues, while ‘whiplash-associated disorders’ describes a more severe and chronic condition. Fortunately, whiplash is typically not a life-threatening injury, but it can lead to a prolonged period of partial disability.

The Transport Select Committee started the process by investigating the cost of motor insurance in whiplash claims. The original aims of their suggested reforms aimed at the reduction of the number of fraudulent / exaggerated whiplash claims and implementing punishment of fraudulent claimants. Northing wrong there; EXPERT WITNESS JOURNAL

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The Mechanism of Whiplash Whiplash is most commonly caused by a motor vehicle accident when the car in which the person is travelling is not moving, and is struck by a vehicle from behind without notice. It is commonly thought the rear impact causes the head and neck to be forced into hyperextension as the seat pushes the person's torso forward, and the unrestrained head and neck fall backwards.

Internal derangement of the TMJ is defined as a disruption within the internal aspects of the TMJ in which there is a displacement of the disc from its normal functional relationship with the mandibular condyle and the articular portion of the temporal bone. It is usually treated with nonsurgical methods initially, but should these methods prove unsuccessful they are often followed by surgical methods.

After a short delay the head and neck then recover and are thrown into a hyperflexed position. More recent studies and investigations using high-speed cameras and sophisticated crash dummies have determined that after the rear impact the lower cervical vertebrae (lower bones in the neck) are forced into a position of hyperextension while the upper cervical vertebrae (upper bones in the neck) are in a hyperflexed position. This leads to an abnormal S-shape in the cervical spine after the rear impact that is different from the normal motion. It is thought that this abnormal motion causes damage to the soft tissues that hold the cervical vertebrae together (ligaments, facet capsules, muscles). Whiplash is often more serious when the sudden movement is not directly forwards or backward, or where the neck is not straight when the impact is sustained, since the neck is less capable of dealing with extremes of movement under these circumstances. Side impacts, or those involving sudden rotation of the head and neck often result in more serious cases.

Temporo-mandibular dysfunction [TMD] Temporo-mandibular dysfunction [TMD] is a nonspecific term representing a variety of painful and/or dysfunctional conditions involving the masticatory muscles and the temporo-mandibular joints (TMJs). The three cardinal symptoms of TMJ disorders are facial pain, restricted jaw function and joint noise. The Quebec Task Force on Whiplash-Associated Disorders noted that temporo-mandibular dysfunction (TMD) may be manifested with any grade of whiplash severity.

At the turn of the century, TMD was thought to account for loss in productivity of thirty billion dollars and 550 million working days a year in the USA. TMD sometimes presents in individuals involved in MVAs. While most people involved in minor motor vehicle accidents recover quickly without any chronic symptoms, some continue to experience symptoms for years after the injury that require medical care, disability, sick leave and lost productivity.

Whiplash is also generally more severe when the impact is unexpected â&#x20AC;&#x201C; as one is not able to brace oneself for the impact and thereby lessen any potential movement of the head in relation to the rest of the body. Impact sustained from behind while looking to one side can result in more complex and painful whiplash injury. In the case of road traffic accidents, a significant size and weight difference between the vehicles involved is also a factor. Where a small vehicle is struck from the rear by a larger vehicle, it will accelerate more rapidly and therefore there is an increased risk of a more serious injury.

Diagnosis To determine TMJ dysfunction, one needs to carry out a detailed physical investigation and one or more of X-ray, CT scan, MRI scan and/or arthrography. No radiological (X-ray) investigation should be requested unless it can be clinically justified. A magnetic resonance image (MRI) scan is a non-invasive procedure using magnetic and radio waves, meaning that there is no exposure to X-rays or any other forms of damaging radiation. MRI shows the soft tissues of the body in great detail and is superior to computerised anatomical tomography (CAT) scans and other forms of X-radiation. CAT scans are useful for evaluation of bony deformities. Arthroscopy is often employed as well. Arthroscopic surgery appears to be a safe minimally invasive and effective method for treating internal derangements of the TMJ, and usually fills the void between failed non-surgical treatment and open surgery. It is associated with fewer complications and a shorter hospital stay.

The Temporo-mandibular Joint [TMJ] The TMJ comprises the condyle (head) of the mandible separated from the articular portion of the temporal bone by a disc. The most common damaged suffered by one or both TMJs may be fracture of the thin neck of the condyle (often undiagnosed), or internal displacement of the disc.

Either can upset the delicate balance of the mandible.

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forces that snapped patientsâ&#x20AC;&#x2122; heads around and misaligned the jaws.

Treatment The present standard of therapy for common nonstructural TMD is conservative, noninvasive, reversible pain management with multidisciplinary cognitive and behavioral therapy, masticatory muscle relaxation, and jaw habit (clenching/ bruxing) modification measures. While many dentists ands specialist prosthodontists believe that dental orthotics (splint, bite plate, and so on) have efficacy beyond placebo effect, others dispute this and say they are commonly used because patients want or perceive a benefit. At the least, such devices should not cause changes in tooth positioning but should aim to decompress the joint.

Others say TMD should be considered as a multifactorial bio-psycho-social disorder, and that TMD purportedly caused by a whiplash-type mechanism (acute hyperextension-flexion of the neck) to the TMJ has been shown to be an unlikely event, linked anecdotally and disproved experimentally.

From the insurance industry perspective, the characteristics of patients with TMD that appear to be related to motor vehicle collisions differ from TMD unrelated to motor vehicle collisions not in physical factors but in terms of the psychosocial components. There are significant economic expenses related to whiplash disorders including medical care, disability, sick leave, lost productivity and litigation. In general, patients litigating motor vehicle collision issues present with higher levels of pain, more masticatory muscle tender sites, greater utilization of health care and medications, higher levels of somatization, and higher pain assessments than non-litigating TMD patients. While most people involved in minor motor vehicle accidents recover quickly without any chronic symptoms, some continue to experience symptoms for years after the injury. TMD patients alleging motor vehicle collision causation show greater levels of

After establishing a diagnosis, physicians can provide accurate information emphasizing patient understanding of a non-dental pain disorder.

Counseling to alter patterns of negative thoughts and dysfunctional attitudes and foster healthy adaptive thoughts, emotions, and actions is indicated. Appropriate patient self-management includes warm compresses, soft diet, and cessation of gum-chewing. Irreversible treatments like orthodontics, bite adjustments, tooth restorations, and surgery are usually inappropriate for TMD. There may then also not be a basis for the use of any painful therapies; jaw manipulation and chiropractic jaw treatments may prolong, propagate, and complicate the disorder.

Legal â&#x20AC;&#x2DC;jawlashâ&#x20AC;&#x2122; Distinctions: Medical & legal MVA-TMD causation controversies are primarily legal, and legal causation does not correlate with medical causation.

Dr Edwin Bonner *38

Legal causation relates to the requirement to establish a probable cause - a relationship between the patientâ&#x20AC;&#x2122;s TMD and the motor vehicle collision at a standard of â&#x20AC;&#x2DC;more likely than notâ&#x20AC;&#x2122;, which would be unacceptable by medical standards. TMD may be caused, from a legal perspective, by a motor vehicle collision, but has not been proven to be medically caused by a motor vehicle collision.

The medical aetiology of most TMD is incompletely understood, and there are two very opposing perspectives regarding TMD that is allegedly whiplash- related. The first school of thought is that physical injury to jaw structures is a highly probable mechanism for most TMD complaints following whiplash-type injuries. The term jawlash was popularized in the media in the 1970s to represent a wide variety of jaw pains, sounds, dysfunctions, and symptoms related to violent, uncontrolled

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facial and headache pain, jaw muscle and neck tenderness, and greater sleep disturbance than non-MVA-TMD leading to litigation.

chronic pain patients, and allow early identification of individuals at risk for chronicity as well as the biological and psychosocial risk factors associated with TMD.

This suggests that litigation is an important factor in these patients. It is prudent to understand the importance of psychological factors in MVA-TMD cases considering the evidence of nonstructural whiplash-related pain being unrelated to the initial injury and independent of the trauma.

The role of litigation and secondary gain will become better understood, leading to a time when medical and legal concepts of chronic pain causation are more evidence-based and logically related. â&#x2013;

Hope for the future Health care professionals now recognize advances in the understanding of pain and pain management for multifactorial biopsychosocial disorders like TMD. Physicians must better recognize the early signs and symptoms of TMD and understand the importance of early diagnosis and appropriate management, as well as the relationships between TMD and more widespread musculoskeletal pain disorders like fibromyalgia.

From a dental perspective, it is hoped that the future will see physicians recognizing the dental literature, and that dentists will continue to participate and lead in research, education, and management of oral facial pain as one of several disciplines acting in a coordinated manner to benefit chronic pain patients. However, in the case of TMD, we will use pain-management skills together with or instead of dental procedures.

Advances in our knowledge of pain will further elucidate the many factors interacting in TMD and

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Dr Edwin Bonner BDS MDent is a Specialist Prosthodontist in Dentistry. Since graduating in Johannesburg and moving to the UK, Ed Bonner has had 45 years dental experience in NHS, private and hospital practice, of which 30 years has been as a Specialist Prosthodontist. His expertise is in fixed/ removable prostheses, TMJ dysfunction, oro-facial pain and dental malpractice. He ran a clinic specialising in TMJ dysfunction for many years.

A Sloan Fellow of the London Business School, Ed advises practices in leadership / management, and has written over 1000 articles. Ed has lectured extensively at dental schools and organisations in the UK and South Africa.

He has written 2400 dento-legal expert witness reports, mainly for claimant, in personal injury and negligence.

E-mail: bonner.edwin@gmail.com Website: www.bonnerdentalexpertwitness.com

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Missed Opportunities and Lost Vision

by Mr Kim Hakin An ever increasing ageing population, the advent of new treatments, improved community screening (that increases referrals) and perpetually rising expectations, could be said to have combined to create a “perfect storm” in healthcare, and in the UK, a demand that far outstrips the capacity of the NHS and its ability to cope. Nowhere is this more apparent than in the field of ophthalmology.

degeneration, glaucoma, and diabetic eye disease, all of which require regular long-term review, and can lead to irreversible loss of vision without timely treatment.

The chronic nature of these conditions results in an inability in most cases, to discharge patients from the Hospital Eye Service – GPs are not able to undertake any continued management, whilst the numbers of optometrists who are appropriately trained and able to contribute to care, are minimal.

As a result, there is a seemingly exponential buildup within ophthalmology departments nationwide, of unquantifiable numbers of patients requiring follow-up appointments and essential treatment, that in some cases cannot be adequately provided, causing a number of patients (with a likely much greater number yet to be identified) to suffer irreversible but potentially preventable loss of vision, that has then proceeded to litigation.

Cataract surgery, that comprises the majority of ophthalmic operations, is the most frequently performed operation in the UK, and has received considerable attention and investment in recent years as successive governments have sought to reduce waiting lists and times for surgery.

Ophthalmology, however, also has a significant outpatient workload and indeed, in terms of outpatient episodes, is frequently the busiest outpatient department of a general hospital. The majority of outpatient visits are for one (or more) of three chronic conditions, ‘wet’ macular EXPERT WITNESS JOURNAL

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ophthalmology service have risen so quickly and significantly, and in some cases, have exceeded the ability to provide a satisfactory service, with patients failing to receive adequate and appropriate treatment, and potentially disastrous consequences.

‘Wet’ Age-Related Macular Degeneration Age-related macular degeneration (ARMD) describes the age-related degenerative change of the macula, the central area of the retina responsible for central vision. Degeneration of the macula typically results in loss of central vision (acuity), distortion of central vision and loss of colour vision. ARMD may be “dry” where there is a gradual of thinning and degeneration of the macula, typically associated with slow deterioration of central vision, or “wet”, which is characterised by the development of new, abnormally fragile blood vessels in the macula area that usually results in a considerably more rapid loss of vision. Wet ARMD may occur de novo, or in an area of existing dry ARMD. At one time, neither type of ARMD was treatable. In 2006, however, US FDA approval was granted for the treatment of wet ARMD with intraocular injections of Lucentis, an ‘anti-VEGF agent’, that can lead to shrinkage of the blood vessels with stabilisation and in some cases, improvement of vision. NICE gave its approval for use in the NHS in 2008, a decision that was widely welcomed, but which several years on, has resulted in considerable capacity and financial issues for the NHS due to the overwhelming demand for treatment.

Diabetic Eye Disease Diabetic retinopathy describes the damage to the retina in diabetic patients, which may eventually lead to complete blindness. It can affect up 80% of patients who have had diabetes for 10 years or more, although vigilant screening and treatment of diabetic patients, as is now commonplace, can significantly reduce the risk and extent of visual loss. The risk of developing diabetic retinopathy increases with increased duration of disease and poor diabetic control, and smoking. Diabetic retinopathy is caused by abnormal changes in the small blood vessels within the retina that may leak fluid or bleed, that in turn lead to swelling and reduced function of the retina with subsequent reduction in vision. Diabetic change affecting the macula is described as maculopathy and will invariably result in loss of acuity. In other patients, retinopathy may become manifest when there is rupture and bleeding of (abnormally fragile) new blood vessels that grow on the surface of the surface of the retina (proliferative retinopathy). The development of these abnormal blood vessels can, furthermore, lead onto the development of retinal detachment that may result in total and irreversibly loss of vision without, and even with, treatment. It is important to note that diabetic retinopathy may occur, and even reach an advanced stage, without symptoms, hence the introduction of a nationwide retinopathy screening programme that attempts to annually screen (in the community) for the development of diabetic eye disease in all diabetic patients.

Where a patient with ‘wet’ ARMD may have previously been seen once in the ophthalmology clinic, essentially for a diagnosis to be made before being discharged with an untreatable condition, many more patients with suspected ARMD are now needing to be seen and investigated to identify any treatable condition, with those considered likely to benefit, then receiving treatment and being subsequently reviewed and re-treated as required.

Review may be required as frequently as every month, and almost indefinitely, until eventual disease stability or burn-out has occurred, or in view of the age of the typical patient, their passing.

(The initial multi-centred studies that confirmed the efficacy of Lucentis, involved monthly injections for 24 months). There is a limited window of opportunity for the treatment of ‘wet’ ARMD, before irreversible retinal damage has occurred, when treatment with Lucentis will be of benefit, and it is essential therefore, that at risk patients are monitored on a regular and timely basis. If review is delayed and a treatable condition not appropriately treated, irreversible retinal changes with permanent loss of central vision will occur. It is easy to understand, therefore, with an increasingly elderly population, how the demands on an EXPERT WITNESS JOURNAL

Laser treatment of diabetic retinopathy has transformed the outcome of diabetic eye disease, significantly reducing the incidence of blindness, although as with ‘wet’ ARMD and glaucoma, it is essential that treatment is undertaken before the onset of irreversible retinal change; hence the importance of initial screening for the condition, and upon diagnosis of sight-threatening disease, regularity of review. A patient with significant diabetic eye disease will generally require indefinite review, leading to an increasingly growing cohort of ‘follow-up’ patients for whom appointments will be required but in some cases cannot be provided, at least not within an appropriate time-frame, that can then lead to unchecked progression of diabetic eye disease and irreversible loss of vision.

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Glaucoma Glaucoma is the name given to a group of disorders in which the intra-ocular pressure (IOP) is sufficiently elevated to cause loss of vision. The most common form of glaucoma is chronic open angle glaucoma (COAG), affecting approximately 1 to 2% of the population over 40, with the prevalence increasing with age such that 10% of people over 70 may be affected. It is responsible for 10 to 12% of all cases of blind registration in the UK. COAG is characterised by a progressive chronic rise in IOP, above the normal range of 16-21 mmHg, that results in irreversible damage to the optic nerve (visible as “cupping” upon examination) with commensurate slowly progressive loss of visual field, usually occurring over many years. The rise in pressure is thought to be increased resistance to outflow of aqueous humour circulating within the eye through the trabecular meshwork, a circumferential sieve-like structure sitting in the angle between the iris and cornea through which 90% of the aqueous humour is thought to drain.

Mr Kim Neal Hakin FRCS, FRCOphth Mr Kim Hakin is a Consultant Ophthalmologist, providing a service both in the NHS and privately. He undertakes medicolegal work at The London Eye Diagnostic Centre, 23 Harley St, London, and Nuffield Health Taunton Hospital.

His special interests include the management of cataracts, ocular trauma, eyelid and lacrimal surgery, including cosmetic eyelid surgery (blepharoplasty).

Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is an Expert Advisor to Nuffield Hospitals, and formerly to the Healthcare Commission, and regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Litigation Authority, as well as many solicitors' firms and legal agencies.

Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, carolmatravers@gmail.com.

Web: www.kimhakin.com All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.

Due to its insidious onset, symptoms of COAG are typically few and late, with the patient becoming aware of its presence only at the advanced stage when significant visual field loss has occurred. In most cases however, at least in the UK, the condition is identified in its early stages by optometrists upon ocular examination in the course of spectacles prescription. The extent and progression of COAG within an eye is assessed by examination of the optic disc and measurement of the degree of “cupping”, and by the assessment of the visual field. Glaucomatous cupping of the optic disc will lead to typical visual field defects, although considerable optic disc damage and cupping may occur before a field defect arises. Although COAG cannot be prevented, it is universally accepted that reduction of an elevated IOP will reduce the risk (but not completely abolish) of progression of glaucomatous optic neuropathy and subsequent visual field loss. Initial treatment is typically with eye drops, of which there are several “classes”, each with a different mode of therapeutic action; many patients can achieve satisfactory control with the use of one drop only whilst others may require a combination of two or more different types of drop.

If the IOP cannot be reduced to the desired target pressure, laser and/or surgery maybe required.

treatment is essential if loss of vision from glaucoma is to be prevented – one reason why in the UK, anyone over the age of 40 is advised to visit their optometrist on a regular basis. Individuals with glaucoma require life-long monitoring, at intervals appropriate for the extent and control of their condition, with adjustment and increase in treatment as necessary, and will generally remain indefinitely under the care of the Hospital Eye Service.

Whilst there is considerable pressure on hospital Trusts to provide initial treatment of any referred patient within 18 weeks of referral (with severe financial penalty in the event of failure to treat within this time), no such ‘targets’ exist following that initial treatment, and as a result therefore, there is less focus or perceived incentive to deal with those patients who have joined the ranks of ‘follow-ups’, but who still require regular review and frequently, active management of potentially sight-threatening disease. With the continuous ‘one-way’ stream of patients who enter but do not exit from ophthalmology departments, it is perhaps therefore not unduly surprising to discover that some patients are being failed by the system, with profound consequences, and that this is likely to continue whilst there is no resolution of the underlying causative factors. ■

As glaucomatous optic neuropathy and subsequent loss of vision are irreversible, screening for the condition with prescription of hypotensive EXPERT WITNESS JOURNAL

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Cataract Surgery Negligence

by Professor Charles Claoué MA (Cantab), MD, DORCS, FRCS (Eng), FRCOphth, FEBO, MAE. essentially the identical surgery is undertaken in the absence of any significant cataract with the sole intention of changing the refraction of the eye and the need to be spectacle dependent. This is because the crystalline lens is one of the 2 structures of the eye (the other being the cornea) which are amenable to surgical treatment to change the need for spectacles; such surgery is called “refractive surgery” and whereas corneal refractive surgery such as LASIK is ideally undertaken between the ages of 21 and 40, lens-based surgery is usually restricted to those over 45. The author described the first case of such surgery to treat presbyopia – the need for glasses for near-vision tasks required from about the age of 45 onwards.

With the demographic changes to an older population, cataracts (which is predominantly age-related) is becoming commoner. The only effective treatment is surgery, and this is so successful that cataract surgery (phakoemulsification with intraocular lens implantation) is now the commonest surgical procedure in all developed countries.

Inevitably, there are cases where tort occurs, and these will probably become commoner in the near future. To understand this, it helps to have a basic understanding of what cataract is, and the surgical pathway before reviewing the commonest errors.

Inside the eye there is a crystalline lens which should be transparent. This lens becomes progressively opaque with the passage of time, and when this is noticed and causes visual symptoms, is then referred to as “cataract”. Patients very typically refer to “misty” vision. It should be noted that ophthalmologists use the term in a stricter technical sense to denote any opacity within the crystalline lens whether visually significant or not.

The surgery is technically complex and demanding although the procedure lasts only about 30 minutes. It is usually performed under local anaesthetic as a day-case. There is minimal if any pain. The contents of the crystalline lens are liquefied by an ultra-sound probe (“phakoemulsified”) and then aspirated via a 1mm cannula, leaving the capsule of the lens. This capsule is used to support an intraocular lens implant (IOL) which is injected and which unfolds within the eye.

Typically no sutures are required for the 2.3mm incision which is constructed to be valvular, and the procedure is completed with intraocular antibiotics.

The patient uses antibiotic and anti-inflammatory eye drops for about a month, and in the majority of cases the results are outstandingly good. This of course has created the expectation that “my” surgery will have a good outcome, and when this is not the case there is the expectation that an error must be the cause. Indeed, the surgery is so successful and predictable that a variant has evolved called “refractive lens exchange” where EXPERT WITNESS JOURNAL

This procedure is now widely practised and is called PREsbypic Lens EXchange or PRELEX. It is a procedure that has found favour with “baby boomers”. The issues of potential negligence are virtually identical as for cataract surgery, except that of course there s no cataract and the diagnosis is refractive error! In assessing where things go wrong, it is helpful to look at the various steps of the procedure in turn.

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this was not the case! In view of the repetitive nature of the operation, it is understandable that surgeons use abbreviated operation notes.

I recommend the use of pre-printed adhesive stickers covering the main stages, which can then be annotated to complete the record in about 30 seconds. The laterality, use of antisepsis, adequate closure and use of antibiotics are often weaknesses if not recorded.

Diagnosis & Pre-operative Management The diagnosis is not frequently questioned. The patients are typically referred by opticians thereby providing corroboration. However, there may be missed co-morbidity which means that the patient does not achieve good vision after successful surgery. Since the cataract obstructs a clear view (and often any view) of the retina, a regular scenario is the patient with cataract and undiagnosed age-related macular degeneration who is unhappy with their post-operative vision. So long as an attempt has been made to view the retina, and if (ideally) the patient has been warned that they have a guarded prognosis because of the lack of retinal view, then this would not be negligence.

Despite the widespread introduction of the WHO (World Health Organisation) checklist, wrong side surgery (a “Never Event”) still occasionally happens, usually in association with a general anaesthetic and a patient the surgeon has never met but which was put on their list to “meet service needs”. It should be universal that the laterality is marked with an indelible pen pre-operatively by asking the patient to point to the eye on which they expect surgery, and since the pupil has to be dilated for surgery, this should provide a second laterality “mark”. Wrong eye surgery is indefensible.

However, the next major part of the work-up is to measure the eye for the IOL power, and this is a common cause of issues. The IOL is effectively a tiny lens, and as such has an optical power. This power varies from eye to eye, and to achieve an optimal optical outcome (usually freedom from glasses for distance vision: emmetropia) careful measurements are required which are the basis for a calculation of the IOL power required; this process is called “biometry”. Obvious sources of error include wrong measurements (wrong eye, wrong patient, bad technique), and inaccurate calculation. Sadly, even when this is undertaken perfectly, the wrong IOL can be implanted due to human error. In addition, the calculations are less accurate for specific eyes that are severely short or long-sighted, and also eyes that have had laser vision correction. This last scenario is likely to become a bigger problem, as patients frequently forget to tell their ophthalmologists who also frequently fail to ask! Since it is extremely easy to miss on examination, the first time it becomes manifest is an unhappy patient post-operatively!

The selection of the IOL to be implanted can be problematic. It is common for mistakes to be made “+27” for “+21” or the correct IOL for the left eye to be implanted in the right eye. There are a variety of styles of IOL with resultant differing powers for any given eye, and this also causes problems.

Surgical complications are not negligence, but their management needs to be well documented and reasonable. The commonest is the need to surgically amputate part of the vitreous body (“vitrectomy”), and this occurs in up to 5% of routine cases. Unfortunately, this worsens the prognosis and predisposes to post-operative complications such as retinal detachment. As such, meticulous surgery is required and this also needs to be meticulously recorded despite the fact that the operating list is now probably running late!

Consent is of course fundamental. However, given that most surgery is undertaken on conscious patients, the lack of a written consent is not insuperable, even if this occurs rarely. What is much more common is inadequate information on a consent form, although this has improved of late.

Exemplary consents include wording that patients can understand such as “no improvement” or “worse vision”. Part of the consent should be agreement on the target optical outcome, and this will be considered below.

Post-operative Management Often, the first time that it becomes apparent something has gone wrong is in the post-operative period. Despite all our improvements and efforts, intraocular infections (endophthalmitis) still occur with a frequency of about 1 in 3,000. Sadly, despite optimal therapy, the outcome is often poor, and patients frequently believe they have been treated negligently. My experience over ten years is that management has improved and in general the poor outcomes are related to the disease rather than the procedures. The other two common issues

Per-operative Management One still sees “Routine procedure” as the sole operative record whereas it is quite obvious that EXPERT WITNESS JOURNAL

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relate to binocular vision problems and IOLrelated difficulties.

If a patient has binocular double vision (diplopia) and then develops a cataract in one eye, the diplopia becomes less problematic as the image in the cataractous eye fades. However, if this eye undergoes a successful cataract operation, the diplopia will return and may be disabling.

Unfortunately it is not always possible to find a solution in this situation without further surgical procedures which might include squint surgery, botulinum toxin injections (which may have to be repeated) or the insertion of an opaque IOL to render the eye “blind”. Unless the problem has been identified pre-operatively and the patient suitably consented, this can be a valid reason for a negligence action.

A major source of patient unhappiness and negligence procedures are IOL-related. Since an IOL is a lens and frequently changes the need for spectacles, it is essential that the patient understands the optical target and agrees to it.

A common and indefensible scenario relates to patients under 45 year of age. Such patients are pre-presbyopic; they can accommodate and see well for near and distance with the same (if any) spectacle correction. Since the majority of IOLs are monofocal and fixed focus, following surgery and if targeted on emmetropia, such eyes will need reading glasses for all near work. This is often poorly tolerated, especially if unexpected. If not informed and consented this can be indefensible.

However, the majority of patients having cataract surgery are over 45 and adapted to the need for reading glasses. Another “binocularity” scenario is the patient with unilateral cataract; since almost all eyes are targeted on emmetropia, it happens that the optical status of the other eye is not taken into account. If the other eye has no cataract but needs a strong optical correction then the 2 eyes will be so different that the brain will not tolerate a spectacle correction (anisometropia) and the patient will be unhappy. Similarly, if a patient has been short-sighted all their life and can just take off their glasses to read, if they are rendered emmetropic and spectacle-dependent for reading they can react very badly if not previously counselled. Indeed, even if a short-sighted outcome has been discussed and agreed, because almost all eyes are targeted on emmetropia, this planned outcome can be “forgotten” at the time of surgery.

EXPERT WITNESS JOURNAL

Finally, there is the “refractive surprise” scenario.

In such circumstances, the planned optical outcome is not achieved. There are limitations to biometry, but the majority of outcomes should be within +/- 1 dioptre of planned. Unfortunately, this becomes much less likely in eyes that are severely long or short-sighted or have had laser vision correction, and appropriate pre-operative counselling should have been given. There are still cases where the optical outcome is very different from that planned despite good biometry and allowing for other factors; such cases are called “refractive surprises” and providing all procedures have been carried out to a high standard are not negligent. Nevertheless, the patient will be unhappy, and if active management is not undertaken (commonly an IOL exchange) then they may initiate proceedings for alleged negligence. Matters can be worse if the IOL implanted was mislabelled; if the surgeon implants a +30 IOL from a box labelled +13 the eye will be severely myopic; to correct this he now removes the first IOL, and unaware that it was mislabelled by the manufacturer, implants an IOL substantially lower power than the +13 desired, and the patient suffers a second refractive surprise and is severely long-sighted this time! Unless the first IOL is examined at a specialised laboratory, the error is difficult to prove and after a second refractive surprise the patient has lost all faith in their 105

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surgeon and wants to see a solicitor! This is even more likely if the patient has paid for their surgery and specifically if they have had a refractive lens exchange rather than cataract surgery.

In summary, cataract surgery is such a safe and successful procedure that it has become both trivialised as well as the commonest surgical procedure. The surgical planning and actual performance have potential pitfalls and some negligence scenarios are sadly repeated. Given the ageing population and the ever higher expectations, it is likely that we will see a steady increase in alleged negligence actions by unhappy patients. I am most grateful to Miss Hanifa Azri, Barrister (Inner Temple) for reading and commenting on this article. â&#x2013; The author has had an active personal injury and clinical negligence medico-legal practice for over a decade, acting for both plaintiffs and defendants.

He consults in Harley Street and Brentwood, Essex, and can be contacted at DBCG UK Ltd, 36 New Atlas Wharf, Arnhem Place, London E14 3SS Tel: 020-8852-8522 e-mail: eyes@dbcg.co.uk

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Mismatch between Patients’ Expectations and Outcomes Requires Firmer Definition of Aesthetic/ Cosmetic Plastic Surgery Procedures.

Aesthetic/Cosmetic Surgery has increased enormously within the UK over the last fifteen to twenty years. Nearly one billion pounds per year is now spent on aesthetic/cosmetic procedures within the UK.

significant increase in the number of patients who have been treated negligently.

The Independent Healthcare Advisory Services defined aesthetic/cosmetic surgery in 2006 as ‘operations and procedures that revise or change the appearance, colour, texture, and structural position of the bodily features to achieve what the patient perceives to be thought desirable’.

In the late nineties more surgically non-invasive procedures became popular e.g. skin fillers. The injectable skin fillers are ‘completely unregulated’ and many experts fear that this could be a new cosmetics surgery disaster following the PIP implant scandal in the future.

We also though see a common mismatch between the patient’s expectations and what the providers can achieve via positive advertising and models.

This is clearly very dangerous since many patients are not given a realistic enough impression of what can be achieved with different treatments and surgery.

There is a clear increase in private clinics and doctors/surgeons who are offering aesthetic/ cosmetic procedures, and solicitors are seeing a

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We have seen an increase in litigation within aesthetic/cosmetic surgery since the beginning of 2000. This has possibly occurred due to an increase in patientâ&#x20AC;&#x2122;s expectations but clearer definitions are necessary with regards to outcome.

Not every patient can be helped with aesthetic/ cosmetic surgery. If a patient cannot anticipate the outcome in aesthetic/cosmetic surgery then this treatment should clearly not be offered in order to avoid the mismatch between the patientâ&#x20AC;&#x2122;s expectations and the provider.

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The Medical Defence Union has also seen a large increase in litigation with cosmetic/aesthetic plastic surgery. One fifth of claims in plastic surgery involve consent issues and the most common reason for bringing a claim is dissatisfaction of aesthetic outcome.

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The British Association of Plastic Reconstructive Aesthetic Surgery do clearly support firmer definition of procedures and ninety-seven percent of plastic surgeons did indeed support a National Implant Register which was implemented as of 1 January this year.

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remit does not extend to non-surgical healthcare professionals, such as GPâ&#x20AC;&#x2122;s, nurses or dentists which may undertake certain cosmetic procedures, also the breast implant registry has been set up as a voluntary registery and without compulsion.

Many cosmetic/aesthetic procedures do however seem to fall entirely outside the regulations which are in place. Of all cosmetic/aesthetic procedures which are performed the non-surgical invasive procedures take up 75 %.

Indemnity insurance for plastic surgeons has also increased enormously over the last ten years and clearly this has happened as a secondary effect to the increase of litigation in cosmetic and aesthetic surgery. There are clearly many serious well educated plastic surgeons within the UK that can offer aesthetic/cosmetic treatments to patients wherefore it is more important to make patients aware that not everyone who conducts cosmetic/aesthetic treatment may indeed have the background which is also vital. The understanding of whether a patient at all can be helped or not with aesthetic/cosmetic procedures takes a lot of experience. Some patients will clearly not benefit from treatment and in any event may though instead have underlying problems which would continue even if cosmetic/aesthetic procedures are conducted.

Patients receive dermal fillers via GPs or even dentists and this does of course lead to a very unclear picture without definition, and it makes it even more difficult for serious plastic surgeons who are members of established plastic surgical organisations, to have an impact on the current climate and to protect patients from organisations which are creating unrealistic impressions of what is achievable within cosmetic/aesthetic surgery.

In February 2014 the Department of Health published the Governments response to the review of the regulation of cosmetic interventions. Some work is already underway on a number of the recommendations. The Royal College of Surgeons is setting up a committee to ensure standards for cosmetic surgey and will work together with the General Medical Council. A review will take place with regards to training of providers of some non-surgical procedures. A breast implant registry is in the process of being set up.

It is clear that doctors and nurses need to refrain from treating such patients since one is in fact indeed just otherwise giving false hope, which is not what should be done. Risks and complications do always need to be taken into consideration

However, Plastic Surgical Organisations say that this is not enough. The Royal College of Surgeonâ&#x20AC;&#x2122;s EXPERT WITNESS JOURNAL

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before offering aesthetic/cosmetic procedures. It is even more difficult to turn patients away from treatments which will not lead to the desired results but this is where the medical profession has more responsibility, and with the support of a legal representative one is hoping to see more improved patient selection in order to have a higher percentage of positive outcomes and reduced litigation. â&#x2013;

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Lena C. Andersson M.D., Dr. med.

Consultant Plastic Surgeon

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Anelca Clinic 84 Harley Street, London W1G 7HW Tel: 020 70 79 42 42 Pager: 0845 330 90 49 Fax: 020 70 79 42 41 E-mail: andersson@anelca.com Website: www.anelca.com

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Mr Eric Freedlander BSc. (Hons.) MB, ChB, FRCS, FRCS (Plast.) Ed.

Consultant Plastic Surgeon

CONSULTANT PLASTIC RECONSTRUCTIVE & HAND SURGEON

I have over 20 years experience providing medico legal reports for both claimants' and defendants' solicitors in cases of personal injury and also in cases of alleged medical negligence. I have appeared as an expert witness in court on a number of occasions.

Mr Atul Khanna is a consultant plastic surgeon and has been involved in medical legal work since 1997. In this period he has provided over 2,300 medical reports. These have been predominantly in the following areas of expertise: â&#x20AC;˘ Hand surgery: Sequelae of hand injuries and surgery â&#x20AC;˘ Soft tissue injury: Sequelae of post traumatic scarring â&#x20AC;˘ Burns management: Sequelae of disability following burns injury, scarring and surgery. â&#x20AC;˘ Medical negligence in Cosmetic Surgery

I have extensive experience in nearly all areas of my speciality including: â&#x20AC;˘ Burns â&#x20AC;˘ Soft Tissue Injuries &Scarring â&#x20AC;˘ Hand Injuries

His work involves the treatment of patients with hand injuries, burns, soft tissue and facial injuries, breast surgery, scars and deformities, skin cancer and cosmetic surgery.

â&#x20AC;˘ Head & Neck Surgery â&#x20AC;˘ Cleft Surgery â&#x20AC;˘ Cosmetic Surgery

He is on the GMCâ&#x20AC;&#x2122;s specialist register in Plastic Surgery and is a member of the British Association of Aesthetic Plastic Surgeons (BAAPS) and British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS)

Tel: 0114 230 9160 Fax: 0114 230 9160

Tel: Email: Web:

Mobile:â&#x20AC;&#x2C6;07702 339 930 Email: efreedlander@mac.com Claremont Hospital, 401 Sandygate Road, Sheffield, S. Yorks S10 5UB

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0121 507 3455 atulkhanna@doctors.org.uk www.atulkhanna.co.uk/expert_witness.html

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Scarring in Plastic Surgery Medicolegal Reporting

by Mr J M Porter, MS, FRCS, FRCS (Plast) Consultant in Plastic, Reconstructive and Hand Surgery Scar appearance evolves to a steady state, usually (but not invariably) in the first year after the accident or operation. The first phase of healing is the phase of inflammation: during this phase the skin around wound appears reddened, swollen and tender. This appearance is commonly diagnosed incorrectly as a wound infection. An attendance at Accident and Emergency or the General Practitioner’s surgery, can result in an unnecessary prescription for antibiotics and a wrong diagnosis of a wound infection appearing in the medical records. The Claimant will attend the expert thinking that the breach of duty was the cause of a wound infection.

Introduction.

A plastic surgeon, working as an expert witness, can expect to be instructed on a diverse range of clinical problems. Approximately 70% of medicolegal reports in plastic surgery require the expert witness to engage with the issues of scarring and to provide the Court with an opinion. In some instructions the presence of a scar may have generated the request for an expert opinion. In other cases, the scar may be drawn to the attention of the expert by the Claimant, or the expert may come to the opinion that the issues surrounding the scar should be brought to the attention of the Court. It is the author’s recent experience, that an opinion on scarring is required in 71 to 72% of personal injury reports and 54% of clinical negligence reports. Scarring is a theme which unifies medicolegal problems, as different as hand surgery, breast surgery and major road accidents.

In the second phase of wound healing, capillary blood vessels, fibroblasts and extracellular matrix are laid down within the wound. In the initial phase of repair, immature collagen results in a scar which is red and raised, the scar is remodelled with immature collagen being replaced with mature Type III collagen. Collagen is the main structural protein in the connective tissue of the body.

Scarring and medicolegal plastic surgery.

Scars may be the direct result of a breach of duty of care, or be the result of surgery made necessary by the breach of duty. Scars may be caused by wounds, surgical incisions, burns and skin grafting or other reconstructive surgery. Scars after primary healing (uneventful healing of a stitched wound) and healing by second intention (spontaneous healing) in an infected wound, have different appearances.

Scar quality varies between different parts of the body – an eyelid scar in a skin crease is usually inconspicuous, whereas a scar in the skin anterior to the knee or the front of the lower leg, will tend to be conspicuous. Scars may be associated with contour defects. Scars may be associated with, pain, numbness, hypersensitivity and other sensory disturbances.

EXPERT WITNESS JOURNAL

These changes within the wound are reflected in changes in the external appearance of the scar. The production of immature collagen results in a scar which is red and raised – this is a hypertrophic scar.

As maturation of the scar proceeds, the scar remodels and gradually becomes flat and pale. This is scar resolution. In a keloid scar, the production of immature collagen is not ‘switched off’, the red prominence does not resolve and the immature collagen invades surrounding tissue. The management and prognosis of keloid and hypertrophic scars are different. Hypertrophic scars are often mistaken for keloid scars, a mistake 110

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NHS or private medical consultation. The interview should take place in a hospital outpatient clinic or private consulting rooms, with a chaperone available if necessary. If the Claimant is not a primary English speaker, the need for an interpreter should be anticipated, ideally by the solicitor or by the agency. The expert’s questions should not suggest an answer and the Claimant should be encouraged to express his or her feelings about the scarring.

which can cause incorrect advice to be given to the Court.

In black people, the long term evolution of scar appearance is less predictable. The scar may resolve to become pale and inconspicuous. The scarring may become permanently darker than the surrounding skin. In a minority of cases the scars may depigment and leave a disfiguring white patch: this is most like to occur after disorderly wound healing or after steroid injections to treat prominent hypertrophic or keloid scarring. Certain ethnic subgroups within Africa are prone to keloid scarring. It may not be possible for Plastic Surgeons in the United Kingdom to identify people from these sub groups, whose ancestors have come to the United Kingdom via the Americas. It is incorrect to say that all black people are prone to keloid scarring. The key characteristic of scarring in ethnic minority people in the United Kingdom is unpredictability.

The scar may be perceived differently by the Claimant, by the expert and by other people. A scar may be perceived by the Claimant as being conspicuous, while the scar is simultaneously being perceived by the expert witness as being near invisible. Scars can be approximately classified for the Court, as being visible at conversational distance, visible on close examination, or visible to the Claimant and to no one else. The Claimant’s legal advisors and expert witness should be aware, that the Claimant’s perception of the scarring may be different to their perception.

An audit of 101 consecutive reports, required as a revalidation target for the author, (75 personal injury and 26 clinical negligence), showed that,

Claimants may tell the examiner that they hate or loathe the scarring. Most Claimants will adopt a variety of stratagems to conceal the scarring from strangers. A forehead scar may be hidden by a fringe. Scars on the legs may preclude the Claimant from wearing shorts or skirts, even on holiday. Claimants may tell the expert that they are unwilling to show the scarring to strangers, in situations such as the gym or the swimming pool.

Some may even be unwilling for family members, children, or even to their partners or spouses to see their scars. Many claimants describe persistent and curious enquiries from other people. Claimants may fear that the presence of a scar will indicate to other people that they are ‘trouble’, for example at the door of a night club. Many claimants fear that a scar will create a negative impression at a job interview.

a) an opinion on scarring was requested in 71% of personal injury instructions and b) scarring was a significant issue in 54% of clinical negligence reports.

A survey of the author’s last 25 personal injury reports (at the time of writing) showed that an opinion on scarring was required in 18 reports and that scarring was not an issue in seven reports. 6 clients said they were not worried about their scarring. Six clients stated that they were embarrassed by the scarring. One client admitted to hiding the scarring. Two clients said that their scars were insensate, two complained of contour defects, 3 of scar pigmentation or depigmentation and 2 of scar tightness. One client was worried about the scar. One client described pain with cold sensitivity in the scarring.

Claimants (and solicitors) may have unrealistic expectations of photographic evidence. Experts may be asked to view photographs of scars on poor quality paper, on mobile telephones and even as poor quality black and white photocopies. The photographs tend to be taken by family members and the author has on a number of occasions, been shown photographs of scars, taken by the Claimant as ‘selfies’. Solicitors need to advise their clients that wherever possible, clinical photographs should be taken professionally, by a medical photographer.

The Claimant’s perspective When scarring is an issue, a thorough medicolegal case history requires the same time (or more) as a comparable case history, in an NHS plastic surgery clinic. The venue of the consultation should encourage the client to talk about themselves. The claimant (and the claimant’s solicitor) should expect the claimant to be accorded the same courtesies, which would be taken for granted in an EXPERT WITNESS JOURNAL

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Clinical images should, a) be dated, b) should identify the subject of the image, c) be evenly lighted, d) should be in focus and e) should be presented on A4 format, ideally in a portfolio.

Mr John Michael Porter Consultant Plastic Surgeon MS, FRCS, FRCS (Plastic Surgery)

The Droitwich Spa Hospital St Andrews Road, Droitwich Spa Worcestershire WR9 8DN Tel: 07932 337 812 Email: benara.rahman@hotmail.co.uk

Requirements for the Court Reasonable requirements of the Court for expert evidence on scarring are, a) an accurate diagnosis of the scarring, b) a clear causal link between the scarring and the alleged breach of duty, using an appropriate legal test, (usually the but for test), c) the effect of the scarring on the Claimant’s life, d) the long term prognosis of the scarring and e) the expert’s advice on the future management of the scarring.

Mr Porter entered plastic surgery as a trainee in 1981.

He was a consultant from 1991 to 2012, with interests in breast surgery, hand surgery and skin cancer.

He was in private practice from 1996 to 2008.

Mr Porter attended medicolegal training courses from 1996 to 2002 and from 2012 to the present. He possesses the Cardiff University/Bond Solon Expert Witness certificate and has revalidated with the GMC as an expert witness.

In cases where multiple experts have been used, the plastic surgeon may be at the end of a queue of experts, from different specialties. A previous expert may have given an incorrect diagnosis, confusing hypertrophic and keloid scarring. Here the plastic surgeon will need to give a diagnosis without obfuscation, with an explanation of the reasoning behind the diagnosis, without an overt attempt to undermine the previous expert’s report.

Mr Porter undertakes personal injury and clinical negligence work, within his area of special expertise, consulting in Wolverhampton, Droitwich Spa and Great Barr Birmingham.

Court that the scar is permanent and has reached a permanent appearance. The opinion is given on a balance of probabilities, even though the chance of a resolved scar altering in appearance is almost negligible. The streamlining of claims procedures and the application of timetables imposed by the Courts has meant that plastic surgeons may be instructed to give opinions on scars, which have not reached a permanent appearance. In extreme cases, Claimants may present with florid and unresolved hypertrophic scars, or even with wounds which are unhealed or have the stiches still in place. In an unresolved scar, the eventual scar appearance has to be predicted by the expert and here the expert must be cautious when writing a prognosis, as the timescale of scar resolution and eventual scar appearance can be unpredictable, especially in children and in people from ethnic minorities.

If the scarring is the direct result of a wound caused by an accident, or incorrectly indicated and executed surgery, the causal relationship between scarring and breach of duty is straightforward. In other cases a plastic surgeon may be asked to give an opinion on a scar from an operation, made necessary by the breach of duty. Here the causal relationship between the breach of duty and the scar is less direct and the plastic surgeon will need to explain to the Court, the exact chain of events connecting the breach of duty and the scar.

The effect of the scarring on the Claimant’s life is established by a careful case history, using open questions. As further consequences of the scarring on the Claimant’s life emerge, these must be causally linked with the breach of duty, using an appropriate legal test, or the Court must be advised if no such link can be proven.

Experts in plastic surgery are usually asked to give advice and an opinion, on the management of the scarring. The expert in plastic surgery may be faced with a client, legal colleagues and even other medical experts, who have unrealistic expectations of the outcomes which treatment for scarring can deliver. Scar revision surgery substitutes one scar

If the scar is found to be resolved on clinical examination, the plastic surgeon can advise the EXPERT WITNESS JOURNAL

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for another. The Court and the claimant must understand that scar revision surgery is not indicated, unless there is a reasonable expectation that the revised scar will have a more favourable appearance than the original scar. The legal team (and the insurers) do not invariably understand that if a thing can be done, this does not mean that it must be done. Many Claimants do not wish for scar revision surgery and if the wish is shown to be reasonable and logical, this must be respected by all. The Court must be advised by the expert of steroid injections, pressure treatment, topical silicone and (with caution) the use of a laser. Advice should make clear, that medical treatments for scarring do nothing more than expedite scar resolution and will not restore the pre-accident appearance of the skin. Cosmetic camouflage is a reasonable alternative to other methods of treatment with a negligible risk of complications.

If there is a contour defect or a spread scar, explanations about tissue expansion and fat grafting may have to be put before the Court.

Giving an opinion on scarring Medical expert witnesses are beset with advice on templates for medical reports. Templates appear in the literature of organisations which offer training for expert witnesses and in medicolegal textbooks.

A novice expert witness is best advised to read the requirements for a medical report, to examine as many templates as possible and to create a personal template, with which he/she is comfortable to work with. The template should be regularly reviewed.

Advice on a template for giving an opinion is harder to find. The expert’s opinion is the core of any medical report. Again the individual expert should devise a personal template for giving opinions and should apply this template, in separate numbered paragraphs to, a) each symptom described by the claimant, b) each physical sign (such as a scar) found at examination, c) each consequence of the alleged breach of duty including time off work, the need for more treatment, the risk of future deterioration, the effect on work and any other matters raised in the solicitor’s instructions.

Scarring in cosmetic surgery clinical negligence In clinical negligence claims for breast surgery and abdominoplasty, the expert is required to causally relate unfavourable scarring to the allegation of breach of duty, as well as giving an opinion on the condition and prognosis of the scarring. The claimant may object to the positioning, length and quality of the scarring. After a breast reduction, the claimant may object to scarring which is excessively wide, pigmented and indrawn. Scars which transgress onto the side of the chest or into the cleavage, are more likely to be hypertrophic than scars confined to the inframammary fold and are more conspicuous. After abdominoplasty, the claimant may object to scarring which is not symmetrical, indrawn, excessively wide, or too high. The plastic surgery expert has to advise the court whether unfavourable scarring is causally related to any breach of duty, or whether the unfavourable scar appearance would have occurred in any event. Unfavourable scars related to a surgical complication cannot invariably be linked to a breach of duty, often to the disappointment of both Claimant and solicitor.

A surgical complication does not invariably indicate a breach of duty. As in personal injury the expert should put before the Court an accurate diagnosis of the scarring, a prognosis based on the diagnosis and a clear causal link to the breach of duty, if such a causal link can be proved.

EXPERT WITNESS JOURNAL

A template for giving an opinion should be used as a guide, rather than a rigid straight jacket.

A suggested template is, a) A statement of the problem (Mr S has a scar on the front of his left lower leg). b) An opinion on the claimant’s condition if the accident (or the alleged breach of duty) had never happened. (If this accident had never happened, the appearance of Mr S’s left lower leg would be normal, on a balance of probabilities). c) The application of an appropriate legal test (It is my opinion that scar would not be present, but for the accident) d) The prognosis for the scarring (It is my opinion that the scar is permanent and has reached a permanent appearance. e) The reason for the opinion (I give this opinion because Mr S’s scar has been present for 18 months and has the characteristic appearance of a resolved hypertrophic scar).

To avoid a complex and unwieldy paragraphs, scar management is best discussed separately to the opinion on the scar. A discussion on scar management should cover, a) The prognosis of doing nothing,

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b) The advisability or otherwise of scar revision surgery, c) Whether medical management of the scarring would helpâ&#x20AC;&#x2122; d) Cosmetic camouflage.

e) Correct application of legal tests in line with the expertâ&#x20AC;&#x2122;s instructions, as required by the Court and f) Experience in scar surgery and in the long term follow up of patients with scarring.

e) experience in the surgical management of scarring and in the long term follow up of patients with scars.

The Author Michael Porter entered the wards of the National Health Service, as a student at Kings College Hospital in 1966. He was a consultant plastic surgeon at Sandwell General Hospital from 1994 to 2012. Michael Porter has written medicolegal reports since 1996.

In 2013 he passed the examinations for the Cardiff University/Bond Solon expert witness certificate and in October of 2014 he revalidated, after assessment and appraisal of his work as an expert witness. Michael Porterâ&#x20AC;&#x2122;s medicolegal practice is based at the Droitwich Spa Hospital and he also consults in Wolverhampton and Great Barr, Birmingham. â&#x2013;

Conclusion A plastic surgery expert will be required to give an opinion on scarring in around three quarters of personal injury and clinical negligence reports.

The reports should be based on, a) A full training in plastic surgery and clinical experience in the management of scarring as a consultant. b) Training and qualifications as an expert witness (no one would expect a magistrate not to be trained). c) A correct diagnosis. d) Understanding of the physiology and evolution of scarring

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â&#x20AC;&#x153;Bystander Coronary Artery Diseaseâ&#x20AC;? at Post Mortem â&#x20AC;&#x201C; What does it Mean?

by Dr Duncan Dymond, MD FRCP FACC FESC Cardiology experts quite commonly receive instructions to provide an opinion on post mortem findings of narrowed coronary arteries, in individuals who either tragically died in an accident where compensation is sought, or when the patient has died of another medical condition and there is a question of clinical negligence.

been adversely affected by the presence of narrowed arteries and whether the victim might have died sooner than predicted of natural causes had the accident not occurred.

Similarly, someone dying for example of asbestos related lung disease, will face resistance from the defendants representatives on the basis that death was inevitable from coronary artery disease and that the asbestos related lung disease may be less relevant.

It is not at all uncommon for the pathologist at post mortem to find that the coronary arteries, which are the blood vessels which supply the heart muscle with blood are narrowed, and the pathologist will usually give an assessment of how severe the narrowing is and how many arteries are actually involved in the process.

So how accurate is the demonstration of post mortem narrowings by pathologists? Cardiologists are used to judging the severity of narrowed arteries on the basis of coronary angiograms performed during life. The coronary angiogram is a specialised technique where iodine containing contrast (commonly called dye) is injected down

In accidental death, even when liability might be admitted, arguments around quantum will arise if it is felt that the deceased prognosis would have EXPERT WITNESS JOURNAL

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The cardiologist must also put together the individualâ&#x20AC;&#x2122;s risk profile, for example were they heavy smokers, or diabetic, or suffer with high cholesterol or have a family history of heart disease? The cardiologist may also point out the difficulties in relying too much on a pathologists visual inspection of a collapsed and empty artery and try to extrapolate that into what the artery would have looked like when full of blood during life.

the arteries by placing a catheter into the origin of the arteries and filming the passage of the contrast through the coronary circulation. Experienced cardiologists are used to comparing what we believe is a normal segment with a narrowed segment and assigning a percentage stenosis.

In general terms, a 50% stenosis may be deemed significant and a 75% stenosis severe and a 90% or greater stenosis deemed critical.

There will often be disagreements between cardiology experts as to the relevance of the post mortem findings. Each expert will try and extrapolate what the post mortem findings might have meant during life although this is a difficult exercise and will vary on a patient by patient basis. â&#x2013;

The same degrees of stenoses are often described by pathologists in a post mortem heart but there is a major difference between the assessment of an artery which has no blood flowing through it and which is collapsed in a deceased patient, and the assessment of that artery during life when the artery is full of blood flowing rapidly into the heart muscle and the arteries are fully distended.

Dr Duncan Dymond, MD FRCP FACC FESC Consultant Cardiologist

This often causes a conflict between experts and requires some explanation.

The process of â&#x20AC;&#x153;furring up of the arteriesâ&#x20AC;? known as atherosclerosis is common in the western world particularly in an aging population. During the Vietnam War, fatty streaks and mild fatty deposits in the arteries of young American casualties were noted even in these young men in their teens and early twenties.

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However not every person who demonstrates some degree of abnormality in their arteries is going to actually have either clinical coronary disease or suffer a coronary death. The axiom â&#x20AC;&#x153;it is possible to die with coronary artery disease rather than of itâ&#x20AC;? holds true in many patients. Many people can live to a ripe old age without ever having any clinical evidence of coronary disease even though pathological disease may be noticed at autopsy.

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The duty of the cardiologist in these circumstances is to point out and to reference the many studies which have shown the discrepancy between degrees of stenosis at post mortem and what the arteries might have actually looked like during life.

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The Challenge of Contemporary Child Sexual Exploitation and Internal Child Sex Trafficking Some Lessons from Rochdale, Rotherham and Richmond

by Dr Carrie Pemberton Ford The recent discovery of a 1,400-victim sex abuse ring in the UK has rocked the country. That it’s the fifth of its kind in the last half decade - led by Muslim men - has meant that the attention of many reading the national press and listening to the unfolding collapse of careers of those holding positions of power during the noughties when most of the ‘historic’ and more present offences occurred, has swung onto a new alignment of attention focussed on Muslim heritage males and the risk of abuse on white girls and vulnerable women in localities where Pakistani, Somali and Bangladeshi males are populous. The online world has been awash with commentaries on the risks of ‘certain cultures’ to manifesting grooming gang EXPERT WITNESS JOURNAL

activities with a concentration on racial difference, as a trope of vulnerability, poor parental attention and racial power play.

This brief article will seek to put this current focus into its appropriate context – with particular attention paid to ➢ What we know about particular offending groups and their ethnicity ➢ What is currently known about the children who are targeted for abuse and their ethnicities ➢ The National Action Plan emerging from Central Government

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➢ Lessons from Rotherham

number of offences captured in counter trafficking legislation and section 58 of the Sexual Offences Act (SOA 2003), as amended by section 59A (1)(b).

➢ Grooming techniques and ‘Risky’ areas ➢ The range of legislation available to prosecute offences around Child Sexual Exploitation

Furthermore, to complicate matters further there are always complex prosecutions which are ongoing, alongside cases which are distributed across a number of crime reporting categories, which mean that a clear understanding for the government bodies charged with monitoring what is occurring, the police forces which are seeking to interdict and disrupt grooming rings, and the general public at large who use this information to make judgements about their safety and the risk posed by certain ethnicities within the wider UK community, is very patchy. It is increasingly understood that although it is vitally important that a deep understanding of ages, ethnicity and range of crimes against victims is recorded properly in order to maximise the efficacy of victim care and inform longer term recovery – that the profile of perpetrators which must include their age and ethnicity is currently insufficiently attended to in the publicly available data, thus holding up a skewed mirror for society to understand what is going on.

➢ Training inputs available for Local Councils and front line services ➢ The importance of a central joined up LSCB plan – and multi agency working ➢ The risks attached to doing nothing (victims and litigation) The Perpetrators and their Clients In a recent report from Deputy Children’s commissioner (DCC) there is this following sad commentary on the state of various violence delivered on children in our society.

There is sadly no community where women and girls are not at risk from men and sexual predators.

In the period between 2011 - 2013, the Chief Crown Prosecutor recently reported to the DCC ‘We have prosecuted people, invariably men, from 25 countries. We have to deal here with the United Nations of abusers (ed it) of women and girls. It needs to be clear, however, that white British men constitute the vast majority of offenders in the United Kingdom.

Even with the opportunities for data management emerging through the centralised National Referral Mechanism, managed through the National Crime Agency, the ethnicity of traffickers involved in Internal Trafficking in the UK for child sexual exploitation – lacks ethnic clarity around the participants in the offence, either as facilitators, traffickers or clients. This is something where there needs to be some urgent activity. However what can so far be safely assumed across the categories of rape, paedophilic rings and child abuse, and is corroborated in the general data available from a range of the data sets which are available however patchy, white British males currently predominate across all categories of these offences. But this does need to be constantly monitored so that the crime groups can be better understood, interruption of these forms of abuse appropriately addressed and prosecuted, and culturally aligned messages be sent into the appropriate institutions, educational fora, businesses (taxi providers for one!) and faith communities that these behaviours are no longer – if they ever were – acceptable and will be prosecuted.

The perpetrators in these so-called group-grooming cases do not limit their criminal behaviour to white girls, though most were.

We know that women and victims from minorities are even more reluctant to report these crimes, in part because of honour and shame issues. That is why this research is so important. It is the availability of victims coupled with their vulnerability that leads to them being targeted by these predators.

Nazir Afzal OBE the Chief Crown Prosecutor of the Crown Prosecution Service for North West England

Currently the attention of the UK Human Trafficking Centre and the National Crime Agency in which it is now embedded, is firmly victim centred and data protocols have been set up which collects the ethnicity of children and adults at risk of having been trafficked. However the ethnicity of those involved as traffickers of those in Internal Child Sexual Trafficking cases, or cases which have been subsequently placed in other ‘more achievable prosecutions’ is not publically available. This data where it is available is distributed across offences ranging from Rape, Child Abuse, a variety of offences captured in Paedophilia cases, and a EXPERT WITNESS JOURNAL

All cultures at risk of predatorial male behaviours It is now being absorbed across local councils and central government, that sex abuse and child abuse 118

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Rotherham) come from Pakistani backgrounds. It is all a result of segregated communities where illiteracy is rife and the men think they can get away with anything. Seeing white girls as targets of abuse is a cultural issue, and these criminals believe there is nothing wrong with it.” 1

is a problem which affects all cultures within the rainbow of populations in the UK. In 2011-12, just under 69% of rape crime defendants were categorised as White, of which 63% were identified as belonging to the White British category (three percent higher than the previous year). 7% of defendants were identified as Asian – a fall of 1 percent from 2010-11, and a further 10% were identified as Black – a fall of 3 percent from the previous year. This does raise challenges as to how the range of diasporic, second and third generation communities are engaged with to rally all members of the community to resist such behaviours, report brothers, fathers, cousins, uncles, friends and business colleagues who are involved in such activities, and to work out culturally appropriate methods to build better counter abuse resilience into those communities which have until the last decade been falling under the radar of attention.

However this is a task for the whole of the United Kingdom and certainly not a ‘particular’ or isolated issue for non ‘indigenous’ communities.

The racial and gender diversity of the abused One of the tropes which has become established in the recent spate of reporting of grooming, rape, pimping, child abuse and internal child sex trafficking cases emerging from Rochdale, Rotherham and Bradford over the last 3 years is of the cross ethnic nature of abuse. Pakistani and Asian men, are portrayed as recruiting white girls for sex, rather than the wider background, which is men of all ethnicities abusing children (boys as well as girls) in their own communities – as intracommunity abuse is far more widespread than any like to imagine.

One of the challenges for the researcher into these areas, is that although recording of victim ethnicity has slightly improved over the last few years, just under 70% of victim ethnicity is still not recorded according to the CPS and resulting in significant data on this not included in their annual report of 2012.

The Need for new Consolidated Data What will be helpful going forward is a consolidation of data under the aegis of the Children’s Commissioner and a new National Group which has been formed within the Ministry of Justice with a remit across England and Wales to see the Government urgently address what the report alludes to as ‘missed opportunities’ to protect vulnerable children. This group is led by the Minister for Policing, Criminal Justice representatives, and those representing victims groups and interests within the UK.

Attention, since the publication of the Children’s Commissioners’ report of 2014, has fallen on Rotherham, but this must not divert us from peeling back the complexity of what is occurring across the UK today. Training needs to be appropriately absorbed and realised in a programme of common action across the protective and judicial services in order that thousands more UK born children, and those who have been trafficked into the country, are not put at further risk of this form of horrendous at times chaotic yet so frequently male defined, organised abuse.

The National Group has three key aims ➢ improve cross-Government delivery, ➢ identify problems and solutions, ➢ act swiftly to resolve them.

In the absence of a strong presence of communication lines into the Asian and Muslim communities, academics are emerging ready to postulate about the dialectic of abuse which is happening across racial and faith divides.

The group has identified nine key areas for action: ➢ prevention ➢ online ➢ policing ➢ criminal justice system ➢ culture change ➢ supporting victims ➢ offenders ➢ institutions ➢ local implementation

Roger Griffin, a Professor of Modern History at Oxford Brookes University and specialist in extreme right-wing ideologue, has suggested without a great deal of engagement with Muslim women’s networks exploring the challenge of ‘under reporting, that “a woman of a different ethnicity can make the sense of crime seem less severe. These are the acts of men who are sexual predators, who do not feel like they can go and

“To label this as Pakistani problem is dangerous,” Umar Farooq from Bradford spoke out recently however she wanted attention paid to her community as “I don't think it's a coincidence that the men in these gangs (in EXPERT WITNESS JOURNAL

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carry out their lust in their own communities. They see that white girls do not behave in a ‘modest’ way, and take advantage of these ‘lost women’2 But is this really the whole story?

deserve the same rights and protections in this country, no one more so than children. It’s the same with child abuse and exploitation: we mustn’t be allowed to ignore one type of abuse or one type of victim, just because their plight is better hidden, or their community is less well understood.4

Many other cities in the UK with similar diasporic and inter-racial profile as Rotherham are now starting to look afresh at how all communities are being incorporated into the cultures of equality, diversity, inclusion and respect, particularly addressing the impact of gender and the rights of the child. The UK now has a significant armoury of legislation which asserts Equalities and Human Rights which is filtering through into Education providers, Social Services, Public Health providers, and the protective services. However there is still some significant space between what is in place in legislation and what is happening on the streets and behind the closed doors of shops, taxis, and households. Furthermore the aspect of significant ‘under-reporting of abuse suffered by children and women within Asian and Muslim communities needs to be particularly addressed.

These early day signals from the Muslim women network confirm the following challenges in local safe guarding boards and their multi agency partners to pay particular attention to: • The communities which are closest to the perpetrators and therefore most easily accessible – and at risk of abuse • The function of honour codes which means that reporting by a child to a parent, or a parent to the authorities of abuse, grooming or sexual assault is fraught with problems and rarely occurs • The absence of easy ways to reach into Muslim and Asian communities and the current paucity of third party agencies and LSGB members working closely with Muslim women’s networks to lift the veil on abuses which are occurring, to provide a safe, trained and supportive locus of reporting within diverse communities

Concerns from the Muslim Women UK network IN 2013 a report emerged the Muslim Women UK network which was inspired by a concern that the current reporting provisions which could be accessed more easily by white victims of Child Sexual Abuse and their parents, was masking the incidence of Child Sexual Abuse and Internal Child Sexual Trafficking occurrences in the Asian and Muslim communities in the UK.3

• The requirement of the public services to put adequate funding into proper inclusion of diversity, even in a time of national funding cuts • Clear messages into every faith and ethnic sector of the community that abuse of children and violence against women ‘will not be tolerated and has no place to hide’

Their point of departure was that many girls and women, (as well as boys and men) from all backgrounds were being caught in a cycle of sexual violence whether by celebrities, gangs of street groomers, or paedophiles, and that this abuse comes in many forms and affects many different types of people. This means that certain types of abuse are routinely underreported, misunderstood or indeed overlooked by the mandated authorities.

Baroness Sayeedi Warsi clarified the challenge raised in this report, where over 33 Asian victims of child sexual abuse were interviewed, and their case histories explored.

Lessons from Rotherham Multi Agency integrated Model A review of the Rotherham Child Safety performance in 2012 noted the following 3.30 While supporting the move towards an integrated model of services, the Review thought that the Borough could do more. Staff should be fully trained to understand the model’s implications; procedures should be directed towards its effective application; the relationship between central services and locality teams was confused and should be clarified.

3.31 The Review expressed concern that children’s social care in Rotherham was inadequately funded, not least its high-risk services. The very high rate of referrals reflected the social conditions in many parts of the Borough, the chronic neglect, the poor standards of child care, the level of domestic violence and drug abuse, all of which had a direct impact on the welfare and safety of children.

When I was campaigning for forced marriage to be criminalised, I said it was an inverse form of racism when teachers, neighbours and others would all too easily ignore the fact that an Asian schoolgirl had suddenly disappeared from class and ‘gone home’ or ‘gone to stay with relatives.’

Their response to a white classmate disappearing, I argued, would have been very different. All communities EXPERT WITNESS JOURNAL

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be theoretically captured in ICST if subsequent to their trafficking they are granted British citizenship.

• Inadequate joint working, • Inadequate training, • Requirements for effective application of a ‘good basic model’ • Inadequately funded central services in areas of high risk.

This crime of ICST has been increasingly recognised as a structure to inform the investigation, protection of victims and prosecution of criminals facilitating and benefitting from this form of abuse since the mid noughties with a number of police operations mounted and prosecutions successfully brought but not always under the structure of ICST.

Child Sexual Exploitation or Internal Child Sexual Trafficking?

There has been extensive and widespread debate about which category most effectively protects children from sexual exploitation in the UK - and which category offences should be prosecuted under. CSE and ICST vie with one another with proponents being assembled from a variety of NGOs at local and national levels, Local Child Safety Boards, Constabularies, Academics, Child Exploitation and Online Protection, and the UK Human Trafficking Centre advisors now embedded in the National Crime Agency.

Child Sexual Exploitation The nationally agreed ACPO definition of CSE is: • Sexual exploitation of children and young people under 18 involves exploitative situations, contexts and relationships where the young person (or third person/s) receive ‘something’ (e.g. food, accommodation, drugs, alcohol, cigarettes, affection, gifts, money) as a result of them performing, and/or others performing on them, sexual activities.

Internal Child Sexual Trafficking The most universally accepted definition of human trafficking was announced by the United Nations Protocol in 2000 and opened for signature in Palermo in 2002, which defined human trafficking as …the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation (United Nations, 2000)

• Child sexual exploitation can occur through the use of technology without the child’s immediate recognition; for example being persuaded to post images on the internet/mobile phones without immediate payment or gain.

Operation Glover In 2006 Sheffield Local Authority Sexual Exploitation Service (SLASES) identified a pattern of local white girls who were regularly going missing from home. After the UK Human Trafficking Centre launched Operation Glover to analyse the information provided by SLASES they identified 33 UK born teenage girls aged between 12 and 15 who had been victimised. Following Operation Glover charges brought against perpetrators included child abduction, and in the case of one male, imprisonment based on 4 counts of sex with a minor involving vaginal and anal rape. Other serious assault and drug related charges were upheld, and subsequently five men were made the subject of deportation procedures.

ICTS is a recent nomenclature to describe a criminal set of behaviours which have only recently emerged the radar for Police, and reshaped understanding of who is the perpetrator, who is the victim, and how the crime is to be unearthed and charged, and the victims supported through the long journey of securing a prosecution and onward recovery.

The Palermo Protocol identifies an important difference between adult and child trafficking whereby force or coercion is not required for a child to be considered as a victim of trafficking.

Even though the minor may have given verbal consent, under UK law anyone under 18 years is viewed as unable to consent to trafficking.

Under Section 58 of the Sexual Offences Act 2003 it is illegal to arrange or facilitate the movement of someone within the UK with the intent to exploit them sexually. This offence, internal sex trafficking, carries a maximum custodial sentence of 14 years (SGC, 2007). Internal Child Sex Trafficking or ICST - is a subset of ICT which involves UK children (aged under 18 years). Internationally trafficked children who are subsequently trafficked internally since their exploitation for the purpose of this article sit within a different frame, but could EXPERT WITNESS JOURNAL

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Unpacking and understanding its prevalence requires complex networks of reporting and observation, and a level of resourced curiosity on the part of front line policing, joining up with other public to really understand what they are seeing as internal sex trafficking.

Creating a common language There has been over the last 6 years some contention that the terms ‘internal trafficking’ or ‘trafficking within the UK for sexual exploitation’ could be used interchangeably, or in some cases in exchange to describe the more complex activities involved in ‘child sexual exploitation’. By narrowing a definition to reflect a single phenomenon, i.e. in the case of ‘internal trafficking’, the ‘movement’ factor, could act to further obscure the more generic and diverse nature of child sexual exploitation activity.

In 2006 an NGO based in Leeds and looking atsome of social impacts of the ethnic diversity of the Northern mining towns, the Coalition for the Removal of Pimping (CROP) began to report on an emerging challenge of recruitment of children by older ‘boyfriends’ from the Pakistani community.

In a paper called - Trafficking in our midst: Parallels between international trafficking, CROP pointed out the incidence of internal trafficking emerging in Northern towns where they had been contacted by distraught parents not knowing how to protect their daughters.5 The parents were from all classes, and many of them would not be constituted as chaotic or dysfunctional families – but all had been disrupted by this phenomenon – and all had found the response of the mainstream services to assist them in rescuing their daughters from abusive grooming rings less than adequate.

The national child protection organisation Barnados, pioneered the request for a ‘common language’, to be developed in order to inform information gathering and sharing protocols across agencies. Barnardo’s suggested a set of criteria which would provide an effective means of supporting police, and other safeguarding partners in best practice processes of intelligence gathering, investigation, disruption, prosecution of perpetrators and the support of victims. While combining key elements of the Trafficking defining protocol ‘Palermo Protocol’, and the Sexual Offences Act 2003 Barnardo’s suggested that the following ‘definition tool’ could be usefully deployed to identify children who had been trafficked within the UK for the purpose of sexual exploitation.

“We talk of international trafficking. We are not saying we should not do anything about that. But look here, they are passing these children from gang to gang just like they are doing with girls brought from abroad. Girls are not seeing money changing hands. That’s what is happening”.6 - Parent speaking to CROP worker 2006

The Common Language definition for ICST and CSE ‘The transportation, or the intent to transport (including the recruitment, transfer, harbouring or receipt of) a child under age of 18 within the UK for the purpose of sexual exploitation, or the committing of an offence under the Sexual Offences Act 2003, taking into account the following:

Awareness amongst many front line services of ICST has been profoundly low and only in the light of recent media highlighted abuses in Rotherham, Rochdale and Bradford have the instances and possibilities of ICST been started to be apprehended by front line service providers, educationalists, social services, public health providers and police. ICST often overlaps with better-understood offences (rape, child pornography, false imprisonment, etc.) and because of this, the crime reporting or the way in which the CPS has decided to take the prosecution forward has sometimes been under different legislation in order to secure conviction by a jury. Not only has the crime emerged lately on the radar for Police, understanding and unpacking its prevalence requires complex networks of reporting and observation, and frequently curiosity on the part of front line policing to really understand what they are seeing as internal sex trafficking.

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i. The intention to commit a sexual offence or, in handing over a child to a third party, the belief that the third party is likely to do so, is sufficient without the sexual offence actually taking place; ii. The consent of the child is irrelevant; this activity is often characterised by deceit, coercion, violence and iii. In all cases the trafficker will have power over the child by virtue of their age, gender, intellect, physical strength and/or economic or other resources’

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iv. Evidence of transportation to other locations /travel beyond the child’s’ local area of residence; or

missing from home for short periods, and subsequent encouragement of family estrangement and bonding with their new perpetrator network is encouraged

v. Evidence of the intention to transport; and

o

vi. The involvement of a third party, or more; or vii. Evidence of informal networks; or Links to criminal networks’ viii. Further indicators may include going missing and not returning (in the case of children arriving from abroad); or

After this important piece of work by CROP which has also had significant inputs from the NSPCC, CHILDLINE and Barnardo’s, more advice has emerged over the intervening years from the Child Exploitation and Online Protection and the National Child Commissioner.

ix. Going missing for periods of time, and returning, possibly on a regular basis’7 Recruitment indicators The recruitment of victims experienced by those identified by CROP ( parents and researchers followed elaborate stages of the previously observed grooming process of minors into CSE which traditionally had been linked to ‘Child Prostitution’.

• ‘Boyfriends’ style perpetrators were seen to target and approach victims in known areas where young people congregate; o bus stations, o car parks, o shopping centres, o gaming machine venues o fast food outlets and o taxi ranks •

CEOP observed commonalities among offenders: "Many of the detailed cases submitted to CEOP showed that grooming is used to manipulate victims, distance them from families and friends, and place them under the control of the offender. Offenders will often use flattery and attention to persuade victims to view them as a ‘boyfriend’." –we also now know female peer recruiters are clearly at work in this chain, as well a peer group boyfriends – which can complicate what is actually happening in the chain of exploitation. 9 Amongst the warning signs which CEOP have amalgamated as indicative of children at risk of recruitment into abusive relationships – or networks of abuse are any of the following which frequently alert those observing changes in behaviour of wider indices of abuse.

Techniques o the use of flattery, gifts and other forms of coercion,o

the recruited girls could be used to use stolen bank cards to buy themselves gifts, or collect money for their recruiters

o

later the stolen provenance of the card would be revealed and the threat of criminal action by the police would be operationalized.

o

‘grown up’ privileges would be shared – drink, freedom with school hours, use of a car, access to clubs brought into play in a way denied them at home and school,

o

the perception of a powerful sponsoring friendship is instilled

o

a sexual relationship is precipitated, frequently one on one but also gang rapes can occur at this stage

o

coercion and manipulation through drug use, alcohol abuse, enticement to go

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(note that ‘girlfriends’ can also be present in the ‘recruiting frame’ which is a point frequently overlooked, the loss of important protection time and intervention occurs because of this gendered oversight)8

Warning signs to consider: • Having an older boyfriend/girlfriend • Peer group bullying • Having unaccounted for money or items • Signs of underage sex such as sexually transmitted infections or pregnancy • Disclosure of serious sexual assault and then withdrawing the allegation • Regularly coming home late • Going missing from school, home or care home • Not attending school or being excluded • Being taken to nightclubs and hotels by adults • Being friendly with adults or suddenly changing peer groups • Chatting to or exchanging pictures with strangers online • Experimenting with drugs and or alcohol • Changes in behaviour that are out of character • Hostility in relationships with family members or other carers 123

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• • • • •

by street gangs, adult organised crime groups, or influential adults/peers around them?

MsUnderstood is engaged in researching what activities are best deployed to engage with those influential groups or individuals? 10

Secrecy Repeat offending Being a gang member or associating with gangs Illness that cannot be explained Poor self image, eating disorders, self harm.

Resources to assist your response readiness At the end of this article are a number of articles which will assist legal counsel and professionals to gather in one place some of the key findings which have emerged over the last decade in the area of tackling Child Sex Abuse, pornography, rape, paedophilia and Internal Child Sex Trafficking.

Alongside this there are a number of short promotional films which can assist your training inputs as local councils, educational providers, and health care professionals to be better trained to identify patterns and interrupt this cycle of abuse.

Peer on Peer recruitment and abuse Work undertaken by the advocacy and research network MsUnderstood, addresses issues of sexual exploitation, abuse and bullying present amongst peers, which is an area which has suffered from significant neglect over the years and only now surfacing as an arena for clear intervention, protection and prosecution. The gendered power distortions which are markedly noticeable at a later stage, when recruitment occurs through the conventional ‘older boyfriend’ model, is apparent and played out in many of our cities and towns, within and without the school environment, in playgrounds, on the streets, in our city centres and parks and leisure centres.

There is a national Crimeline number for any concerns around child sexual 0800 1111 in order to alert front line officers and representatives of local councils and the Safe guarding Children boards about tell tale signs of grooming and Child Sexual Exploitation which is well worth watching and promoting around your networks http://www.cse.siyonatech.com/ The Sexual Exploitation of Children can you tell the signs?

This alongside the older but still relevant Dangerous Lover Boy developed by the UKHuman Trafficking Centre when based up in Sheffield are two excellent resources to trigger discussion and further acclimatisation to/rather than a continued denial of the reality of CSE in the midst of our cities and towns. http://www.mydangerousloverboy.com/

This may not be strictly ICST but it is nonetheless an area where abuse is being carried out, and for the affected cohort of typically 11 – 15 year olds can progress into other areas of adult on minor abuse. Again, just as in the evidence accrued on ICST, this abuse is happening across ethnic and indigenous populations across the UK – and unless one is alert to the signs can be missed.

Advice and questions looking for some more answers from MsUnderstood in this troubling area when young people are directly involved in the exploitation and/or sexual assault of other young people includes: •

If a peer group is involved, and not all of them are charged, how the police and other agencies such as schools manage those who have not been charged?

•

What disruption tactics are currently seen as appropriate for adults that are not transferable to children who offend – and what thinking is being done about this?

•

How criminal justice agencies can begin to distinguish between leaders and followers in peer groups, and account for this when processing groups of young people through the criminal justice system?

•

PACE (Parents against Child Exploitation) now has an online course available to assist parents and front line workers to identify some of the first aspects of the onset of child sexual exploitation which is available through the e-Academy here https://keepthemsafe.safeguardingchildrenea.co.uk/ There is a rich source of publications, resources and advice on the Children’s Commissioner’s pages http://www.childrenscommissioner.gov.uk/info/cseg g1 for further reading and advice.

Revd Dr Carrie Pemberton Ford – is an Applied Academic who has worked in this arena of Child Trafficking, recruitment through Gangs, Internal Trafficking, International Trafficking of Adults and Children for the last fifteen years.

Whether there any evidence to suggest that young people have been ‘groomed to abuse’,

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She has been offering Expert Witness support in this area for the last 5 years through EXPERT WITNESS and is open to consultations on any of these areas which have been touched upon in this article.

4, Unheard Voices: The Sexual Exploitation of Muslim and Asian Women in the UK Muslim Womenâ&#x20AC;&#x2122;s Network 2013

Carrie@ccarht.org www.ccarht.org www.ibixinsight.com

6, ibid

5, CROP Trafficking in our Midst: Parallels between Internal and International Trafficking 2006 (now PACE)

7, J Caverner: Sexual Exploitation: â&#x20AC;&#x2DC;Internal Traffickingâ&#x20AC;&#x2122; of Children and Young People at risk in the North East and Cumbria March 201 Barnados SECOS

References 1, http://www.thedailybeast.com/articles/2014/08/31/thepsychology-of-sex-slave-rings.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A +thedailybeast%2Farticles+%28The+Daily+Beast++Latest+Articles%29

8, CROP â&#x20AC;&#x201C; Now transformed to PACE Parents against Child Sexual Exploitation http://www.paceuk.info/ Department of Education report: What to do if you suspect a child is being sexually Exploited 2011

2, http://www.thedailybeast.com/articles/2014/08/31/thepsychology-of-sex-slave-rings.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A +thedailybeast%2Farticles+%28The+Daily+Beast++Latest+Articles%29

9, Centre Plan 2012-13 Child Exploitation and Online Protection Centre Threat Assessment of Child Sexual Exploitation and Abuse 10, MSU Misunderstood until we are equal - Response to the Crown Prosecution Service consultation on draft legal guidance on child sexual abuse. Carlene Firmin MBE 2013

3, Unheard Voices: The Sexual Exploitation of Muslim and Asian Women in the UK Muslim Womenâ&#x20AC;&#x2122;s Network 2013

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