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THE JOURNAL FOR EXPERT WITNESSES AND INSTRUCTING PROFESSIONALS
ASBESTOS
PSYCHOLOGY - TRAUMA FORENSICS - ARBITRATION Vol 1 Issue 12 - Summer 2015 - UK £5.00 Euro 6.00
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Welcome to the Expert Witness Journal Hello and welcome to the 12th issue of the Expert Witness Journal. The majority of expert related news this year has concerned costs, particularly the reduction of fees. Whilst proposals such as the £100,000 cap on criminal negligence legal fees may seem like common sense and would be welcomed by many it raised the question, have cuts gone too far and do they create an unbalanced legal system? Legal aid cuts remain a hot topic of debate with threatened industrial action by some solicitors, which could see criminal law work boycotted. The latest 8.75% cut, follows similar cuts last year, (bearing in mind that there has been no increases to legal aid fees since 1992.) The knock on effect for experts will undoubtably see solicitors requesting a reduction in fees, and a ‘fee based’ decision on instruction is more likely. This could lead to a diminished field of experts and an inevitable loss of valuable expertise. This potential decline in standards is worrying for our whole legal profession. We will cover this more in our next issue and as always, would appreciate your views. One major development at the Expert Witness Journal is the redesign of our website www.expertwitnessjournal.co.uk. The website is an addition to the Journal and features an archive of articles on many subjects, and latest news and events. A special hello to all our clients who we met at The Forensics Expo at Olympia in April. It is always a pleasure to meet experts and discuss relevant issues with them. With this in mind we will be exhibiting at The Expert Witness Institute Annual Conference at Church House, London on September 24th and also at the Solicitors Group, Law London Exhibition at Olympia, London 27th to 28th October, please come and say hello. Our next issue will be published in October 2015, and will feature specialist features on ‘What the Solicitor wants from the Expert’, ‘Forensic Engineering and Safety’ and ‘Family law.’ Your participation as experts is welcomed and appreciated. It is with great sadness that we report on the passing of our former editor Des Griffin. Des was instrumental in establishing the editorial content of the Journal, he was a wealth of knowledge and information and will be greatly missed.
Chris Connelly Acting Editor Email:chris.connelly@expertwitness.co.uk 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 The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 set out changes to payment for judicial review Discretionary payments As before, providers may apply for a discretionary payment in situations where the court has neither given nor refused permission on an application for judicial review. For example, if a case is settled or withdrawn before the court has reached a decision on the application.
New regulations were introduced in March 2015 which make amendments to the provisions governing payment for providers’ work on applications for judicial review. This follows the High Court’s judgment in the case of R (on the application of Ben Hoare Bell & Ors) v the Lord Chancellor.
More information Details of the change are set out in the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015. These regulations apply to work carried out on making an application for judicial review in respect of which the application for civil legal services was made on or after 27 March 2015.
The new regulations reflect the general policy as set out under the previous regulations (The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, while additionally taking into account the findings of the High Court. The changes mean that payment for work on an application for judicial review is not allowed unless the: ❖ court gives permission to bring judicial review proceedings
The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 Judgment in R (Ben Hoare Bell and Others) v the Lord Chancellor ■
❖ court neither gives nor refuses permission and the Legal Aid Agency (LAA) considers payment is reasonable in the circumstances – see ‘discretionary payments’ below ❖ defendant withdraws the decision to which the application for judicial review relates and the withdrawal results in the court (a) refusing permission to bring judicial review proceedings, or (b) neither refusing nor giving permission ❖ court orders an oral hearing to consider whether to give permission to bring judicial review proceedings ❖ court orders a rolled-up hearing Why is this change being made now? Following judgment in R (Ben Hoare Bell and Others) v the Lord Chancellor, the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014, which introduced changes to the provisions governing remuneration for judicial review applications and which were introduced on 22 April 2014, were quashed. This means the payment arrangements for this work as set out under the Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 are no longer being used. These no longer apply.
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Contents Some of the highlights of this issue News and Events Pages 2 to 11 Experts call for on-line court Page13 The Expert Witness in Adjudication by Murray Armes, CIArb Page 15 Being a General Practitioner in the Prison Environment by Dr James Jesse Hard Page 19 Ability Matters - Fast and Effective Private Prosthetic/Orthotic Services Page 22 Litigation in Trauma and Orthopaedic Surgery by John T Machin, Timothy WR Briggs Contributors: Harry Krishnan, Shahrier F Saker, Jagmeet S Bhamra, Elizabeth Gillott Page 27 Frozen Shoulder, by Keith Borowksy Page 35 Infection in Hip and Knee Replacements by by Paul Partington Page 38 Musculoskeletal Pain in Medicolegal Practice by by Mr Charles Willis-Owen Page 42 First Do No Harm by by Christine Landon Page 45 Equipping the Expert Witness for Cases of Suspected Child Sexual Abuse by Dr Geoff Debelle Page 56 Asbestos Real Risk and Perceived Risk by by Prof Roger Willey page 58 Worst Mesothelioma Risk in the World by Michael Lees Page 60 Championing the Champions by Mark Chester Page 63 Problems in the Valuation Market by Martin Burns Page 67 A Flood of Claims by by Richard Allitt Page 70 International Animal Feed Disputes by Dr Nick Chapman Page 76 Forensic Science and Sexual Offences by Sue Carney, Ethos Forensics Page 86 Digital Forensics and the Futuristic Scene-of-Crime by Professor John Walker Page 90 Decision Making in Chronic Pain: Somatic Symptom Disorder, Somatoform Disorder or Behavioural Inactivity by Dr Hugh Koch, Dr Fay Fraser, Mr John Mackinnon and Dr Simon Midgley Page 94 Kissing is a Crime? by by Graham Rogers, Page 98 Neurorehabilitation for Traumatic Brain Injury, by Daniel Friedland, Page 102 Another Look at the Insanity Defence in a Court of Law by Professor Ludwig F. Lowenstein Page 107 Loneliness: A Rising Epidemic in Modern Life by Dr Rebecca Harris Page 113 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 Great Britain 2015. The Expert Witness Journal, Second Floor, The Landmark Building, Back Turner Street, Manchester M4 1FR www.expertwitness.co.uk - www.expertwitnessjournal.co.uk
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News & Events Experts Discuss the Archiving Issues of Electronic Documents development of a unified document transfer package specification. The specification will be available for IT enterprises to prepare electronic documents for storing in the archives. Also, the participants presented the progress on the development of specifications for database archiving, implemented by DLM Forum’s E-ARK project.
On 16-17 June, the Document Lifecycle Management (DLM) Forum members met in Riga to discuss the information policy and governance issues in the European Union. At the meeting, the experts focused on such topics as the information policy and governance, its standards and risk management; shared best practice on information governance and discussed e-archiving issues.
The main conclusion of the meeting on the development of package and database archiving specifications was that the specifications should correspond more to the common opportunities of the archives and the IT field.
The main discussion was on the archiving of electronic documents. The experts of the United States, the United Kingdom and the Netherlands shared their best practice on this topic. The participants of the discussion concluded that the collaboration and understanding between IT experts and archivists should be improved as the archive specialists often do not have sufficient IT knowledge, but the IT experts lack the understanding of the specifics of archiving.
The meeting brought together 92 participants from EU Member States, Norway, USA and Oman. Several Latvian organisations, IT companies, students and academic staff. The members of DLM Forum Foundation meet twice every year and these meetings are traditionally hosted by the country holding the EU presidency. This time the meeting took place in Riga, at the Faculty of Social Sciences of the University of Latvia. â–
Experienced professionals also shared information on "MoReq2010" specification implementation and subsequent addition of requirements for archiving electronic documents. They provided information on the
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News & Events First 3-D Anatomic Model Heart Printed Researchers have successfully produced the first 3-D anatomic model of a patient's heart using two common imaging techniques, aiming to enhance diagnosis and surgical planning.
imaging modality, which may not be as accurate as merging two or more datasets," said Gosnell. The result creates more detailed and anatomically accurate 3D renderings and printed models, which may enable physicians to better diagnose and treat heart disease. CT and magnetic resonance imaging (MRI) are established imaging tools for producing 3D printable models. The 3DTEE recently was reported by Joseph Vettukattil, and his Helen DeVos Children's Hospital colleagues to be a feasible imaging technique to generate 3D printing in congenital heart disease.
The 3D model printing of patients' hearts has become more common in recent years as part of an emerging, experimental field devoted to enhanced visualisation of individual cardiac structures and characteristics. However, this is the first time the integration of computed tomography (CT) and three-dimensional transesophageal echocardiography (3DTEE) has successfully been used for printing a hybrid 3D model of a patient's heart.
According to Vettukattil, senior author of the study, and his colleagues, each imaging tool has different strengths, which can improve and enhance 3D printing. 3DTEE provides the best visualisation of valve anatomy, he said.
The team used bespoke software to register images from the two imaging modalities to selectively integrate datasets to produce an accurate anatomic model of the heart.
"This is a huge leap for individualised medicine in cardiology and congenital heart disease," said Vettukattil. "The technology could be beneficial to cardiologists and surgeons. The model will promote better diagnostic capability and improved interventional and surgical planning, which will help determine whether a condition can be treated via transcatheter route or if it requires surgery," Vettukattil added. â–
“Hybrid 3D printing integrates the best aspects of two or more imaging modalities, which can potentially enhance diagnosis, as well as interventional and surgical planning," said Jordan Gosnell, from Helen DeVos Children's Hospital in US, and lead author of the study. "Previous methods of 3D printing utilise only one
Dr Maurice Pye
MB BCh BSc Hons MD Hons FRCS London
2157/6$16 $4',2/2*,56
Consultant Cardiologist
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I am a Consultant Cardiologist with more than 15 years experience. I have a wide experience in all aspects of cardiology, particularly ischaemic heart disease (angina, heart attacks), interventional Cardiology (balloon angioplasty /stents), heart rhythmn disorders and pacemakers.
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News & Events Warning as Hearing Loss Claims Soar Most claims are unsuccessful Of the 200,000 claims submitted since 2012 less than a 40,000 have won compensation, according to ABI figures. The main reason most claims fail is an inability to provide solid evidence that the hearing loss is due to noise in the workplace.
According to the insurance industry trade body Association of British Insurers (ABI), an increasing number of people are losing money by having hearing loss compensation claims rejected. The ABI figures reveal that while hundreds of thousands of compensation claims have been made for noise induced hearing loss (NIHL) in recent years, very few are successful as most cannot provide the necessary evidence.
Unfortunately a high failure rate is not a sufficent deterent for some lawyers. Excessive legal costs mean that, on average, for every £1 paid out in compensation £3 is paid in legal costs to the solicitors A huge number of unsuccessful compensation claims is creating a bottle neck for genuine claimants, who are now having to wait a lot longer for the compensation they deserve.
The number of insurance claims for NIHL rose by 189% between 2011 and 2014, with 200,000 claims being made in the last three years alone. The ABI blames the huge increase on unscrupulous solicitors wanting to cash in on the high fees they can pocket from these cases. With aggressive advertising aimed at historic employment for people who worked in noisy environments in the 1960s, 70s and 80’s without the right protection.
For a claim to stand a chance of being successful, claimants would need to be able to provide evidence of where they worked and the results of an audiology test proving their hearing loss is due to exposure to noise in the workplace. Claims must be submitted within three years of becoming aware of any hearing loss, due to working in a noisy environment
The recent spike in claims may well be a result of claimant lawyers spotting the potential to earn sizeable fees from these cases, after earnings from whiplash claims were reduced. The ABI said, claimant lawyers and claims management firms are intent on exploiting the new source of income which deafness claims represent, irrespective of whether the claims they put forward are genuine.
In order to reduce the problem the ABI is calling for fixed legal fees for noise induced hearing loss claims like there are for whiplash claims. This would act to reduce the number of solicitors encouraging people to make claims and also prevent them from running up excessive legal costs. ■
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
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News & Events New Measures to Make Criminals Pay Legal Aid Costs the court, meaning they cannot be spent or moved by the person who has been charged until their trial is over. If they are convicted these assets can then be used by the court to pay compensation to victims or to make confiscation orders.
New measures to make criminals, rather than taxpayers, pay more towards their legal bills have come into force from June 2015. The changes are the latest in a package of legal aid reforms which make sure those accused of a crime and are wealthy enough to pay for some, or all, of their legal representation do so. The Legal Aid Agency (LAA) is expected to be able to order recovery of up to £2 million legal aid a year on average as a result of today’s changes to the Proceeds of Crime Act.
From today the new regulations will mean any finances left after those payments are made can now continue to be restrained if the person also still owes unpaid legal aid bills. In appropriate cases the court can now allow the LAA to use these remaining assets to cover any outstanding legal aid costs or contributions.
Legal aid costs can now be recovered from convicted criminals where their money and assets had been frozen by the courts under this law. Previously legal aid did not qualify for recovery from those assets, and so the only way to force criminals to pay up was through a separate, often unsuccessful, court battle after the criminal trial was finished. Today’s law change allows legal aid to be recovered once other compensation and confiscation orders have been made.
The changes are the latest in a series of moves to make sure the wealthiest who can afford to pay for their own defence costs are not unfairly leaving the taxpayer to pick up the bill. In January 2014 a financial eligibility threshold of £37,500 or more annual disposable household income was introduced for Crown Court cases so that the richest defendants are no longer automatically provided with legal aid up-front at public expense.
Legal Aid Minister Shailesh Vara said: Too often people convicted of crimes have been able to avoid paying what they owe. Legal aid is taxpayers’ money and it is right we do not spend it on those who can afford to pay their own costs. These measures will make sure legal aid is repaid, and are another vital step in creating a fair and credible system.
This would typically be defendants who have at least £3,000 in disposable income, after they have paid key costs like tax, housing and childcare costs and other essential outgoings every month. This means the LAA no longer have to fight to get the money back after their trial. ■
Under the Proceeds of Crime Act those accused have financial assets identified which are then ‘restrained’ by
Whiplash claims dip post-Jackson The number of whiplash claims registered with the government has fallen by 23% since the Jackson reforms.
introduction of independent diagnosis panels. According to the Department for Work and Pensions, the geographical area with the most whiplash claims last year was Birmingham, with around 22,000. Manchester was next highest with almost 14,000. Both numbers were lower than for 2012/13.
A freedom of information request by the Association of Personal Injury Lawyers (APIL) found that a total of 376,513 claims, mostly following road collisions, were made during 2014/15. This compared with 488,281 in 2012/13, the final year before the Jackson civil litigation reforms banned referral fees for personal injury claims and reduced fixed legal fees for whiplash cases to £500.
Further reform of the personal injury sector is set to be another battleground now a new government is formed. Claimant lawyers will be required from next month to run background checks on all claimants, while the Association of British Insurers last week identified an increase in the small claims limit as a key priority. ■
The figures cast new light on insurers’ claims of a whiplash ‘epidemic’ that has formed the backdrop for a sustained period of reform, culminating in the
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News & Events Brave Ebola Nurse Receives MBE impaired kidney and liver function and stomach pain. Some patients may develop a rash, red eyes, hiccups, internal and external bleeding.
British nurse, William Pooley who contracted Ebola last year during his work in Sierra Leone, was one of at least ten nurses to receive an MBE in the Queen's birthday honours list.
More than 11,160 people are reported to have died in the worst ever Ebola outbreak, which caused deaths in six countries; Liberia, Guinea, Sierra Leone, Nigeria, the US and Mali.The outbreak in Liberia, which had the highest number of deaths out of all the countries affected, was declared over by the World Health Organization (WHO) on 9 May, 2015. In Sierra Leone, where Mr Pooley was working, there were only 15 new cases declared in the week ending 7 June, according to the WHO, at its peak in December 2014, Sierra Leone was reporting more than 500 new cases a week.
The nurse, from Suffolk, recovered fully and returned to Sierra Leone last October and is now back in the UK, around 7% of all the honours' recipients were from the health sector, including Oliver Johnson, programme director for the King's Sierra Leone Partnership who received an OBE and Ciaran Devane, the former chief executive of cancer charity Macmillan Cancer Support, received a knighthood. William Pooley, travelled to eastern Sierra Leone in the summer of 2014 and in August and just six weeks after his arrival, became the first Briton to be evacuated from West Africa with the virus. Mr Pooley had to be airlifted back to the UK for treatment for the virus. He was treated in a special isolation unit at the Royal Free Hospital in London where he was given the experimental drug ZMapp.
Dr Peter Carter, Chief Executive & General Secretary of the Royal College of Nursing, said: "William Pooley demonstrated incredible bravery and commitment in volunteering to provide nursing care in Sierra Leone for those with Ebola "The dedication of frontline health care workers like William Pooley is essential for containing the spread of this virus. The risks they face are considerable but they are doing the best they can for their patients." â–
Ebola is a severe and life threatening viral disease caused by the Ebola virus, the onset of illness is sudden, with fever, headache, joint and muscle pain, sore throat and intense weakness. This is then followed by diarrhea, vomiting, rash,
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Mike Martin Associates Ltd
Nursing Care Expert
Right to Care
Maggie Sargent RGN is a leading nursing care expert, who in the last 30 years has herself received some several hundred instructions from solicitors to evaluate care for litigation purposes.
Health and Social Care Consultant, Lecturer, Practitioner, Researcher & Trainer
She and her associates cover cases involving brain injury, orthopeadic and general body injury, damage at birth and mesothelioma. In these fields they liaise with medical experts, occupational therapists and architects.
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In addition to this the team is also involved in case managing clients who have a wide range of nursing and care needs and they can provide costs of case management reports.
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All experts have considerable experience of attending conferences and giving evidence in Court.
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Maggie Sargent & Associates Darlingscott Farm, Darlingscott, Shipston-on-Stour, Warwickshire CV36 4PN. Tel: 01608 682500 Fax: 01608 682372 Email: office@maggiesargent.co.uk
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News & Events Computer Experts, Your Country Needs You GCHQ is to recruit staff in its ongoing fight against cyber crime. For the first time, the UK's listening post is openly recruiting for computer network operations specialists (CNOS). The posts have a starting salary of ÂŁ27,913, are open to both graduates and non-graduates who are at least 18, and have "complex coding and problem-solving skills".
attack the critical national infrastructure, or seeking to defend government systems against criminals seeking to steal information, identities or money. "Cyber intelligence specialists might need to develop software to access the computers of a terrorist group, or carry out operations to retrieve vital online clues about the location and identity of members of an organised crime ring."
GCHQ said it wants "committed and responsible" applicants, with the potential to carry out computer operations to keep the UK safe. They will join a team of "world-class experts" who help to protect the UK's sensitive information, provide valuable intelligence and carry out computer network operations against terrorists, criminals and others posing a threat against the country, the agency said.
GCHQ are looking for people with a diverse range of backgrounds and experience, so training is tailored to meet the needs of the individual and the role. "The need to keep up with changing technology means that those we recruit continue learning and developing throughout a career in computer network operations." GCHQ stressed that strict legal controls, safeguards and requirements apply to all of its activities. Vacancies are available in Cheltenham, Gloucestershire, and Scarborough, North Yorkshire. â–
Successful candidates may work in both cyber security and cyber intelligence roles. GCHQ said: "In cyber security, operations specialists may find themselves working in a team detecting and preventing attempts to
The Expert Witness Institute Annual Conference 24th September 2015
The Church House Conference Centre, Westminster
Expert Witnesses - At the cutting edge
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Events Criminal Law and Procedure Starting 17 Sep 2015 09:30 in Manchester Family Law and Procedure Starting 18 Jun 2015 09:30 in London
Talking Life Court Skills and Expert Witness Training (2 day) Starting 17th June 2015 09:00 in London Starting 19th June 2015 09:00 in Bristol
Excellence in Report writing Starting 08 Jul 2015 09:30 in London Starting 05 Aug 2015 09:30 in London Starting 14 Sep 2015 09:30 in London Starting 15 Jun 2015 09:30 in Manchester Starting 07 Sep 2015 09:30 in Manchester
Expert Witness Training & Court Skills – One Day Public Access Course Wednesday 4th June 2014, at The Office Group Stress & Resilience Courses: Autumn 2015 Stressed out? This is a rare opportunity to attend one of the most popular & unique stress & resilience courses anywhere in the U.K.! Entertaining, funny, illustrated by hilarious cartoons but with a hard hitting message - this course has been delivered to tens of thousands of people nationwide, in organisations and companies of all kinds. Now available outside the workplace and open to anyone. Book now to avoid disappointment. Stressed out! in the Workplace: Glasgow, 3rd September 2015 Liverpool, 23rd September 2015 £99 per person (Glasgow & Liverpool) London 12th October 2015 £119 per person (London)
Masterclass in Couroom Skills - overview Starting 02 Jun 2015 09:30 in London Contact: Tel: 020 7549 2549 Web: www.bondsolon.com
Re:Cognition Health Educational Meetings 15th October 2015 The Pullman Hotel, St Pancras, London Re:Cognition Health will be hosting The Big Picture in 2015. This one day conference at The Pullman Hotel, St Pancras will debate how advances in neuroimaging, neuropsychology and other new diagnostic biomarkers influence the evaluation of brain injury in clinical medicine, rehabilitation and in court. Speakers include: consultant neuro radiologist Dr Emer MacSweeney, Professor of Neurology Richard Wise, consultant neuropsychiatrist Dr Mike Dilley, consultant neuro radiologist Dr Paul Butler and consultant neuropsychologist Dr Priyanka Pradhan.
1 Euston Square, 40 Melton Street, London, NW1 2FW. Contact: Tel: 0151 632 0662 Web: www.talkinglife.co.uk
Bond Solon Courtroom Skills (1 day) Starting 09 Jun 2015 09:30 in London Starting 09 Jul 2015 09:30 in London Starting 06 Aug 2015 09:30 in London Starting 15 Sep 2015 09:30 in London Starting 16 Jun 2015 09:30 in Manchester Starting 08 Sep 2015 09:30 in Manchester
For further information, please contact Mr Ajay Sachdeva on 0203 355 3536 or email medicolegal@recognitionhealth.co.uk
RICS
Cross-Examination Day (1 day) Starting 10 Jun 2015 09:30 in London Starting 10 Jul 2015 09:30 in London Starting 07 Aug 2015 09:30 in London Starting 16 Sep 2015 09:30 in London Starting 17 Jun 2015 09:30 in Manchester Starting 09 Sep 2015 09:30 in Manchester
Expert Witness Surveyors acting as Expert Witness Seminar Leicester, 12 May 2015 Building Surveying RICS CPD Day, Exeter Conference Exeter, 18 May 2015 Building Surveying RICS CPD Day, Cardiff, Conference Cardiff, 4 Jun 2015 To find out more or to book, contact RICS Training: Web: www.rics.org/uk/training-events Tel: 0207 695 1600
Civil Procedure Rules for Expert Witnesses Certificate Starting 11 Jun 2015 09:30 in London Starting 10 Sep 2015 09:30 in Manchester
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Events Chartered Institute of Arbitrators
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Train the Trainer - 09 June - £300.00 Introduction to International Arbitration* 25 June - £480.00 Accelerated Route towards Fellowship (Construction Adjudication)* 03-04 August £1,860.00 Accelerated Route towards Fellowship (International Arbitration)* 05-06 August £1,860.00 Accelerated Route to Membership (International Arbitration)* 18 -19 August £1,320.00 Accelerated Route to Membership (Construction Adjudication)* 01-02 September£1,320.00
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Experts Call for 'Online Court' to Handle Low-value Civil Court Cases Low-value civil court cases in England and Wales could be dealt with by an online disputes system similar to that used by eBay. The new online dispute resolution (ODR) system could be up and running by 2017 and operate alongside the traditional court system according to a report, by a working group set up by the independent Civil Justice Council (CJC). The resolution would be for low-value civil court cases in England and Wales.
Three-tier dispute resolution The report proposes a three-tier dispute resolution system, with greater involvement from non-judicial ‘facilitators’ to encourage resolution at an earlier stage. A first tier online evaluation’ would help users in dispute to classify their problem, gain greater awareness of their rights and obligations and to understand any potential options and remedies.
The report sets out examples of similar systems already in operation across the world, including those run by online retailer eBay, and the Financial Ombudsman Service (FOS), which resolves over 500,000 disputes between consumers and UK-based financial services firms each year.
Tier two would be ‘dispute containment’, using "online facilitators" to help the parties reach agreement through mediation and negotiation online using telephone conferencing where necessary. This stage could also involve some automated negotiation.
The new system, to be known as HM Online Court (HMOC), would be operated by the existing HM Courts and Tribunals Service (HMCTS) and be made available in non-criminal cases with £25,000 or less in dispute, according to the report. The HMOC aims to extend their scope - beyond dispute resolution to include both dispute containment and dispute avoidance. The aim is that better containment and avoidance of disputes will greatly reduce the number of disputes that need to be resolved by judges. It could also be extended to "suitable family disputes" and "appropriate cases that come before today's tribunals", the working group said. It would also reduce the expenses generated by a court.
Tier three would be ‘dispute resolution’, employing the use of judges to consider suitable cases online, largely on the basis of papers received electronically, but with an option of telephone hearings where necessary. Prof Susskind said the system had the potential to resolve tens of thousands of cases every year and cost less for the parties involved and the taxpayer. He also expected most disputes to be resolved "at the first two stages without a judge becoming involved". eBay System Among the examples highlighted by the report include eBay's ODR system. A remarkable 60 million disagreements amongst traders on eBay are resolved every year using ODR.
Small claims cases worth up to £10,000 account for almost 70% of hearings in civil courts in England and Wales. However, the number of small claims going to hearing has fallen over recent years, from 51,046 in 2003 to 29,603 in 2013.
There are two main processes involved. For disputes involving non-payment by buyers or complaints from buyers that items delivered did not match the description, the parties are initially encouraged to resolve the matter themselves by online negotiation. They are assisted by clearly structured, practical advice how to avoid misunderstandings and reach a resolution.
The report is not tinkering with the existing system, but aims to introduce a fundamental change in the way that our court system deals with low value civil claims. Online facilitators would be used to help parties reach an agreement, and if that failed, online judges would rule on cases without the need for courts to be booked or for the parties involved to appear in person to give evidence. There are examples from around the world that clearly demonstrate its current value and future potential, not least to litigants in person." EXPERT WITNESS JOURNAL
Guidance is also given on the standards by which eBay assesses the merit of complaints. If the dispute cannot be resolved by negotiation, then eBay offers 13
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a resolution service in which, after the parties enter a discussion area to present their argument, a member of eBay’s staff determines a binding outcome under its Money Back Guarantee. This e-adjudication process is fast with strict time limits. The claim must be escalated to eBay within 30 days from the actual or latest estimated delivery date and, to encourage a full opportunity for self-resolution, no earlier than 8 days since the complaint was first raised with the seller
comes five months after a senior judge called for courts to cut down on paper documents and move into the digital age. Over a decade ago Lord Justice Woolf, in his report Access to Justice, identified the importance of better IT to the future of the civil justice system and in 2009 Lord Justice Jackson noted that the courts still did not have an IT system which was adequate for the delivery of civil justice at proportionate cost. While Lady Justice Gloster, who sits in the Court of Appeal, said the amount of files used in trials was similar to when she started her legal career 40 years ago.
Principal author Prof Richard Susskind said eBay disputes were "minor", like many civil court cases. Although the eBay resolution system is not without its critics or perceived bias. At present the eBay systems works when a Buyer complains about a seller or goods. In these cases eBay usually finds in favour of the buyer (they extensively advertise the service as ‘buyer protection’.) This could also raise the risk of sham litigation or a Claimant impersonating the Defendant.
Conclusion What is clear is that the system does need to be streamlined, and while substantial savings can be made, the changes will require judges to be trained and authorised to decide cases online. In addition to funding for the facilitation and evaluation services. The establishment of HMOC will require (and offer the opportunity for) the creation of a new body of court rules and practices. In tone and content, these should be consistent with the broader aspiration of a court service that is intelligible, accessible, speedy, and proportionate in cost. This, in turn, calls for rules that are simple, clear, and compact. There is also scope here for embedding the rules in the ODR system itself, so that, for example, when users complete forms online, the systems will require that this is done in a compliant way and any consultation will proceed only when formalities have been met.
ODR v Small Claims Court ODR’s aim is to broaden access to justice and resolve disputes more easily, quickly and cheaply, particularly for the growing number of litigants in person. Currently, small claims in the civil court system are designed for less complex cases - those usually up to a value of £10,000, and personal injury and housing disrepair claims up to a value of £1,000. Small claims cases make up almost 70 per cent of the total number of hearings in the civil courts, even though the number of small claims going to hearing has decreased over the past 10 years from 51,046 in 2003 to 29,603 in 2013.
HMOC should have a procedure whereby online judges have the discretion to refer cases to the conventional court system, where, for example, there is an important issue of legal principle involved or where it is considered that the credibility of witnesses or evidence would be better judged in a physical courtroom. Decisions made by online judges should be subject to the same rights of appeal as equivalent decisions made in the conventional court system.
Despite the simplified and informal procedures, it can take more than six months for a small claims case to reach a hearing before a judge. According to the report, the proposed HMOC would provide those bringing these cases with a less daunting, more user-friendly means of resolving disputes, particularly those bringing cases on their own as 'litigants in person'.
The paper recommends that HMCTS should formally pilot ODR as soon as is practicable. With consultation with the legal profession and consumer groups necessary before any final decisions are made.
Technology The proposal for the creation of an online court
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The Expert Witness in Adjudication by Murray Armes, CIArb When it was introduced in 1998, adjudication was intended to be a quick and cheap method of dispute resolution intended to help cash strapped contractors and subcontractors avoid insolvency. Since then, because domestic adjudication operates within the legal framework and is therefore the subject of a good deal of case law, the process has become increasingly legalistic and its popularity has led to more complex disputes being referred than was probably ever envisaged when the process was conceived by Latham. Adjudication is now used not only for straightforward disputes but for some that are technically complex and which cannot be resolved within the prescribed twenty eight day period.
referring party then the expert may be required to act initially in an advisory capacity, exactly as in litigation, and then to produce an expert report. The process gives the referring party’s expert the time to fully carry out its instructions. If instructed by the responding party there is likely to be much less time3 and therefore the role is usually one of reacting to the referral and any expert reports produced in support of it. The expert instructed by a responding party may well have very little time to get to grips with the facts and issues and to produce an expert report. This could put the expert in the position of being unable to properly investigate all the facts of a case and therefore to be forced to rely heavily on the evidence produced by the party instructing the expert. Depending on the quality of that evidence, the expert may face the prospect of working with evidence that does not provide a complete picture of the facts.
Despite critics asserting that adjudication is not a suitable forum for the resolution of complex disputes and in particular professional negligence cases, many such cases are being referred to adjudication. Technical expert witnesses are used in order to demystify complex issues for both those instructing them and to explain those, issue to the tribunal, be it a judge, arbitrator(s) or an adjudicator. Although such instructions have become almost universal in court and arbitration cases, the use of experts has not always been the norm in adjudication and the question arises as to whether experts are required at all and if they are, whether the role is the same or different, and whether they are appointed by one of the parties or by the adjudicator.
In most adjudications, the only opportunity an expert has to explain their opinions is in the report produced for the adjudication and it takes on a much more crucial role when the adjudicator decides not to hold a meeting where the question arises as to how much weight the adjudicator should give to the expert’s report. When writing the report the expert must remember that the adjudicator is also under pressure, so it should clearly and concisely tell the story, set out clear reasons for its opinions, ensure that any documents referred to are attached and clearly cross referenced in the text. If a clear and concise report is good practice in litigation it is essential in adjudication and if written well, it can assist the adjudicator in deciding the dispute. Although the report is often produced under pressure, the expert should guard against advocating the instructing party’s case and straying into the territory of hired gun, which it can be easy to do when producing a report quickly and sometimes with limited access to evidence. In my view, despite their being a possible temptation to be overly bullish about a party’s case; a report that is objective and obviously neutral is more likely to be more persuasive.
Although not directly relevant to adjudication, the Pre-Action protocol requirement of litigation for experts to be appointed to give opinion on the performance of a professional in negligence cases must surely apply to adjudication if the process is to have any credibility. A question arises if no such expert evidence is provided whether an adjudicator should request that it is2. Although adjudication may never have been intended as a means to resolve complex technical or negligence cases the reality is that this is exactly how some parties are using it and therefore the use of experts in adjudication is here to stay and possibly set to increase.
Party appointed experts appointed in support of adjudication proceedings, are not subject to the Civil Procedure Rules (CPR) or other protocols as they are when instructed in connection with litigation or arbitration. Adjudication is a much less formal procedure where there are no formal rules for
If party appointed, the expert’s services will be similar to those in litigation or arbitration, except much depends on which party the expert is instructed by. If the instruction originates from the EXPERT WITNESS JOURNAL
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experts, other than those imposed by professional bodies4. A recent survey conducted by the Society of Construction Law5, suggested that in adjudication there is not always a clear boundary between independent expert evidence and that of an advocate. This is a difficulty that might arise out of lack of time, where the expert instructed on behalf of the responding party will be faced with a short timetable to produce a report and may have little option but to take the referring party’s evidence at face value. There is also usually no time for the exchange of expert reports during adjudication proceedings. This may be a particular problem for the expert appointed by the referring party because the first time it will see the opposing party’s case and expert report, is when the referral is served.
appointed experts will necessarily act in the same way they would in court proceedings and the more rough and ready nature of adjudication, means this is not always possible even if the experts have tried to do their best in the time available. When faced with highly conflicting expert evidence in adjudication, the adjudicator has the power to order a meeting8. Provided the adjudicator has a good grasp of the opposing party’s submissions careful questioning of the experts can be very helpful in testing each of the opposing expert’s opinions and conclusions. Although some adjudicators allow it, cross examination of experts in adjudication is rare and the procedure is much more akin to “hot tubbing” or witness conferencing as it is more formally known. As an adjudicator I often find it very helpful to engage in what is often a conversation with the opposing experts on the various technical matters. This process has been successfully used in court and arbitration hearings and although an adjudication meeting is different and not as formal the principles of expert evidence given under CPR 35, it should still guide the behaviour of the experts and parties.
Whereas under the CPR the expert’s primary duty is to assist the tribunal, there is no such mandatory obligation in adjudication, although in my view there should be no difference and the experts should aim to assist the resolution of the dispute by assisting the adjudicator. Unlike reports produced under the CPR6, expert reports produced for adjudication do not have to include a signed declaration, although in common with factual witness statements, they often include a short statement of truth. My own experience suggests that even experienced and well established experts are more willing to take diametrically opposing views in a way they might not so obviously do in litigation. The short timetable, at least for the respondent is unlikely to help and the lack of formality and the private nature of adjudication means that a party appointed expert that has strayed into advocacy or worse still, has obviously taken on the role of hired gun - will be shielded from the possibility of public criticism (and sanctions) a judge may deliver but which an adjudicator is not empowered (or advised) to do.
Normally adjudicators are selected for their expertise on the matter in dispute, but sometimes it is not always possible to nominate an adjudicator who has all the expertise necessary to understand all of the technical issues. Ordinarily, if party appointed experts are giving truly independent advice, there is then usually at least some common ground. Even if the adjudicator is not directly experienced in all the technical matters it is possible to weigh the evidence and choose which is preferable. In adjudication, though, as we have seen above, the expert evidence is not always of the same quality that would be expected in arbitration or litigation and sometimes, however, the matters are so technical and the expert opinions far apart that it is not easy to decide which evidence the adjudicator should prefer. In some cases, the “truth” may comprise a hybrid of both experts’ evidence, neither of them being entirely persuasive.
This could leave the adjudicator with a dilemma as to just how much reliance and weight should be attributed to a party appointed expert’s report, which might only be resolved by holding a meeting to test the evidence, something I have had experience of myself as an adjudicator on a number of occasions when trying to work out which of two diametrically opposing views to choose between and which party’s evidence to prefer. Should an expert report prepared for adjudication include a declaration? In my view all reports should include at least a statement of truth, and established and reputable experts should have no difficulty in signing an abbreviated version of the declaration, along the lines of that suggested by the RICS7 (no matter which form of dispute resolution the expert is working under). If nothing else, inclusion of that might remind the expert of what should sensibly be its ultimate duty to assist the tribunal. Unfortunately, even when such declarations are provided it does not always mean the party EXPERT WITNESS JOURNAL
Complex delay disputes often result in widely diverging expert reports, the conclusions of which may be based on differing methods of delay analysis. The adjudicator is most likely not to be a delay expert and is then faced with a dilemma in choosing which evidence to prefer. Of course the adjudicator has the power to simply decide which of the experts’ evidence it prefers9 and continue to make a decision based on that. However, this “sudden death” scenario could result in real injustice and could mean the resistance to the enforcement of the decision by that aggrieved party. Alternatively, the adjudicator could decide which parts of the opposing experts’ evidence it prefers and make a decision on that. That is a perfectly acceptable 16
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way to proceed but may not be easy or even possible to do, especially in our hypothetical delay case. Adjudicators are sometimes appointed on the basis of their own technical skills and if the adjudicator has the necessary skills and experience it could formulate its own analysis but has to be careful to put that analysis to the parties for comment or face possible problems with enforcement of its decision10.
effectively produce their own expert evidence, although it may not have the advantage of being truly impartial. Just like UK statutory adjudication, none of the procedures I am aware provide any protocols for the use or behaviour of experts in dispute board proceedings. Everything above applies equally to party appointed experts in DB proceedings so the experts should aim to be truly independent and declare that as such and its primary duty should be to the tribunal.
Faced with the scenarios above the adjudicator, like most other tribunals, with the agreement of the parties, normally has the power to appoint its own expert, or assessor11. The role of the expert assessor in this case is to review the evidence of both parties and to assist the adjudicator in weighing the evidence to enable the decision to be made. The timetable of a typical adjudication does not permit the experts to meet to see if the issues in dispute can be agreed or narrowed. A question arises as to whether the adjudicator can hold meetings with the party appointed experts or whether the tribunal appointed expert might take on that role. If the adjudicator meets the experts this needs to be carefully arranged with the agreement of the parties and the difficulties that might arise, should the meeting be perceived as mediation,12 need to be borne in mind13. It is possible, if the parties agree, and time permits, for the expert assessor to meet the party appointed experts and in that way help to narrow the issues but that process needs to be carefully controlled and meetings carefully managed to avoid any allegations of breach of natural justice later in the process. Importantly, agreement to the process must be given by both parties14. Of course any report produced by the assessor should be served parties for their comments. This is likely to prompt a further round of submissions from the parties and time will need to be allowed for this.
The Charted Institute of Arbitrators produces a “Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration”15 in which Article 4.1 states: “An expert’s opinion shall be impartial, objective, unbiased and uninfluenced by the pressures of the dispute resolution process or by any Party”. Of course whilst an international arbitration may take place over months or years, and although the dispute procedures may seem more relaxed than those for UK adjudication, nonetheless giving evidence in a procedure that lasts around 84 days can still be quite pressurised, if not quite so as when it has to be done in 28! In Article 8.1(a) the expert declares that its duty is to assist the tribunal. The “IBA Rules on the Taking of Evidence in Commercial Arbitration” also offers some guidance under Article 5. Although these two documents were produced for use with international arbitrations, I see no reason why their sensible rues should not be adopted for dispute boards also. The advantage of a dispute board comprised of three or more members is that the board can embody several disciplines, a luxury not afforded to the single adjudicator in UK statutory procedures, so the tribunal itself (or at least one of its members) may have all the expertise it needs to understand complex technical or legal issues. That might not always be the case and also in the case of a one man dispute board the tribunal is also normally empowered to appoint experts or assessors to assist it in matters outside the expertise of the DB members16. The only real issue with this is likely to be agreeing the cost of the tribunal appointed expert with the parties. There are no published protocols for tribunal appointed experts in DB proceedings but Article 6 of the “IBA Rules on the Taking of Evidence in Commercial Arbitration”, provides useful guidance regarding tribunal appointed experts, although some of the procedures are very formal17 and do not always lend themselves to the much less formal dispute board procedures. Nonetheless, with some editing, they are good basis on which to start.
So far we have considered domestic adjudication in the UK. Of course other jurisdictions have their own statutory adjudication schemes but it is outside the scope of this article to review the role of the expert in adjudication proceedings in those countries. It is, however, worth spending a little time to consider the role of experts in what I have termed “international adjudication”, more commonly called the dispute board. The primary function of the dispute board is to assist the parties in avoiding disputes but where that process has failed, to adjudicate on any dispute that arises. The process is similar to that of UK statutory adjudication but typically takes place over a longer period: 84 days versus 28 in the UK and the tribunal consist of one or three or any larger odd number of board members.
Adjudication is not without its critics, especially those that consider the increasing complexity of disputes being referred, the resultant increasing time it takes to get a decision and the increasing costs involved mean the procedure has become more akin to arbitration. However, it is still very popular with users and that
The parties in dispute may appoint technical experts, although the DB procedures normally encourage the participation of the technical staff on sides to particulate rather than lawyers, so the parties may EXPERT WITNESS JOURNAL
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trend is set to continue in the near future. The use of party appointed technical experts is also set to continue, although the task for the referring party’s expert is always going to be a more difficult one. Experts are almost always certainly required to give opinion on negligence cases, even in adjudication. The uneven playing field that is sometimes caused, is a good reason to be concerned about the suitability of adjudication for that type of dispute. Nonetheless without a change in the statute the process will continue to be used because it is quicker and cheaper than litigation.
9, The Scheme for Construction Contracts, Part 1, Clause 13 10,Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597 11, The Scheme for Construction Contracts, Part 1, Clause 13(f) 12, Glencot v Ben Barrett Ltd [2001] EWHC Technology 15 13, Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597 14, Try Construction Limited v Eton Town House Group Limited [2003] EWHC 60 (TCC)
As for adjudicator appointed assessors, no single adjudicator is likely to have all the specialist expertise required to decide complex issues of delay or quantum and where the party appointed experts have widely divergent views, it will be advantageous to agree with the parties the appointment of an expert assessor to assist the adjudicator in making its decision.
15, Available at: https://www.ciarb.org/docs/default-source /practice-guidelines-protocols-and-rules/the-use-of-partyappointed-experts.pdf?sfvrsn=2 16, For example FIDIC Procedural Rule 8(d) and Sub Clause 20.2 17, In particular Article 6.3 where the Tribunal Appointed expert has the power to request information from the Parties
Despite its less formal procedures, in order for expert evidence to have credibility in domestic adjudication, the principles set out in CPR 35 should always underpin the evidence given, whether written or oral. Similarly in international dispute board procedures the principles from one of the international protocols for international arbitration should be the basis for the giving of evidence. In the absence of party agreement the adjudication tribunal may not have the powers to insist that such standards are used but ultimately, if expert evidence is to be of the high standard it requires to be, the matter lies with the experts themselves to ensure that their work is compliant with such standards and for adjudicators to give greater weight to evidence that does so. ■
Murray Armes is a Fellow of the Chartered Institute of Arbitrators and Managing Director of Sense Studio Limited. He is a construction industry dispute resolution expert who has worked on disputes in the industry all over the world. He is a Chartered Architect, Chartered Arbitrator, Adjudicator, Expert Witness, Dispute Board Member and accredited Mediator. Chartered Institute of Arbitrators CIArb is the world's leading professional membership body for arbitration and alternative dispute resolution. A not-for-profit organisation, CIArb promotes the use of alternative dispute resolution internationally through a membership of over 13,000 professionally qualified members in more than 120 countries. In addition to providing education and training for arbitrators, mediators and adjudicators, CIArb acts as an international resource centre for practitioners, policy makers, academics and those in business concerned with the cost-effective and early settlement of disputes.
References 1, Although not necessarily, see ACD (Landscape Architects) Ltd v Overall and another [2012] EWHC 100 (TCC) 2, Just as in litigation where the court expects expert evidence to be served, see Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 3, The process may allow as little as just a few days for the respondent to serve a response, although adjudicators may extend that time, particularly if the case is complex
Are you interested in becoming an expert witness or developing your career as an adjudicator? If so, the Chartered Institute of Arbitrators (CIArb) provides excellent workshops and trainings to assist your own personal development and practice in the field.
4, Such as the RICS practice note on surveyors acting as expert witnesses 5, Review of Experts Evidence, a consultation carried out by the Society of Constriction Law and headed by Her Honour Frances Kirkham CBE
For more information, please call CIArb’s Education & Training team on +44 (0)2074217439 or email education@ciarb.org
6, CPR 35 Rules 3.2(9) and 3.3 7, Surveyors Acting As Expert Witnesses. 4th edition, 2014 8, The Scheme for Construction Contracts, Part 1, Clause 13(c)
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Being a General Practitioner in the Prison Environment by Dr James Jesse Hard, General Practitioner MBBS FRCGP prisons and the principle of “equivalence” drives the ever-improvement of standards of care inside their walls.
Some of the most interesting, challenging and complex medicine I have faced in my near 10-year career as a GP has been behind a five meter-high wall; caring for those that have been remanded or sentenced in our criminal Justice system.
Being an Expert Witness in the Prison Environment With nearly ten years experience of prison General Practice experience, including some time spent as a clinical lead in one establishment, I have gained a wealth of experience with the men, women and children in the public and private sector prisons in England and Wales.
Being able to focus on the doctor-patient relationship is the key skill. By overstepping any pre-judgement and striving to deliver medical care without compromising my own integrity or sacrificing my ethical principles is the way I practice. Everyone here is someone’s son or daughter; they weren’t always in prison and many, will eventually be released into our wider community. So, for me, the objective is in engagement with individuals before me - with aim of making a difference to their lives.
I am passionate about prison medicine and just as passionate about supporting both the clinicians and patients where expertise is required to guide the courts in civil claims. I have nearly four years of experience as an expert in this setting and have built a portfolio of around 30 (clinical negligence) cases during this time.
Since 2006, General practitioners have been the doctors responsible for delivering health care in EXPERT WITNESS JOURNAL
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Expert Witness work cross-pollinates into other aspects of the highly-inspected prison environment. So, being able to provide a critical clinical eye on Death in Custody reviews, the Coroner or the Parliamentary and Health Service Ombudsman serve to provide these bodies with the expertise necessary to fully support their investigations with that ‘inside’ knowledge. Being able to decipher and read between the lines of the prison clinical system can yield a detailed view into the care being provided and this helps provide inspectors and commissioners with a better understanding of areas for improvement. ■
Being able to fully appreciate the unique context of prison healthcare is fundamental to being able to guide the court in these matters. On many occasions, Claims may appear straightforward. Close inspection of the medical records by a Prison GP, provides a more faithful perspective of the care being provided than when viewed by the untrained eye. A common example is where a Claim arises out of medication being stopped abruptly. In the community general practice setting this may appear to be negligent. However, in the prison setting, medication is often seen as a currency item for misuse and diversion and many of these drugs can be sought from the prison GPs for these reasons. The consequences of this ‘diversion’ can range from addiction, overdose and death to bullying and violence.
Dr James Jesse Hard Tel: 07930 367467 Mob: 07930 367 467 Email: jake.hard@nhs.net Dr James Jesse Hard is a GP with special interests in prison medicine and substance misuse. He is an Associate Clinical Advisor to the Parliamentary and Health Service Ombudman and has assisted in cases pertaining to prisons, in and out-of-hours general practice as well as substance misuse cases. Dr Hard is also a Clinical Reviewer for Death in Custody reviews for the Prison and Probation Ombudsman and NHS England.
Another example is where the care provided to an inmate falls outside of the boundaries of so-called “equivalent” care. An example case: an injured leg, why was a scan not undertaken as it would have been had the patient been in his community GP surgery? The medical records in this case reveal a rushed consultation, little in the way of history or examination is recorded. This is not defensible practice.
Prof Charles M Court-Brown
Mr R N Brueton
Professor of Orthopaedic Trauma MD, FRCS Ed (Orth)
Consultant Orthopaedic Surgeon MB BS, MRCS, LRCP, FRCS (Lon), MD (Lon), BA, MA
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.
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 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 operated on over 70 acetabular fractures.
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.
His expertise in the treatment of fractures of the upper and lower limbs is considerable. Contact: Mr R N Brueton 45 Grosvenor Road London N10 2DR Tel: 0208 442 0464
Contact: Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 Email: ccb@courtbrown.com
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Email: bruetons@ar2.net
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Ability Matters Fast and Effective Private Prosthetic/Orthotic Services 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 products 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 is a leading UK provider of private clinical services relating to prosthetics and orthotics. We deliver fast access to a team of highly experienced clinicians – experts in their field – enabling us to offer high quality solutions for even the most complex of cases. Importantly, we can also offer our clients high quality facilities in a number of locations across the UK. Our Ability Matters clinics are conveniently located in 5 locations – London, Manchester Bradford, Oxford and Belfast. In addition, we can provide appointments in a number of other satellite clinics throughout UK and Ireland.
Our company Opcare enjoys extensive partnership arrangements with the NHS for the provision of Prosthetic, Orthotic and Wheelchair Services. This is complemented by our strong reputation as a product supplier under our Ortho Europe brand.
Our clients are many and diverse. While we do find patients contacting us directly to access rehabilitative support, inevitably the more complex cases tend to originate from referral sources such as Orthopaedic consultants. We are pleased to maintain excellent working relationships with legal practices and case management specialists. Here we certainly provide direct clinical interventions for referred clients but we are also frequently called upon to formulate medico-legal reports 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.
Ortho Europe has recently expanded its area of expertise to embrace ‘custom contoured seating’ under the SeatMatch label. SeatMatch can meet the needs of wheelchair users requiring custom-made posture management solutions. 3D scanning and advanced robotic carving support the multidisciplinary specialist seating assessment team in achieving the best possible result. And to add to our credentials as enablement professionals we have established a chain of Ability Matters Independent Living retail outlets at strategic locations within the UK.
Our private clinic business stands under the umbrella of the Ability Matters Group, an EXPERT WITNESS JOURNAL
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Manchester – our newest clinic Opened late last year, our building in South Manchester creates a unique cooperation with the NHS. It is a reflection of the strength of our relationships with the NHS of which the Ability Matters Group is very proud. The new Specialised Ability Centre delivers Prosthetic and Orthotic services on behalf of the NHS for the people of the North West of England within a purpose designed facility – one that is also home to a busy NHS Wheelchair Service. A superbly appointed wing of this building also houses our new, spacious and well equipped private clinic rooms. Creating a top quality private clinic facility in such a great location means that we have very good geographical reach. Manchester airport is close by, as is the excellent north/south and east/west motorway network. This, of course, means that more people than ever can access the private prosthetic/ orthotic services of Ability Matters.
Above External picture of new Specialised Ability Centre Manchester building
A bright, comfortable and airy clinic reception area is adjacent to our brand new ‘mobility and independent lifestyle centre’ that offers a comprehensive range of wheelchairs and powerchairs and many other products to support independent living. Its location within the Specialised Ability Centre means that both private and NHS visitors have easy access to an array of specialist products backed by specialist advice. Our resident Orthotist Graham enjoys meeting people in this environment and
Above: map showing the Manchester location and motorway links
offering advice on footwear or supporting the assessment of needs relating to mobility such as with an active user of a wheelchair.
Above; our new clinic room at Manchester
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Wimbledon – our most established clinic Standing within a stone’s throw of Wimbledon Park tube station our facility in South London again offers superb access to clients from South East England and beyond. Indeed, many clients travel from across the world to access the high quality medical advice and care that the UK has to offer and therefore our client base has a distinctly international flavour. We enjoy good referral relationships with many embassies especially those from the Middle East. Inevitably these customers expect the best and that is what we deliver – we regularly use the very latest prosthetic components and technology. Our resident prosthetist and Clinical Director Werner Herbst has been practising in London for many years and enjoys the variety of work and the diversity of the client base:
Above, the exterior of our Wimbledon clinic
And I’m not just working out of our Wimbledon address – we have found it sensible to also deliver a service in Central London – every week we see patients in the Portland Hospital where they are often already receiving medical care and I can seamlessly provide support.
‘London is a great place to live and work. Being here a while I have built up a lot of professional contacts over the past few years and love working with a network of specialists to deliver exemplary care and great service to our clients. A big part of what we do relates to embassy referred work – this can be a bit seasonal – the summer months away from Ramadan are typically peak demand time.
Private Orthotics provision is an important part of what we do. I think its important to understand that our position in the market place is oriented more towards complex needs and inevitably this lends itself to the medico legal/personal injury sector. And therefore I guess it should come as no surprise that we have pressure plate and video analysis as tools to support our work.’
Another important (and much less seasonal) part of our business relates to the medico legal field where we are regularly meeting the requirements of some of the leading personal Injury legal practices. Every month part of my case load involves report writing relating to legal work and often the active clinical support of the patient in question.
Being part of a specialist Healthcare group means that we are able to offer a more comprehensive service than if the clinic business were stand alone. We can provide our clients with seamless access to our very own high-definition silicone service. We are proud to be leaders 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. Our skilled team can produce cosmetic covers for upper and lower prosthetic limbs, manufacture hands and feet, single digits and reconstructive silicone. Another Group asset is our Omega scanning technology – we are the sole distributors of this market leading system which means that we actively embrace the benefits of using state-of-the-art 3D scanners to deliver the very best results for our patients. For further information please contact us on 0800 072 3122, info@abilitymatters.co.uk or visit our website www.abilitymatters.co.uk
Above, Werner Herbst – Clinical Director with patient EXPERT WITNESS JOURNAL
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Assessment and Treatment of Scars by Kayvan Shokrollahi BSc MB ChB MSc MRCS(Eng) FRCS(Plast) LLM Kayvan is a Consultant Burns and Plastic Surgeon, Chairman of the Katie Piper Foundation, and Associate Editor of the international medical journal Annals of Plastic Surgery. He was awarded the Hunterian Professorship of the Royal College of Surgeons in 2007 and wrote his Master of Law thesis on the subject of consent. He has written a number of textbooks, most recently the Oxford Specialist Handbook of Burns due for publication in 2015, and wrote the medico-legal chapter in the Oxford Handbook of Postoperative Complications. objective measurements and scores of scarring, these can attribute the term 'scar' to skin changes such as redness or pigmentation that may resolve (for example if there is a score greater than zero in an objective scar assessment scale). There are numerous such scar assessment tools, but the most common ones include the Vancouver Scar Scale and POSAS: Patient and Observer Scar Scale.
What is a scar? Believe it or not, the simplest of questions on this subject, namely 'what is a scar?', is not as easy as one might imagine to answer. It is as important to be cognisant of any lay definitions as well as any nuances of medical terminology. A variety of dictionaries define scarring variably as: - Middle English escare, scar, from Middle French escare scab, from Late Latin eschara, from Greek, hearth, brazier, scab. First Known Use: 14th century, A mark left (as in the skin) by the healing of injured tissue (Websters dictionary)
Assessment of Scars A basic assessment and description of a scar will first entail a full and detailed history with reference to the medical records and any available photographs, followed by a medical examination. Specialists may use more objective methods of description and assessment. Key features to note include the location (or percentage surface area) and orientation of the scars, the degree of redness and pigmentation, and how raised or lumpy the scars are. Objective scar assessment tools range from spectrometry and ultrasound, to profilometry and cutometry.
- 1. A mark left on the skin after a surface injury or wound has healed (www.thefreedictionary.com) 2. A lingering sign of damage or injury, either mental or physical. (www.thefreedictionary.com) - Any mark left on the skin or other tissue following the healing of a wound (www.collinsdictionary.com) - A mark left on part of the body after an injury, such as a cut, has healed. (dictionary.cambridge.org)
Functional problems should be noted, including contractures, range of movement and symptoms such as pain or itching. The examination should also have in mind implications for prognosis and for treatments, ranging from topical treatments and massage, sunscreen, and cosmetic camouflage to very specialist areas such as lasers or reconstructive surgery.
- Any blemish remaining as a trace of or resulting from injury or use (dictionary.reference.com) - A lasting effect of grief, fear, or other emotion left on a person’s character by an unpleasant experience. (www.oxforddictionaries.com)
Common Types of scars Mature scars - generally pale, flat, narrow
Whilst scars are generally thought of as permanent, if we look at both these definitions above as well as EXPERT WITNESS JOURNAL
Hypertrophic scars - thickened, itchy, raised but within the boundaries of the original injury 25
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Keloids - severely thickened, itchy, and raised but growing in a tumour-like fashion beyond the boundaries of the original injury
Complex or burns scars are best assessed and treated with input from a plastic surgeon on the specialist register of the GMC.
Stretched and atrophic scars - thin and fragile skin with widening. Often pale and depressed.
Psychology of scarring Psychological aspects of scarring should not be underestimated, even for minor scars. There is a firm body of opinion that the psychological impact of scarring is not directly proportional to the size or severity of the scarring.
Pigmented scars - these can be hypopigmented (lighter) or hyperpigmented (darker)than surrounding skin. Special and specific types of scars: e.g. acne scarring
Help and support with scars The Katie Piper Foundation is a charity that provides a range of services to help patients with scars with a vision of: 'A world where scars do not limit a person’s function, social inclusion or sense of well being'. They provide national education to healthcare professionals in scar management, and access for patients to the latest treatments and rehabilitation as well as additional support ranging from specialist cosmetic camouflage, psychology, peer support to hair transplantation. Most importantly they can be a trusted source to help patients navigate the system to ensure help comes from suitably experienced and qualified practitioners in an area where the complexities of medical scar management can overlap with the beauty and cosmetic industry. ■
Common Treatment options - Sun avoidance and sunscreen with SPF factor 30+ - Massage - Corticosteroid injections (hypertrophic/keloid scars) - Topical treatments for pigmentation - Plastic surgery: scar revision, reconstruction, Z-plasty and flaps, scar release, skin grafts and skin substitutes - Laser treatments for pigmentation, redness, and hypertrophy (lumpiness) - Topical and medical treatments for itch - Pressure garments and topical silicone for hypertrophic or keloid scars - Prosthetics - for camouflage or to treat keloid and hypertrophic scars - Fat transfer
If y you ou n need eed a rreport eport o on nas specialist pecialist s subject ubject tthen hen m make ake s sure ure y you ou instruct instruct a Specialist Specialist
CONSULTANT PLASTIC RECONSTRUCTIVE & HAND SURGEON
Chris Drake, Chris Drake, Dip Dip OTC, OTC, BAPO, BAPO, CUEW CUEW Consultant Orthotist and Orthotic Expert Witness C onsultant O rthotist a nd O rthotic E xpert Wi tness
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:
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 years y ears of of medical medical legal legal reporting reporting experience. experience. As As well well as as his his in-depth in-depth knowledge principles and he k nowledge of of orthotic orthotic p rinciples a nd practice practice h e has has specific specific expertise expertise iin: n: Post Post trauma trauma orthotic orthotic rehabilitation rehabilitation Neuro-rehabilitation Neuro-rehabilitation Complex Complex disabilities disabilities Orthopaedic Orthopaedic conditions conditions Adult and Adult a nd paediatric paediatric orthotics orthotics Lower biomechanics Lower limb limb b iomechanics Lower limb limb orthotics orthotics Lower Complex ffoot oot a nd a nkle conditions conditions Complex and ankle Foot orthotics orthotics Foot Specialised o rthopaedic a nd b espoke footwear footwear Specialised orthopaedic and bespoke
• Hand surgery: Sequelae of hand injuries and surgery • Soft tissue injury: Sequelae of post traumatic scarring • Burns management: Sequelae of disability following burns injury, scarring and surgery. • Medical negligence in Cosmetic Surgery 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.
He has He has a wealth wealth of of experience experience acting acting as as Orthotic Orthotic Expert Expert for for the the c claimant, laimant, 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 by Law A ccreditation (CUEW) (CUEW) issued is s u e d b y Bond 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).
He is on the GMC’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)
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 client visits when for c lient v 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
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0121 507 3455 atulkhanna@doctors.org.uk www.atulkhanna.co.uk/expert_witness.html
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Litigation in Trauma and Orthopaedic Surgery by John T Machin, Timothy WR Briggs Contributors: Harry Krishnan, Shahrier F Saker, Jagmeet S Bhamra, Elizabeth Gillott rise in overall NHS litigation claims during the same time period5. The MDU, Britain’s largest defence union’s review of claims in orthopaedic surgery found that the average settlement was in excess of £60,0006. Especially concerning is the rise in proportion of total legal costs accounted for by the claimants’ lawyer which has risen to nearly 80%. The NHSLA has found that the growing use of Conditional Fee Agreements in NHS litigation cases has resulted in the legal costs outstripping the value of damages paid to the patient2.
Introduction Litigation in health has dramatically increased since it became mandatory for the National Health Service Litigation Authority (NHSLA) to be informed of all claims against NHS trusts in England. Before 2002 there was no complete record of litigation as trusts did not routinely inform the NHSLA regarding smaller claims. This rise in litigation is not surprising; there has been a change in society as a whole reflected in a less trusting public and a more active promotion of legal services. These changes have been matched by key rulings from the House of Lords. Chester vs Afshar (2004) raised the standard of acceptable care and confirmed the responsibilities of the surgeon to provide informed consent1. The rate of litigation and its cost continue to rise at an uncontrollable rate.
Previously published work relates to claims before the NHSLA received all claims and as a result do not reflect the total litigation in orthopaedics3,7,8,9. The majority of studies have focused on closed or successful litigation against the NHS. However the mean claim in 2012/13 took over a year to close and in previous years this was an even longer process resulting in a delay in publication of current trends2. The importance of reviewing both closed and open claims is well summarised by the Rt. Hon Lord Justice Jackson. He said ‘Litigation is, however, a matter of last resort. There is a huge need to prevent claims arising in the first place. That is by far the most effective way to reduce legal costs and to promote patient satisfaction’3. The aim of this study therefore was to provide current trends in ligation against trauma and orthopaedic surgery from the NHSLA database from the first year of full notification. To determine whether there was a rise in litigation in orthopaedic surgery consistent with the rise seen across the NHS and to elicit the main causes in order to aid awareness and to allow the development of strategies to improve practice, improve patient satisfaction and reduce legal costs.
The NHSLA has reported a year on year increase in claims. Between 2007/2008 and 2011/2012 there was a mean number of claims per year of 7202 with a total of 9143 new clinical claims in 2011/20122. NHSLA estimates there are £18.9 billion of potential clinical negligence claims against the NHS2. Surgical specialities are associated with higher rates of litigation3. In the NHSLA report and accounts 2012/13 orthopaedics was found to have the largest expenditure with the exception of obstetrics and gynaecology. Trauma and orthopaedic surgery has always been considered a highly litigious specialty due to the quantity of work undertaken and the subsequent problems if mistakes or complications occur. Medical indemnity insurance companies classify orthopaedics as the third highest risk specialty behind obstetrics and neurosurgery. The Medical Defence Union (MDU) expects a claim against orthopaedic surgeons practicing independently every eight years compared to every 35 years in specialities such as anaesthetics4.
Materials and Methods We made a formal request to obtain all data regarding claims against ‘Orthopaedic Surgery’ from the NHSLA database of NHS trusts in England since the registration of all claims became mandatory. This category included all trauma and
The total cost of orthopaedic claims has risen by 60% over the last three years compared to a 12% EXPERT WITNESS JOURNAL
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elective work and all open and closed cases without exclusion between April 2003 and April 2012. The information supplied included: claim status (whether open or closed), incident date, claim details, the costs incurred of closed claims (damages paid, defence costs paid, claimant costs paid and total paid) and the Strategic Health Authority (SHA) to which the provider receiving the claim had previously been associated. Global trends were reviewed
for all financial years from 2003/2004 to 2011/12. A claim by claim analysis was made during the last five years of data from 2007/2008 to 2011/12, during which period there has been the greatest rise in claims. A team of researchers using a set protocol divided claims according to trauma and elective work, sub-specialty, operation performed and cause of claim. Causes of claims were determined by the definitions in Table 1. Due to the multifactorial
Cause
Description
Accidental Injury
Injury that occurred whilst patient was under orthopaedic care either in theatre, ward or outpatients including burns, lacerations and falls.
Amputation
Any presentation which resulted in amputation as a result of negligent care or treatment
Cauda Equina
Claims relating to cauda equina syndrome
Compartment Syndrome
Claims relating to compartment syndrome
Consent
Any claim relating to dissatisfaction with consent
Death
Death for any cause
Dislocation
Any claim involving joint dislocation
Equipment/Implant Claims relating to incorrect equipment or implant use including wrong alignment, size or incorrect implant Infection
Infection both deep and wound as well as systemic infection such as pneumonia and hospital acquired infections (MRSA etc.)
Interpretation of Results/Clinical Picture
Any claim relating to clinical assessment, interpretation of results or clinical signs
Judgement/ Timing
Any claim relating to alleged incorrect decision-making following the correct interpretation of results and clinical picture. Includes inappropriate delays once the correct decision had been made.
Limb Length Discrepancy
Claims relating to limb length discrepancy
Mobility
Any claim relating to mobility of the patient or decreased range of movement at a joint.
Nerve Damage
Any claim involving nerve damage
Pressure Sores
Any claim involving pressure sores
Retained Instrument Post-operation
One or more instruments or swabs unintentionally retained following an operative procedure – Never Event
Tissue Damage
Claims relating to damage of any tissue including neurological or vascular injury
Tumour / Cancer Any claims relating to neoplastic disease Unsatisfactory Outcome Any claim relating to dissatisfaction with the result of a surgical procedure to Surgery Venous Any claim with reference to Deep Vein Thrombosis or Pulmonary Embolism Thromboembolic Events Wrong Operation
Claim alleging the incorrect procedure was performed
Wrong Site Surgery
Claim relating to a surgical intervention performed on the wrong site, the patient requires further surgery, on the correct site, and/or may have complications following the wrong surgery – Never Event
Table 1: Causes which claims were reviewed against EXPERT WITNESS JOURNAL
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compartment syndrome, acetabular fracture during hip surgery, vascular injury during total hip replacement and knee arthroscopy. The highest single claim was £2.3 million paid in 2006/2007 for allegation of a failure to act to reduce dislocation and relieve pressure on the spinal cord resulting in the claimant becoming quadriplegic following a sporting injury.
nature of the claims often more than one cause was attributed to each claim. This has therefore resulted in more causes identified than claims listed. Of the closed cases those that had no costs were defined as those that were successfully defended. An estimated cost is calculated by the NHSLA based on the current costs from closed cases and the predicted cost of open cases. The percentage of cases in each former SHA per head of population was calculated. This was displayed on a funnel plot using the variance between SHAs to determine those that are greater than 3 standard deviations from the mean which were regarded as outliers.
Comparison with other surgical specialities When comparing against other surgical specialities, claims against orthopaedics are increasing (Figure1). Over 25% of all surgical interventions in the NHS are musculoskeletal5. In 2003/2004 orthopaedics represented 45.46% of all surgical claims, which rose to 49.93% by 2011/12. Throughout orthopaedics has remained the specialty against which most litigation claims have been made in surgery, with the exclusion of obstetrics and gynaecology.
Results From 2003/2004 to 2011/12 there were 9009 claims registered with the NHSLA against ‘Orthopaedic Surgery’. Of these 6989 claims (77.58%) were closed with a combined cost of £384 million. However the NHSLA estimates that closing the remaining claims could result in an overall total cost of £897 million (calculated from NHSLA July 2012 estimates). Over the nine year period a total of 36 of the closed claims cost over £1 million to settle.
Trends Total Claims against orthopaedics have increased yearly since 2004/2005, peaking at 2011/2012 with 1474 claims (Table 2). When 2003/2004 is compared to 2011/2012 we find a 74.23% increase in yearly claim volume. During the same period the estimated cost of yearly claims rose 356% from £41million to £187million (as calculated by the NHSLA, July 2012). There is a geographical variation in the percentage of a population making clinical negligence claims when the country is divided up into the former SHAs. Rates of litigation are highest in the Yorkshire and the Humber and North West (Figure 2).
Of these claims 13 were related to spinal surgery with claims resulting from delayed/failed treatment of cauda equina syndrome, negligent spinal decompression and failure to remove haematoma from the spine resulting in neurological deficit. A further five of the most expensive claims related to negligent total knee replacements resulting in amputation. The remainder of claims costing over £1 million were related to delayed or inappropriate surgical treatment of long bone trauma, failure to diagnose bone tumour, failure to diagnosis
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Year
20032004
20042005
20052006
2006-- 2007-- 2008-- 2009-- 2010-- 2011-2007 2008 2009 2010 2011 2012
Total Claims Received
846
810
822
835
935
956
1061
1271
1474
Total Claims Closed
845
807
818
821
905
852
855
778
308
(99.88%) (99.63%) (99.51%) (98.32%) (96.79%) (89.12%) (80.58%) (61.21%) (20.90%)
Total Claims Open
1
3
4
14
30
104
(0.12%)
(0.37%)
(0.49%)
(1.68%)
(3.21%)
(10.88%) (19.42%) (38.79%) (79.10%)
206
Total Claims Successfully Defended
310
289
290
279
259
245
Percentage of Closed Claims Successfully Defended
36.69% 35.81% 35.45% 33.98% 28.62% 28.76%
23.74% 20.05% 33.77%
Total Cost of Closed Claims (ÂŁmillion)
40
45
55
63
64
56
37
20
3
Total Predicted Cost of Claims (ÂŁmillion)
41
45
58
80
91
110
124
159
187
203
493 156
1166 104
Table 2 (above): Claim volume against orthopaedic surgery from 2003/2004 to 2011/2012
Figure 2 (above): Variation in percentage of population making clinical negligence claims against orthopaedic surgery between 2007/2008 and 2011/2012 across Strategic Health Authorities. SHA population based on the ONS National Population Census 2001. (1= North East, 2= South Central, 3=South East Coast, 4=East Midlands, 5=South West, 6=Yorkshire and the Humber, 7=West Midlands, 8=East of England, 9=North West, 10=London).
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Analysis of 2007/2008 to 2011/2012 Over this five year period there were 5697 claims of which 2369 (41.58%) were against trauma work, 2264 (39.74%) were against elective work, and 1064 (18.68%) could not be classified from the description. Claims according to sub-specialty: 924 (16.02%) Knee, 909 (16.00%) Hip, 741 (13.01%) Foot & Ankle, 650 (11.41%) Hand (including forearm),480 (8.43%) Spine, 360 (6.32%) Shoulder & Elbow, 9 (0.16%) Pelvis & Acetabulum. The remaining claims could not be classified into subspecialty. 30
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Cause of Litigation
Foot & Ankle
Hand
Hip
Knee
Shoulder & Elbow
Spine
Accidental Injury
15 (7.28%)
17 (9.44%)
44 (18.41%)
18 (8.37%)
15 (11.62%)
13 (12.75%)
Amputation
10 (4.85%)
7 (3.88%)
2 (0.84%)
6 (2.79%)
0 (0%)
0 (0%)
Cauda Equina
0 (0%)
0 (0%)
0 (0%)
0 (0%)
0 (0%)
12 (11.76%)
Compartment Syndrome Consent
1 (0.49%)
1 (0.56%)
0 (0%)
0 (0%)
0 (0%)
0 (0%)
4 (1.94%)
5 (2.78%)
3 (1.26%)
12 (5.58%)
8 (3.72%)
6 (5.88%)
Death
3 (1.46%)
1 (0.56%)
11 (4.6%)
3 (1.40%)
0 (0%)
0 (0%)
Equipment/Implant
8 (3.88%)
6 (3.33%)
32 (13.39%)
21 (9.77%)
8 (3.72%)
3 (2.94%)
Infection
22 (10.68%)
5 (2.78%)
23 (9.62%)
25 (11.63%)
11 (5.12%)
11 (10.78%)
Interpretation of results/clinical picture Judgement/ Timing
72 (34.95%)
77 (42.78%) 49 (20.50%)
44 (20.47%)
33 (15.34%)
50 (49.02%)
100 (48.54%)
93 (51.67%) 106 (44.35%)
82 (38.14%)
64 (29.77%)
53 (51.96%)
Mobility
80 (38.83%)
42 (23.33%) 122 (51.05%)
83 (38.60%)
32 (14.88%)
28 (27.45%)
Nerve Damage
15 (7.28%)
18 (10.00%) 25 (10.46%)
9 (4.19%)
16 (7.44%)
44 (43.14%)
Retained items
5 (2.42%)
4 (2.22%)
6 (2.79%)
3 (1.40%)
3 (2.94%)
Tissue Damage
97 (47.09%)
76 (42.22%) 104 (43.51%)
83 (38.60%)
55 (25.58%)
59 (57.84%)
Unsatisfactory Outcome to Surgery Venous hromboembolic Events
121 (58.74%)
76 (42.22%) 177 (74.06%)
149 (69.30%)
70 (32.56%)
74 (72.55%)
8 (3.88%)
0 (0%)
1 (0.42%)
5 (2.33%)
0 (0%)
0 (0%)
Wrong Operation
5 (2.42%)
3 (1.67%)
6 (2.51%)
7 (3.26%)
5 (4.65%)
0 (0%)
Wrong Site Surgery
2 (0.97%)
4 (2.22%)
1 (0.41%)
2 (0.93%)
1 (0.78%)
5 (4.90%)
4 (1.67%)
Table 3: Causes of litigation claims for sub-specialities of orthopaedic surgery in 2011/2012 EXPERT WITNESS JOURNAL
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The rise in costs related to this trend cannot be ignored with a potential estimated cost of £897 million over a nine year period in a specialty attempting to reduce costs to contribute to £15-20 billion of efficiency savings by 201512. This is a not insignificant number when it is considered this equates to the cost of between 163,000 and 176,000 primary joint replacements13.14. It is clear that the financial problem must be addressed if the specialty is to avoid rationing of even its most effective treatments. The financial costs for certain orthopaedic sub-specialities are higher than others with over a third of cases costing greater than £1 million being related to spinal surgery. This is a pattern that is borne out in other studies both in the United States and in private practice in the UK and therefore surgeons working in this area especially must adapt their practice to reduce suspicion of negligent care4,14.
Causes of claim The most common causes contributing to claims from 2007/2008 to 2011/2012 were ‘unsatisfactory outcome to surgery’ (3030 claims, 53.19%), ‘judgement/timing’ (2904 claims, 50.97%), ‘interpretation of results/clinical picture’ (2369 claims, 41.58%), ‘tissue damage’ (1801 claims, 31.61%) and ‘mobility’ (1545 claims, 27.12%) (Figure 3). The same claims are seen to be most common in each year when reviewed separately. Furthermore, when reviewing the claims by sub-specialty from 2011/2012 these five causes are the most common in foot & ankle, hand, hip, knee and shoulder & elbow. Even in spinal surgery the common causes are the same with the addition of nerve injury instead of mobility in the top five causes (Table 3). Discussion The rate of litigation in orthopaedic surgery is increasing on a year on year basis in the NHS with a 16% increase between 2010/2011 and 2011/2012 compared to only 6% increase in claim volume for the NHS as a whole. It has been suggested that orthopaedics and more specifically spinal surgery as well as total hip and knee arthroplasty are not suffering from the same clinical negligence problem as the rest of the NHS8, 10. One of the key limitations of studies using the NHSLA records is NHSLA principally collects data for legal purposes. As a result there is an issue concerning the clinical information that is available for analysis. Despite full access to the database some claims are unable to be fully categorised including by sub-specialty and procedure due to insufficient clinical detail. Unfortunately, studies carrying out such specific analysis are at risk of under reporting litigation rates.
It is possible that not all claims have been included in the complete dataset and this may be due to some cases where negligence has not been proven but a settlement has been made to avoid the creation of a case. Certain claims may be under reported in the dataset due to co-liability. These claims may have not reached the NHSLA even though they could have been brought against the NHS as they have been instead brought against another party. An example of this is a patient making claims against an implant manufacturer rather than the NHS trust that carried out their operation. This issue of co-liability may in part explain why there were only two claims in 2011/12 related to metal on metal hip replacements. Unfortunately, ‘never events’ still occur on a yearly basis. Between 2007/2008 and 2011/2012 128 claims were made regarding ‘retained instruments’ and 62 claims relating to ‘incorrect site of surgery.’ These events represent system failure and are patient safety issues that can be eradicated by more diligent organisation and closer adherence to tools including the World Health Organisation checklist. It is encouraging that claims relating to consent are fairly infrequent, 62 claims (4.21%) in 2011/12. However, it is important to recognise that the benefit of informed consent with a discussion including the possible risks would not only reduce claims directly linked by the patient to consent but would also decrease patient’s dissatisfaction with surgery which is the major cause of claims.
It has been proposed that although there is a rise in litigation in total hip and knee arthroplasty this increase has been out-stripped by the rise in activity8. However looking at trauma and orthopaedics as a whole between 2010/2011 and 2011/2012 there was a 1.6% rise in activity as indicated by Finished Consultant Episodes (FCE) recorded by the Hospital Episode Statistics, far less than the increase in claims11. Even considering that patients have three years from an event to commence their legal claim, the rise in FCE from 2008/2009 to 2011/12 was only 8%11. When comparing orthopaedics to other surgical specialities its growing size and dominance (49.93% of surgical claims) over other surgical specialities illustrates that litigation in orthopaedic surgery is a problem increasing at a greater rate than litigation as a whole in the NHS. EXPERT WITNESS JOURNAL
These submitted claims are based on the patient’s perception of negligence. Although there is not an agreed method of claim analysis between studies there is common themes amongst the causes of 32
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Professor Briggs is Consultant Orthopaedic Surgeon at the Royal National Orthopaedic Hospital Trust and also Medical Director until May 2012. He is the President of the British Orthopaedic Association and is also the Chairman of the Federation of Specialist Hospitals and Chairman of the National Clinical Reference Group for Specialist Orthopaedics. His special interests are reconstruction of the lower limb, as well as sports injuries of the knee and orthopaedic oncology. ■
litigation. ‘Failure to protect structures in the surgical field’, ‘technical errors’ and ‘other surgical errors’ are frequently reported as common causes and would include the claims identified in our study as ‘unsatisfactory outcome to surgery’ and ‘tissue damage6,15. Strategies to prevent these claims could include an increased number of procedures in surgical training and the improvement in education provided to surgeons once trained. Other common causes such as ‘judgement/ timing’ and ‘interpretation of results/clinical picture’ could also be overcome by increased experience while training as well as the creation of structured approaches to patient management. Regrettably the NHSLA does not record the seniority of the surgeon against which claims have been made so we cannot provide evidence of the expected benefit of experience and training.
References 1. No authors listed. Opinions of The Lords of Appeal for Judgement in the cause Chester (Respondent) v. Afshar (Apellant): Chester v Afshar. United Kingdom Parliament Web site. www.publications.parliament.uk/pa/ld200304/ldjudgmt/j d041014/cheste-1.htm (date last accessed 5 December 2013).
There is concern that the rise in litigation has promoted the practice of defensive medicine which although in the main can lead to an improvement in care has also led to surgeons ordering unnecessary investigations and restricting their practice to avoid patients or procedures that are thought to be high risk16. However, surgeons should be advised when considering high risk procedures, which are not part of their regular practice, to consider referral to a high volume specialist centre which has the critical mass of expertise to maximise patient safety and satisfaction in such procedures. Indeed analysis of claims by division of providers into the former SHA’s demonstrates that litigation rates are not uniform throughout the country however, it is beyond the scope of this study to explain these differences as a more detailed analysis of each individual healthcare provider within the SHAs would be required.
2. No authors listed. NHS Litigation Authority Report and accounts 2011/12. The NHS Litigation Authority Annual Report 2011-12, www.nhsla.com/AboutUs/ Documents/NHSLA Annual Report and Accounts 2012.pdf (date last accessed 5 December 2013). 3. Taragin MI, Sonnenberg FA, Karns ME, Trout R, Shaprio S, Carson JL. Does physician performance explain interspecialty differences in malpractice claim rates? Med Care. 1994;32:661–667. 4. Roberts K. Managing risk in orthopaedics. Independent Practitioner. July 2007 5. Briggs TWR. Getting It Right First Time. www.timbriggs-gettingitrightfirsttime.com (date last accessed 5 December 2013) 6. No authors listed. Bones of contention – claims in orthopaedic surgery. MDU Services Limited. 2013 7. Atrey A, Gupte CM, Corbett SA. Review of successful litigation against english health trusts in the treatment of adults with orthopaedic pathology: clinical governance lessons learned. J Bone Joint Surg Am. 2010 Dec 15;92(18):e36
Conclusion Litigation is a growing problem for orthopaedic surgery. The current trend and resulting costs are unsustainable. Most orthopaedic surgeons will face a negligence claim during their career17,18. Lessons can be learned from all claims brought whether or not they are successfully defended and these need to be disseminated to the profession. We believe the common causes for claims are preventable. Specialists being given sufficient time to analyse and discuss the patient’s problems, proposed treatment and manage expectations could reduce claim volume.
8. McWilliams AB, Douglas SL, Redmond AC, Grainger AJ, O'Connor PJ, Stewart TD, Stone MH. Litigation after hip and knee replacement in the National Health Service. Bone Joint J. 2013 Jan;95-B(1):122-6. 9. Khan IH, Jamil W, Lynn SM, Khan OH, Markland K, Giddins G. Analysis of NHSLA claims in orthopedic surgery. Orthopedics. 2012 May;35(5):e726-31 10. Quraishi NA, Hammett TC, Todd DB, Bhutta MA, Kapoor V. Malpractice litigation and the spine: the NHS perspective on 235 successful claims in England. Eur Spine J. 2012 May;21 Suppl 2:S196-9.
John Machin is a Specialist Registrar at Queen Medical Centre in Nottingham. He is a contributor to the ‘Chavasse Report’ and the national pilot of ‘Getting It Right First Time’. He is a member of the BOA Medical Negligence working party set up in response to the pilot. EXPERT WITNESS JOURNAL
11. No authors listed. Hospital Episode Statistics. www.hscic.gov.uk/hes (date last accessed 5 December 2013) 12. No authors listed. Health Committee - Second Report. The Spending Review settlement for health33
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care. www.publications.parliament.uk/pa/cm201011/ cmselect/cmhealth/512/51208.htm (date last accessed 5 December 2013) 13. No authors listed. Primary Hip Replacement Surgery. http://info.wirral.nhs.uk/document_uploads/ evidence-reviews/PrimaryHipreplacement.pdf (date last accessed 5 December 2013) 14. No authors listed. Primary Knee Replacement Surgery. http://info.wirral.nhs.uk/document_uploads/ evidence-reviews/Kneereplacement.pdf (date last accessed 5 December 2013) 15. Matsen FA 3rd, Stephens L, Jette JL, Warme WJ, Posner KL. Lessons regarding the safety of orthopaedic patient care: an analysis of four hundred and sixty-four closed malpractice claims. J Bone Joint Surg Am. 2013 Feb 20;95(4) 16. Hettrich CM, Mather RC, Sethi MK, Nunley RM, Jahangir AA. The cost of defensive medicine. AAOS Now 2010;4 17. McGrory BJ, Bal BS, York S, Macaulay W, McConnell DB. Surgeon demographics and medical malpractice in adult reconstruction. Clin Orthop Relat Res. 2009 Feb;467(2):358-66. 18. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011 Aug 18;365(7):629-36.
Mr Godfrey Charnley Consultant Orthopaedic and Trauma Surgeon MBBS, FRCS, FRCSEd, FRCS (Orth) Mr Godfrey Charnley is a Trauma and Orthopaedic Surgeon who has been practising in Orthopaedics for some 20 years as a Consultant with a particular interest in Hip and Knee replacement surgery. Mr Charnley has published four chapters in Orthopaedic Textbooks and authored or co-authored over fifty pieces of original research as papers or presentations in leading Journals and at International meetings. He reviews scientific articles for Hip International, the Journal of the European Hip Society and the Bone and Joint Journal. Mr Charnley has been involved in Medico-legal work including general musculo-skeletal injury for over 25 years, and more recently as an expert witness in relation to Medical Negligence and Product Liability associated with hip replacement surgery.
Contact: Mr Godfrey Charnley Email: carol.harris@ramsayhealth.co.uk Tel: 01245 234 020 Fax: 01245 234 059 Address: Springfield Hospital, Lawn Lane, Springfield, Chelmsford CM1 7GU Mr Charnley has Medico-Legal clinics in East Anglia, the North East, Central London & the South West
EXPERT WITNESS JOURNAL
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Frozen Shoulder by Keith Borowksy, Consultant Orthopaedic Surgeon with Upper Limb interest. Amongst all the conditions that afflict the shoulder frozen shoulder or capsulitis is unique. It can and often does produce devastating pain and restriction in range , and miraculously it has the ability to spontaneously resolve to a pain free, largely functional range of motion. The term frozen shoulder is perhaps loosely used, and as many conditions that produce pain will invariably be accompanied by reduction in range of motion, the term may be incorrectly applied. However key diagnostic features are a shoulder that is normal on plain x-ray but shows stiffness that is both global (affecting all planes of motion) and not only related to pain i.e. the stiffness would be present even with examination under anaesthetic. A true contracture is present. In its initial stage pain can be severe, even with minor movements , and certainly with manoeuvres that stretch the tight capsule. The pain can radiate almost anywhere in the upper limb, and at times up into the neck and across the upper chest. Although the victim might ascribe the onset to a particular (usually minor) incident, most cases are in fact of no known cause – idiopathic. However diabetics tend to have a more refractory version of capsulitis, and other conditions e.g. thyrotoxicosis also have an association. It can also follow trauma, not necessarily to the shoulder itself; especially if pain and immobilisation have been associated- e.g. a patient with an elbow fracture that has had the limb immobilised. Possibly the most trying aspect is the so called first phase, where both pain and progressive stiffness occur. On arthroscopy the internal lining of the shoulder is significantly reddened. EXPERT WITNESS JOURNAL
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Besides usual pain relief medication, Cortisone injections into the joint may be helpful to ease the pain and thereby allow earlier stretching of the tight capsule. Hydrodistension is a technique whereby under anaesthetic the joint is distended with fluid
Below: An arthroscpic picture of the internal aspect of the shoulder in capsulitis:
under pressure in order to rupture the tight capsule.
Below: The shoulder capsule becomes thickened and contracted.
Above: Picture of hydrodistension taking place under image control:
The greatest difficulty patients have perhaps at this stage is seeing “light at the end of the tunnel.” It can be a miserable experience, not easily amenable to pain relief, often made worse by attempted mobilisation and perhaps the most trying – the fact that this stage can last up to 9 months!
Above: Manipulation under anaesthetic is a well established treatment whereby the capsule is manually broken down:
The 2nd stage is somewhat more forgiving, the pain miraculously tends to settle, but stiffness remains. For a person involved in mechanical work this can be problematic, and the fairer sex have a singularly common complaint – they can not manage their hair. Generally self care and function is also restricted, but often the relief from pain is gratefully accepted, and compensatory mechanisms to cope with the restricted range develop. Again this stage can be prolonged – about 6-9 months.
Lastly arthroscopic release is the latest of treatments whereby the tight capsule is cut under direct vision via small incisions: (image below)
In the last stage, one of resolution, the range slowly returns to an almost full functional range, although this is not invariable and some restriction may remain. Overall the condition is said to take 18 months to 2 years to spontaneously resolve. A variety of treatments have evolved. The simplest is supervised neglect. Attempts at external physiotherapeutic mobilisation in the early painful stages are probably unrealistic and better avoided. EXPERT WITNESS JOURNAL
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All of these treatment modalities have their pros and cons and indications. E.g. if the bone is more frail and the risk of fracture is high, arthroscopy might be preferred to manipulation. The aim of all these treatments is to speed up the process of resolution.
Mr Keith Borowsky Trauma and Orthopaedic Surgeon specialising in Shoulder & Elbow Surgery MBBcH (Wits), F.C.S. (Orth.), M.Med. (Orth.)
The diagnosis is often clear. The joint is painful, has a restricted range in almost all planes (particularly external rotation) and on plain x-ray the joint is normal with no arthritis – a condition that also causes pain and stiffness.
Mr Keith Borowsky is a Trauma and Orthopaedic Surgeon who has been practising orthopaedics for over 30 years, including 24 years experience as a consultant. Following 15years as a Substantive Consultant at Medway Maritime Hospital, his current main activities and positions are:
Perhaps more difficult to characterise is when aspects of capsulitis follow trauma to the shoulder – such as the stiffness and pain that may follow a fracture. Stiffness may also follow previous shoulder surgery for whatever cause- rotator cuff surgery, instability, joint replacement e.t.c. In these cases, if the stiffness is not due to mal-union of bone elements or irregularity of the joint surfaces, then it is often more in the extra-articular or extra-capsular soft tissues, and generally more difficult to treat.
1 CONSULTANT ORTHOPAEDIC SURGEON at The Spire Alexandra,Kent Institute of Medicine and Surgery ( Kims) , The Somerfield hospital,and Fawkham Manor Hospital 2: DIRECTOR SUBOW LTD A company developing a shoulder replacement prosthesis for severe fractures of the shoulder in collaboration with European companies. 3: MEDICO- LEGAL CONSULTANT with a combination of personal injury and negligence work. Mr Borowsky has been involved in medico-legal reporting for over 20 years, undertaking personal injury ,road accident and medical negligence reports. He also offers diagnostic and rehabilitation expertise on existing upper limb cases where the prognosis and future treatment is unclear.
These cases are less common. All in all idiopathic frozen shoulder is a very common shoulder condition in the middle aged population. Despite this the exact cause of its ostensibly spontaneous presentation remains elusive, although a variety of mechanisms including subtle forms of low grade infection have been proposed.
Contact: Keith Adrian Borowsky Tel: 01634 662 834 - Email: kesujeca@gmail.com Spire Alexander Hospital Impton Lane, Walderslade, Chatham ME5 9PG
Although frozen shoulder is a common condition and usually readily diagnosed, earlier more subtle forms can be confusing, especially when there is other shoulder pathology e.g. tendonitis and impingement. Often a period of conservative treatment makes this very clear as definitive stiffness develops, particularly in external rotation. Similarly, difficult situations arise whereby capsulitis coexists with a rotator cuff tear. It is often unclear whether the tear is a new or old feature. Repairing a cuff tear in the presence of significant stiffness is generally not advised, and very often capsulitis takes precedence as a cause for the symptoms and as the condition to be treated before anything else is addressed.
Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA
Chronic Pain Expert 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.
Medico-legally, the condition and its treatment may result in various claims. Both manipulation and arthroscopic release have potentially significant complications (fracture, dislocation, brachial plexus lesions .etc.) – fortunately significant complications are not common. There can be errors in diagnosis. One of the commonest of these is mistaking frozen shoulder for osteoarthritis. Both cause pain and restriction in range. Usually a plain x-ray can distinguish the two, although subtle and early osteoarthritis may be missed. Subjecting a patient to manipulation under anaesthetic in this setting often results in significant exacerbation of pain for some months and no improvement in the overall condition. ■ EXPERT WITNESS JOURNAL
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 2015. 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.
Contact:
Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Suite 6, Wilmslow House, Grove Way, Waterlane, Wilmslow Cheshire, SK9 5AG
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Infection in Hip and Knee Replacements by Paul Partington is a Consultant Orthopaedic Surgeon, reliance on the use of sticks or crutches. Uncontrolled infection following a knee replacement occasionally results in amputation of the leg, above the knee with all that brings in terms of poor mobility, restriction of work and leisure activities and the need for care and change of housing etc. Patients suffer anxiety, depression and fear of further surgery or amputation.
Introduction Each year in England, Wales and Northern Ireland using data from the National Joint Registry in 2013, more than 86,000 hip replacements and 91,000 knee replacements were performed. This is an underestimate of the numbers of joint replacements performed in these countries as not all of them will have made it the registry. Infection is thankfully uncommon, but rates from National Joint Registry data estimate a 1% infection rate for a total hip replacements and 0.5% for a total knee replacements. Of these, at least 50% are deep infection involving the hip or knee prosthesis. A national survey of Surgical Site came up with the infection rate of a mean of about 1.6% in hip replacements and 4.2% in knee replacement. Overall this means more than 5000 patients per year suffer post operative infection after hip and knee replacement in England, Wales and Northern Ireland.
Prevention of infection. The risks of infection can be reduced and the process of infection prevention starts well before the date of surgery. While policies are not universal some or all of the following may form part of the hospital protocols. Stopping smoking reduces the risk of infection and if this is a local policy, stopping several weeks before the date of surgery is optimal. Patients are usually screened by taking swabs from the groin, nose and other areas for MRSA carriage. If a patient is carrying this resistant organism on their skin then they maybe handled differently in the preoperative pathway possibly with antiseptic decolonising body wash and if MRSA carried in the nostrils antiseptic nasal cream. Patients who are immunosuppressed (increased risk of infection due to altered immune mechanism) should be optimised where possible. Diabetic patients for example who are at greater risk of infection should have the diabetes as well controlled as possible. Patients with rheumatoid arthritis who might be on drugs to reduce inflammation from their rheumatoid arthritis and slow the progression of joint damage from this condition may have to have some of their drugs stopped for a few weeks before surgery. These so-called disease modifying drugs are immunosuppressants and each hospital will have a policy relating to these drugs and timing of halting them prior to an operation.
Deep infection following hip and knee replacement is a devastating complication and often requires long periods of admission to hospital, multiple operations to try and get rid of the infection and is very expensive to treat in terms of long inpatient stays, expensive prolonged he operations and expensive revision (‘redo’) knee and hip implants. The outcome of patients who have had an infection and require surgical treatment is often poor, even after successful eradication of the infection. Following hip surgeries they may have a limp, leg length difference, muscle weakness or persistent pain. Often walking aids and additional care is needed. They are at risk of further revision procedures and function is reduced. Infection following knee replacements, even with the best treatment may give a stiff painful joint and reduced walking capability. Patients of working age can have long periods of absence from work and their employment threatened by the prolonged treatment required to treat and attempt to eradicate infection. Sometimes the whole total hip replacement has to be removed in an attempt to treat infection - what is called a Girdlestone procedure and this typically leaves the patient with a weak shortened leg and EXPERT WITNESS JOURNAL
Once the patient is admitted to hospital usually joint replacement patients are segregated from emergency admissions and medical patients to reduce the chance of cross infection from already infected patients. Preoperatively guidance will be given to the patients about having a shower or bath on a day of operation before they come into hospital, again reducing the number of bacteria carried on the skin. 38
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Once they arrive at the operating theatre the skin will be carefully prepared and draped with sterile drapes and antiseptic skin preparation. Sterile instruments will be used and the sterility confirmed and recorded in the nursing notes intraoperatively. During the surgery careful haemostasis (stopping bleeding), washing of the wounds with sterile fluid and careful closure with protective sterile dressings applied.
Mr Paul Partington Consultant Orthopaedic Surgeon MB BS FRCS FRCS (T&O) Provision of timely, detailed medico-legal reports in trauma, and clinical negligence for both claimant and defendant.
Postoperatively patients need careful management of any anticoagulants (blood thinning medications) with the correct dose and duration given. These anticoagulants may be prophylactic against deep vein thrombosis or pulmonary embolism, or restarting of anticoagulants for other conditions such as atrial fibrillation which require lifelong preventative treatment. This needs to be managed carefully so that excessive bleeding does not occur leading to haematomas, leaking wounds and infections.
Specialist interest and expertise in joint replacement complications and metal on metal claims. I have particular interest in hip and knee joint replacement and revision (re-do joint replacement) surgery, knee and hip arthroscopy and arthroscopic hip impingement surgery. I organise Royal College of Surgeons Hip and Knee Replacement courses, and have taught recently in the UK, Germany, Ireland and Italy on the subject of joint replacement. I am currently an examiner for the FRCS (Trauma and Orthopaedics) examination. Current member of the British Hip Society. Expert, Association of Personal Injury Lawyers. Consultations Newcastle, Washington, Morpeth and by arrangement nationwide.
If a haematoma or a leaking wound persists after surgery this has a great risk of developing an infection. This might be a superficial (surface) infection which can easily be treated by antibiotics, on the other hand, it can become a deep infection involving the joint replacement itself.
Contact: Mr. Paul Partington Tel: 07541 878 329 Email: paul.partington@btopenworld.com Web: www.pfpartington.co.uk Address: Dilston House, Corbridge, Northumberland NE45 5RH
Treatment of Infection. Deep infections involving hip and knee replacements are very difficult to eradicate. The bacteria stick to the metal and plastic and cement of the joint replacements and cannot easily be killed by either the body's defences or antibiotics. Often more surgery is required to debride, that is thoroughly clean the joint and remove as much infected tissue as possible. This together with powerful, specific antibiotics can eradicate joint infection completely. The chance of success of eradication of postoperative deep infection by debridement without removing the joint replacement itself depends on the timing. It is critical that this is performed earlier enough to get rid of the infection before it is taken a strong hold and cannot be removed from the joint without removing the joint replacement itself. Typically, debridement and retention of the prosthesis (joint replacement) is likely to work only if dealt with within the first few weeks after the joint replacement if put in. If a leaking wound is ignored and left too long then more major surgery in the way of revision (redo) of the joint replacement will be required.
removal of the joint replacement and the cement needs to be extremely thorough and avoid, as much as possible, making the situation worse with fractures, ligament damage, nerve or blood vessel damage and so on. Most often this surgery is what is called a two-stage procedure where the first operation is to remove the infected joint replacement, cement and infected soft tissue and then a second operation, usually several weeks later, is performed to put back a new joint replacement. Before the second operation can be performed there needs to be proof, as much as possible, that the infection has been eradicated usually with a further specimen of fluid removed from the joint (aspiration) and sent for analysis.
Revision surgery itself is technically difficult, should be performed by a surgeon appropriately trained and experienced in this surgery and with support of an interested Microbiologist. Preoperative specimens of fluid should be taken from the joint replacement to find out what bacteria is involved, intraoperatively multiple specimens should be taken to be sure of the organisms and the correct antibiotic treatment. The EXPERT WITNESS JOURNAL
Above: An infected hip replacement. 39
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Conclusion. Unfortunately despite all of the measures and improvements in healthcare, the increased expectation of joint replacement patients and the ability to perform surgery on higher risk cases that might have been denied previously, means that infection as a complication of joint replacements is here to stay. The numbers of hip and knee replacements continue to increase year by year. In good hospitals and trusts all of the preventative management for infection follows a protocol and treatment of infection is performed by an experienced multidisciplinary team with appropriate training and expertise. Unfortunately sometimes one or more steps in this pathway fall down and there maybe areas of care which fall below a standard expected by their peers. Simple examples might include omission of antibiotics or inappropriate timing of antibiotics at the time of implantation of the joint replacement. More complex failing might include inappropriate wound management and delay in debridement of a wound that is evolving towards a deep infection.
Mr Angus Strover Consultant Knee Surgeon In 1988 Mr Strover founded the Droitwich Knee Clinic, the first private knee surgery clinic in the UK for treatment of knee disorders, where he is a Director and member of the board. Mr Strover has specialised in ligament reconstruction at the knee, meniscal transplantation, cartilage transplantation, knee a rthroplasty and patello-femoral conditions including patella alta, dislocation of the patello-femoral joint, the plica syndrome and a simple method of correcting patella alta. He has been a specialist in knee surgery from 1985 to retirement in 2011, he now concentrates on medico-legal cases where injuries to the knee joint or the lower limb are concerned.
United Surgical Services 64 Springfields, Bugle, Saint Austell PL26 8SJ Area of work Nationwide Tel: 01726 338 126 Mob: 07791 870 719 Email: angusstrover2014@gmail.com
For these patients appropriate expert advice is required to determine whether infection and its complications were preventable, or correctly managed when they occurred or not. Paul Partington is a Consultant Orthopaedic Surgeon, and specialises in Revision Hip and Knee Arthroplasty. He is an experienced expert witness with a specialist interest in the complications of hip and knee joint replacement and has prepared independent reports for both Claimant and Defendant in this area of interest.
Mr Shahid Khan MA (Cantab) FRCS (Tr&Orth)
He can be contacted via his secretary Anne Slater on 07541878329 or via email paul.partington@consultant.com website: www.pfpartington.co.uk
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'Cyborg' Spinal Implant Could Help Paralysed Walk Again Previous experiments had shown that chemicals and electrodes implanted in the spine could take on the role of the brain and stimulate nerves, causing the rats' legs to move involuntarily when they were placed on a treadmill.
In technology which could have come straight out of a science fiction novel or Hollwood movie, French scientists have created a thin prosthetic ribbon, embedded with electrodes, which lies along the spinal cord and delivers electrical impulses and drugs. The prosthetic, described by British experts as ‘quite remarkable’, is soft enough to bend with tissue surrounding the backbone to avoid discomfort.
But this is the first study to show a simple gadget can help rats walk again and be tolerated by the body. Scientists have struggled to find a device which will sit next to the spine or brain because both are surrounded by a protective envelope of tissue which the hard surface of implants can rub against, causing inflammation and scar tissue.
Paralysed rats who were fitted with the implant were able to walk on their own again after just a few weeks of training. Researchers at the Ecole Polytechnique FĂŠdĂŠrale de Lausanne are hoping to move to clinical trials in humans soon. They believe that a device could last 10 years in humans before needing to be replaced.
Writing in the journal ‘Science’, where the results were published, science writer Robert Service said: "Soft flexible nerves connected to unyielding silicon and metal - the combination has spawned many a Hollywood cybord.
The implant, called ‘e-Dura’, is so effective because it mimics the soft tissue around the spine, known as the dura mater so that the body does not reject its presence. “Our e-Dura implant can remain for a long period of time on the spinal cord or cortex,â€? said Professor StĂŠphanie Lacour.
There is still a long way to go before we may see any practical use of such neuroprostheses in humans. But it may be that it is something that could potentially be developed for use in humans in the foreseeable future. â–
“This opens up new therapeutic possibilities for patients suffering from neurological trauma or disorders, particularly individuals who have become paralyzed following spinal cord injury.�
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Musculoskeletal Pain in Medicolegal Practice by Mr Charles Willis-Owen BM BCh MA(Hons) (Oxon) MFSEM FRCS (Tr&Orth) whether the volunteer received a shock but both the subject and the partner thought that they did so. The volunteer’s pain perception was rated after each shock. The findings of the study were that when shocks were delivered accidentally, they were perceived to be less painful than when shocks were delivered deliberately and furthermore, after a number of accidental shocks the perceived pain got
Pain is defined as an unpleasant sensory and emotional experience associated with actual or potential tissue damage. Pain is a perception created by the brain in a response to a noxious stimulus. We know from various situations in life, probably most notably with optical illusions, that the brain can easily be tricked into perceiving something which is not there. Perceptions are merely our brains interpretation of reality and therefore, the link between a noxious stimulus and the perception of pain is not linear or predictable. Well characterised pain pathways within the human body turn noxious stimuli in to the perception of pain, however exactly the same noxious stimulus can be perceived very differently by two different people. Take for example the ability of some individuals to walk across a bed of hot coals. For most human beings this would be agony, but for some people exactly the same noxious stimulus causes them no distress whatsoever. Similarly, the same individual, depending on the context of the stimulus, can perceive exactly the same noxious stimulus differently. Take, for example, the pain associated with being hit by a snowball thrown by one’s child versus being hit by an object thrown by an assailant and the latter is likely to be perceived as far more painful. This is because the brain colours the stimulus with an interpretation of how damaging the noxious event was intended to be in order to alter the perceiver’s behaviour in the future. There have been elegant scientific studies carried out to demonstrate this effect. Gray and Wegner in 2008 carried out an experiment using 48 volunteers who were connected to a device that could give electric shocks when a button was pressed. The volunteers each had a partner who would press the button which would deliver either an audible tone with no shock, or an audible tone with an electric shock of variable intensity. The catch was that when the partner pressed the button on some occasions a shock would be delivered but on other occasions just the audible tone would be delivered. The partner actually had no specific control over EXPERT WITNESS JOURNAL
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less and less, however, this was not observed with shocks that were delivered deliberately. This demonstrates the powerful effect of perceived intent on a person’s perception of pain and this is highly relevant to the medicolegal environment.
Mr Charles Willis-Owen Consultant Trauma and Orthopaedic Surgeon
This means that for any given injury, a Claimant’s perception of pain, where there is a feeling of injustice, is likely to be more painful than if the injury were sustained by accident in a “patient” who feels no such sense of injustice and blames themselves. This may account for the well known phenomenon in medicine that work related injures and difficult to treat whereas sports injures tend to do better! Just as beauty is in the eye of the beholder, pain is in the brain of the perceiver. For medical experts who spend most of their days seeing patients with specific injuries, it can initially be confusing or misleading when one subsequently sees a Claimant with exactly the same injury who reports much greater levels of pain.
BM BCh MA MFSEM FRCS(Tr&Orth) FEW
There is no clear way to measure pain objectively, or accurately assess how much pain the Claimant is really perceiving and therefore, one must be careful in jumping to conclusions if a Claimant reports more pain than would be normally expected by a “patient”.
Spor ts Or thopaedic Specialist Tel: 07800 838 272 Email: appointments@willis-owen.co.uk Web: www.sportsorthopaedicspecialist.co.uk Clients can be seen in Central London and in Bournemouth
Mr Willis-Owen provides about 80 reports per year with a mix of personal injury ann negligence work acting for claimant and defendant (90:10 split) as well as for the NHSLA and advising the GMC. His areas of specialist interest include all forms of knee injury and surgery, significant lower limb surgery and sports injuries and surgery. He is fully up to date with the current iteration of CPR35 and enjoys excellent feedback and repeat instructions.
With a detailed knowledge of the various different types of musculoskeletal pain it is possible to establish whether a Claimant is misrepresenting their symptoms and thus, a skilful expert can still reach conclusions by listening carefully to what the Claimant describes to them.
This means that it can be difficult for an expert to establish whether a Claimant is over reporting their pain for reasons of secondary gain and it can make establishing whether a Claimant is a reliable witness somewhat difficult. As well as intensity, pain is described in terms of its character. Descriptions of the character of pain are remarkably consistent for any given noxious stimulus. For example, broken bones often are associated with a deep ache, pain with movement, and a sensation that something is out of place. It would be most unusual for somebody to perceive a fracture as a burning pain, or stinging pain. By the same token ligament injuries where the ligament is completely snapped off are often not particularly painful, but where ligaments are partially torn and the remaining fibres are under excessive tension they can be very painful indeed. Fractures that have failed to heal for some time (non-union) present with a constant low grade background ache, and pain particularly more prominent at night time. Pain caused by infection is often associated with warmth, a sensation of pressure, and a strong psychological component with an underlying sensation that some thing is not right. Pain associated with malignancy can present with similar features but with prominent night time pain and pain using the affected part of the body. EXPERT WITNESS JOURNAL
In summary, pain is a perception, it is highly variable depending on the context, and differs both between individuals and within an individual depending on the surrounding circumstances. Pain perceptions do not always reflect reality and in general Claimants can be expected to suffer more pain for a given noxious stimulus than the patients that doctors see as part of their day-to-day practice. The descriptors used for certain types of pain tend to be remarkably consistent between individuals and careful attention should be paid to these when assessing the musculoskeletal pain described by a Claimant. Musculoskeletal pain has a variety of causes and there are typical presentations and descriptions for each cause. The severity of any pain is quite variable but the nature of the pain is usually not. For this reason instructing an expert who has a deep and detailed understanding of these facts and of the various presentations of musculoskeletal pain can make a considerable difference to the opinions and conclusions reached. ■ 43
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New Development in Spinal Cord Repairs A drug that can encourage nerves in the spinal cord to grow and repair injuries has been developed by US scientists. The study published in the journal ‘Nature’, showed some degree of movement and bladder control could be restored.
The research was carried out on rats and in tests, 21 out of 26 rats showed some degree of recovery either in their ability to move or in bladder function. Further testing in larger animals is needed before human trials can take place.
Damage to the spinal cord interrupts the constant stream of electrical signals from the brain to the body. It can lead to paralysis below an injury.
Professor Silver, who leads the team, sees any future therapy resulting from the research as working in conjunction with other treatments being pioneered such as nerve transplants and electrical stimulation.
The study was conducted by a team at Case Western Reserve University School of Medicine, in Ohio. The study noted that scar tissue formed after an injury prevented spinal cord repair. To prevent this, the drug works by disrupting the sugary proteins that are released by the scar tissue and act like glue. This prevents nerve cells from growing during an injury.
Plasticity Plasticity - the reorganisation and rerouting of signal pathways - is the major mechanism responsible for the spontaneous recovery we see in patients with spinal cord injury, but is very limited. Therefore enhancing plasticity is a major goal for the study. Dr Lyn Jakeman, from the US National Institute of Neurological Disorders and Stroke, said: "There are currently no drug therapies available that improve the very limited natural recovery from spinal cord injuries that patients experience.
The long spindly part of the nerve - the axon - gets trapped in the glue if it tries to cross the site of the injury. The research team injected a chemical under the skin which crossed into the spinal cord and disrupted the activity of the glue. The results were amazing - ‘the axons kept growing and growing,’ said lead researcher Prof Jerry Silver.
"This is a great step towards identifying a novel agent for helping people recover." ■
Ajit Ambekar
Dr Roger Slater
MCh.Orth., FRCS(Eng), EWI
Consultant in Anaesthesia & Intensive Care
Consultant Orthopaedic Surgeon
MBChB. BSc. MRCP. FRCA. FICM
Cardiff University Law School Certificate as Medico-legal Expert I am able to prepare expert witness reports and give
Consultant in Anaesthesia and Intensive Care in NHS practice since 1989.
evidence in court in my specialist areas of: • Orthopaedics and Bone and Joint Trauma • Muscle-tendons, peripheral nerves and soft-tissue injuries
Preparing medico-legal reports for 15 years.
Extensive experience in management of fractures in adults and children – (Exception: certain types of pelvic and cervical spine fractures.)
Has published peer review papers and articles in anaesthesia and intensive care practice.
I will act for either claimant or defendant and also as a Single Joint Expert (Exception: ‘Breach of Duty’ Report in Clinical Negligence arena.) As a Member of the Expert Witness Institute, London, my reports are in compliance of CPR 35, corresponding Practice Directions and the Civil Justice Council Protocol for Expert Witnesses.
Tel: 07710 280 348 E-mail: rogermslater@btinternet.com
As a Fellow of the American Academy of Orthopaedic Surgeons with Expert Witness Affirmation I am also able to provide percentage evaluation of Permanent Impairment, ‘DASH’ Score and the Judicial College Guidelines Category of Disability for international jurisdictions.
Correspondence address: Church Lodge Little Wenlock Telford TF6 5BD
I am prepared to undertake reasonable travel if necessary.
T: 020 7467 8309 / 07922 607 948 E: aa@ortho-trauma.uk / ajit.ambekar@me.com 10 Harley Street, London W1G 9PF EXPERT WITNESS JOURNAL
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First Do No Harm: Complications and Complaints will Change Pelvic Floor Surgery Using Mesh Implants in 2015 by Christine Landon, Consultant Urogynaecologist and Pelvic Floor surgeon. MB ChB, MD FRCOG Introduction An independent review would be set up to look into the possible under estimation of complications.
In a plenary session of the Scottish parliament on the 26th of June 2014 Alex Neil the Scottish cabinet minister for social justice gave a ministerial statement on the use of polypropylene (plastic) mesh devices in pelvic floor surgery.
What had happened to cause such an unprecedented parliamentary situation? A small group of Scottish women who had suffered severe complications following surgery using polypropylene mesh for urinary incontinence and prolapse had raised a petition (PE01517) on behalf of the Scottish mesh survivors – Hear our voice campaign, urging action to suspend mesh procedures and regulate their use.
He described hearing of the “horrendous” complications suffered by some women after vaginal mesh surgery for incontinence and prolapse. He related that traditional surgical methods without mesh had high failure rates of 25% or more and that the medicines and health care products regulatory agency (MHRA) had previously reported complication rates for mesh procedures of only 1-2.6%.
Alex Neil had noted that the American food and drug administration (FDA) had reclassified mesh surgery for prolapse from moderate to high risk and that the European device directive which had originally classified vaginal mesh as moderate or 2b risk was to increase it.
He was now concerned as to the real incidence of serious complications and that many might be going unreported. Mr Neil confirmed that he was asking all Scottish health boards to suspend the use of vaginal mesh pending an independent inquiry. Procedures involving mesh would be only be allowed if they were part of a clinical trial. EXPERT WITNESS JOURNAL
What are these complications and what is the real incidence? All adverse events regarding mesh implants should be reported to the Medicines and Healthcare 45
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products Regulatory Agency (MHRA) who can remove devices from the market on sufficient evidence of complications. They rely on events being correctly and fully reported. This may not be happening. The true rate of complications is unknown
bowel were at risk of possible perforation. This prompted the development of a technique whereby the tape would be fixed more laterally and would not enter the pelvis. By 2003 Professor Jean De Leval from the University of Liege in Belgium had developed a method whereby a mesh tape would be fixed via attachments to lateral pelvic tissues including the obturator membrane and muscles in the groin and inner thigh. This would lessen the risk of damage to organs behind the pubic bone.
Complications of vaginal surgery using mesh implants There are over 100 procedures described in the medical literature that are designed to cure urinary stress incontinence or pelvic organ prolapse in women which perhaps suggests how difficult it is to achieve good results. In the 1990’s the colposuspension was the gold standard procedure for urinary stress incontinence with cure rates of up to 85%.
“We have developed a novel surgical treatment of urinary incontinence, the transobturator inside- out tension-free urethral suspension, which uses specifically designed surgical tools, and in which a synthetic tape is passed from underneath the urethra, through the obturator foramen, towards the thigh folds, without entering the pelvic region at any time during the procedure”.
This surgery however required internal suturing through a significant incision across the lower abdomen so a search was on to provide a minimally invasive procedure that was not only relatively straight forward to perform but also had a short learning curve, good cure rates, a short recovery time, low risk and low cost.
“The procedure was carried out in 107 consecutive patients (mean age: 62 years) using the same operative protocol in all case subjects. The operative time was 14 min and no bladder or urethral injuries and no vascular (hematoma or bleeding) or neurological complications were encountered.” Jean de Leval 2003
A procedure that seemed to meet these criteria known as the tension-free vaginal tape (TVT) was eventually developed by Professor Ulf Ulmsten and colleagues at Uppsala university in Sweden. He carried out clinical trials for his device that involved using trocar needles to insert a small net tape made of polypropylene plastic under the urethra of incontinent women. This tape became fixed by tissue adherence behind the pubic bone (retro pubic approach) to form a support which prevented the urethra from opening during physical activity and thereby curing incontinence in over 80% of women treated.
This became known as the TVT-O (Obturator approach tape) also supported and then manufactured by Johnson and Johnson The mid urethral sling tapes soon became the gold standard procedure for urinary stress incontinence and have remained so until now.
Randomised controlled trials subsequently showed the TVT or sub urethral tape, also known as a mid urethral sling (MUS) to be equivalent to the colposuspension in effectiveness yet only 3 small incisions were required, morbidity was low and recovery was rapid. Response to the new procedure was enthusiastic. Johnson and Johnson developed the device in 1996 and following in the wake of this seemingly brilliant innovation in pelvic floor surgery many other medical device companies began producing similar devices and special kits to enable easy insertion of a mesh tape beneath the urethra. The research that went into many of these copycat devices was however somewhat variable.
Above: Normal urethral support.
Encouraged by the success of tapes for incontinence and the grade 1 level evidence for the success of polypropylene mesh reinforced hernia repairs in reducing recurrence, polypropylene mesh inserted vaginally began to be developed for vaginal wall prolapse repairs.
The method originally involved inserting quite large needles behind the pubic bone to position the tape. Organs in the pelvis such as bladder, blood vessels and
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High recurrence rates for prolapse in women after native tissue repairs had long been a problem reaching 25 to 30 % in some studies. Polypropylene mesh reinforcement to support the vagina, bladder and rectum via the more minimally invasive vaginal route seemed to be a promising way forward for restorative longevity and successful outcomes for many women.
Women’s complaints frequently related to distressing vaginal or thigh and leg pain, bladder problems and sexual difficulties. So what went wrong? As with all surgical procedures particularly with those involving the insertion of material foreign to the human body, there will be complications. Some complications following vaginal mesh surgery are now known to be particularly problematic and may lead to litigation.
Mesh had in fact been used for sometime to elevate and attach the vagina when weakened following childbirth or hysterectomy by to the back of the pelvis through an abdominal incision (Abdominal approach sacrocolpopexy).
These complications include chronic pain, infection, mesh erosion and exposure, mesh contraction or shrinkage, mal positioning of the mesh, bladder dysfunction and damage to adjacent structures.
Later, laparoscopic techniques were developed with good results but very long learning curves. Complications relating to mesh within the abdominal cavity had been reported such as organ damage, bowel obstruction and serious infection at the site of the mesh attachment to the sacrum resulting in spinal complications.
Pain. Pain may occur after any vaginal mesh implant and may be due to mesh exposure or contraction, erosion, nerve damage, scarring or tension effects within pelvic tissues. In many cases pain resolves a few days after surgery but it may last for weeks or months and require revisional surgery including removal. Obturator approach tapes can cause significant pain in the groin, thigh or leg. This may be due to damage or irritation of the obturator nerve or muscles. Many surgeons choose not to insert obturator tapes into the thigh area particularly in young women and those keen on sports reserving these for women where a retro pubic approach may be challenging.
Trans vaginal mesh repairs were therefore welcomed as providing potentially easy surgical access, short recovery times and long term success. As with the tapes many medical device companies developed similar but individually different pre prepared kits to allow shaped polypropylene mesh to be inserted and fixed into position through vaginal and small external incisions. Mesh began to be used regularly worldwide for prolapse repairs with the aim of permanently restoring bladder and bowel function, relieving symptoms of a protruding bulge and reducing discomfort.
Mesh exposure and erosion. Mesh exposure (or extrusion) where mesh is directly visible or palpable within the vagina may be recognized shortly after surgery or many years later.
Clinical trials from the developers of the original trans vaginal mesh procedures showed good initial results but problems began to occur.
Exposure may be limited to a small area such as a few fibres or the entire sub urethral portion of a tape may be visible and present with pain, discomfort or unpleasant discharge from the vagina. An exposed mesh may also be felt during sexual intercourse by the patient or their partner and can cause bladder problems.
It should be emphasised at this point that many women electing to have pelvic floor surgery using mesh reinforcement were reported to have a successful outcomes and that over a million of women throughout the world have been treated for distressing incontinence and prolapse using these techniques. However, some women particularly in the USA began reporting serious problems and complications following polypropylene implants and some also began to seek significant compensation through litigation. The problems became increasingly significant. Class actions against trans vaginal mesh companies were started in the USA and many mesh kits were withdrawn from the market following FDA action requesting follow data for mesh implant procedure from medical device companies. EXPERT WITNESS JOURNAL
Above: Mesh used in transvaginal POP repair
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Obturator tape exposures may a occur in the lateral lower vagina and may be due to operator error with failure to recognize buttonholing of the tape through the vagina.
Christine Landon Consultant Urogynaecologist and Pelvic Floor Surgeon MB ChB, MD, FRCOG.
Exposure is more likely to occur if skin is of poor quality due to the menopause or other health issues. Smoking is known to adversely affect healing.
Christine Landon qualified in 1981 in Leeds and has been a Consultant in urogynaecology and pelvic floor surgery since 1991 at St James University Hospital, Leeds.
Larger exposures will not heal and need surgical management as soon as they are recognized as patients often find this problem very distressing.
She became a member of the Royal College of Obstetrics and Gynaecology in 1987 and Fellow in 1997. She went on to achieve a postgraduate MD thesis studying the biomechanics of human female tissues and the causes of female incontinence and prolapse. Dr Landon was awarded the Blair Bell lectureship prize by the Royal College of Obstetricians and Gynaecologists for her research in tissue biomechanics and more recently first prize for a video demonstration of new pelvic floor surgery by the American Association of Surgeons.
The exposed part of the mesh may be excised. Simple over sewing of epithelium over exposed mesh without excision is often unsuccessful as epithelialization may have already occurred beneath the mesh or there may be chronic low grade bacterial colonization of the exposed mesh affecting healing.
Dr Landon is particularly interested In minimally invasive techniques and specialises in recurrent difficult problems requiring more complex revisional surgery including problems occurring after previous mesh surgery. Dr Landon has been the Royal College director for Urogynaecology surgical training in Leeds and is currently the director of the Pelvic Floor Centre at Nuffield Hospital, Leeds and the Chairman of the Medical Advisory Committee. She acts as an expert witness for complications following gynaecological and pelvic floor surgery including surgery using mesh implants.
Mesh that is obviously infected may need antibiotics and complete or partial removal. Excising exposed portions of sub urethral mesh may lead to loss of mesh integrity and effectiveness so that urinary incontinence may reoccur.
Dr Christine Landon Leeds Nuffield Hospital, 2 Leighton Street, Leeds LS1 3EB Tel: 0113 388 2127 - E-mail: christilandon@gmail.com
Obturator approach tapes can cause significant pain in the groin, thigh or leg. This may be due to damage or irritation of the obturator nerve or muscles. Many surgeons choose not to insert obturator tapes into the thigh area particularly in young women and those keen on sports.
If it is suspected then action can be taken to loosen the tape. This can only be carried within the first 7 to 10 days after which tissue adherence to the tape will not allow adjustment. Many surgeons advise taking this action sooner rather than later particularly if the patient is unable to void at all.
Damage to adjacent structures. Insertion of vaginal mesh may cause direct damage to the bladder urethra or bowel. Surgeons are advised to examine the bladder cystoscopically after mesh insertion particularly if damage to bladder integrity is suspected.
If a voiding problem remains unrecognised the patient may suffer with marked frequency, urgency and incontinence. This may be compounded by recurrent urinary infections and cystitis symptoms. If this does not resolve then action is required to incise and release the tape in order to restore voiding function and urinary flow through the urethra but removal of the sub urethral portion of the tape may be required.
Mesh penetrating the bladder must be removed. Failure to recognize mesh within the bladder at the time of surgery may lead to severe problems such as pain, chronic infections, stone formation, haematuria, fistula formation and incontinence.
Any revision of the tape may lead to recurrence of urinary incontinence and the requirement for further surgery.
Inadvertent insertion of mesh into bowel is potentially life threatening due to possible leakage of bowel contents causing overwhelming infection and organ failure. Immediate assistance from a colorectal colleague may be required.
The mesh is in the wrong place. A tape may be situated at the bladder neck rather than in the mid urethral position. This may be due to operator error or the tape may have become dislodged in the post operative period.
If bowel damage has occurred it may be advisable not to proceed with mesh insertion due to an increased risk of infection and fistulation.
Patients may present with pain, urgency, poor bladder emptying, sexual difficulties and chronic infection
Damage to blood vessels can cause severe haemorrhage or haematoma formation. Transfusion and reoperation may be required.
Mesh may also erode into bladder bowel or urethra over a period of time.
Malpositioning of a suburethral tape. The tape is too tight A sub urethral tape should be under no tension, a tight tape will lead to bladder emptying problems and pain. EXPERT WITNESS JOURNAL
Mesh contraction, shrinkage or retraction. In some patients polypropylene mesh is known to contract or shrink. This can cause severe vaginal pain 48
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They noted the NICE guidelines data which had shown that up to one year, vaginal mesh implants for incontinence had a peri-operative complication rate of 1-12% but was up to 6.5% if mesh is used for prolapse.
due to tension on vaginal tissues and nerves or alteration of the vaginal anatomy such as narrowing. Sexual function can be markedly affected. There is often tenderness over lateral mesh fixation straps. Surgical intervention may be required to divide contracted fixation straps or remove contracted mesh. The exact cause and reason for a variable contraction response within the tissues of some patients and not others is not fully known.
Although the data regarding vaginal mesh implants for prolapse is less clear NICE guidance had also reported that vaginal mesh implants offered significant improvements in failure rates compared with surgical repairs undertaken without mesh.
Infection. This can be reduced by the use of antibiotic prophylaxis at the time of surgery and attention to technique and operative sterility. The type of mesh or tape is extremely important. A type 1 mesh is advised as the pore size and type of weave optimisizes the ability of defensive cells such as macrophages to eliminate bacteria and produce uniform adherence.
The MHRA therefore concluded that The overall benefits appeared to outweigh the risks and that whilst some women have experienced distressing and severe effects, the current evidence shows that when these products are “used correctly� they can help alleviate the very distressing symptoms of incontinence and prolapse. The Scottish pelvic floor network has issued a statement reinforcing the advice from the Royal College of Obstetricians and Gynaecologists (RCOG) and the British Society of Urogynaecology (BSUG) to adhere to the NICE guidelines in the management of stress urinary incontinence and prolapse which specify that all suitable treatment options be offered to women undergoing and consenting to surgery.
Recurrent urinary tract infection should prompt investigation for mesh problems. Bladder over activity may follow vaginal mesh surgery causing urinary frequency, urgency and urge incontinence. If there is outflow obstruction it may resolve after tape release but medication or further intervention may be required. What is the real incidence of these complications? Various authorities and regulatory bodies have recently examined the literature to clarify this.
NICE interventional procedure guidance states that The evidence suggests that surgical repair of vaginal wall prolapse using mesh may be more efficacious than traditional surgical repair of vaginal wall prolapse without mesh but that risk of complications that can cause significant morbidity. Therefore, this procedure should only be used with special arrangements for clinical governance, consent and audit or research.
The York Report was commissioned by the MHRA and produced by the University of York. An analysis of all data from systematic reviews published in the last 10 years was undertaken with results as follows. For mid urethral slings post operative pain erosion/exposure deterioration in sexual function need for reoperation
0-1.9% 0-5.8 % 1.9-13% 0.5-6%
For trans vaginal mesh pain after 6 months erosion/exposure problems with sexual function reoperation organ perforation
5.5% 6.5% 15.3 % 4% 2.1%
Clinicians wishing to undertake surgical repair of vaginal wall prolapse using mesh should take the following actions. Inform the clinical governance leads in their Trusts. Ensure that patients understand that there is uncertainty about the long-term results and there is a risk of complications, including sexual dysfunction and erosion into the vagina, which would require additional procedures. They should provide them with clear written information. In addition, the use of the Institute's information for patients ('Understanding NICE guidance') is recommended. Audit and review clinical outcomes of all patients having surgical repair of vaginal wall prolapse using mesh
There was a wide variance in complication rates suggesting that other factors, such as surgical skill or individual patient characteristics were playing a significant role in an individual woman’s likelihood of experiencing significant problems.
and that - This is a technically challenging procedure that should only be carried out by gynaecologists with special expertise in the surgical management of pelvic organ prolapse. Specific training is required when trocar introducer systems are used for the insertion of mesh.
The MHRA executive summary from their recent report states that there appears to be no evidence that vaginal mesh implants are unsafe and that 10 year data indicates significant long-term benefits in the majority of women undergoing these procedures (13,500 women per year in England). EXPERT WITNESS JOURNAL
A case series using non-absorbable synthetic mesh reported new sexual problems in 36%. Mandatory reporting of complications to the MRHA has been proposed and all surgeons are recommended to audit their outcomes. The use of the national registry for all incontinence and prolapse procedures is also supported. 49
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Mesh contraction (shrinkage) is a previously unidentified risk of transvaginal POP repair with mesh that has been reported in the published scientific literature and in adverse event reports to the FDA since the Oct. 20, 2008 and reports in the literature associate mesh contraction with vaginal shortening, vaginal tightening and vaginal pain.
Litigation Failure to select the correct patient, failure to inform and consent, surgical failure, device failure, failure to listen, failure to explain, failure to act, failure to refer There are clearly a number of factors leading to the controversies besetting vaginal mesh implants and the complications that some women have suffered.
IUGA position statement The International Urogynecological Association (IUGA) supports the use of mid-urethral slings (MUS) as one of the options for the surgical management of female stress urinary incontinence.
These seem to centre not only around the patient selection and possible lack of surgical experience or inadequate training leading to poor technique and sub optimal surgical standards for some women but also the inherent properties of plastic mesh and the human tissue response to it in some patients.
Conclusion Pelvic organ prolapse and incontinence may occur in up to 50% of childbearing women and the need for surgery is common.
Surgeons may be taking on procedures that appear to be straightforward and that are marketed to them and presented in handy kit form but that are in reality technically challenging to get absolutely right.
Recent studies have shown surgeon experience to be one of the most significant predictors of successful outcome and there is evidence in the literature for good results for synthetic mesh procedures carried out by fully trained surgeons with a high volume practice. In carefully selected and counselled patients it may be the best option for incontinence or when prolapse is severe and recurrent.
There is evidence in the literature that good results can be achieved by well trained surgeons with a high volume of cases. Mesh surgery requires good anatomical knowledge, precise tissue dissection and accurate placement to avoid problems and there is a significant learning curve.
The incidence of complications varies with operative experience and there is a learning curve that requires further study. The perfect mesh is not available.
Careful Patient selection is vital and the marketing of mesh devices to all surgeons who might be able to do the procedure due to commercial pressures is unwise. Training courses including mentoring by experienced surgeons and assessed competency certification for mesh procedures may help.
Some complications can be very difficult to treat, such as pelvic pain and voiding dysfunction, and patients should be referred early for expert advice and be made fully aware of these complications prior to surgery.
Failure to follow up and examine women carefully after mesh surgery must be avoided as should a paucity of knowledge regarding the management of complications.
In June 2013 a jury delivered its verdict in the J&J Prolift Mesh Trial, Class action. New Jersey.
Referral to a revisional surgeon should be considered before the problem becomes chronic and difficult to manage. A head in the sand approach to complications will always lead to problems.
After a month-long trial nine jurors awarded $7.76 million in punitive damages to the plaintiff a 47-yearold nurse from South Dakota who complained of chronic debilitating pain.
Failure to listen to patients causes frustration and anger. If problems occur they must be explained. The message is always communicate‌communicate communicate‌but also individual physicians do now have a duty of candour.
The jury ruled that J&J did not defectively design the mesh and did not make fraudulent misrepresentations to the surgeon. The legal team argued that J&J had known about problems with the Prolift mesh but failed to adequately warn about potential problems and risks in their literature and instructions for use.
Controversies should be discussed as patients will not be thankful later if they are not. The FDA has recently issued a safety communication update stating that Serious complications associated with the insertion of synthetic mesh for pelvic organ prolapse are not rare and that mesh contraction could cause significant problems.
The jury awarded $3.35 million in compensation for loss of earnings, medical expenses and husband’s loss of companionship. Punitive damages brought the total award to over $11 million. This was the first of over 2,000 cases listed in the New Jersey courts against Ethicon and J&J.
Furthermore, it is not clear that transvaginal POP repair with mesh is more effective than traditional non-mesh repair in all patients with POP and it may expose patients to greater risk. EXPERT WITNESS JOURNAL
Johnson & Johnson announced that it would be appealing against the verdict, the share price did not fall. 50
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Since then in the USA and as of June 10, 2015, trans vaginal mesh plaintiffs have won twelve trials for and the defendants have won three. It is now clear that the Scottish women who have courageously brought their anguish and highlighted their problems to the public and medical profession will make a significant change to the way that all pelvic surgery using polypropylene mesh is carried out in Europe including who carries it out on whom and how it is monitored. On 12 May 2015 the Scottish petition committee agreed to write to the European Commission's Scientific Committee on Emerging and Newly Identified Health Risks, the Royal College of Obstetricians and Gynaecologists and the British Society of Urogynaecology. If the number of signatures reaches 100,000 the petition will be considered for debate in the House of commons.
‌I will not be ashamed to say “I know notâ€? nor will I fail to call in my colleagues when the skills of another are needed for a patient’s recovery. From the Hippocratic covenant Primum non nocere
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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.
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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.
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BMI Woodlands Hospital, Morton Park, Darlington DL1 4PL T: 01325 341 700 M: 07855 312 901 E: simonfulford@nhs.net
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Dental Expert Witness Profiling Professor Paul Tipton, BDS, MSc, DGDP Professor Paul Tipton has extensive experience as an expert witness in cases involving dental negligence as well as personal injuries sustained to teeth and supporting structures. Having developed a high level of expertise in the medico-legal field, dealing with such cases from a legal report and treatment perspective, he is able to act in cases relating to: • • • • • • • • •
Cosmetic Dentistry. He is currently President of the British Academy of Restorative Dentistry (BARD). Over this time Professor Tipton has represented many patients as their dental expert witness receiving numerous plaudits for his work. Monic Bhakri of Attwood Solicitors was certainly impressed. “We instructed Professor Tipton with regards to a personal injury matter which involved complex issues involving the restructuring of the tooth as a result of an accident, " she said. “With his specialist expertise he provided us with a thorough in-depth analysis of the claimant’s injuries and the solution to resolve the severely damaged tooth. Professor Tipton was concise and efficient and provided us with a thorough dental report. I would most certainly recommend him in the future for such cases involving complex dental injuries.”
Prosthodontics Dental Implants Cosmetic Dentistry Aesthetic Dentistry Temporomandibular Joint (TMJ) Restorative Dentistry Tooth Loss Dental Bridgework Dental Veneers
Professor Tipton gained his Masters Degree after two years study at the Eastman Dental Hospital and London University graduating with an MSc in Conservative Dentistry. The following year he began teaching the new MSc in Restorative Dentistry at Manchester University and now runs his own Restorative, Cosmetic and Implant courses from his Tipton Training Academies in Leeds, Manchester, London and Liverpool.
Problems with jaw joints can also lead to personal injury claims, including those relating to whiplash which is the most common head and neck injury in vehicle accidents without a direct head impact. Whiplash injury affects the temperomandibular joint (TMJ) in around a third of cases, many of which go unreported to the solicitor as symptoms are not initially linked to the accident. If untreated, whiplash injury can lead to osteo-arthritis and other jaw joints problems in later life. Professor Tipton can also act in these cases and advises that all whiplash injury affecting the neck should also be screened for TMJ injuries.
The experience Professor Tipton has in dentistry means he is THE Dental Expert Witness. He is a founding member of the Academy of Expert Witnesses, a member of the British Academy of Experts, the Expert Witness Institute and the Association of Personal Injury Lawyers as well as being a Fellow of the Royal Society of Medicine.
As a leading specialist in the field of dentistry, Professor Tipton is committed to delivering expert witness advice – whether acting for the defendant or the claimant – in a timely, professional and concise manner. Communication is paramount throughout the entire process in order that he can provide the courts with clear, accurate reports to assist them with their decisions. Although based in Manchester, Professor Tipton also works out of London and is available for all cases across the UK and Ireland. ■
In 1992 Professor Tipton was awarded the D.G.D.P. from the Royal College of Surgeons and appointed a member of the BDA Independent Practice Committee. In 1999 he was awarded Specialist status in Prosthodontics from the General Dental Council. He regularly lectures at home and abroad and is renowned for his one-year Restorative and Cosmetic Dentistry and Implantology courses, where over 2,500 dentists have graduated during the last 20 years, and for his numerous articles on Implantology and Cosmetic and Restorative dentistry.
To speak to one of Professor Tipton’s team for further information or to enlist his service please call 0161 348 7843 or 0161 348 7844 or you can email enquiries@drpaultipton.co.uk.
He is on the editorial board of Private Dentistry magazine and Restorative and Aesthetic Practice and was a founding member of the British Academy of Aesthetic Dentistry and the British Academy of EXPERT WITNESS JOURNAL
Professor Tipton’s personal website has a lot more information on his experience – please visit www.drpaultipton.co.uk/expert-witness. 52
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Is your opinion worth a million? Towards the end of last year, Apple awarded one expert witness ÂŁ1 million ($1.75 million) to construct a damages figure in the case against Samsung. 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. Find an expert using the only Free Searchline facility in the UK on 0161 834 0017
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Gene Therapy Trial Pioneers Reversing Some Previously Incurable Forms of Blindness However, Professor MacLaren and his team have found a way of restoring a functional CHM gene to the eye, by transporting it in the cell of a harmless virus, which is injected underneath the retina with a very fine needle. The gene then produces the necessary protein – REP1 – repairing the remaining light-sensitive cells and halting the shrinking of the retina. Scientists hope early intervention with the surgical treatment will halt progression of choroideremia (PA).
The sight of thousands of people with previously incurable forms of blindness could be saved thanks to a pioneering new gene therapy that requires just one operation. In what scientists called a “very promising” first trial, six patients have been successfully treated for choroideremia – an inherited disease that leads to a gradual loss of sight and eventually total blindness. While the condition itself is rare, the success of the new treatment holds out the hope that similar methods could be used to halt the progress of other genetic causes of blindness – including age-related macular degeneration, the most common cause, which affects 500,000 people in the UK alone.
Of the six patients to receive the treatment, all aged 35 to 63, two have reported improvements in their vision and the other four have reported no further loss of vision. Professor MacLaren said that while it was too early to say for certain if the gene therapy would last “indefinitely”, improvements had been maintained for two years in the case of one patient. A new cohort of three patients has now been treated, receiving a higher dose of CHM to see if the impact can be improved upon.
The treatment, carried out by scientists led by Professor Robert MacLaren, of the University of Oxford, halts the damage done by choroideremia by restoring a defective gene in the retina. In sufferers, a lack of proteins produced by the defective CHM gene leads light-sensitive cells in the retina to slowly stop working, and eventually die off. The disease is often diagnosed in childhood or young adulthood. As it progresses the surviving retina gradually shrinks in size, reducing vision.
The trial’s success means that a second phase trial could be carried out within a year. Professor MacLaren said that, if successful in later trials and passed by regulators, the technique could be available widely within three to five years. ■
Mr Jeffrey S Hillman Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence. I have been preparing reports supported by Literature references in personal injury and medical negligence cases for over 20 years. Between 1992 and 2012 I have advised in 1118 cases, 66% for Claimants solicitors and 30% for Defendants solicitors and 3% on joint instruction to bring my figures up to date. I have a rapid response facility for cases with tight time constraints.
Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com
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Equipping the Expert Witness for Cases of Suspected Child Sexual Abuse by Dr Geoff Debelle, Officer for Child Protection, Royal College of Paediatrics and Child Health The 4th Edition of “The Physical Signs of Child Sexual Abuse: an evidence-based review of guidance for best practice” (often referred to as the “Purple Book”) was launched at the offices of the Royal College of Paediatrics and Child Health (RCPCH) on 20th May 2015. The first edition was published by the Royal College of Physicians in 1991, in the wake of the Cleveland Inquiry that recommended the medical profession agree a consistent vocabulary to describe physical findings that may be associated with child sexual abuse and to seek to understand the natural history and significance of such signs. This was updated in 1997. Following the growing recognition of the importance of evidence-based medicine, the 1997 edition of the RCP book was revised in line with the research evidence with The Physical Signs of Child Sexual Abuse: An evidence-based review and EXPERT WITNESS JOURNAL
guidance for best practice published in March 2008 by the RCPCH. This latest edition of “the Purple Book” – it has retained its distinctive purple colour – is the result of a full evidence-based review. There is a chapter devoted to each key category of sign that, after defining the relevant anatomy, provides an evidence- based review and analysis and then identifies key issues for clinical practice, based on the evidence statements. It covers additional areas to support decision making around suspected child sexual abuse including healing of anogenital injuries, genital bleeding in pre-pubertal girls, and anogenital signs of accidental injuries in girls and boys, which are all critical areas to support evidence-based legal practice.
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The evidence statements are the result of a substantial collaboration between the RCPCH, the Faculties of Forensic and Legal Medicine and Genitourinary Medicine of the RCP and the American Academy of Pediatrics (AAP). It represents a huge effort and is a work of great scholarship. It is the collaboration with AAP that is so important and truly groundbreaking. This edition has gone to print with substantial agreement on all the evidence statements and clinical practice issues from experts in the field from both sides of the Atlantic. The security of the available evidence inherent in such agreement should obviate the apparent need for independent experts from outside the UK to be instructed on a case of suspected child sexual abuse within a UK jurisdiction. This is to be welcomed.
Safeguarding Children
14-15 September 2015, RCPCH London An intensive, practical course developed in conjunction with Bond Solon, an award-winning expert witness training company and Dr Jamie Carter, Assistant Child Protection Officer, RCPCH. • Understand the expert witness role in the judicial process. • Learn how to produce high-quality reports and statements. • Develop your skills in order to give effective oral evidence. • Understand the relevant law and procedure. Further information and to book: Web: www.rcpch.ac.uk/events Email: events@rcpch.ac.uk
The section on the extent of anogenital signs is particularly useful from a medico-legal context, as it draws attention to the lack of residual signs of penetrative abuse in a high proportion of cases of suspected child sexual abuse. Thus, it is important that child protection agencies, including the Police, and legal experts continue to assess and, indeed prosecute a case of suspected child sexual abuse on the basis of a reliable testimony from the child, despite the absence of so-called corroborative physical evidence. The chapter provides the evidential power for such a conclusion. Many practitioners have seen cases of suspected child sexual abuse dropped because of lack of corroborative physical signs. This must change and this chapter provides the evidence for such change.
Tel: 020 7092 6104
12 CPD POINTS
protect infants, children and young people across the UK. The RCPCH deliver an annual training course for paediatricians, in partnership with Bond Solon, to develop excellence in child protection expert witness work. For information about this course, or to purchase a copy of ‘The Physical Signs of Child Sexual Abuse’ please see www.rcpch.ac.uk/physical-signs-child-sexual-abuse.
In his wise and generous foreword to this edition, His Honour Lord Justice McFarlane draws attention to the “tone” of the advice, evident on every page. By this he meant that the evidence statements were not overstated or dogmatic but steered a reliable course between signs of non-abuse to abuse. He makes the point that this book is ‘not intended to be a guideline for the diagnosis of child sexual abuse’; rather it has been developed as an aid to clinical decision-making. At the end of the day, the professionals involved draw on their expertise and experience, weighing up the particular aspects of the case with the evidence available to come to a reasonable conclusion that will be in the best interests of the child, the family and justice.
Physical signs of child sexual abuse - 2015 This evidence-based review and guidance for best practice is a revision of the 2008 Royal College of Paediatrics and Child Health (RCPCH) publication 'The Physical Signs of Child Sexual Abuse’. Based on the best available evidence, it has been produced in collaboration with the American Academy of Pediatrics (AAP), the Royal College of Physicians of London (RCP) and The Faculty of Forensic and Legal Medicine (FFLM).
The RCPCH prepares paediatricians to take on the expert witness role, by providing the appropriate knowledge, skills and support they need to identify and articulate key clinical indicators of sexual abuse to signal or differentiate physical signs from other conditions and, ultimately, to better EXPERT WITNESS JOURNAL
Expert witnesses in child protection: developing excellence
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Asbestos
Real Risk and Perceived Risk by Prof Roger Willey, BSc(Hons), PhD, FRSA, CFIinstP, CFIOSH, OSHCR - Managing Director, ACS Physical Risk Control Ltd The United Kingdom was the first country in the world to have an industrial revolution. Society changed from being predominantly rural and feudal into the industrial power house of the world. Unfortunately, our revolution occurred before the invention of the internal combustion engine and our developments were almost entirely steam driven. Steam boilers are notorious for heat loss. To make them more efficient they required to be insulated. The best and cheapest material at this time was, of course, asbestos. The UK built the largest and fastest ships in the world and built more ships than any other country in the world. We also built the fastest steam locomotives and exported them around the world. It is not difficult to see why the UK, at this time, imported more asbestos than any other country in the world. The legacy is that we now have one of the highest incidences of asbestos related diseases in the world. EXPERT WITNESS JOURNAL
As a result, most people in this country know that inhalation of airborne asbestos fibres can cause fatal lung diseases and have developed a respect for the material. In some cases, however, the respect has become fear – driven in many cases by the populist press. How many times have you heard “asbestos is so dangerous that if you breath in one fibre then you will die”? This “single fibre theory” has undoubtedly caused great concern to many people and, in many cases, has led to considerable expenditure on asbestos remediation. To make informed decisions it is essential that professionals have an understanding of the difference between REAL risk and PERCEIVED risk. The key question of the singe fibre theory is, of course, is it true ?
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There can be no question that up to the end of the Second World War most usage of asbestos in the UK was in heavy engineering, as described above, and that was predominantly where deaths occurred. Unfortunately, WWII changed that for ever. Many of the UK’s major industrial cities were heavily bombed during the war and large numbers of buildings and homes destroyed. After the war there was a major building programme to rehouse tens of thousands of displaced people. This was at a time when the country was virtually bankrupt and conventional building materials such as stone, brick and wood were in very short supply. There was a large amount of asbestos left over from the war effort and, because of its remarkable properties, coupled with its relatively low cost, it proved to be ideal for the rapid and inexpensive construction of homes. Most people of a “certain age” will remember the post war pre-fabricated houses – many of them still standing and still serviceable. Once introduced to the construction industry asbestos usage spread to the vast number of applications we see today. To fuel this demand the importation of asbestos into the UK increased from just under 10 000 tonnes in 1930 to over 170 000 tonnes by 1950.
We have lived in a scientific age for over 400 years. Theoreticians develop new ideas and make predications. Experimental scientists then test these predictions. If the prediction and the experiment do not agree then one of them must be wrong. This is the scientific way. In the present case the experimental data comes from post mortem studies and is very unlikely to be wrong. Therefore the theoretical predication must be wrong. How did we arrive at the prediction? By assuming that one single fibre will kill. Clearly there is no scientific justification for this “theory”. As part of my job I regularly prepare Expert Witness Reports in asbestos related cases – over 500 to date. In October 2012 I was involved in a typical mesothelioma case. The person was diagnosed with mesothelioma (medical opinion at this stage). He then passed away and post mortem tests confirmed mesothelioma (medical fact). A sample of biopsy material was sent for electron microscopy analysis and the number of asbestos fibres per milligram identified. By multiplying this figure by the average weight of a human lung we can obtain an estimate of the total lung loading. This calculation indicated some 102 million asbestos fibres in the lung. Further studies have confirmed such a lung loading to be typical in mesothelioma deaths.
All buildings constructed at tax payers’ expense must conform to the basic rule of “best quality and lowest price” – precisely the qualities of asbestos. The result was that most buildings constructed by Local Authorities, Hospitals, Clinics, Schools, Colleges, Universities, MOD, etc contained asbestos. Because of this, the majority of people in the UK have spent, and still spend, considerable time in buildings which contain asbestos products. Prof Seaton’s early post mortem studies at the University of Aberdeen indicated that more than 60% of people in the UK had asbestos fibres in their lungs at point of death and it WAS NOTHING TO DO WITH THE CAUSE OF DEATH. Post mortem work in our large cities indicate a figure closer to 100%.
A single fibre kills – I think not!!!
PROF ROGER JAMES WILLEY Health and Safety/Environmental & Waste Management BSc (Hons), PhD, FRSA, FInstP, FIOSH, OSHCR
Roger established the first commercial Asbestos Test House in Scotland in 1978. He has carried out research, consultancy and training in asbestos related topics and has overseen some 83,000 commercial asbestos contracts, working throughout the UK, Canada, USA, Middle East, India, Nigeria, Japan and the Falkland Islands.
Let us explore this. There are currently some 60 million people in the UK. If only 60% of them have asbestos fibres in their lungs then some 36 million people in the UK have asbestos fibres in their lungs. If one fibre kills then all of these people would die of asbestos related disease. It is well known that the average latent period (from over exposure to death) is in the region of 30 years. This would indicate a death rate of some 1.2 million asbestos related deaths per annum. Crude of course – but it does give us an indicative figure. Post mortem studies showed some 2000 asbestos related deaths per annum in the UK in the final years of the 20th century. EXPERT WITNESS JOURNAL
Although the Company works in most areas of Occupational Health & Safety, Environmental and Waste Management, Roger’s academic specialisation has been in asbestos related hazards and control. Reflecting this, he has acted as expert witness in excess of 500 cases at Sheriff Court level in Scotland, at the Court of Session in Scotland, at the High Court of Justice in Northern Ireland and at the Supreme Court of Victoria, Australia. Roger has also acted as "Woolf" Court Appointed Expert (SJE) in the High Court in London. Contact: Tel: 0141 427 5171 Email: roger@acs-env.com Website: www.acs-env.com ACS Physical Risk Control Ltd Unit 14 The Claremont Centre, Durham Street, Glasgow G41 1BS
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Worst Mesothelioma Risk in the World Michael Lees of The Asbestos in Schools Group welcomes the recent Government policy review in the light of evidence that the incidence of mesothelioma in Britain is by far the worst in the world addressing them. As a result present policies have been tweaked but only a few concrete proposals made.
Avivaâ&#x20AC;&#x2122;s The Asbestos in Schools Group welcomes the fact that the Government has reviewed its asbestos policy for schools in England. The report was published on the 12th of March some eight months later than planned. It is a positive step forward and makes a number of constructive proposals and concessions that previously had not been publicly made.
Asbestos policy for schools Evidence was given to the review that the incidence of mesothelioma in Britain is by far the worst in the world and that is because we imported more amosite. Amosite was used extensively in the walls, ceilings, heaters, window and door surrounds of thousands of schools and is vulnerable to damage from children. Because of this we have a worse asbestos problem in our schools than other countries.
They include a call for a greater transparency from schools and local authorities. The Department for Education acknowledges that children are more at risk from asbestos exposure than adults and that school staff and former pupils have died from their asbestos exposure at school. They state that asbestos will be removed when schools are refurbished under the Priority Schools Building Programme.
The dangers inherent in even the best system of asbestos management were encapsulated by the business manager of a secondary school who responded to the consultation. He said that there are over a thousand teenagers in his school who sometimes struggle to contain their emotions, so it is inevitable asbestos is disturbed. A system of asbestos management that might work in a building used by adults will not be suitable for young people.
However asbestos will remain in the vast majority of schools for many years to come, the review therefore proposes a number of measures to assist schools in effectively managing their asbestos, including issuing revised asbestos guidance and making a clear statement that asbestos training is compulsory for teachers and support staff. Measures will also be introduced to determine whether schools are managing their asbestos effectively. Staff and pupils are put at risk when asbestos fibres are released, therefore a further proposal is to undertake a study in fifty schools to assess the levels of asbestos fibres in the classrooms and other rooms.
Evidence was given how other countries have tackled the problem. More than thirty years ago the USA carried out a similar review of their asbestos policy for schools. It determined the extent of friable asbestos in their schools, estimated the number of staff and former pupils who would die. Because it acknowledged the increased risks to children it adopted asbestos laws specifically for schools. In contrast we have still not taken the preliminary steps of assessing the scale of the problem and the risks. Both of these are central to any risk assessment or any cost benefit analysis.
Although the review and its report are positive steps in the right direction, there is a lack of vision and the Government have failed to introduce the fundamental long term strategies that are needed to eventually eradicate the problem of asbestos from our schools. The report acknowledges there is a problem of asbestos in schools, but it has been selective in its choice of evidence and has failed to acknowledge the extensive and authoritative evidence spanning some fifty years that proves there is a serious problem. At times the report is not impartial and conceals difficult issues rather than EXPERT WITNESS JOURNAL
The Government is unaware of the extent, type and condition of asbestos in our schools and the review has made no attempt to remedy this. DfE have just completed a ÂŁ20 million, two year survey of the condition of school buildings but it specifically excluded asbestos. This is irrational as asbestos can be one of the most expensive items when 60
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numbers of schools were built for many more years with the extensive use of the most dangerous asbestos materials in places vulnerable to children. It was only after the Government’s advisory committee on cancer confirmed in 2013 that children are more vulnerable to asbestos exposure that the Department for Education agreed to review their asbestos policy for schools.
maintaining, refurbishing or demolishing a school. By excluding it, schools with the most dangerous materials cannot be identified, priorities cannot be set and any financial forecasts will be meaningless. The report goes no further than saying they will keep their decision to exclude asbestos from the collation of data under review. DfE have previously made a rough estimate that 75% of schools contain asbestos, and has based its decisions on that. But information is available as Freedom of Information requests have shown that number of schools is considerably higher than that.
The teachers, support staff and former pupils are now dying because the evidence and the warnings were not heeded. The Government have finally, and publicly, acknowledged that there is a problem and this review provides a starting platform on which to build future policy.
The review acknowledges that former pupils have died because of their asbestos exposure at school, but it fails to estimate the numbers who will die. The evidence it fails to include is that between 200 and 300 people could die each year from their asbestos exposure as a child at school in the 1960 and 1970s. Most of the asbestos remains, and there is evidence the exposures continue.
Mesothelioma deaths increase
The report acknowledges that school teachers and support staff are dying of the asbestos cancer, mesothelioma. 158 school teachers have died in the last ten years and 291 have died since 1980. Over a twenty year period between 4,000 and 6,000 people could die. That is an appalling death toll just from the simple act of attending school. The latest mesothelioma statistics for the Education sector have been obtained from the HSE under the Freedom of Information Act. They show an increasing number of school teachers dying from mesothelioma. 22 school teachers died in 2012. 177 have died since 2001 and 291 have died since 1980.
The report has been weighted in favour of the controversial view that, in the main, the present policies are working and that, although some people have died, the risks to children and staff from asbestos are low. But they have not published the evidence on which they have based these assumptions. The report implies that when teachers die of mesothelioma their asbestos exposures might not have happened at school, with no evidence to support that. Whilst acknowledging court verdicts when people have died of mesothelioma it fails to take account of coroners’ courts. These courts examine the evidence when people die of mesothelioma and they have concluded on a significant number of occasions that asbestos exposure at school was causative of teacher’s and support staff deaths.
Perhaps some school teachers have been exposed to asbestos elsewhere, but many are known to have been exposed at school and because of teachers’ career pattern the occupation recorded on their death certificate is likely to be the occupation in which the exposure occurred. But there is further evidence that school staff are dying of mesothelioma. 16 Educational assistants and 8 school secretaries died between 2003 and 2012. School caretakers, cleaners and cooks have also died of the cancer, but the occupational statistics are generic and do not record their deaths under schools.
In 1967 the Department for Education was warned by the Chief Medical Officer of the Factories Inspectorate that children are particularly at risk from asbestos exposure and that asbestos should not be used in schools. Despite the concerns of their own officials the advice was ignored and schools continued to use asbestos in classrooms and large EXPERT WITNESS JOURNAL
The teachers’ deaths are the tip of the iceberg, because for every teacher there are 20-30 children and they are more vulnerable. A leading epidemiologist estimated that between 200 and 300 61
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during his time working as a teacher." Mr Gallagher had previously received a settlement for pleural plaques. In a statement prepared before his death he said... I received a settlement claim from Staffordshire County Council in 1998 as it was accepted that I was exposed to asbestos while working at Warslow Secondary School between 1973 and 1988. Derby and South Derbyshire Coroner's Court was told that a doctor examined him and diagnosed him with a second lung disease, mesothelioma.
people could die each year of mesothelioma because of their asbestos exposure as children at school. That would equate to between 4,000 and 6,000 mesothelioma deaths over a twenty year period because of asbestos exposure as a child at school. There are few people who would agree with HSE that the risks are very low when hundreds of teachers and support staff and thousands of former pupils have died, and will die, from the simple act of attending school. HSE advice to the Government is profoundly wrong.
Fast Facts • All asbestos can cause cancer
“They are not just statistics, they are people”
• There is no known threshold of exposure to asbestos below which there is no risk.
These are a few of the many people who have been tragically affected by asbestos exposures at school.:
• In 2009 87% of schools in England contained asbestos. Based on FOI data from ¾ of schools. • Many have asbestos insulating board walls and ceilings in corridors, halls, classrooms, gyms and toilets where it is vulnerable to damage from children.
Teacher died from cancer Jennifer Barnett, 60, died from malignant mesothelioma... Coroner Katy Skerrett said: “It is clear that there was sufficient exposure to asbestos in her occupation for me to reach a conclusion that this lady died from an industrial disease.”
• This review has taken place because the Minister gave a commitment that asbestos policies would be reviewed once the Government’s advisory committee on cancer had assessed the risks to children from asbestos. In 2013 the Committee on Carcinogenicity confirmed that children are more vulnerable to asbestos exposure than adults. The lifetime risk of developing mesothelioma for a five year old child is about five times greater than an adult aged thirty.
Louise Lambert died of mesothelioma. The coroner ruled she died from exposure to asbestos in childhood. She remembered walking through clouds of dust in a passageway at her school while remedial work took place after a blaze at her school. The coroner added that in his 25 years as a coroner he had never come across someone so young who had died from mesothelioma...
• Britain has by far the worst mesothelioma incidence in the world. • In 2012 the incidence was 39.2 per million per annum of the population, and it is increasing.
David Atkinson died of mesothelioma. Grimsby and North Lincolnshire coroner, Paul Kelly, said: “He was exposed to asbestos when working as a joiner and caretaker at various locations. It is plain that during various times he ingested asbestos that was to lead to the malignant mesothelioma and he died as a consequence of an industrial disease.”
• In the USA it has stabilised since 1999 at less than 14 per million per annum. The USA determined the scale of the asbestos problem in schools and estimated that for every teacher and support staff death from mesothelioma nine former pupils would die. Consequently in 1986 they introduced stringent asbestos regulation for schools.
Primary school teacher with mesothelioma Penny Devaney said: “I was given no warnings, training or information about the risks and dangers of potential asbestos exposure....” Mrs Devaney worked at a number of schools around Lancashire between 1978 and 2004. She is suing her former employers for failing to prevent her exposure to the hazardous substance. Classroom asbestos dust claimed life Assistant Coroner for Derby and South Derbyshire, said..." it is clear that he was exposed to asbestos EXPERT WITNESS JOURNAL
For more information see: www.asbestosexposureschools.co.uk Authoritative research can be seen at www.asbestosexposureschools.co.uk, that is closely referenced with sources, has a search facility so you can find your specific interest and can be quoted. Or contact Michael Lees MBE E-mail: michael@lees1262.fsworld.co.uk Tel: 01409 241496 Mob:0791 0947362 ■ 62
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Championing the Champions: Identifying Special Trees, and What Makes them Special by Mark Chester - Cedarwood Tree Care Not only do trees enhance air quality, evidence suggests that they improve our health. Research as far back as the mid-1980s found that hospital patients who could see trees and shrubs whilst recovering made a swifter return to good health than those without these views. More recently, research shows that a work place with trees and other foliage encourages greater productivity and quality of life.
Many of us can think of special trees scattered across the British Isles, and on occasion, a local tree can become a cause celebre’ , usually in connection with a community coming together, perhaps to save it from development. For the Queen’s Golden Jubilee in 2002, the Tree Council identified 100 special trees to champion and celebrate. I recently visited one of these, and wonder whether we truly champion our champion trees, and what obstacles our trees face.
Trees planted as part of landscape restoration work have been linked with regeneration in places such as Liverpool, where resources were focused on the poorest part of the city, and led to economic growth, as well as that from the trees. They enhance our quality of life, including mental health. They can significantly reduce the temperature within urban settings, known as the Urban Heat Island. This happens through the cooling effects of evapotranspiration, and can help to reduce deaths from heat exhaustion which can happen during heat waves.
Trees such as the Royal Oak at Sherwood Forest are celebrated, and rightly so. However, I do wonder whether we overlook the treasures around us, until they are threatened, and the basis on which we identify what the champions are. How much do we value the trees around us? So often, when I survey them for potential development sites, trees are seen as a hindrance, a problem, rather than the asset they often can be. When I worked in local government, I routinely received requests to remove trees because of loss of light, leaf fall and interference with satellite TV reception. The phrase quoted so often of ‘don’t get me wrong, I like trees. Just not this one’. The reality is that it is often ‘this one’ which is making an important contribution to the local setting. One developer that I worked with was quite willing to pay for some woodland to be planted somewhere else if he could fell the tree limiting his development. Truth is that his tree, located within a populated area, was contributing more that the woodland would. We need trees where people are!
May I suggest that many of our trees are unsung heroes, which suffer through a lack of appreciation. How often do we see proposals for retail outlets with attractive illustrations of tree-lined avenues, yet when reality dawns, the trees suffer neglect and are pruned so regularly that they become stunted and fail to achieve their potential. Dr. Kathleen Woolf, a scientist specialising in social science in the US, explored perceptions relating to trees in retail outlets, which she shared at the Trees, People and the Built Environment conference at Birmingham University in 2014. She found that the retailers were reluctant to have trees and shrubs around their stores, anxious that this could detract from the shopping experience. However, when shoppers were asked which environment they preferred, it was the outlets with trees and shrubs that appealed the most. There can be such a difference between perception and reality.
Recent research based on trials in Manchester found that having Birch trees in the front gardens of properties fronting a busy road reduced the amount of particulates in the air which were reaching the homes. The particulates, which can cause respiratory problems such as asthma, were intercepted by the trees, and this improved the health of the local residents, to the extent that the researchers suggested having trees in streets should be encouraged for health benefits. I suggest that many of our trees are local champions, whose contributions should be celebrated. EXPERT WITNESS JOURNAL
Why are trees under threat? I recognise a range of causes. They take space, and, especially in the UK, land is valuable. Forward planning is needed to 63
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successfully retain trees on a potential development site, but much is possible. I find it disappointing when dealing with some applicants who only see retained trees as a lost opportunity to generate revenue, rather than a platform to deliver a quality scheme. Principle Consultant
Care is needed, of course, to ensure trees are suitable for their setting. For this, professional guidance is valuable. I recall a scheme where an architect proposed an avenue of Alders for a major thoroughfare within a large development, with apartments fronting the road. The architect was seemingly unaware that the trees, whilst tolerant of urban pollution and quick to become established, can also become tall and cast shade. Alders are great where there is space, but not ideal next to apartments, where lack of light will become an issue and there will be pressure to fell.
Mark Chester BSc (Hons); Tech. Cert. (Arbor.A.); MIOH; F.Arbor.; C.U.E.W.; C Env.
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."
There is also the suitability of trees to a particular environment. Beech, for example, does not like salty conditions and is unlikely to thrive in coastal settings, as one architect I know of found out, when an avenue of these trees planted in a high profile office development all died within a year of planting. There are alternative species which can flourish in such settings. There can be the temptation to plant smaller, ornamental trees, especially as they donâ&#x20AC;&#x2122;t take up so much space. Unfortunately, whilst there is a place for Malus (apple) and Prunus (Cherry), these trees have shorter life spans (typically 50-60 years) and make less of an impact compared to the larger Birch, London Plane and Chestnuts. And whilst the oak is a national treasure tree, it rarely thrives in urban settings, preferring parks and open spaces.
Contact Details Telephone: 01981 570426 Mobile: 07888 838360 Email: enquiries@cedarwoodtreecare.co.uk Website: www.cedarwoodtreecare.co.uk
contribute to the site in the future. A developer will often have ideas and plans of what they wish to do with the site. My aim is to identify what trees are worth retaining and how the proposed development could affect them. This includes the relationship the development is likely to have with the surrounding area, and how the setting will look in ten yearsâ&#x20AC;&#x2122; time, and beyond. We do value trees, and protect them with Tree Preservation Orders, which are part of the planning system. These protect trees in the interests of amenity (a feature which is not actually defined) and have been used for since 1947 to enable local authorities to safeguard trees of merit from poor pruning or felling. However, the system is limited. Regardless of stature, importance or historic value, a tree has no protection unless it is subject to an Order (or has the good fortune to be growing within a Conservation Area, an irony given that this designation exists to protect the historic environment).
Trees are valuable. I see many as being local unsung heroes, like the army of dinner ladies, care assistants and sports coaches who are occasionally celebrated. The contribution trees make is largely unseen, like the oxygen they produce and carbon dioxide they remove from the atmosphere. It is possible to allocate a financial value to many trees, depending on the setting. This is usually based on size, vigour and contribution, depending on the setting. Sometimes, I value a tree after it has been damaged, to provide a price for insurance settlement. I have also valued a tree which was destroyed, to enable replacement. A tree whose retention limits a development can be valued based on how much its removal would increase the value of the development. This can be useful in allocating a budget for mitigation planting works. However, some of the value is priceless and irreplaceable.
Many of our churchyards are home to Yew trees which can pre-date the churches themselves. Some are more than 1000 years old, yet they can easily be damaged by ill-considered pruning or felling, sometimes on spurious grounds, including health and safety (what would happen if someone ate one of the berries?). Sometimes, there is greater thought to undertaking minor repairs to the church
When I survey trees on a potential development site, I am looking for the specimens which will EXPERT WITNESS JOURNAL
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withstand. Just under the bark of every tree are cells which transport water from the roots to the shoots. Called xylem vessels, they are long and thin, like our nerve cells, and particularly effective at getting water where it is needed. If a cell is attacked, the tree isolates it by forming a thick, impenetrable wall on the outside. The cell is now dead, and the invading organism has been stopped. Unfortunately, the cell can no longer function, and unless replaced, the ability of the tree to continue to get water to the upper branches is limited.
building than pruning of the Yews, which are sensitive in how they are managed. In 2014, a Cedar planted by the Duke of Wellington, situated in a National Trust garden, was felled, in part because it no longer fitted the plans for the garden. Without formal protection, its historic connection was insufficient to ensure retention. The local authority was informed of proposals to simply prune the tree, so chose not to serve a Tree Preservation Order. The decision was then made by local staff to go beyond their original proposal and remove the tree entirely.
One of the challenges we face is the tendency to focus on a small number of plant species within planting schemes, and to plant timber in plantations. So frequently, we see streets lined with a single species, be it Limes, London Plane or Norway Maple, ideal conditions for pathogens to flourish, whether they be insects or vascular-attacking bacterium. Larch is affected by a bacterium which affects the vascular system. Much of the Larch in the UK is being grown for timber, in plantations. These are being decimated, with the preferred solution being to clear fell and harvest the timber before it is damaged by the disease.
As trees get older, their value as wildlife habitats increases, and each tree becomes more irreplaceable. Indeed, the late Professor Oliver Rackham concluded that such is the ecological value of a single 500 year old oak that 10,000 100-year old oaks would not compensate for its loss. I thought of this observation when I read of plans to build a new motorway service station on the M42, near to Solihull. Early plans showed the development extending in to an area of ancient woodland (which is irreplaceable, and unlike an historic building cannot actually be moved due to local dynamics). The developers have promised to plant more trees than would be felled, which suggests they haven’t appreciated what they are dealing with.
Horse Chestnut has been affected by Bleeding Canker, another vascular pathogen. There was a time when I feared it would go the way of the Elm, and possibly be wiped out. Oak is suffering from Sudden Oak Decline and a pathogen affecting branch stability threatens the London Plane. However, as we seek to champion our trees, all is not doom and gloom. Researchers such as Dr. Glynn Percival, who runs a research centre in Reading, are exploring how trees naturally respond to attacks. The Indian Chestnut is naturally resistance to Bleeding Canker, and can be planted in preference. The importance of good roots and nourished, well-aerated soil, is being recognised as a key element in equipping our champions, whether they be high profile, or the trees within the local neighbourhood.
Considering other valuable trees under threat, a 200 year old Pear in Worcestershire has the misfortune to be in the route of the planned HS2 rail line. To retain its genetic line, cuttings have been taken, but these will not replace the original. That tree is still standing, but earlier this year, the former Communities Secretary Eric Pickles approved controversial plans to extend a quarry on to land home to a 40 acre ancient woodland, which is irreplaceable, on the basis that the economic benefits of having stone from the quarry for road building outweighed the loss of this ecological gem. Whilst post-industrial landscaping can transform a site, it doesn’t replace a feature such as the habitat within an ancient woodland, which will have taken half a millennium to form.
In the States, a two-pronged approach to pest control, of providing fertiliser to affected trees and injecting insecticides, has not been as successful as expected. This human intervention was found to affect the natural balance. The fertiliser caused a flush of growth in the trees, which meant they were less well equipped to resist the pests. Meanwhile, the pests enjoyed a feast of new foliage. They were able to absorb the insecticide without being affected. However, as it became stored in the bodies of the pests, they themselves became toxic, and thus their natural predators were soon dying. It seems we are better equipped when we work with nature! Meanwhile, the larger trees, the ones which take up
Our modern appreciation of trees began with the loss of many Elms in the 1960s and 1970s through Dutch Elm Disease, which decimated the population of these giants within the UK. This led to the formation of the Tree Council in 1975 and the National Tree Planting Week in 1973, ‘Plant a Tree in ‘73’. Sadly, there are few Elms in the landscape today, and other trees including Horse Chestnut, Larch, Oak and London Plane are all threatened by various pathogens. Elms were affected by a fungus which attacks the vascular system, which is particularly difficult for trees to EXPERT WITNESS JOURNAL
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visited them, I met a rambler who had just walked past them, and was unaware of the historic treasure just a few metres away.
valuable space, are the specimens which host the natural predators. Free trade doesnâ&#x20AC;&#x2122;t help, as imported timber and living plant material is often host to the pests we are trying to combat. It actually does much damage in the battle to protect trees and other parts of the environment.
One proposal aimed at protecting our heritage trees is to create the status of â&#x20AC;&#x2DC;green monumentâ&#x20AC;&#x2122;, which can then be allocated to trees and other environmental features.
Trees and other plants are important to so many aspects of our lives. They help to clean the air, enhance quality of life, cool the air, combat flooding and provide habitat for wildlife. Perhaps we need to do more to champion these contributions. Ted Green, a pioneer of the Ancient Tree Forum which champions our more elderly trees, often shares his musing to groups of tree enthusiasts that people visiting historic homes in the UK will travel great distances and walk miles to look around a building which may be less than two centuries old, and be oblivious to the trees within the landscape that date back to the Tudors!
Did you know that about 75% of all of the veteran trees in Western Europe are here in the UK? It is true, and an amazing resource. These are the truly special trees, which connect us with our past, and demonstrate resilience. They are champions. We also need to be investing in the next generation of veteran trees, and in the local trees which enhance our lives. This is why I like to work with developers to seek to retain the better trees within development sites and help to design quality landscapes. Those who seek to protect their neighbourhood can be criticised as NIMBYs. However, I see value in working to enhance the local environment and to protect the trees around us, to recognise their value, whether this can be measured financially or is actually priceless. Championing the champions helps to highlight the contribution that these trees make and what they need to thrive, and encourage people to plant the next generation. â&#x2013;
I thought of this recently when I visited the Borrowdale Yews. Originally four trees, now three, and dating from the time of Christ, they are tucked away in an obscure location on a hill side in Borrowdale. Surrounded by a fenced compound, there is little ceremony to promote them and their history. Identified as one of the 100 champion trees by the Tree Council to commemorate the Queenâ&#x20AC;&#x2122;s Golden Jubilee in 2002, they are evidently special. As I
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Problems in the Valuation Market by Martin Burns, Head of ADR Research & Development, RICS valuers must notify their insurers. Frenetic negotiations often ensue in attempts to avoid costly and slow litigation, and the outcome in many cases is financial settlement, where insurers pay compensation even though there has been little or no exploration of the merits of the claims.
In July 2013, The Royal Institution of Chartered Surveyors (RICS) commissioned an independent report on the operation of the UK valuation profession. Earlier research by Mortgage Strategy had indicated that the valuation market was not working as it should. RICS believed, therefore, that a root and branch analysis of the market, and discussions with key stakeholders, was essential to identify the cause of problems and finding answers as to how they could be resolved.
Confetti letters have often been sent, so-to-speak, in “bundles”, and at any one time a valuer may receive 100 plus letters relating to valuations s/he has provided.
Former MP and FSA Board Member Dr Oonagh McDonald CBE, Chaired an independent commission, which published its report and recommendations in 2014. The report maintains that problems exist in every aspect of the market. Dr McDonald said: “The problems in the valuation market are multi-faceted. They run deeper than might be supposed at a casual glance, and cannot be solved by a single ‘silver bullet’. She set out twelve recommendations designed to help the market to function better, and advised that the recommendations “require a co-ordinated response from the stakeholders to achieve the objectives which are in their own interests and the interests of the public
Whilst there is concern that many confetti letters are not always legitimate claims, insurance companies will nevertheless settle so as to avoid costs and delay of potential of litigation. Inevitably, this had led to a significant rise in Professional Indemnity Insurance (PII) premiums and overall difficulty in firms obtaining PII Cover. This is causing major problems for the valuation profession, not least because of the impact, now and in the future, on the ability of valuers of residential and commercial properties to obtain affordable PI insurance. This scenario can create constant tension between lenders and valuers, and may eventually lead to the profession becoming uninsurable.
To an extent the problems in the valuation market are due to residual consequences of the financial crisis, but problems also arise out of recently established practices of those operating in the market. One such practice has been a propensity by lenders to regard nearly all valuations as potentially negligent, and to consequently pepper surveyors with countless claims that in reality are unlikely to be pursued.
Following publication of Dr McDonald’s report, RICS held a number of roundtable events to discuss the findings with invited guests from the lending, insurance, legal, regulatory and valuation sectors. Following on from the round table events, both commercial and residential groups from the industry set up a dedicated cross sector working group, bringing together surveyors lenders, insurers and regulators to systematically review the recommendations. Their remit includes developing realistic and workable solutions to the issues identified in the report.
“Confetti Letters” is the appellation that has been given to the huge number of pre-action letters issued to valuers by solicitors acting on behalf of lenders. Litigation in most cases where a confetti letter is issued is highly doubtful but, in any event, EXPERT WITNESS JOURNAL
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The ambitions of the ADR process are to: • Facilitate negotiations and, where required, provide independent and binding decisions on all the parties involved
One of the activities pursued by the cross sector group has been to explore ways to adopt a key recommendation to introduce a form of ADR in the sector.
• Improve the quality and negotiating capacity between lenders and valuers
ADR was recommended by Dr McDonald as a way to tackle the considerable problems arising out of “confetti” Letters. With this in mind, an invitation was sent by the Cross Sector Group to the Dispute Resolution Service (DRS) at RICS and Beale & Co, Solicitors, to scope a viable Alternative Dispute Resolution (ADR) process for lender/valuer disputes.
• Create greater transparency in the process of resolving disputes between parties • Be cost efficient and save money • Be fair and impartial RICS is currently undertaking a consultation on the proposed ADR process before launching it in the autumn of 2015. If you have an interest in the valuation market and would like to know more about the ADR process, and/or take part in the consultation, please contact Samantha Dunbar sdunbar@rics.org. ■
DRS and Beale & Co teamed up to develop an ADR process designed specifically to help lenders, valuers and insurers, whilst ensuring there is an appropriate balance between their relevant interests. The ADR process draws on established methodologies, i.e. Independent Valuation and Adjudication. These procedures are routinely used with immense success in the UK and globally to reduce conflict and decide disputes, without the need for intervention by the courts or other official bodies.
Martin Burns Head of ADR Research and Development, RICS 22 June 2015
RICS Expert Witness Training This training will equip experts with the knowledge, practical skills and confidence to prepare for and conduct an expert meeting effectively.
What will you learn? • The benefits of using an agreed agenda • How to prepare using the case preparation model • Using the topic box model to structure the meeting and as a way to effectively question the other expert • The reasons for areas of agreement and disagreement • How to work effectively towards the Joint Statement and how to draft it.
To find out more: t 024 7686 8584 w rics.org/expertwitnesstraining e drstraining@rics.org
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RICS and UN Launch Global Real Estate Sustainability Initiative ‘Responsible action needs to become business as usual within global real estate markets, driving prosperity, innovation and investment, and helping to secure vibrant and transparent markets, thriving economies, inclusive communities and a greener, healthier planet,’ explained Sean Tompkins, RICS chief executive Officer of RICS, speaking at the New York launch.
The Royal Institution of Chartered Surveyors and the United Nations have issued a call to organisations in the land, construction and real estate sectors, and those working with them, to take a leading role in responsible and sustainable business practices. The UK headquarter RICS and the UN’s Global Compact organisation, are undertaking its first initiative to promote responsible business that focuses exclusively on one specific economic sector, launched a new report in New York.
The launch heard that although many businesses in the sector have corporate sustainability strategies and policies in place, the challenge for many is to translate those policies into actions that are practical, achievable and repeatable, across organisational and geographic boundaries.
It examines the sector's impact in relation to the UN Global Compact's four focus areas of human rights, labour standards, the environment and anti-corruption and identifies some of the most critical issues facing the sector.
The resource is the result of a two year collaboration between the UN Global Compact and RICS, a global professional body representing more than 100,000 members in 146 countries. It is the product of extensive dialogue with diverse stakeholders in the sector.
It points out that the land, real estate and construction sector represents up to 70% of global wealth, contributes around one tenth of the total global gross domestic product (GDP) each year and represents 7% of overall employment.
‘The land, real estate and construction sector has an enormous impact on global economies, the environment and people's lives. With this resource we want to show businesses how to operate responsibly and sustainably, generating substantial social, environmental and reputational value and long term financial success in the process,’ added Tompkins. ■
The sector also has a substantial impact on land development, resource use and waste generation. There are also issues related to human and labour rights during development and construction.
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A Flood of Claims: How Hydraulic Modelling Helps Determine Liability by Richard Allitt Associates- Expert Witness Services for all Flood & Drainage related issues Flooding and the impact that it has on property such as homes, businesses and agricultural land continues to grow in importance. Already there are an estimated five million people living in 2 million properties located within flood risk areas in England & Wales. Whilst the winter of 2014/15 was relatively flood free the previous one set new records. The damage for this period has been estimated at over £500m, with insurers receiving more than 174,000 claims between 23 December 2013 and 8 January 2014 alone.
directly affected as well as from insurance companies and other third parties. Inevitably the legal process has to determine liability in such cases, making it increasingly important to understand how liability for flooding might arise. What are the legal precedents in respect of flooding? Companies or individuals can become liable through ownership of their land or perhaps as a result of negligent flood defence works or even due to their contribution to climate change. Flood damage is considered a “natural nuisance” with most flooding claims likely to be brought under the law of nuisance. Those nuisance cases which flooding pertains to can generally be divided into three main areas: ● Land Drainage Rights ● Mining Cases ● Culverting Cases
Why is there a rising tide of flooding claims? Historically there was little hope for recovery from flooding claims but the increased incidence and large sums involved has caused the industry to be more inclined towards recovery. Necessarily, as the economic cost of flood events continues to rise there has been an accompanying rise in those seeking to apportion costs. These claims are both from those EXPERT WITNESS JOURNAL
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However, just because a body has the power to act does not necessarily mean it has a duty to do so and cannot therefore be held liable to do so. This applies to bodies such as the Environment Agency. Similarly water authorities have a tendency to resort to a case known as Marcic whereby unless the regulatory body OFWAT has issued an enforcement notice to act they are not held to be liable for not carrying out work which may have prevented flooding. The consequence of such legal precedent is that few cases against such authorities are ever brought successfully.
In addition in some cases Riparian rights may apply such that where there is a natural watercourse or water catchment area e.g. a pond the owners of the land on either side have certain rights which can be enforced against other riparian owners. The law considers that landowners have a ‘measured duty’ in negligence and nuisance to take reasonable steps to prevent natural occurrences such as flooding on their land from causing damage to neighbouring properties. Equally, landowners have a right to protect their property against a common enemy (such as flooding) but they do not have a right to pass such an enemy on to the land of a neighbour. Notably it is recognised that, the common law does not operate in a vacuum and statutory schemes must be taken into account when considering liabilities in nuisance and negligence. Consequently a discrete body of law has developed concerning the extent of a landowner’s liability for natural nuisances.
How can an expert witness help in these cases? The purpose of bringing in an expert witness is to provide not only a subjective opinion based on in-depth flooding specific experience but also to make available some objective science which is based on observable phenomena and is presented factually. Indeed the credibility of an expert witness’ testimony is largely based on their ability to have an objective opinion. The basis of the scientific information used by an expert in these cases is called hydraulic modelling. It is an important tool for any flood & drainage related expert witness work.
Leakey vs National Trust turned the tide for flooding claims Much of the recent legal precedence for flooding arises from a case called Leakey v. National Trust which was in fact not a flooding case at all but one to do with land slip. However, this case and subsequent others that were deemed to be involving a ‘natural process’ concluded that there is a duty to do what is reasonable in the circumstances to prevent or minimise the known risk of damage or injury to one’s neighbours or to their property. This means that if the condition of your land is such that it could give rise to flooding on your neighbours land then you have a duty to take reasonable steps to abate that risk. What is deemed reasonable will vary depending on circumstances. Often a public authority is involved and despite potentially having substantial resources consideration will be given as to the competing demand of these resources and the many public purposes for which they are intended vis a vis work that may only benefit a few residents.
So what is hydraulic modelling? In simple terms hydraulic modelling is the computer simulation of hydraulic processes, in this instance this usually refers to storms and floods. There is a wide diversity of data that can be derived in this way from quite simple models to ones of great complexity with a large number of variables. Essentially the model will look at a set of circumstances incorporating factors such as: ● Rainfall ● Tides ● Ground wetness ● Infrastructure such as screens ● Controls ● Valves
Strict Liability may also apply Where an action is deliberate e.g. obstructing a watercourse there is a duty to see that the works to substitute for the natural flow are adequate to carry off any water brought down by extraordinary rainfall and if damage results due to the works being inadequate there is liability. This also applies to escapes from a reservoir. With these variables in place the model takes into consideration a specific location , looking at pipe sizes, channel dimensions and other conditions and it is then able to predict what the outcome would be
Powers and Duties It might be expected that a substantial number of claims might arise against those involved in flood defences and water & waste water provision. EXPERT WITNESS JOURNAL
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claimants are therefore the most likely to find the services of an expert witness invaluable.
given a certain set of circumstances. The sophisticated software model can indicate where, when and to what extent flooding is likely to occur given a particular set of circumstances. There are a number of different software tools available but Richard Allitt Associates uses one of the most complex & sophisticated specialist software tools available enabling the most complicated of scenarios to be run.
Essentially hydraulic modelling for legal cases needs a very highly skilled modeller who can test alternative hypotheses and can provide clear plans and visualisations. How do Models work? In essence a hydraulic model works by taking all the known information and using this to model predicted outcomes. Where all the data is known, this means the model is calibrated.
What is Hydraulic Modelling normally used for? Hydraulic modelling is an essential tool for all those involved in the planning and management of urban drainage facilities. Their uses are many and varied with applications including amongst others ● Design of flood defences ● Operational Flood Forecasts ● Maps of Flood Risk ● Reports for Planning Applications ● Sewerage and other infrastructure design ● Investment Planning ● Surface Water Management Plans
The Hydraulic Model Process
Some of the key clients for this type of work are the Environment Agency, Water & Sewerage Companies and Local Authorities. They enable a wide variety of government authorities and developers to provide the right infrastructure and to plan the associated developments suitable for the infrastructure provided.
However, it can also work whereby it is the outcome which is known e.g. flooding occurred and work out what the variables would have been if a screen was blocked or a control gate left open. Where only a limited number of variable are available, then a series of different options will be run to determine which set of circumstances resulted in the particular flooding incident.
How can Hydraulic Modelling help in Legal Cases? A legal case arises when flooding causes damage to property, land or belongings and there is considered to be fault attributable for the associated costs. Hydraulic modelling and a flooding expert witness can help determine who if anyone is liable.
Importantly the models can also be used to predict the pattern of flooding over time, indicating if remedial action could have minimised damage for example.
Generally speaking the defendant in flooding liability cases is usually a local authority, Water & Sewerage Company or perhaps the Environment Agency in which case they are quite likely to already have the data they need in the form of an existing calibrated model, as well as having access to the necessary skilled resources.
The models can be used for looking at flooding from a variety of different sources such as ponds, rivers, reservoirs as well as from sewers and culverts. It is possible to observe the implications of blockages in outlet pipes and of screens. Whatever cause the claimant thinks is at the root of the flooding incident can be fully tested and modelled to establish whether this was the case. By using their in depth knowledge of the industry and hydraulic modelling techniques the expert witness can provide the legal team with objective scientific information that can clearly determine what has occurred and who is responsible.
The claimant however is not so fortunate and is much more likely to be disadvantaged by their lack of detailed data and flooding specific knowledge. They are most unlikely to have access to an existing model with off the shelf models available to purchase being extremely expensive. They will need to create a bespoke model for their particular circumstance and to purchase the necessary data with the easiest and best way of achieving this being via the services of a nominated expert. Solicitors and insurance companies working on behalf of EXPERT WITNESS JOURNAL
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happened if it had been opened and when it would have needed to be open.
the consequences of any particular action were. It can produce comparable scenarios for different sets of circumstances. For example a certain level of flooding may have been inevitable but a direct action such as the installation of railings in a park for example can alter both the direction and volume of flooding.
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Proving the case for an inadequate trash screen In this flooding case a trash screen had been placed at the entry to a riparian ownership culvert. The site had a sub-standard design of screen as there was insufficient room for a full screen. In this case 3 possible scenarios were run through the model to show what the situation would have been had no trash screen be in place, what would have happened had it been in place but had been kept clear and finally as was the case what happened because the trash screen became blocked.
A Case in Point ● Cordin & Others –v- Newport City Council After prolonged heavy rainfall over many days the flood storage reservoir steadily filled up. At the corner of the reservoir was a control gate which had originally been automated but had fallen into disuse so in this instance the control gate was not adjusted. On this occasion bypass weirs came into operation at the same time as high tides occurred with the resulting consequence being flooding.
Part of the role played by the expert witness is not only to evaluate the model and know what scenarios to run but also knowing the right questions to ask to gather essential data that will ensure what is input to the model is correct. Gathering visual data as seen below helps to illustrate the case but quantifying what this observable data suggests is a highly skilled task. In these cases it is not only required to model what actually happened but to quantify what could or would have happened had alternative achievable actions been taken.
Flood Storage Reservoir
Control Gate
The hydraulic modeller can then take this further to show and create designs for schemes whereby future flooding is alleviated. The contribution made by the expert witness therefore goes well beyond the value added to the case itself. Flooded Properties
Outfall into River Usk~7m tidal range
What the hydraulic model was able to show was that if Newport City Council had opened the control gate at a previous low tide the flood storage reservoir could have been drained without any flooding. As a consequence they were deemed liable for the damage caused. The model can be run with a fixed set of circumstances showing what happened when the gate was closed and what would have
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Why employ an expert? It is a decidedly skilful process demanding considerable experience and training to know which variables to enter into the modelling software and determine which scenarios are the most likely. Hydraulic modelling for legal cases needs a very highly skilled modeller who can test alternative hypotheses and can provide clear plans and visualisations. A skilled modeller will not only be experienced at identifying the causes and mechanisms of the flooding but will also be able to advise on solutions which can prevent repeat occurrences. Evaluating the Cost By being able to look at a range of different scenarios the expert witness is also able to quantify the extent of the liability involved. By using hydraulic modelling it is possible to model what the situation would have been if a particular action which caused the flooding incident such as erecting railings or closing a valve had not been done. In this way it is possible to actually measure the cost difference between what actually happened and what would have been the situation otherwise. This is an extremely useful way of quantifying the incremental costs of damage.
Our experts are able to bring clarity to the complex reality of particular sites with our close attention to detail and practical experience of hydraulic modelling. It is most often the case that the claimant is unlikely to have the necessary specialist modelling information that they need. This usually means that they will either have to do their own surveys and build their own hydraulic models, which is very difficult. So the most straight forward response to this need is to employ an expert such as Richard Allitt Associates as both the information required and its interpretation is highly complex.
In the example below (related to the trash screen above) three scenarios are shown depicting the cost of the damage which actually arose (due to a blocked screen being in place), the cost if there had been no screen and the damage level with a screen which was not blocked. The graph shows the connection between the depth of flooding and the costs to both buildings and household contents and highlights the differences arising from different scenarios depicted by the 3 horizontal lines.
What will an expert do? As well as carrying out sophisticated modelling work, an expert witness will gather essential data and evidence required to inform the model. Importantly the expert will know what data is required and how best to obtain it. If required they will visit the site in question, observe and photograph conditions and infrastructure to enable them to make visual comparisons with the conditions observable at the time of the incident. They can identify important elements in the analysis process such as the existence of particular infrastructure or newly built structures. Richard Allitt Associates also employs the use of its UAVs or ‘drones’ which can carry out aerial surveys. These aerial surveys are extremely useful in being able to identify things such as ‘urban creep’ where hard landscaping has prevented water soaking away leading to flooding, or identifying ditches and embankments which are not observable from ground level.
It is particularly important to show these differences when it is considered that as the law stands, the only duty owed by a public authority to any member of the public, is not to add to the damages which that person would have suffered had the authority done nothing.
How to find an expert with the right skills? There are a number of experts who offer flood related services but there are few individuals with the experience of Richard Allitt who is one of the foremost hydraulic modellers in the UK who not only advises the flood & drainage industry but has helped to develop its best practises and industry EXPERT WITNESS JOURNAL
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user guidelines. As Managing Director of Richard Allitt Associates Richard is heavily involved in all the company’s Research & Development activities. He is passionate about leading both the company and the industry forward. He has been involved in the industry for over 40 years and has made numerous technical presentations to the Chartered Institute of Water & Environmental Management’s Urban Drainage Group and other forums as well as sitting on a number of the Construction Industry Research & Information Association’s Steering Groups. As a leading authority in the industry Richard has been instrumental in directing the firm to its current highly regarded status and he has ensured it is at the forefront of research, using all the latest analytical techniques.
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Bybrook Barn –v- Kent County Council An example of where the Leakey principle was applied where a highway authority was held liable because it was responsible for an inadequate culvert which caused a risk of flooding to neighbouring land.
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Cordin & Others –v- Newport City Council As detailed above this was a case where strict liability applied an escape from a reservoir where flows should have been discharged carefully through a sluice gate.
In the latter case the judge remarked of Richard: “I found him to be an impressive witness. His reports and evidence were careful, detailed and to my mind displayed impressive technical command and understanding of the issues.”
He has always worked to attract a diverse range of clients with the main focus of the firm’s work being on hydraulic modelling of sewerage systems and the preparation of plans for Drainage Areas, Sewerage Management and Surface Water Management. He is recognised as an industry expert, publishing a series of papers on drainage and flood modelling as well as being an influential member of the Urban Drainage Group. He has led a series of research projects for UKWIR (United Kingdom Water Industry Research) furthering industry knowledge on Integrated Urban Drainage Modelling, Urban Creep (the loss of permeable surfaces e.g. the paving over of driveways, creating increased runoff which contributes to flooding and other problems. Richard has also acted as an industry auditor overseeing the technical audits of sewerage models built for catchments across Scotland.
Do you always need an expert in flooding cases? In straightforward cases where the cause is clearly observable it may not always be necessary to employ a hydraulic modeller. However where more data is required and cause is not clear then the modeller should be highly skilled and experienced in order to understand all the possible scenarios. The software helps the modeller to address a wide variety of ‘what if’ questions and can be used to test a variety of alternative hypotheses. There is no doubt that employing a skilled flooding expert will result in clear plans and visualisations which will enable everyone without specific knowledge of the industry to understand clearly what has occurred. The expert witness will in this case not just be a (albeit well informed) subjective opinion but be able to provide objective data to illustrate that opinion. In flooding related matters the right expert witness can bring facts and clarity to facilitate the process of law. ■
The depth and quality of Richard’s experience has seen his services in high demand having acted as an Expert Witness in over 70 cases including some no table ones such as:
Richard Allitt Associates - Expert Witness Services for Flooding & Drainage •
Highly experienced experts offering constructive, practical advice on all urban GUDLQDJH ÀRRGLQJ LVVXHV IRU OHJDO GLVSXWHV FRXUW FDVHV
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Richard Allitt Associates Suite 3, The Forge Offices, Cuckfield Road, Staplefield, Haywards Heath, West Sussex RH17 6ET
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International Animal Feed Disputes Require Multifaceted Expert Evidence by Dr Nick Chapman of CWA International Ltd production of commercial animal feed in 2014 was 950 million tonnes2 (see Table 1).
Background The animal feed industry is a multifaceted and economically significant global business, encompassing a wide range of products that are shipped in large quantities of sizable value. Given the complexity of the global supply chains involved, there are many risks to the maintenance of commodity quality and thus value. When loss or damage events arise, a sizable claim may arise. In commodity disputes, unlike most other legal disputes, specialist commodity scientists with expertise in many different and varied fields are required to support the dispute resolution process. Their roles are to establish the nature of damage, quantum and cause of the loss, as well as to provide specialist technical advice on the appropriate steps for effective loss mitigation under the time constraints associated with perishable commodities.
The major solid animal feeds produced globally can generally be considered either as whole grains and seeds (e.g. feed wheat, feed maize/corn and feed barley) or the products from the processing of whole grains and seeds (e.g. wheat bran pellets, soya bean meal, rapeseed meal, corn gluten feed and dried distillerâ&#x20AC;&#x2122;s grains with solubles). Although some grain is specifically grown for feed purposes, feed grain such as wheat or corn is often grain that is considered to be surplus to human requirements, of a lower quality such that it is unsuitable for food use, or has become an economically viable feed grain option due to market forces. However, the majority of animal feeds are derived from the processing of whole grains and seeds. This is particularly true for animal feeds derived from corn and oilseeds, which are the major animal feeds traded globally.
The complexity of the global animal feed industry In recent decades there has been significant growth in the animal feed sector, as the industry has sought to produce the required quantity and quality of animal feed needed to support an increased global demand for meat and animal products. This demand has been largely driven by an increasing global human population, urbanisation and greater consumer purchasing power.
Corn refining to separate the corn kernel into constituent parts that can be used to make a variety of value-added feed products, including corn gluten feed, corn gluten meal and corn germ meal, is a major industry in its own right especially in the USA.
As a result animal feed production is a substantial global industry. The International Feed Industry Federation (IFIF) estimated global commercial animal feed production in 2013 generated US$ 370 billion in turnover1, while the Association of Animal Feed Producers in the UK reported that total global
Oilseeds are so-called because of their relatively high oil content per unit mass and, although there are other uses, the majority of oilseeds are crushed to extract the oil from the seeds for food, biofuel or
Table 1. Global farm animal feed production in 2014. Region Latin America USA Russia China EU Rest of the World
Million Tonnes 193 168 154 144 141 150
Percentage of Total Global Production 20.4 17.7 16.2 15.2 14.8 15.7
Adapted from data published by The Association of Animal Feed Producers in the UK (2014).
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There are some important pre-shipment differences in the global supply chain for processed animal feeds, as follows: the manufacture of processed animal feed product, often near to or within a port; on site conditioning and storage; loading to a ship, etc. The rest of the supply chain is largely the same as that described above for whole feed grains and seeds.
industrial applications. The seed material remaining after the extraction of the oil is commonly referred to as seed cake or meal (or expeller) and this has become a popular animal feed due to its relatively high protein content per unit mass. The various feed products can be further processed for a particular end-use, either to add further value (e.g. additional protein or fibre) or to achieve a suitable physical form (e.g. meal or pelletized), or simply to facilitate better handling during onward transport. The intended use of the feed is an important factor in determining the physical form in which the feed is delivered. For example, it is more suitable to feed lambs on whole wheat grains while pellets are considered to be better for cattle3.
Given the complexity of the global animal feed supply chains, there are many risks to the maintenance of cargo quality and thus value. Critical evaluation of the risks involved and their potential impact on feed quality and safety requires specialist commodity expertise in many different and varied fields. Applying specialist expertise to the analysis of supply chain risks and impacts The risks to feed quality and safety are associated with either the inherent properties of the feed itself or a failure to correctly handle the feed during storage and transport. The following examples are provided as an indication of the complex and multi-faceted nature of the risks, as well as the expertise required to help resolve the associated commercial and legal disputes.
The price of feed is partly dependent on its physical form. Meals, cakes and pellets may be expected to have a higher value (sometimes double) than feed grains. This is mainly because the finished feed products have a particular nutritional value that is desired by the consumer. As such, the manufacturers are willing to invest in their added value in order to attract a higher price from consumers for the increased effectiveness of these feed products.
Inherent factors Feed grains risk deteriorating if not stored at a safe moisture content. An elevated moisture content may arise as a consequence of a number of factors, such as the grains not having been sufficiently dried after harvest, having been subject to ambient conditions within the silos that allowed the formation of condensation or indeed having been directly wetted by an external moisture source (e.g. precipitation or seawater).
Thus quality is the main determinant of feed price. Even within the different forms of feed, the value is dependent on the quality specifications since these determine its nutritional value and thus its effectiveness as an animal feed. For example, soya bean meal pellets with a high protein content (so called â&#x20AC;&#x2DC;hiproâ&#x20AC;&#x2122;) may be expected to attract a premium over normal meals because even a slightly higher protein content improves its nutritional value as an animal feed.
The moisture content of grain and the grain temperature, as well as the duration of storage, mainly determine the risk of fungal growth within a consignment of grain. Fungal growth within animal feed (see Photograph 1) is undesirable since it can lead to significant deterioration in quality from heat
Since animal feeds are bought and sold on the basis of their quality, it is imperative that the quality of the feed is maintained within the global supply chain. A typical global supply chain for whole animal feed grains comprises: the growth and harvest of the grains in the field; on-farm drying and storage; road, rail or barge transfer of smaller grain parcels to a single port terminal; storage at the terminal, blending and assembly into a larger consignment for shipment; loading on board a ship; storage on board the ship during a sea voyage; arrival at the destination and discharge of the cargo from the ship; transfer of the grains, either directly to a factory in the port for processing or further inland by rail, road or barge; processing, packaging, storage and delivery of the final product to the consumer.
Photograph 1. mould damage in animal feed is undesirable.
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cake’, subject to the processing methods and the inherent moisture and oil content. Cargoes that fall under the definition of ‘seed cake’ are specifically listed under each sub-category, but can generally be considered to be those derived from the residues remaining after the extraction of oil from certain cereals, grains and oilseeds and which are shipped in the form of pulp, meals, cake, pellets and expellers. These include a number of major animal feeds.
and additional moisture produced by fungal respiration. Whether as a result of continuing grain respiration, fungal respiration or elevated moisture content, feed grains can self-heat during storage giving rise to deterioration, agglomeration and difficulties in onward handling of the grains. Self-heating is the term used to describe the increase in temperature of the stored commodity from the generation of heat without drawing heat from the surroundings. It is considered to comprise biological heating up to a temperature of 55°C, driven by the activity of the plant cells, fungi, insects or mites present, and a chemical heating stage caused by oxidation which can lead to temperatures of 100°C or more4.
Those at greatest risk are classified as “SEED CAKE, containing vegetable oil UN 1386 (a) mechanically expelled seeds, containing more than l0% of oil or more than 20% of oil and moisture combined”. Such cargoes are considered at risk of self-heating to the point of spontaneous combustion and possessing a chemical hazard which could give rise to a dangerous situation on a ship.
Self-heating can progress to the point of combustion with serious risks to the quality of the feed, the integrity of storage facility (e.g. silo, warehouse or ship) and the safety of anyone present (see Photograph 2). In the event of fire in an animal feed cargo, the primary concern is to contain the fire damage until the seat of the fire can be located and removed. However, smoke taint can be a major issue for the palatability of the remaining feed. It is widely accepted that processed animal feeds, such as meals, cakes and pellets, are at increased risk of self-heating during storage. Furthermore, the risk of self-heating is increased with increased moisture and oil content.
Certain seed cake cargoes are listed under the sub-category “SEED CAKE (non-hazardous)” and are considered by the IMO to be exempt from the IMSBC Code on the provision of certain documentation indicating that the inherent oil and moisture contents of the cargo satisfy the requirements for exemption. Unfortunately, this does not mean that this commodity is without the risk of self-heating (and indeed many do). Castor meal is typically used as a rich source of protein in chicken feed and has a separate entry under the IMSBC Code because it carries an allergenic hazard for those engaged in handling it. Following extraction of castor oil, the remaining castor bean meal can contain the toxic glycoprotein ricin and can give rise to severe irritation of the skin, eyes and mucous membranes in some individuals exposed to the dust associated with the handling of these cargoes within the supply chain. Contamination Given the nature of the supply chain, contamination of animal feeds with other foreign matter is common. For example, in the case of feed grains there may be a risk of contamination during harvest with poisonous seeds that may be injurious to the animal. The same is true to varying degrees for contamination of animal feed with debris, e.g. soil, stones, plastic or metal, which may occur at any point within the supply chain.
Photograph 2. cargo fire in sugar beet pulp pellets on board a ship.
The International Maritime Organisation (IMO) publish the International Maritime Solid Bulk Cargoes (IMSBC) Code which aims to facilitate the safe shipment of certain cargoes by providing information concerning the potential hazards associated with their carriage, along with guidelines for their appropriate handling and remedial actions in the event of self-heating on board the ship.
The dangers of toxic contaminants have been known for some time and maximum acceptable limits have been established for a range of feedstuffs. For example, it is acknowledged that animal feeds can carry the risk of Salmonella contamination, typically originating from bird or
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rodent droppings that have come into contact with the commodity during handling or storage. Perhaps the most well known in the feed industry are mycotoxins. Although by no means an inevitable outcome of fungal growth, under certain conditions, fungi can produce colourless, tasteless and odourless potent carcinogenic toxins known as mycotoxins. Their presence in animal feed can have a direct harmful effect on the animal consuming the affected feed but there can also be an associated food safety risk. For example, mycotoxins pass into the milk of cattle that have consumed contaminated feed grain.
the cargo loading operations. This is typically undertaken using the fumigant phosphine and requires the complete sealing of the cargo spaces for a specified period of time.
Contamination of processed animal feeds with dioxins or polychlorinated biphenyls (PCBs) can also present a potentially toxic hazard. These compounds are often unintentionally formed as by-products of chemical processes taking place within the environment surrounding the field.
Photograph 3. a desiccated rodent cadaver in a cargo of feed corn
Unfortunately, fumigations on board a ship regularly fail and quality issues associated with the presence of live insects are common. In some instances, the incorrect application of the fumigant can lead to major problems. While under-dosing can permit insects to develop during the voyage, incorrect distribution of the fumigation formulation can lead to heating, fire and even explosions.
Although these compounds are lipophilic (i.e. oil loving) and would be expected to be removed with the oil component of the seeds, where contamination of the whole seed has occurred from exposure to an environmental source, a quantity of these contaminants may remain in the seed cake since the oil extraction process would not be expected to be 100% efficient. This is of concern since these compounds are highly toxic to animals and humans and due to their lipophilic properties bioaccumulate in fatty tissues.
Marine transport risks While many of the risks already discussed are also applicable to marine transport of animal feed commodities, two important risks specific to their marine transport relate to exposure of the commodity to external sources of moisture and heat associated with being stored on board a ship.
Storage pests A failure to securely store animal feed can result in bird and rodent pests gaining access to the silos and warehouses used to store the feed before and after shipment. This is a particular problem in large silo or warehouse complexes at the port terminal. Fumigation of the silo or warehouses used to store the commodity before or after shipment may be undertaken to minimise the risk of deterioration in quality from insect activity during storage. However, an efficacious fumigation will be just as effective at killing any birds or rodents present. It is for this reason quite common to find bird or rodent cadavers in large shipments of animal feed (see Photograph 3). In some cases, e.g. where an unknown bird infestation has been present at the time of the fumigation, the number of cadavers can be excessively high and give rise to concerns about the safety of the feed for its intended use. To minimise the risk of deterioration from insect activity during the voyage and to assist with the importing phytosanitary requirements, most shipments of animal feed are subject to an in-transit fumigation on board the ship after completion of EXPERT WITNESS JOURNAL
Photograph 4. seawater ingress from above into a cargo of feed corn has created a characteristic column of heated, mouldy and caked cargo.
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By far the most common external source of heat damage to animal feed cargoes is related to the heating of fuel oil in storage tanks and pipelines adjacent to the cargo spaces. Depending on the extent of heating, cargo may be lightly caked or completely charred, but the damage often has a characteristic pattern that coincides with the location of the heated tanks or pipelines (see Photograph 6).
As has always been the case with carriage by sea, there is a risk of damage to the commodities from ingress of seawater. Ingress into the holds may occur from above, e.g. if there is an issue with the integrity of the ship’s hatch covers or if the ship experiences severe sea conditions during the voyage, but may also occur from below via the bilge wells, or additionally from burst ballast tanks adjacent to the cargo space. The pattern of cargo damage is important in assessing the likely source of seawater. Ingress from above is typically characterised by columns of mouldy and agglomerated feed which are surrounded by otherwise sound feed (see Photograph 4), while significant ingress via the bilge wells may uniformly effect the entire bottom layer of the feed stored within the affected hold. Another common form of moisture damage to feed cargoes during marine shipment arises from condensation or so called ‘sweat’ damage. This type of damage typically arises from the incorrect application of cargo ventilation by the crew and often has a characteristic pattern (see Photograph 5). For example, so called ‘ship’s sweat’ is often characterised by black lines of damage on the feed surface directly beneath the structures of the hold on which moisture has condensed and dripped onto the feed.
Photograph 6. the characteristic pattern of damage arising from heated fuel oil tanks beneath the cargo hold.
Evaluating the impact of the alleged damage Whether due to the inherent properties of the cargo or an external source of heat or moisture, heat damage to animal feeds can be a major problem based on potential issues of discolouration and decreased nutritional value. Heating of many animal feeds is often accompanied by a darkening in colour. Soya bean meal is expected to be a creamy or golden yellow colour but may darken, possibly even to a brown or black colouration, on heating which can negatively impact on its saleability. That being said if the meal is to be mixed with other ingredients to form a compound animal feed then the impact of discolouration may be limited, especially if the additional ingredients are dark in colour.
Photograph 5. the characteristic pattern of surface cargo damage consistent with condensation or sweat damage.
The purpose of appropriate cargo ventilation is to remove warm moist air from the headspace of the cargo hold, in order to minimise the risk of moisture damage at the surface of the cargo stow. The risk of this kind of damage is increased for feed grains, since they continue to respire during storage, or feeds that are self-heating, but in any case the risk is dependent on the cargo temperatures and the ambient conditions during the voyage.
Heating of soya bean meal can also have a negative effect on nutritional value and thus feed effectiveness. At high temperatures this is related to the influence of the Maillard reaction on the amino acid availability, but also the quality of the available protein that alters with denaturation. However, soya bean meal used for pig feed is often subject to heating or a ‘toasting’ step which is required to destroy anti-nutritional factors such as trypsin inhibitors that impair protein digestion. Therefore, a specific knowledge of the entire supply chain is central to interpreting the impact of an alleged loss.
There are several external sources of heat associated with a ship that may give rise to quality issues during the marine transport of animal feeds.
On the other hand, variation in colour can be an intrinsic property of the cargo rather than attributable to a source of heat associated with
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incorrect storage or transportation. For example, the particular steps intrinsic to the production of corn gluten feed pellets yield pellets of a particular colour. The assembly of a single large shipment of corn gluten feed pellets from smaller parcels of pellets produced at different sites can result in obvious visual variation when mixed together (see Photograph 7).
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Photograph 7. inherent colour variation within a single shipment of corn gluten feed pellets.
In evaluating an alleged loss event, a sound understanding of the scientific basis of quality assurance is required. It can be common for an entire cargo to be rejected on the basis of laboratory testing one sample and reviewing the results against contractual quality specifications, national importing standards or scientific literature concerning a particular form of damage.
the large quantities involved. It is not unusual for a single shipment of animal feed to be 50,000 mt and worth tens of millions of dollars, so even a limited degree of damage can have commercially significant repercussions. In a scenario where a sizable loss is subject to formal dispute resolution, expert evidence in relation to quantum, causation, liability and mitigation will be sought, involving advice, formal reporting and/or delivering oral evidence.
Correct sampling and testing of the cargo is therefore critical. Analysing a single spot sample of the worst damaged cargo and rejecting the entirety of the cargo on that basis is not likely to be a reasonable approach to take.
Contemporaneous evidence gathered by the specialists for the commodity and damage incident subject to the dispute or their expert opinion formed from the available information, will form the basis of the expert evidence.
By contrast, when investigating causation it may be appropriate to analyse a single spot sample of the worst damage, e.g. when investigating wetting damage to determine whether or not the characteristic ionic fingerprint of seawater is present.
In commodity disputes, unlike most other legal disputes, specialist commodity scientists with expertise in many different and varied fields are required to support the dispute resolution process when claims arise within the complex and multifaceted animal feed supply chains.
To establish the overall quality of a consignment, a well-designed representative sampling protocol for the commodity concerned must be applied in accordance with a recognized method. Only by doing so can a known quantity of cargo with a known quality be established. That quality can then be assessed against the applicable specifications to determine whether or not the alleged dispute is supported by evidence that will withstand scrutiny.
Furthermore, there are often many parties involved in a dispute regarding a single shipment. These may include the buyer, the seller, the ship, the charterer(s) of the vessel, as well as their legal counterparts, their insurers (and sometimes reinsurers) and the relevant governmental authorities. Often not all of the parties involved are known at the time of the incident.
Applying specialist expertise to a distinctive claims industry When loss or damage arises in the global feed trade, substantial financial losses can be incurred due to EXPERT WITNESS JOURNAL
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Each commercial party can be expected to appoint a surveyor to assess their loss and exposure, but also to protect their interests by limiting the release of sensitive evidence on the ground. This complexity can make resolving a formal dispute even more difficult.
About the author Dr Nick Chapman is a Consultant Scientist in the Food and Other Dry Agricultural Commodities Department at CWA International Ltd. He has extensive experience of the investigation of damage and loss incidents arising from the storage and transport of a range of feeds, foods and other agricultural commodities worldwide, including those arising from inherent and external factors. He has particular knowledge of cereals, oilseeds and animal feeds.
Given the global nature of the animal feed trade, a claim can be truly international. The dispute may arise in a foreign country, about which the parties involved know little with regards to the governing regulations, standards and legal proceedings. It is common for some claims to be subject to local jurisdiction and local legal representation must be appointed. Furthermore, depending on the jurisdiction, the burden of proof in supporting or rejecting a claim can fall on different parties.
About CWA International Ltd For more than 35 years CWA has been providing a first-class consultancy service to clients involved in the international trade of commodities, including those active in shipping, insurance and reinsurance, as well as their legal counterparts.
As a result of the many different factors affecting the market value of a particular feed commodity, fluctuations in value between purchase and delivery can result in claims that may be unfounded or unsubstantiated. Tackling such claims locally, where the buyer can be a powerful player with a better understanding of the local customs, can prove difficult and requires specialist knowledge as well as a degree of diplomacy.
Our departments possess specialist knowledge of all aspects of their respective industries including technical, scientific, logistical, commercial and market factors, making them well equipped to advise on causation, quantum, mitigation, and environmental impact. We only deploy well-qualified experienced staff, including chemical and mining engineers, petroleum chemists, food scientists, risk analysts, master mariners and cargo surveyors, to provide technical advice on risks, damages and loss across the international trade of commodities including production, handling, storage, marine transportation, and distribution.
However, the single most important difference when compared to other legal arenas is that the majority of animal feeds are perishable. As a result there are significant time-constraints on successful loss mitigation when damage occurs. As well as forensically investigating quantum, causation and liability, the specialist cargo scientist must provide timely technical advice as incidents unfold in order to prevent costly escalation.
We undertake forensic investigations worldwide, typically onsite after the incident or remotely through the study of the available documentation and evidence. Our senior consultants regularly assist with dispute resolution, giving expert evidence in the High Court, in arbitrations worldwide and in mediations. We regularly provide technical assistance on unfolding incidents and operate on a 24/7 basis, 365 days a year, to provide urgent specialist advice to clients exposed to high damage incidents or faced with potential costly escalation.
In an ideal world an alleged loss incident will be dealt with logically and sensibly onsite, in a timely manner and with minimal losses. Unfortunately, this is not always the course of action due to the complex nature of disputes that arise in the global trade of animal feeds. In such cases, the timely application of specialist expertise can assist with successful international dispute resolution. Cited references 1. The International Feed Industry Federation (IFIF) Annual Report 2012/2013.
For more information on our expertise and services offered please visit our website at www.cwa.international or call 020 7242 8444 to discuss your needs.
2. The Association of Animal Feed Producers in the UK, 2013, Industry Report for 2014 and Beyond. 3. Feedipedia: www.feedipedia.org 4. J.T. Mills, 1989, Spoilage and heating of stored agricultural products. EXPERT WITNESS JOURNAL
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Driving Under the Influence By Dr.Bernard Leddy Ph.D. Leddy Consultancy Ltd www.leddyconsultancy.ie Driving a motor vehicle safely requires a coordinated mixture of cognitive,visual acuity and motor reflex skills.Driving is not intuitive it is learned behaviour which can be learned well or badly.When a person drives, or attempts to drive,under the influence of psychoactive drugs and medicines they violate some aspect of the Road Traffic legislation in most jurisdictions.
years and the equipment has been refined over time so that a handheld, device can now give very accurate readings of breath alcohol levels. Up to now portable roadside drug testing has been impractical.However, many new testing systems are under development and coming on the market soon, so that roadside drug testing will be as common as the â&#x20AC;&#x2DC;breathalyserâ&#x20AC;&#x2122; in a few years. I believe that legal practitioners will soon have to deal with complex and intricate drug driving cases in a way that they have not heretofore.
In the course of my work as a Pharmacy, Pharmaceutical Science and Toxicology consultant I am often called on by legal practitioners to help them with clients who are in trouble for driving or attempting to drive under the influence of drugs, including alcohol and medicines. Roadside testing for alcohol has been commonly used for nearly 50 EXPERT WITNESS JOURNAL
We need to develop new ways of professional interaction between legal practitioners and toxicologists. I am going to launch a Drug Information service for legal practitioners which 83
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100mg/100mL will only be reduced to 82mg/100mL after 1 hour. There are also enzymatic, genetic and morphological considerations which also affect alcohol metabolism. Many of the “cures’’ of folklore such as black coffee, high dose vitamin C and so on don’t speed up alcohol metabolism.It is often said that if you give strong black coffee to somebody who has had a lot to drink all you end up with is a wide awake drunk. It has been estimated in the USA that about 11% of all drivers annually have driven over the limit.
will give access to toxicology information in real time all year round. Subscription to this service will be confined to registered legal practitioners. In the meantime you can subscribe to my free newsletter through my website www.leddyconsultancy.ie
How drugs affect driving: A guide for legal practitioners 1) Alcohol This is a legal and freely available drug in most western countries. The permitted limit allowed for drivers is set by legislation in all jurisdictions. Here in Ireland the general limit is 50mg/100mL of blood. In the UK it is 80mg/100mL and in some Scandinavian countries it is 20mg/100mL. As driving under the influence of alcohol is an absolute offence the legal limit reached varies from place to place. Alcohol is a CNS (central nervous system) depressant.It works through two neurotransmitters in the brain GABA and Glutamate. In the early stages of alcohol intoxication there is a reduction in inhibitions as those parts of the brain that govern restraint and self control are depressed. At blood levels up to 50mg/100mL the outward effects of alcohol may be noticed only as more talkative. Although at the upper end of that scale measurable impairment of driving skills may be emerging. The real danger area for drivers is when the blood levels of alcohol get into the 50-100mg/100mL range.At this range there is loss of motor control which will significantly affect reflexes when driving. So braking and judging speed will be impaired.Inhibition of the senses in this range reduces self critical facilities and there may even be euphoria. In the 100-200mg/ 100mL blood alcohol range both physical and mental functions become significantly impaired as the blood alcohol concentration rises through this range. This can lead to poor balance, poor judgement and poor driving performance. Many fatal accidents occur within this blood alcohol range as the driver will perform badly but is not so intoxicated as to incapable of getting into trouble. The relationship between blood alcohol level and impairment is not linear. Also, not all alcoholic drinks contain the same percentage of alcohol.For example 500mL of an alcoholic drink of 2% alcohol will contain 10g of alcohol but 100mL of a drink containing 40% alcohol will contain 40g of alcohol so the number of pints or shorts will not in itself tell you how much alcohol was actually consumed. Alcohol is metabolised at an average rate of 18mg/hr and within the range 9-27mg/ hr. So, roughly speaking, a blood alcohol level of EXPERT WITNESS JOURNAL
2) Cannabis Possession and use of cannabis is illegal in most jurisdictions although it has been decriminalised in the State of Colorado and a certain tolerance to use is still present in the Netherlands. It is illegal to drive or attempt to drive after taking any form of Cannabis. The active ingredient of Cannabis is Delta 9-Tetrahydrocannabinol. The drug is obtained from the leaves and flowering parts of the herb Cannabis sativa. This plant has very characteristic diagnostic microscopical features which make it easy to distinguish from other plant drugs. It is sold as herbal Cannabis, Cannabis resin or Cannabis oil and it is usually smoked in a joint or reefer. Its use by drivers affects a wide spectrum of the skills needed for safe driving. Reflexes are slowed,also the perception of distance and speed are impaired meaning that it is much harder to respond quickly to motoring events which need avoidance or sharp braking. It also significantly affects the drivers ability to track or stay in lane.D9THC (Delta 9-tetrahydrocannibinol) is cleared rapidly from the bloodstream and is often difficult to detect in whole blood samples after about 3 hours.It is highly lipid (fat) soluble and may persist in the system for weeks or months after taking Cannabis which is why people often fail drug screening conducted after time. A significant fact in forensic cases is that normal levels of driving performance are not regained for at least four to six hours after smoking a single joint. Following a road traffic accident the driver may have assumed that the effects of cannabis on driving skill tapers off quite quickly whereas the opposite is true. Mixing cannabis use with drinking alcohol leads, in my opinion, to a multiple of the adverse effects of both. 3) Tranquillisers Hypnotics and Anxiolytics This is not a coherent group of drugs. However, many of them are related chemically and can have quite dramatic detrimental effects on driving skills. 84
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In most jurisdictions these drugs are only available on prescription but like all psychoactive agents there would always be a black market or street trade in some of them. By far the largest group of these drugs are benzodiazepines or drugs which act like benzodiazepines. They are used in medicine as tranqullisers, hypnotics, anxiolytics, muscle relaxants and sometimes for clinical sedation and preoperative treatment. In spite of their wide clinical use they are powerful drugs. They differ widely in their physical properties, elimination and metabolism. The length of a drugâ&#x20AC;&#x2122;s activity is often expressed as its elimination half life. A useful definition of half life is the time in minutes, hours or days at which the amount of unchanged drug becomes 50% of the initial plasma concentration. For example Flunitrazepam has a half life of 18-26 hours, Diazepam has a half life of 20-100 hours and Midazolam has a half life of only 3 hours. It is clear from these figures that many drivers are impaired many hours after they have taken one of these drugs. Generally the degree of impairment is directly related to the dose taken. These drugs affect driving skills by slowing reaction times, interfering with hand eye coordination and affecting judgement of distance and speed. It is
worth mentioning here the socalled Z drugs, zolpidem,zopiclone and zalpelon. They are all used as hypnotics and although chemically distinct from benzodiazepines they exert their effects through the same receptor system as benzodiazepines. They start working quite quickly and have a measurable detrimental effect on driving skills often within 30 minutes. This adverse effect tapers off quite quickly and has usually disappeared by 7-9 hours after administration. These do not show up in drug screens for benzodiazepines and they can be difficult to find in forensic samples. There have been cases of drugged driving with these drugs where amnesia has been the overwhelming symptom and the subject has no memory of the journey. Impaired driving with these drugs can very often lead to proceedings under the criminal justice codes. 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 2015.
PHARMACIST AND PHARMACEUTICAL CHEMIST We provide expert witness services to the Legal and Related professions in the area of Pharmacy, Pharmaceutical Science and the use and abuse of drugs and medicines. We undertake Criminal and Civil Litigation, Fitness to Practice Cases, Medical and Pharmaceutical negligence. Providing a comprehensive drug information service which may be accessed 24/7. We also specialise in toxicology, driving under the influence of drugs and medicines. Expertise in the area of the suitability and safety of medicinal products. We provide a comprehensive drug interaction checking facility. We specialise in crisis management in Community Pharmacy including dealing with adverse inspection reports from the Regulators.
Contact: Dr. Bernard Leddy Tel: 00 353 5853 341 Fax: 00 353 2494 898 Mobile: 00 353 872 60 9788 Email: info@leddyconsultancy.ie Web: www.leddyconsultancy.ie Leddy Consultancy Chapel Street, Lismore, County Waterford Area of work Nationwide, Scotland & Ireland
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Forensic Science and Sexual Offences by Sue Carney, Consultant Forensic Scientist, Ethos Forensics. Interpretation of the forensic findings in sexual offence cases are amongst the most complex and difficult interpretations faced by forensic scientists. What are the forensic issues in sexual assault and rape cases? And, why is it so difficult to achieve successful prosecution of rapists? 2013 overview follows the 2010 Stern Report, which recommended improvements to policy and procedure in dealing with sexual offences, as have previous reports including the HMIC/HMCPSI joint investigation into the investigation and prosecution of rape cases of 2002, and the Cross Government Action Plan on Sexual Violence and Abuse of 2007. The mere existence of these and other investigations highlights the difficulties in successful prosecution of alleged rape and sexual assault. The difficulties are numerous.
Following news of huge backlogs in U.S. rape kit processing, I was recently asked, for an article in Cosmopolitan, whether the situation in the UK was, or could ever be similar. Thankfully, the short version of my answer was, no. In my view, we are years ahead of the U.S. in terms of the effectiveness of our investigations of sexual offences. The UK has a wealth of specially-trained police officers to deal with sexual assault victims in the most efficient, yet sensitive way. We have regional sexual assault referral centres, staffed by forensically trained medical staff and rape counsellors. The UK forensic science provision offers specialist services for dealing with sexual offences casework. But, it hasnâ&#x20AC;&#x2122;t always been this way and despite todayâ&#x20AC;&#x2122;s enlightened processes for dealing with sex crime, there are still improvements to be made.
The investigation and subsequent prosecution of sexual offences involves the co-operation of several agencies. Focusing on the forensic aspects of sexual offence cases, police officers need to be aware of timescales and contamination risks in order to minimise the loss of crucial evidence; forensic medical examiners need a current knowledge of forensic science in order to recover the most appropriate evidence from the victim and suspect; forensic scientists must be sexual assault specialists in order to carry out such complex interpretations; and prosecutors require a detailed knowledge of the significance and limitations of forensic evidence.
In early 2013, the Ministry of Justice, the Home Office and the Office for National Statistics published An Overview of Sexual Offending in England and Wales. Crime figures cite an average of eighty-five thousand women who are raped each year and four hundred thousand subjected to sexual assault. These are the reported figures. It may be impossible to gauge the levels of unreported sexual assaults. This EXPERT WITNESS JOURNAL
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In the majority of circumstances, forensic evidence is time-dependent. This is particularly true of sexual offences casework. Biological evidence on the body or inside a body orifice persists for a limited time, and loss is accelerated by activities such as washing or bleeding due to injury or menstruation. It is vital that the forensic medical examinations of both complainant and suspect, if there is one, are carried out at the earliest opportunity to maximise the recovery of trace evidence. The Faculty of Forensic & Legal Medicine of the Royal College of Physicians publish guidelines for the collection of forensic specimens in sexual assaults, in conjunction with the UK Forensic Service Providers and the Association of Chief Police Officers. These are updated regularly, based on current best practice, and offer some degree of standardisation, although variations in procedure and the provision of appropriate sexual assault referral centres still remain across the UK. It is not reassuring to perceive the potential outcome of a sexual assault investigation as little more than a post code lottery, but there are other factors at work here.
Ethos Forensics provides: Forensic consultation in relation to DNA and body fluids evidence
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Interpretation of blood pattern analysis evidence
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Expert witness services
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Urgent responses and reporting within 5 working days, if required
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Forensic training for police customers, forensic scientists or other interested parties (Bespoke courses can be arranged)
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Auditing and quality systems consultancy to ISO 17025 Contact, Forensic Consultant Sue Carney MPhil, BSc (Hons), MCSFS Telephone +44 7796 546 224 www.ethosforensics.com
Much of the information gleaned at the complainant’s forensic medical examination is invaluable in determining the most appropriate forensic strategy in the case. It is the forensic scientist, in conjunction with the police force’s forensic submissions or scientific support department who will make these decisions.
Forensic evidence provides additional information to be used by jury members to update their opinion of guilt or innocence by taking the value of the forensic evidence into account. The forensic expert presents their evidence in the form of a level of support for a particular view and very rarely, if ever, as conclusive proof. Rulings of The Court of Appeal in some of the earliest cases using DNA evidence, such as that relating to Regina versus Doheny and Adams ([1996] EWCA Crim 728], clarify the role of the expert witness in such matters.
Information at the time of forensic strategy setting is key in assessing the potential outcomes of the laboratory examination of exhibits and indeed, in determining whether the proposed examinations are worthwhile. In order to assess a case in this manner, the forensic expert uses an interpretive framework based on three principles: 1. Interpreting the evidence in the light of the information associated with the case. We refer to this as the conditioning information.
Forensic science interpretation addresses case issues using a ‘hierarchy of propositions’. For example, addressing ‘source level’ might consider issues of from whom semen staining found in a sexual assault case has originated. ‘Activity level’ in the same case might seek to address the issue of whether the defendant engaged in sexual activity with the complainant. In most sexual assault scenarios, addressing issues at activity level is of much more value to the criminal justice process. However, questions surrounding activity level require consideration of the issues surrounding the transfer and persistence of evidence: How and when was the semen deposited and does it relate to the alleged incident?
2. Considering the evidence in terms of at least two competing scenarios or versions of events representing the views of the prosecution and the defence. And, 3. Considering the likelihood of the evidence rather than the likelihood of the versions of events. This approach leads to an evidential interpretation that is balanced, logical, robust and transparent. Forensic experts have long since realised that their remit must never extend to the provision of expert opinion on matters of guilt or innocence of a defendant. To offer such opinion would commit the ‘prosecutor’s fallacy’ and forensic experts know that the question of guilt versus innocence is purely the realm of the jury. However, this doesn’t prevent the the common misconception that forensic experts deal in ‘proof’. They do not! EXPERT WITNESS JOURNAL
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The laboratory testing processes used in the identification of biological evidence have limitations that must be taken into account during the forensic interpretation of a sexual offence case. Many of the chemical tests for body fluids are not specific, giving rise to the possibility of false positive results. This is often compounded by the fact that some body fluid 87
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stains may not be readily visible and chemical testing is often used to screen exhibits in order to locate areas of staining.
Another consideration in a low sperm numbers scenario is the fact that sperm cells can be transferred to clothing items in the washing machine. Again, case conditioning information is vital in the cautious interpretation of such findings. If an exhibit has been washed or was seized from a washing machine, the forensic expert must question the chance of transfer of sperm from a semen-stained item in the same wash before attributing those sperm cells to the presence of semen on the exhibit.
The sensitivity of some body fluid tests is another issue to contend with. If biological evidence is dilute or mixed with another substance then some of the less sensitive chemical tests may fail to detect it. The test for saliva is a case in point here. In addition to being a presumptive test, it is not particularly sensitive, and the chemical reaction itself takes time to develop. These conditions, coupled with the fact that a small proportion of the population do not produce amylase, the enzyme in saliva that this chemical test reacts with, mean that forensic scientists must exercise caution in attributing particular results to the presence of saliva. Furthermore, an apparent absence of saliva can never be definitive, and as a general rule, an absence of evidence does not necessarily support a view that a particular activity did not take place, since there might be other legitimate reasons for that absence. This is especially true of rape scenarios. An absence of semen on intimate swabs does not refute the allegation, since it is possible that rape occurred without ejaculation, or that a condom was worn.
At the extreme end of the spectrum of limitations of body fluid testing, there are some body fluids for which there is no chemical test, presumptive or confirmatory, currently validated for forensic use. Vaginal secretions are a particularly relevant example. The existence of a reliable and specific test for vaginal cells would greatly enhance the degree of forensic interpretation possible in rape cases. Currently, the cells shed from the lining of the vagina, known as epithelial cells, can be visualised microscopically. But such cells are largely indistinguishable from epithelial cells from other body orifices. Saliva is a good source of epithelial cells from the mouth, and this, coupled with the fact that in some circumstances, vaginal secretions can indicate a false positive in the presumptive test for saliva, is inevitably problematic in interpreting the outcomes of penile swab tests in allegations including both oral and vaginal intercourse.
Forensic experts are well aware of the limitations of these tests and must take into account other factors such as the location and distribution of staining and potential for the presence of material from unrelated sources. Again, case conditioning information is key in addressing these concerns.
Current research at several academic institutions, most notably, the University of Huddersfield, seeks to address this issue using a system to characterise specific RNA molecules within various body fluids and tissue types. RNA is a nucleic acid, similar to DNA, that is produced by cells when genes are switched on. The rationale is that different tissues within the body, given their different functions, will have different requirements for actively used genes. Therefore, the pool of RNA molecules within a particular cell type should be specific for that particular tissue type. If this research can develop a specific test for each body fluid, especially vaginal cells, and such a test were relatively straightforward to conduct, then this would offer significant advances in the forensic interpretation of body fluid findings in sexual assault casework.
There are, of course, confirmatory tests available for some, but not all, body fluids. Some of these are complex and rarely conducted, such as the crystal tests used as confirmatory tests for blood. Since blood almost always has such a distinctive appearance, it is considered sufficient that if a stain looks like blood and gives a reaction to a presumptive test, then it can be interpreted as blood. Others are far more routine. For example, the identification of spermatozoa (sperm cells) by microscopy, is almost always definitive in establishing the presence of semen, since sperm are extremely unlikely to have originated from anything else. However, this is not without its complications. Human sperm exist in a variety of subtly different morphologies and such variation in appearance may give rise to difficulties in identification. When viewing a microscopic sample, one is visualising a two-dimensional image of a three-dimensional structure. If a sperm cell is rotated within the field of view, it may not be instantly recognisable. This might be an issue if a sample contains very low numbers of sperm, due either to a delay in recovery of the sample or due to an individual having a low sperm count. It may be that, of those sperm observed, some are not readily identifiable. EXPERT WITNESS JOURNAL
The issues in sexual offences casework have demonstrated the importance of case conditioning information for effective forensic interpretation. Forensic scientists usually have access to three main sources of information in a sexual offence case: The complainantâ&#x20AC;&#x2122;s interview transcript, the notes from the forensic medical examination and the statement or interview notes relating to the suspect. From these, the forensic scientist may be able to establish much of the conditioning information required for interpretation. However, some parts of the 88
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are well aware of the issues of cognitive bias but research indicates that awareness is not necessarily sufficient for prevention.
conditioning information may never be established simply because it is unavailable or unknown. For example, in a drug-facilitated sexual assault, the complainant may not have a clear recollection of the alleged sexual activity if she is intoxicated or unconscious. Whilst such cases may need to be dealt with in an investigative, rather than an evaluative manner, it is also clear that some flexibility must be built into the forensic interpretation of evaluative cases to allow for uncertainties in the conditioning information. This is another reason that forensic opinion is rarely provided as definitive proof.
To summarise: Forensic evidence in a sexual offence is time-dependent. In order to provide the most useful interpretation, the forensic expert must consider the mechanisms of transfer and persistence of biological evidence. Their interpretation is heavily influenced by the circumstances of the case, especially the defendantâ&#x20AC;&#x2122;s version of events, and the limitations of current forensic test procedures. Ethos Forensics have accrued many years of experience in the complex forensic interpretation of sexual offences casework and have worked on many hundreds of cases in this area. We would be delighted to assist defence Counsel by providing a comprehensive review and commentary on the limitations of the forensic evidence in your sexual offences case.
Whilst information is vital for interpretation, is it possible to have too much information? Issues of cognitive bias in forensic science have been the topic of much debate of late. Forensic scientists must be impartial regardless of which â&#x20AC;&#x2DC;sideâ&#x20AC;&#x2122; of the trial process they are instructed by. Their duty is to the criminal justice system not to a particular police force or forensic provider. Is it possible that within the reams of extraneous information served up in sexual offence case scenarios, forensic experts are unknowingly making judgements based on factors such as the social activity of the parties involved, or the appearance of their clothing? Forensic scientists
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For a free initial consultation, contact Sue Carney, Forensic Consultant, on 07796 546 224 or sue.carney@ethosforensics.com
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Digital Forensics and the Futuristic Scene-of-Crime By Professor John Walker, Digital/Cyber Expert Witness premises which were suspected to be the clandestine, unauthorised location for the illicit storage of high-grade classified materials.
Over the years, I have written multiple articles on the subject of digital or cyber forensics and the importance it serves in supporting the modern world with regards to corporate and government incident response, first responder engagements, and more general aspects of scene-of-crime management in the digital age.
However, no matter the engagement, the same rules were always applied on every occasion in the form of ‘process’ – the King (and Queen) to assure that the investigation, and supporting acquired artifacts were robust, defensible (if subject to challenge) and that an accurate and robust chainof-handling/custody, along with secure storage/ transmission, had been applied at all stages.
Before we get into the detail, please allow me travel back to my days in the Royal Air Force, during which I took training on the subject of crime-scenemanagement. We covered a variety of issues, including the importance of preserving life, accessing the scene, and of course, ensuring that any acquired artifacts were properly documented, as well as how crucial it is to keep a contemporaneous record that one can in turn present to any enquiring/challenging authority.
Note: No matter what actions have been taken, what has been acquired, and what the implied burden of proof is, if process is broken, it can (and will) serve as the ‘Achilles Heel’ to challenge and diminish the value of what is presented, seeking to make it inadmissible, or to reduce its weighting to the case.
Following these practical gems of knowledge being planted, I transitioned them over to the operational world of policing, dealing with cases ranging from the RTA-72 (drinking and drive), administering the breath test, and overseeing the obtaining of blood samples, right through to the world of counter intelligence, conducting searches of persons and EXPERT WITNESS JOURNAL
In essence, over the years, the very foundation of scene-of-crime management has not really changed, apart from one exception, which arrived in the guise of the digital footprint (DF): digital evolution.
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Here we are looking to the era of technology, people with tilted heads, walking down the street staring into the palm of their hand, the quick-jerk fingers of the lady on the train as she complies a text manage or email, right down to the case of the Soham Murders of Holly Marie Wells and Jessica Aimee Chapman in 2003 committed by Ian Huntley – all of which have one thing in common = ‘DF’.
interface between suspects; use of a home, or office-based VoIP appliance; metadata hidden deep inside the code of an image or document; the contents of removable media, or a computer hard drive; CCTV; and not forgetting the prospect of any related artifacts, which may be resident within the circuits and/or storage of on-board automobile computing facilities – all of which possess unknown possibilities for the representation of ‘DF’.
In the case the Soham murders, the presence of the ‘DF’ was one key area of evidence supporting the prosecution, as whilst Huntley denied being in the vicinity of the crime, his cell phone inferred a different story as ‘it’ had registered in, or close to the edge of the radio-cell, and thus played an important part in placing, or inferring the suspects cell phone (and by association Huntley) had been close to, or in attendance at the scene.
It is for this reason I put the case forward that, whilst on rare occasion the ‘DF’ element may not be relevant at the end of the investigation, it must be considered as a matter of priority within the first responder landscape, and should thus be accounted as a process line entry as a matter of course for every crime scene or subsequent investigation encountered. Locard’s Exchange Principle When considering the digital artifact, Locard’s Exchange Principle is equally applicable to the world of bits and bytes in that the perpetrator of a crime will bring something into the crime scene and leave with something from it. For instance, consider the following as applicable to a Digital Footprint:
Extrapolate this forward to 2015, with Location Services and GPRS facilities, which can track and place individuals to locations, and we can start to appreciate the implications of what the DF can present.
“Wherever he steps, whatever he touches, whatever he leaves, even unconsciously, will serve as a silent witness against him. Not only his fingerprints or his footprints, but his hair, the fibre’s from his clothes, the glass he breaks, the tool mark he leaves, the paint he scratches, the blood or semen he deposits or collects. All of these and more, bear mute witness against him. This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence cannot be wrong, it cannot perjure itself, it cannot be wholly absent. Only human failure to find it, study and understand it, can diminish its value.“
Fig 1 (above) - Social Media Activity Map We may also look to some of low-cost tools, which have emerged to track individuals, and place them, or infer they are at, or close to a physical location – that is, assuming the transmitting device is in the possession of the legitimate owner. One such tool is echosec (See Fig 1 above, with the tool mapping social media activity associated with a University Campus).
Here, it is also important when considering digital forensics not to suffer tunnel vision on the digital element only, as the physical nature of the artifact may also provide proof of the act in both mens rea (guilty state of mind), and actus reus (the act).
In our technological age, it may therefore be argued that in around 99.99% of scenes-of-crime are associated with some form of technical component, and by implication it follows that there is a close, proximity, or a removed presence of the digital footprint is in existence.
Robustness of Standards Given the importance of this digital science, it may be asserted that it cannot be left any longer to an approach based on chance, best endeavours, or a have-a-go approach, as the resulting implications, and the prospective impact(s) on both investigator,
For example, the last phone call made by a victim, or attacker, a social media trace with an associated implication, some form of conjoined electronic EXPERT WITNESS JOURNAL
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When considering the aforementioned shopping list of assurances, it may be argued that these fundamentally breakdown into 7 areas, which are shown in the below:
and suspect carry the potential of real world impact, which could manifest in woeful, damaging, and life changing implications. For instance, take the case of an ‘expert witness’ who provided testimony in support of the prosecution in a case of medical malpractice which focused on a key email artifact. However, our expert in this instance only passed judgment on what could be seen as lexical content within the body of the communication, and took the ‘To’ and ‘From’ as prima facie facts, and did not follow through with any further corroboration of the email headers – leaving the interpretation and assessment of the acquired artifact open to error – something which should have been subject to challenge.
Process Training Proficiency Documentation Review Maintenance Legal
ISO/IEC 17025:2005 It is for this reason why the application of the ISO/IEC 17025:2005 is so very important to drive the intrinsic expectations of competence, experience, and skill to assure that professionals who are engaging in this scientific practice meet the expectations of the discipline.
1 2 3 4 5 6 7
Fig 2 (above) – Cell Phone Acquisition For instance, take item 1 from the table above. As an example let us focus on the exemplar process of taking a cell phone into the custody of the first responder, which can be seen at Fig 2.
For example: ❖ Was the digital evidence tainted or compromised regarding how it was collected and where it was stored? [1/2]
Of course, an additional step which may be applied to the process could be attaching a battery backup to sustain the acquired artifacts in a state of as-was at time of acquisition, to preserve the dynamic profile.
❖ Is the chain-of-custody complete and accurate? [1] ❖ Is on-the-job training alone sufficient to qualify the examiner as an expert? [2/3]
Or what a documented process may exist to support first responder to make a qualified assessment based on a recognised scale – and here at Fig 3 below is an example of the COPINE (Combating Pedophile Information Networks in Europe) when investigating images, along with overarching support being driven the a high level policy at Fig 4:
❖ Are documented, verified/validated procedures available for review? [4/5] ❖ Is the case file documentation complete and detailed such that another examiner can recreate the results of the examination(s)? [1/2/3] ❖ Were the examination results peer reviewed? [4/5] ❖ Is the examiner competent to perform the examination(s)? [2/3] ❖ Was the examiner proficiency tested? [5] ❖ How are the forensic computers and forensic software maintained and updated? [6/7] ❖ Are the software tools used legitimate, licensed, authorized versions? [7] ❖ Were the software tools performance tested prior to their use? [5/6] ❖ Did the software or hardware alter or change the original digital evidence? [1/2/3] ❖ Were scientific principles followed during the examination(s)? [1/7]
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Fig 3 (above) – The COPINE Scale
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❖ This policy and associated Annex emcompasses the following areas:
requirements of such a critical service are beyond the internal capabilities and resources of the internal team, and that running a fully blown and robust internal digital forensics team within a commercial organisation may be cost prohibitive, and not represent a solid investment or ROI (Return on Investment). However, this should not bar any company from provisioning an in-house first responder capability (FRC) in the form of a first touch, first response/engagement element whilst at the same time recognising the implied limitations of the team.
❖ Roles, responsibilities relating to a security incident, or vulnerability ❖ Documents and CSIRT Framework ❖ Legislative and regional requirement ❖ Events, incident, and vulnerability management, and review procedures ❖ Lifecycle management of unresolved events, incidents or vulnerabilities
So, here, one may consider:
❖ Post event remediation and management
❖ Creation of policies to cover the objectives of the service offering
Fig 4 (above)– High Level Policy
❖ Establish processes which may be applied to support the first responder engagement
Hardware, Applications and Tools When it comes to the hardware and applications in support of the digital forensic mission, whilst home-grown systems may well provision a level of service, they may not be of a proven ability, or accepted as trusted instruments to support the criticality of a serious investigation. Thus choosing established, and proven tools from the stables of access data in the form of FTK, EnCase, or the cost effective solutions from Paraben can go a long way to satisfying the provision of robust solutions – with the caveats that: a, They are maintained with the most current updates b, They are in the hands of proficient, and trained operators
❖ Define clear Terms of Reference (TORs) for the first responder team ❖ Provision an adequate base level of training to underpin their areas of anticipated expertise and responsibilities ❖ Recognise limitations ❖ Have an established contract in place with an external professional provider of such a service Conclusion It is an established opinion of many professionals, practitioners and academics that to provision such a service as digital forensics, by inference dictates the necessity exists to grant a high level of autonomy to those who are responsible, and incumbent to support such professional expectations. We must also keep a clear mind on one important fact: to acquire what can be dynamic and intangible, and time sensitive artifacts in the early stages of an investigation presents of highest opportunity of success.
There is, of course, the need to support the operational service of our digital forensics first responders with specialist hardware, such as write-blockers like the UltraBlock device to assure that when using Wintel Systems, the target drive is not contaminated with any anticipated ‘are-youthere’ system calls, which can leave their invasive footprint on the artifacts(s) under investigation.
However to return to a scene which has seen the reuse, or change of state of any artifacts may well encounter they are no longer present, or have been corrupted, and diminished in their evidential value. As with dynamic states, they do not always wait for tide or mankind to return to acquire what was missed at the first pass. ■
For the first responder working in the field, it is important to assure the collected evidential materials are afforded a commensurate level of protection when outside of any controlled environment. A very versatile and low-cost tool I have seen deployed is the CESG CCTM, FIPS 140/2 IStorage USB drive, fully enabled with Pin-Pad Access Control.
Professor John Walker is a Digital/Cyber Expert Witness, with a UK Government, Law Enforcement, & Counter Intelligence background covering 22 years of operational experience.For further information please visit www.hexforensics.com
The above is not a fully comprehensive list but does hopefully provide some exposure to the type of tools, applications and investigative support with which the digital forensics operator needs provisioning with. Fit for Purpose Operations It may be that for some organisations consider the gravitas which is applied to the technological EXPERT WITNESS JOURNAL
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Decision Making in Chronic Pain: Somatic Symptom Disorder, Somatoform Disorder or Behavioural Inactivity by Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP Dr Fay Fraser, Chartered Psychologist, Hugh Koch Associates LLP Mr John Mackinnon, Consultant Orthopaedic Surgeon, Hugh Koch Associates LLP Dr Simon Midgley, Chartered Psychologist, Hugh Koch Associates LLP Medico-legal experts and lawyers alike are faced with several dilemmas when claimants present with unusual, atypical, difficult-to-understand pain symptoms. For example:
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).
1. Is there an organic explanation for the pain (detected or possible)?
Figure 1 below illustrates some of the key components of a comprehensive assessment of chronic pain:
2. Is this organic cause sufficient to explain ongoing symptoms?
Figure 1: Interview Behavioural Assessment • How does he/she walk into room • How does he talk about pain (verbal/non verbal) • How does he describe the pain (duration, severity, level of description)
3. Is there an ongoing psychological cause for the dysfunctional pain coping behaviours? 4. Is this psychological cause specifically painrelated or due to other reasons (e.g. trauma, depression)
↓ Careful History Taking a. Pre-index event b. Immediate post-index event c. Current experience/symptoms ↓
5. Is there a pre-existing history of pain behaviour (explained and/or unexplained). The overlap between orthopaedic and psychological/psychiatric opinion in cases of chronic EXPERT WITNESS JOURNAL
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Other Sources of Data a. GP and Hospital records b. Test data (psychometric, clinical (including Waddel signs)) c. Observation and Surveillance data ↓ Opinion or Diagnosis, Causation and Prognosis ↓ Clarification, Part 35 Questions ↓ Joint Opinion Discussions (Same specialty/cross specialty)
• 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:
• Generalised anxiety disorder - Characterized by worry not limited to, but including, physical symptoms.
• 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. • Somatic Symptom Disorder (300.82) - Typically pain is adversely affected by psychological factors such as anxiety and depression, in otherwise robust personalities.
• Panic disorder - Somatic complaints occurring only during panic attacks.
1. The ‘egg shell skull’ principle – a claimant must be taken ‘as they find him/her’, even if index-event complaints are aggravated by previous health problems.
• 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.
2. The alternative ‘predisposition’ model in which a claimant’s vulnerability to ill health or pain could be considered causative of a post index-event condition and that it would have been triggered by another further occurrence in any event e.g. somatoform personalities.
In addition: • A physiological 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: -
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 (Koch et al, 2015).
1. Clear history of site-specific pain onset. This is obtained from claimant self-report plus GP (and other medical) attendance data and investigations, usually imagine. The efficacy of any treatment is noted. 2. Evidence of unrelated prior attendance to, typically, medical practitioners for one or more somatic complaints and associated frequency of such attendance.
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 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, 2013), disorders involving pain fall into seven categories: EXPERT WITNESS JOURNAL
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, behavioural and social activity) impacts positively or negatively on the claimants coping strategies and perception/tolerance of pain. 6. Reliability of claimant’s history giving – many people have difficulty recalling or giving accurate 95
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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. 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. More recently, the psychological input has centred on teaching claimants how to use mindfulness techniques to cope with pain. Example Pain Assessment Trail during litigation process GP → Orthopaedic → Psychological/Psychiatric → Pain Management (Anaesthetist) ↓ Multidisciplinary Management Treatment (Medical and Psychological CBT)
Psychological • Psychological experience of pain. • Impairment in social and occupational functioning.
Pain-related Joint Orthopaedic/Psychological assessment and opinion To address comprehensively the several medical and psychological aspects of chronic pain, some orthopaedic/pain medicine/psychologist teams are currently offering ‘joint appointments’ to lawyers.
• Psychological factors in onset, severity, exacerbation and maintenance of pain.
Such appointments have the advantage of: • Same day appointment with orthopaedic specialist and clinical psychologist.
Joint Opinion (orthopaedic/pain medicin / psychological) On occasion, the court will instruct an orthopaedic, pain medicine 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 three experts, discussion views on the interface of physical and psychological explanations and prognosis can be invaluable to the court’s deliberations.
• Exclusion of factitious disorder or malingering. • Use of pain coping strategies and readiness to change.
• Separate report with agreed conclusions following case discussion between experts. • Appointment within 6 – 8 weeks. These assessments cover: Orthopaedic/Pain Medicine • Location of pain – anatomical, organ system
Conclusion Identifying, diagnosing and apportioning psychological problems and disability in the context of chronic pain is a highly expert field. The psychologist-as-expert is aided by clear diagnosis from orthopaedic colleagues, clear evidence from claimant self-report on level of behavioural activity
• Temporal characteristics of pain and pattern of occurrence. • Aetiology. • Utilising Waddel signs/eliciting of inorganic clinical signs (Waddel’s spine signs)
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levels, reinforced (or otherwise) by GP medical attendance records. In a recent publication (Koch HCH, 2015) the first author outlined a set of 15 â&#x20AC;&#x2DC;postulatesâ&#x20AC;&#x2122; illustrating how robust opinions required robust reasoning. The following additional postulate (Koch Postulate XVI) concludes this paper.:
Clinical, Forensic & Child Risk Assessments Pre/Post Sentence Reports Life Review Panels Therapy, Anger Management Intellectual Functioning (IQ)
â&#x20AC;&#x2DC;Irrespective of the prognosis for organically mediated pain, psychologically mediated â&#x20AC;&#x2DC;overlayâ&#x20AC;&#x2122; can have a positive prognosis especially with pain-related CBT therapy resulting in increased pain coping and adjustment.â&#x20AC;&#x2122; â&#x2013; References Koch HCH (2015) Robust opinions need robust reasoning: 15 medico-legal postulates. Solicitors Journal. May.
UK Wide Coverage Private and Legal Aid Short Notice - Quick Response
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.
Midlands Psychological Services Quayside Tower, 252-260 Broad Street Birmingham, B1 2HF Tel: 0121 224 3051/Fax: 0121 224 3252
Koch HCH, Mackinnon J, Harrop C, Boyd E (2015): Expert Evidence in Chronic Pain. Expert Witness Journal, Winter 2015 Koch HCH, Vallano J, De Haro L (2015): Thin or crumbling skulls: Recommendations for applying these rules consistently to pre-existing status. Solicitors Journal
Email: mps@midpsych.co.uk
www.midpsych.co.uk
More information on this topic can be obtained from any author at www.hughkochassociates.co.uk
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Kissing is a Crime? by Graham Rogers, Consultant Psychologist M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS Ireland recently, where it was their youth that brought about fundamental change in the way their society viewed gay and lesbian marriage. Only one district out of the 43 voting did not approve the change, an overwhelming result, where the youth of the country were seen as pivotal in this outcome.
As a qualified psychologist of nearly 25 years standing and having worked with younger people for somewhere in excess of 30 years, I have been fascinated by the way adolescents have been viewed by authority. In many respects current thinking about adolescents and young adults dates back to the 1960’s, mods and rockers and the sexual revolution. In the late 70’s and through to the 80’s, punk was the obvious revolutionary force actively challenging authority. In the 1990’s and into the early 2000’s there was at times an open fear from authority regarding the threats that teenagers and young adults posed to the way in which society functioned.
Young people view the world differently from the establishment and this is seen no more clearly than in regard to technology. Any parent with a 2 year old and an iPad will probably understand this concept as the child who struggles to string a sentence together, flies around the touch screen technology with ease. Whereas technology and its development into social media have changed our culture and the way in which we communicate, it is adolescents and young adults that have adopted it at a pace. Unfortunately, our ability to manage this change is proving to be more of a challenge.
However, this political imposition of fear was the way in which to justify change. Iraq and weapons of mass destruction is a good example, weapons which we now know, never existed. For younger people, anti-social behaviour orders were introduced in 1998 and given for a range of social issues, such as ‘playing football in the street,’ ‘rudeness’ and ‘fare evasion’.
If one considers Flickr for example, a photo-sharing website with millions of family photographs shared and viewed by those from around the world; socially acceptable and proudly placed by families, they allow others to share in the pleasure and joy of the children growing and the adventures that have been undertaken.
Laws were ‘simplified’ and brought up to date and the one that I encounter time and time again with young people is the Sexual Offences Act 2003. This brought together older acts of parliament and their amendments, while simultaneously adding and ‘clarifying’ offences.
However, in a recent case, a client suffering from obsessive characteristics had collected what he estimated to be close to a million images of children from this very same website; he claimed it was the only website he used.
Unfortunately in my opinion, where young people are concerned it appears to have made a bad situation far worse. Adolescents live in their own world and although they like to be individual, in reality, they tend to be individuals within a group where that group has a very specific identity.
However, these same family images were, according to the advice I received, classified as ‘category C’ by the CPS under the 2003 Act and the new definitive guidelines (1st April 2014) and he was duly prosecuted. To be clear, normal family photographs of children, shared on Flickr were, according to the CPS and the new guidelines, examples of child pornography. Social media is a new phenomenon and one where we are learning as we go along. Unfortunately the law and its application are not designed for this change.
To remain part of the group requires individuals to adhere to the shared identity; their behaviour, their dress and their stated ideals. Participating with that identity enables them to feel part of this whole, while different and distinctive from others, including the culture of adult society itself. This is normal. However, in many respects it is a microcosm of adult life, a sub-culture that in time will alter the future of mainstream culture itself. Indeed, this was seen in EXPERT WITNESS JOURNAL
CEOPs recently suggested that they were working on a case a day of children taking sexual selfies. These 98
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images were then sent to “another” and as a consequence the police were investigating. In my experience, a case a day is probably a minute fraction of what is actually occurring and appears to demonstrate the authorities total lack of understanding of adolescent culture. A few years ago, one of my own children came home from school and announced that a girl in the year group below hers had taken a photograph of herself and sent it to her boyfriend, who promptly sent it to his friends and according to the report I received, everyone in the school had seen it by lunchtime. The central issue with the image wasn’t that she had taken it or even related to what she had taken a picture of, rather, the issue for the hundreds of adolescents who had seen it was that she was “au naturel”. The changing culture for many young people is for less or even no body hair, so this child was not particularly criticised by her peers for taking the picture or sending it to her boyfriend, rather for her choice of “styling”. Needless to say, the teachers found out and contacted the parents of the young person.
Graham Rogers and Associates Limited Consultant Psychologists M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS
Specialising in children & adults with learning disabilities. Experience at The Central Criminal Court, and The Principal Registry of the Family Division. Contact 156 Little Cattins, Harlow, Essex CM19 5RW Mob: 07952 170 627 Email: info@grahamrogers.org.uk suzi.v.brown@gmail.com Web: www.grahamrogers.org.uk
In theory, under the 2003 Act, the girl was guilty of producing child pornography and then, by sending it to her boyfriend, guilty in the distribution of the same. The boyfriend then sent it to his friends who then, in turn, sent it to their friends and as such, not only did they all possess child pornography, but they also engaged in its distribution.
Consultant Psychologist
I discovered that the event in question occurred in school during lesson time where he had to leave his lesson part way through the session in one building, walk down a corridor and a second corridor, out of the building, down the outside of the building, across a playground and into a second building and part way down the corridor into the only area not covered by a camera. The girl was in the second building and she had to leave her lesson while it too was in progress, walk down the corridor, walk down the stairs, walk along another corridor, turn left and into the corridor facing the camera but which also allowed access to the space where the cameras could not see, which is where the intimate act took place.
This could have been one of the CEOP’s cases, but fortunately, the school and parents kept the police and social services out of the issue. However, what I found fascinating was the reaction of the school children, as described to me, it was not to criticise the girl per se, but to criticise elements of the picture content. Whereas there was some criticism of the girl for taking the photograph, this was not the central issue for these adolescents. There appears to be an increasing normality within this behaviour and an expectation that boys and girls will ask, and be asked for such images. Yet social media shares a distortion of information where there are gaps in the understanding of the complete message. Emails, twitter and text messages can appear abrupt, short and to the point, photographs can be seen to be acceptable in one context but not in another and in the case of this young girl, one might wish to ask if it was the girl’s idea to take the photograph or that of her boyfriend.
The act remained hidden from the parents for two months until the girl’s mother found out. It was only at this point that the police became involved. In assessing the case it became clear that either the meeting between these 13 year olds could not have happened (the girl made it up) or, it was probably pre-arranged by the children. My report was not submitted but used as part of the examination of the girl.
A few years ago I was presented with a case at Wood Green Crown Court where a teenage boy was accused of a sexual assault on a girl in the same school; the children were 13 years old and it was well established that she wanted him as her boyfriend.
The case went to court and I was told it took the jury just 20 minutes to find the boy not guilty. At this point one might wish to consider why the CPS could not see the apparent folly of the case; what was driving the need for a prosecution?
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Understanding the missing information is important but the only way one can do this is by understanding the nature of adolescent behaviour and the world in which they live.
‘reality’ sets in, at which point self-preservation becomes the issue for the naïve adolescent. However, the 2003 act essentially criminalises those under the age of 16 years having boyfriends and girlfriends. Indeed, the Home Office and subsequently the Ministry of Justice also fail to consider the way in which crime targets might shift the focus from ‘common sense’ towards ‘easy convictions’, from the need to offer young people guidance and understanding toward the need to fulfil quotas. A photograph makes for an easy conviction.
The Sexual Offences Act 2003 was written before the explosion in social media and the advent of the “selfie” and it is these “selfies” that cause difficulties for young people. If a boyfriend, or girlfriend asks for a naked photograph of their partner and they are still at school, then there is an increasingly strong probability that the police will become involved. If a school girl takes a naked photograph of herself and sends it to her boyfriend he runs a significant risk that he will be charged with receiving and possessing child pornography.
Of course, in considering the Guardian article one might ask, what is the point of having a law that criminalises (teenagers kissing is a criminal offence) while at the same time is dismissed by the Home Office (if they consent and enjoy it we will ignore it). Why create a law that criminalises normal behaviour and that in theory, is designed to be ignored? Does this sound like a sensible position for the Crown Prosecution Service to defend?
However, in my experience, if the girl simply says he asked for the photograph, she is seen as a victim of his grooming behaviour. One of the consequences for the boyfriend is placement onto the sex offenders register for 5 years, thereby stopping him from entering many universities, careers and summer jobs.
If one considers the CPS website, it notes how 14 and 15 years olds who are ‘consenting’ would not normally be considered for criminal proceedings.
Of course, what the authorities often fail to consider is the process of producing the selfie. By way of example, the girl has to find a room in the house where she can remove her clothes, ‘arrange the lighting,’ use a mirror in order to get a full length body shot, if required, then, take several photographs in order to find a ‘good one’ which she can then send. This suggests a greater level of complicity in the process and not that she is simply the unwilling victim of grooming and an abusive boyfriend.
However, there are three issues; firstly guidance on whether to prosecute is determined by the maturity of the couple and the existence and nature of a relationship, which in my experience is decided by those without the training or experience to pass such judgements (the police, CPS administrators and lawyers) rather than professionals with expertise in community-based adolescent behaviour such as social workers and psychologists. Secondly, the determination of whether there has been exploitation or not, which in my experience is determined by looking at the younger participant, which is usually the girl. It is not considered by looking at the couple and the nature of their relationship; which requires professional expertise. Finally, where intimate sexual activity is involved, one needs to prove innocence, as opposed to proving guilt in relation to the issue of consent. Again, returning to the Guardian article:
In failing to consider this, and other elements of the “selfie”, the authorities not only avoid addressing the girl’s active role, but also avoid trying to understand why she would behave in this way. They fail to understand that such behaviour within that culture is increasingly acceptable and within the normal range. Just because we as adults can see the flaws and the consequences of their behaviour, should not mean we criminalise them. Difficulties with the act were spotted at the time; indeed, The Guardian from Monday 24th November 2003 produced a Q&A on the act and noted:
“There has also been a tightening of the approach to "date rape", although there is no specific law to deal with it. Defendants would have to prove they made "reasonable" efforts to ensure their sexual partner consented. The Home Office said what was considered reasonable will have to be judged "on a case by case basis".”
“What about underage sex? The act criminalises all consenting sexual activity among under 16s. This means it will be a criminal offence for two 15-year-olds to kiss in public. But the Home Office says those below the age of consent are unlikely to be prosecuted if both are enjoying the embrace.”
Who makes the judgement in regard to an adolescent’s behaviour and under what circumstances? Of course, all this assumes that boys and girls aged 12, 13, 14 and 15 years only have relationships with
Therein lies the problem, as shown above. There is no problem until the parents find out, or a sense of EXPERT WITNESS JOURNAL
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A number of years ago I was asked to see a 16 year old with learning disabilities charged with statutory rape. At the age of 15 he had been seeing his 12 year old girlfriend; she was described as somewhat brighter than him. On his 16th birthday she gave him sex as his present from her and on the following day told her friends at school. At this point senior teachers found out and reported the incident. He was charged with rape and although not remanded, within hours lost his home. Whereas the judge was sympathetic to both children, the CPS still pressed; “the law is the law and there are no exceptions”.
others of the same age. The reality is acknowledged in other countries where it is accepted that girls often chose partners who are older, often matching social and emotional abilities as opposed to age. In my view, the 2003 act itself is not only out of touch with normal adolescent development, but the assessment of whether to pursue the issue is often based on limited information by people who have little or no understanding of what ‘normal’ is; their points of reference being their own lives, that of their families and the ‘rule of law.’ Sexual selfies are extremely common in adolescence and just because we as adults can see the difficulties, and the potential consequences of such actions, it does not stop it becoming developmentally “normal”. Criminalising the behaviour simply destroys the early lives of young people, both the girls and the boys. Indeed, I have encountered girls/young women trying to remove the damage from an earlier complaint only to find that the police and the courts ‘do not want to know.’ These young people do not realise that once the damage is done, it cannot be undone.
However, the 2003 Sexual Offences Act was never designed with the behaviour of adolescents and young adults in mind. It was never designed with a view toward normal behaviour and the way in which youth culture develops. Whereas the professionals can see the absolute need to keep our children safe, it is my view that we are trying to do this with a tool that is not suitable. In my view the 2003 act makes no allowances for what is socially and/or developmentally normal; it makes no allowance for a young person’s age.
Girls frequently develop relationships with older boys. Some of this is undoubtedly developmental; socially and emotionally they look for people at a similar level and that often means looking for older boys. However, some of this is kudos, being able to show their friends that they can ‘pull’ an older boy. Some is undoubtedly related to ego and self-image. However, all this assumes the boys know how old the girls are.
What makes the situation even worse is that firstly, the guidance on whether to proceed with a prosecution is poor and secondly, the politicians have forced the CPS to pursue cases and send them to trial through the need to fulfil quotas. As far back as 2005 the CPS had a target to deliver of bringing 1.25 million ‘offenders’ to justice; a quota by any other name.
My youngest daughter aged 13 years was often in the company of boys aged 17 to 22 years. In collecting her from various venues I would drop in such phrases as ‘you have school tomorrow,’ and ‘when you start your GCSE’s.’ I always made sure the boys could hear. Unless the boys knew her well they were not to know that this tall, slim, young woman with a stunning figure was so young; indeed, even friends who we had not seen for a while would mistake her for my eldest daughter, who was 5 years older. It is an assumption that we can instantly recognise when an adolescent girl is over 16 years of age, and that adolescent girls don’t lie about their age.
One might wish to ask, are the quotas and the poor guidance preventing the CPS from taking a step back and thinking about their actions on young people? Young people are exploring relationships and part of that process undoubtedly involves making mistakes. I would ask how prosecuting children for making sexual selfies and sending them to their age appropriate girl/boyfriend keeps children safe. I would argue that once the picture has been sent to every other child in the school, the child who made the selfie will not do it again! The children themselves will see such actions as mistakes, and in time, they will learn from them.
Adolescents are different from adults and if we are to adequately protect them we need to make a distinction between them and their actions, and those of the adults we wish to protect them from. We can all see that a 30 year old pretending via the internet to be a 14 year old is a serious concern. Hence, the adult asking a befriended 14 year old girl for a naked picture would be a serious and significant issue. However, if her 15 year old boyfriend who she sees at school did the same, one has to argue that this is radically different. EXPERT WITNESS JOURNAL
Rather than prosecution, why are social services, schools and local authority resources not used as the first step when addressing the behaviours of foolish adolescents? Why does the CPS not bring in and use real experts to manage and reduce the mistakes of adolescence? To paraphrase The Guardian from 2003, do we need to prosecute children for kissing? ■ 101
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Neurorehabilitation for Traumatic Brain Injury Daniel Friedland, M.A. Clinical Psychology, Consultant Clinical Psychologist/Neuropsychologist, Registered Clinical Psychologist with the HCPC, Full Practitioner Member of the Division of Neuropsychology of the above criterion are exceeded, or there are trauma-related abnormalities on neuroimaging, then the TBI tends to fall into the moderate-severe range.2
Introduction Traumatic brain injury (TBI) has been defined as an alteration in brain function, or other evidence of brain pathology, caused by an external force.1 Alteration in brain function includes amnesia for events before the injury (retrograde amnesia), amnesia for events following the injury (post-traumatic amnesia), loss or decreased consciousness following the injury, and neurological deficits (change in vision, aphasia). Evidence of brain pathology includes the results of neuroimaging.
Why is the distinction between mild versus moderate-severe TBI so important? Cognitive difficulties following mTBI have been shown to be short- lived whereas cognitive difficulties following moderate-severe TBI can be temporary, prolonged or permanent. Cognitive difficulties which persist following mTBI are hypothesised to be caused by non-TBI factors including chronic pain, depression, post-traumatic stress disorder, and malingering.3
TBI can be divided into two main categories: mild TBI (mTBI) and moderate-severe TBI. mTBI is generally defined as one in which the individual does not lose consciousness for more than 30 minutes, post-traumatic amnesia does not exceed 24 hours, and the individualâ&#x20AC;&#x2122;s Glasgow Coma Scale score is 13/15 within 30 minutes of the injury. If any EXPERT WITNESS JOURNAL
Rehabilitation of mild traumatic brain injury (mTBI) Early education is considered an important element of managing mTBI. This can occur as early as the 102
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neurorehabilitation in these different community settings. In terms of neurorehabilitation in the community, there is evidence of beneficial outcome for patients with TBI who have access to the following: firstly, interdisciplinary rehabilitation. This can include neurology, consultants in rehabilitation medicine, neuropsychiatry, neuropsychology, neuro-occupational therapy, and neuro-physiotherapy. Case management and support worker input can also be invaluable in neurorehabilitation, particularly when the individual has significant cognitive difficulties and/or neurobehavioural impairments. Secondly, on-going family and carer support. Thirdly, neuropsychology rehabilitation which focuses on the management of cognitive, psychological, and neurobehavioural impairments with both clients and the family. Fourthly, community rehabilitation which may even be beneficial many years post injury.4
first admission to the A & E Ward following the mTBI. This usually takes the form of head injury advice sheets. Rest and graded return to activity following a mTBI are also important elements in the recovery process. According to SIGN guidelines all patients who have suffered a mTBI should be offered reassurance about the nature of their symptoms and advice on gradual return to normal activities after an uncomplicated mTBI.4 This early education and treatment approach following mTBI would tend to fall under the NHS auspices within the UK. Specific treatments for mTBI at the later stages includes pharmacotherapy, cognitive rehabilitation, and psychological therapy. In terms of pharmacotherapy, studies have looked at the effectiveness of medication for headaches, as well as depression, and anger. Cognitive rehabilitation involves looking at cognitive compensatory strategies for memory difficulties, and strategies for managing planning and problem solving difficulties. The most researched psychological therapy is cognitive behavioural therapy.5 According to the SIGN guidelines a referral for cognitive behavioural therapy following mTBI should be considered in patients with persistent symptoms who fail to respond to reassurance and encouragement from a GP after three months.4 There is growing interest in identifying oculomotor and vestibular disturbances in individuals with persistent symptoms following mTBI, and treating these specific difficulties.6
Neurorehabilitation should have regular goal setting between client and the team which is regularly reviewed.7 However, flexibility is required and some clients do not respond well to goal setting. It can require lots of skill to even keep these clients engaged in neurorehabilitation process. It is important not to underestimate the degree to which a TBI leads to identity changes. As one client recently said â&#x20AC;&#x153;In an instant you become a different personâ&#x20AC;?. TBI leads to reduced self-esteem, loneliness, depression.8 Young adults fall behind their peers which leads to loss of self-esteem. The key is to try and help the client engage in meaningful activities to build up their self-esteem.
It is important to note that in general by the time an individual who has suffered a mTBI is seen for treatment in the medico-legal process the presentation can be quite complex. Treatment can be challenging, and the key is trying to determine the causes of the symptoms e.g. chronic pain, disrupted sleep, vestibular issues, low mood, anxiety, or a combination of these factors and to target these factors in the neurorehabilitation process. Rehabilitation of moderate-severe traumatic brain injury There are a wide range of outcomes following moderate-severe TBI. This includes death, low awareness state, severe physical and cognitive impairment, severe cognitive impairment, neuropsychiatric impairments, mild cognitive difficulties, or a full or almost complete recovery.
In terms of cognitive difficulties, memory strategies predominantly include compensatory strategies i.e. the use of diaries, smartphones, calendars to help oneâ&#x20AC;&#x2122;s client manage their prospective memory difficulties. Executive difficulties include difficulties with organising, planning and problem solving, sequencing, and thinking in a flexible manner. Executive difficulties are particularly challenging in neurorehabilitation. There is some evidence to suggest that training in formal problem solving strategies and their application to everyday situations can be beneficial. Group based programmes may also be considered for the remediation of executive and problem solving deficits.9
Neurorehabilitation can occur at the acute stage following a TBI in hospital, in the in-patient setting, and in the community. Community rehabilitation can include out-patient sessions, sessions within the home, group sessions, or combinations of
Neurobehavioural impairments can include a range of difficulties including disinhibited behaviour (impulsive behaviour, verbal outbursts, physical aggression, swearing), apathy (loss of drive, loss of spontaneity). In terms of disinhibited behaviour this
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can be managed through a combination of medication and individual sessions to manage disinhibited behaviour more effectively (provided the client has sufficient insight). The wider system may also need to be included in terms of managing disinhibited behaviour. Apathy is particularly hard to rehabilitate successfully, and unfortunately the prognosis is often poor.
PPCS
Psychiatric and Psychological Consultant Services (PPCS) is an independent clinic and registered provider with the Care Quality Commission for assessment and treatment in psychiatry and psychology. PPCS has over 50 clinical staff including 20 Consultant Psychiatrists with specialisms in Adult, Child and Adolescent, Family, Personal Injury, PTSD, Neuropsychiatry, and Forensic, and over 30 Clinical and Counselling Psychologists, neuropsychologists and other specialist therapists. Staff have extensive experience in medico-legal assessments and reports.
TBI is linked to an increased rate in depression and anxiety.10 The key therapy is Cognitive Behavioural Therapy which helps the client try and challenge negative thinking. Acceptance and Commitment Therapy is a relatively new type of therapy which encourages the client to adopt a more compassionate approach to their feelings and negative thoughts. The combination of medication and therapy must also be considered in conjunction with Neuropsychiatry.
Our services also includes our Neurorehab Clinic, EMDR, psychotherapy, CBT to cover anxiety, depression, pain management, PTSD, phobic anxiety, substance misuse, sexual abuse & relationship problems, occupational stress, psychosomatic illness, chronic fatigue, bereavement & learning disability, discrimination at work, etc.
TBI affects the whole family. The family responses include various stages including: initial shock, emotional relief one the family member has survived, bargaining, acceptance or working through, and finally acceptance and restructuring . Spouses/partners take on more of a parental role. There is a high rate of marital breakdown following moderate-severe TBI i.e. approximately 30% but other studies point to rates of up to 78%.8
For Further information please visit: Website: http//www.ppcsltd.co.uk Telephone: Andy Welch Commercial Director 020 7935 0640 Email: info@ppcsltd.co.uk
The role of neurorehabilitation in the medico-legal setting Neurorehabilitation in the medico-legal setting is important for several reasons. Firstly, the process of neurorehabilitation can help identify neuropsychological impairments more clearly in the functional setting than in a standard cognitive assessment. This is particularly the case for executive difficulties i.e. difficulties with planning and problem solving, organising, and self-monitoring. These executive difficulties manifest more clearly in day-to-day functioning then in standard cognitive testing, and the process of neurorehabilitation can help identify the issues more clearly.11
There are several ways to help families. This includes family education about brain injury, support groups for family members, family therapy, and couples counselling. The needs of children are often neglected, and play therapy may be appropriate for young children to help them adjust. The key is to engage family in the rehabilitation process but also to encourage independence in the individual who has sustained the TBI.8 Further aims of neurorehabilitation include reducing risk. This includes reducing the risk of depression, offending/prison, being taken advantage of financially, and relationship/family breakdown. These outcomes are less easy to measure but are crucial parts of the neurorehabilitation process.
The Mental Capacity Act (2005) has identified the stages required in order to determine whether an individual has capacity with regards to a specific decision. This includes being able to understand the information about which the decision needs to be made, the individual needs to be able to retain the information, they need to be able to weigh the information as part of the decision making process, and they need to communicate this decision.12 Determining capacity in medico-legal cases has become a central issue, and in particular the capacity to litigate, and the capacity to manage financial affairs. Capacity to manage financial affairs, or rather the lack of capacity to manage financial affairs has a significant impact on costs awarded. Consideration of how the individual has participated in the neurorehabilitation process can
An important question is why can neurorehabilitation â&#x20AC;&#x153;failâ&#x20AC;?? There various reasons including the client not being ready to engage in the neurorehabilitation process, a lack of co-ordinated team approach, complex family dynamics, and severity of deficits/lack of insight. Malingering is another factor which needs to be considered if neurorehabilitation is not working in situations where it would be expected that improvement should occur. EXPERT WITNESS JOURNAL
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be particularly helpful in helping decide on capacity issues. In terms of financial capacity, neurorehabilitation often focuses on this area, and can therefore provide useful information for the Expert in terms determining capacity issues.
Reference List 1. Menon DK, Schwab K, Wright DW, Maas AI. Position statement: definition of TBI. Arch Phys Med Rehabil. 2010 91:1637-40 2. Malec J, Brown W, Leibson L, et al (2007). The Mayo Classification System for TBI Severity. Journal of Neurotrauma. 2007 24:1417-24.
Prognosis is a key issue in medico-legal cases. Recovery following traumatic brain injury depends on numerous factors including age of the individual, the severity of the traumatic brain injury, premorbid intelligence, and polytrauma.13 However, the impact of neurorehabilitation is another factor which has an impact on recovery following traumatic brain injury. Thus, the outcome following neurorehabilitation can be a crucial factor in determining the prognosis for the individual following a traumatic brain injury.
3. McCrea, M; (2008) Mild TBI and Postconcussion Syndrome: The New Evidence Base for Diagnosis and Treatment Oxford University Press, New York. 4. Scottish Intercollegiate Guidelines Network (2013). Brain injury rehabilitation in adults A national clinical guideline. SIGN: Edinburgh 5. Comper P Bischop SM, Carnide N, Tricco A. A systematic review of treatments for mild traumatic brain injury Brain Inj . 2005; 19:863-80.
Conclusions Diagnosing the severity of the TBI is the crucial first step in the neurorehabilitation. This will guide the neurorehabilitation process required as outlined above. This can sometimes be fairly straightforward particularly in cases of severe TBI. This can be more complicated in cases where it is not clear whether the client has sustained a mild or moderate TBI. Neuroimaging can be helpful in this regard particularly if trauma-related abnormalities are found on neuroimaging, which would point to a moderate TBI. In cases where a definitive answer cannot be reached treatment of symptoms may be the most pragmatic way forward.
6. Friedland, D. Postconcussion syndrome/disorder or mild traumatic brain injury: diagnostic issues and treatment. Advances in Clinical Neuroscience & Rehabilitation, Volume 15, March/April 2015, p26-27 7. Royal College of Physicians and British Society of Rehabilitation Medicine. Rehabilitation following acquired brain injury: national clinical guidelines (Turner-Stokes L, ed.). London: RCP, BSRM; 2003 8. Ponsford, J.L., Sloan, S.M., Snow, P.C., 2013, Traumatic brain injury Rehabilitation for everyday adaptive living, Psychology Press, Hove, East Sussex and New York. 9. Cicerone KD, Dahlberg C, Malec JF, Langenbahn DM, Felicetti T, Kneipp S, et al. Evidence-based cognitive rehabilitation: updated review of the literature from 1998 through 2002. Arch Phys Med Rehabil 2005;86(8): 1681-92
In terms of neurorehabilitation it is important to note what clientâ&#x20AC;&#x2122;s value. Carlozzi (2011) sought views from clients who sustained a TBI, as well as care- givers and clinicians in focus groups. Health related quality of life results were in the following order. Firstly emotional health e.g. anxiety/ depression/anger. Secondly, improved social participation e.g. relationships/leisure/vocation. Thirdly, physical/medical health e.g. fatigue/pain/motor functioning. Fourthly, cognitive health e.g. executive functioning/memory. Finally, managing personality change e.g. self centredness /impatience/impulsivity/ lack of empathy.14 These are key areas that any neurorehabilitation team needs to keep in mind when setting goals with clients and families.
10. Bryant RA, O'Donnell ML, Creamer M, McFarlane AC, Clark CR, Silove D. The psychiatric sequelae of traumatic injury. Am J Psychiatry. 2010 Mar;167(3):312-20 11. Manchester, D., Priestley, N.M. & Jackson, H. (2004). The Assessment of Executive Function: Coming out of the Office. Brain Injury v18 no.11 pp1067-1081. 12. Mental Capacity Act (2005) Code of Practice (2007) London 13. Lezak,M; Howieson,D; Bigler,E; and Tranel,D. (2012) Neuropsychological Assessment (Fifth Edition). Oxford University Press 14. Carlozzi N, et al Health-Related Quality of Life in Caregivers of Individuals With Traumatic Brain Injury: Development of a Conceptual Model. Arch Physical Medicine. 2015 Volume 96, Issue 1, p105â&#x20AC;&#x201C;113
It is important to be realistic what we can achieve in neurorehabilitation. Return to work and positive relationships are important goals, otherwise the neurorehabilitation can focus on increased community participation. Management of risk is essential in the neurorehabilitation process. Finally we need to help clients rebuild their identities, as well as helping families cope in a new and challenging situation. EXPERT WITNESS JOURNAL
Mr Daniel Friedland runs the Neurorehab Clinic at PPCS and has been working in neurorehabilitation since 1999. The PPCS Neurorehab Clinic provides assessment and neurorehabilitation for individuals who have suffered an acquired brain injury 105
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including traumatic brain injury, stroke, hypoxic brain injury, and neurological infections. We have access to Neuropsychiatry, Psychiatry, Neuropsychology, and Clinical Psychology within our service. We have excellent external links with Neurologists, Neuroradiologists, Case Management Services, and Support Worker Agencies. Mr Friedland also acts as an expert witness in medico-legal claims.
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For further information regarding PPCS and the Neurorehab Clinic: Website: http://www.ppcsltd.co.uk Telephone: 0207 9350640 Email: info@ppcsltd.co.uk
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Call 0161 834 0017 Ms Michelle O'Sullivan Chartered Forensic Psychologist, Registered Practitioner Psychologist with the BPS (British Psychological Services) and HCPC (Health and Care Professions Council) BSc. (Hon), MSc., CPSYCHOL, AFBPsS.
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Specialist assessment in risk of offending behaviours (e.g. violent, sexual, substance misuse), needs assessments (e.g. mental health, offending behaviours, risk management), cognitive ability and competence assessments for criminal, family and civil legal proceedings. Various treatment approaches offered including CBT, EMDR, EFT among others to address mental health problems such as anxiety, depression, trauma related difficulties. Assessment and treatment with children, adolescent and adult populations.
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Contact: Miss Michelle O'Sullivan Tel: 07788 428 289 Email: michelle@thepsychologicalclinic.com Web: www.thepsychologicalclinic.com The Psychological Clinic PO Box 4102, Bracknell, Berkshire RG42 9FQ
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Another Look at the Insanity Defence in a Court of Law by Professor Ludwig F. Lowenstein Ph.D. Abstract The insanity defence is viewed differently by professional psychologists/psychiatrists and the legal profession. This is mainly due to the law assuming man has free will. There have been a number of criteria of judging insanity. These include: the Irresistible Impulse Test, and the Durham Test, but the most commonly used is the McNaghten Test. Solicitors/Barristers and the Judiciary need also to determine whether an individual is fit to stand trial as determined by expert witnesses such as psychologists and psychiatrists. It is their joint effort to decide a diagnosis of insanity or any other mental illness being present or not. Introduction It has long been known that the view of insanity is seen by the law very differently from those working as expert witnesses for the courts such as psychologists and psychiatrists. The law assumes that man has free will. It is the view of the psychologist and others working in the area of psychological assessment that man does not in fact always have free will. Interaction EXPERT WITNESS JOURNAL
of those who deal solely with the law are becoming increasingly aware of the mental health field and forensic psychology (Brendel & Glezer, 2010; Roesch, et al.. 2010). A number of tests or criteria have been used, mainly in the United States to provide evidence for the psychological aspects of a serious crime. Not guilty by reason of insanity (NGBRI) says that a defendant is not guilty of committing a crime if they are insane at the time that the crime was committed. The Irresistible Impulse Test is again a legal test of insanity which holds that people are insane if at the time they committed a crime they were driven to it by an uncontrollable fit of passion. The Durham Test is also for the assessment of insanity and holds people to be considered insane at the time they committed a crime if they acted as the result of a mental disorder or defect. Finally, the oldest test is the McNaghten Test which states that a mental disorder which led to the individual not knowing the nature of their actions or not knowing wrong from right. This would be the criteria for insanity. SUMMER 2015
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If we combine all of these criteria or tests the result is something like: People do things that show them not to have free will due to their psychological problems which limit free will and they suffer from a mental disorder or defect leading to not knowing right from wrong. This may be a permanent or temporary state of mind when they are unable to control themselves to prevent the crime from occurring. They will undoubtedly in some cases not know right from wrong at the time of the commission of the offence because they are unable to control themselves and hence commit the antisocial act. They may also be suffering from a term “diminished capacity”.
recent study (2015) seeks to establish what current opinion is in the prevalence of the insanity defence being used. When an action is irrational there is often the suspicion that a mental illness may be behind the “crime”. As pointed out by Sadoff & Dattilio (2011): “The assessment of lack of criminal responsibility (or insanity) is one of the major functions of the forensic psychiatrist and psychologist “to determine.” They concern themselves with mental illness and the irresistible impulse and diminished capacity of an individual accused of a crime. As pointed out by Slovenko (2007) in an earlier study in the International Handbook on Psychopathic Disorders and the Law, criminal responsibility according to the US Supreme Court requires there to be evidence of “an evil meaning mind with an evil doing hand”. A non-insanity result is likely to err in the case of ‘actus reus’ or the act being of a voluntary nature. This is in contrast to ‘mens rea,’ the act being based on a guilty mind. The use of psychological evidence is based on being able to determine or differentiate that an individual suffers from diminished capacity which can be used as a mitigating factor in plea bargaining or sentencing, or to ask for a new trial.
Sometimes experts, depending on which side they are on, such as the prosecution or defence, will disagree on whether an individual suffers from insanity (Sadoff, 2011; Schopp et al., 2010). Problems arise by the fact that a crime has frequently been committed in the past and it is difficult to retrospectively assign whether the individual was sane at the time of the offence. Those who are found insane are usually sent for treatment. The general public may feel that 30-40% of individuals who claim to be insane are in fact sane. In reality however, less than 1% of claims of insanity occur in the court setting (Resnick & Harris, 2002). Those who are placed in mental hospitals to receive treatment frequently spend more time incarcerated in such establishments compared with those who enter the prison system. The most common diagnosis of insanity is when an individual is found to be schizophrenic. Sometimes it is found that the perpetrator had not intended to commit the crime and is then labelled ‘guilty with diminished capacity’.
Another issue where psychiatrist or psychologists are involved is whether an individual is competent to stand trial and understands what is happening in a court of law (Zapf et al., 2009). The problems associated with making decisions on whether an individual has capacity The prediction of whether an individual is dangerous and/or insane frequently involves clinical psychiatrists and psychologists (Costanzo & Costanzo, 2013). This is of especial importance when there is a likelihood that an individual already incarcerated for some time may be moved to a less secure environment or even to an open prison or release. A question frequently asked, as pointed out by Kaliski (2012): “Does the insanity defence lead to an abuse of human rights?” The release of an offender from prison who for example has been convicted of murder, rape or other violent offences could be an abuse of human rights for potential victims as well as for the perpetrator. The perpetrator may not be ready now or ever to benefit from release from prison.
As Alden (2015) points out, both the law and medicine are interpretive practices. Professional psychologists interpret whether they consider an individual to be sane or insane. The law and psychologists and psychiatrists however, have to work together in a court of law. This is especially the case when there is some uncertainty as to whether an individual is sane or insane. This problem is encapsulated in such cases as that of John W. Hinckley Jr. reported by Capps (2013) as an example of someone suffering from a narcissistic personality disorder. When Hinckley attempted to assassinate President Ronald Reagan on March 30, 1981, the verdict was not guilty by reason of insanity. Not everyone was happy with this decision! This uncertainty as to this result was encapsulated by Duke (2013) when he asks: “Can a person commit a crime and be free of guilt or not be responsible?” It has even been proposed by cases such as Hinckley to discontinue the use of the insanity defence.
While not all prisoners released are likely to pose a danger to others, there have been a minority of tragic cases where offenders do indeed still pose a threat to the survival of potential victims. It should also not be forgotten that the reason a prisoner is in prison is for retribution and hopefully for rehabilitation. Once an individual has been found guilty of a crime proven “beyond reasonable doubt,” what must be considered if there is an insanity defence, is that the individual’s
As pointed out by Elmore (2015) the insanity defence is influenced by public opinion and the media. A most EXPERT WITNESS JOURNAL
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problems or mental defect has been improved so that he/she is capable of being considered for a less secure environment or the possibility of release from prison altogether. One assumes that the prisoner in situations such as this has received effective treatment while incarcerated. Furthermore, it must be considered of great importance that the treatment has been successful and there is less likely to be any risk of future criminal activities.
show how some researchers have sought to consider better ways of diagnosing mental illness and insanity to help the courts make the right decisions. The diagnosis of insanity or mental illness A number of assessment techniques have been used to determine the mental state of individuals accused of crimes where it is suspected that whatever offence has occurred it has been committed, at least in part, due to a mental illness. Among the instruments used has been the Rorschach Test (Acklin, 2008). A scale was developed to assess sanity or its opposite by Daftary-Kapur et al. (2011). Similarly, a forensic assessment model was researched by Denney (2012) for the purpose of assessing criminal responsibility or diminished capacity. Also to be measured were predictions of dangerousness towards others associated with mental illness, or the possibility of mental illness. Such more objective instruments have been used due to the fact that experts frequently differ in their opinion based on interviewing and assessing of documents as to whether they suspect sanity or diminished capacity to be the cause or associated with a criminal act (Frederick, 2012).
Legal scholars, legislators, jurors and many others have found the insanity defence to be highly controversial and hence contested in courts of law leading eventually to such a statement as “guilty but mentally ill” (Lurigio & Babchuk, 2013). The insanity defence and the diminished responsibility defence has long been considered a legal term related to what psychologists might determine through their investigations. The concept of insanity has been influenced however, by the law, psychiatry, psychology, penology, as well as legal philosophy (Mason, 2011). Such a statement as “diminished capacity’ has been used in place of insanity when contrasted with criminal responsibility (Packer, 2015). The courts of law need to be satisfied that an individual accused of a crime is fit to plead before a court of law as well as comprehending the reason for the court’s actions. Unfortunately, these actions are perpetrated by the offender frequently, due to irrational thinking and hence this leading to irrational behaviour (Robinson, 2013).
Such approaches have been considered due to the uncertainty as to the reliability of forensic evaluations of legal sanity (Gowensmith et al., 2013). In line with this view Donahue et al. (2008) developed the Maryland Test for Finding of Legal Insanity (not criminally responsible). This test relies heavily on insanity being determined due to an individual lacking the appreciation of wrongfulness. This in turn being based on cognitive impairment, low intelligence or lack of ability to refrain from illegal behaviour which is considered to be volitional impairment. In this study by Donahue et al. (2008) of individuals placed in a Maryland Hospital, 460 defendants were assessed as being non-criminally responsible (NCR). 44 or 11% were assessed as not criminally responsible due to volitional impairment alone. The volitional impaired group was found to be unable to refrain from illegal conduct due to their psychiatric symptoms.
Matters are made even more complex as pointed out by Scott (2012) when drugs such as amphetamine induces psychosis and is used as a defence for murder. The question could well be asked: if an individual is intentionally intoxicated with alcohol or drugs and commits a crime, can the term “mental illness” or “insanity” ever be used? Some mentally disordered individuals or their defence relies on insanity or not guilty by reason of insanity. Torry & Billick (2010) considers that such a defence has perplexed legal and mental health professionals for centuries, and has been part of the legal system since the early Greeks. Another complex issue is the use of medication not taken by schizophrenics. This is an example of lack of criminal responsibility. Non-compliance with the use of medication as a therapy often occurs among the mentally ill leading to a risk of antisocial behaviour including violence and other serious offences. It leads critics of the insanity defence to claiming that the disease is self-induced due to the use of such intoxicating materials as drugs and alcohol etc. (Torry & Weiss, 2012).
Since there is a danger of an individual accused of a crime feigning symptoms to avoid prosecution, efforts have been made to determine which symptoms are valid and which are not in mental disorders. The objective is to differentiate feigned symptoms from genuine symptoms (Kramer & Gagliardi, 2009). The possibility of an individual committing a criminal act and feigning certain symptoms and hence malingering to avoid criminal punishment was considered by McCarthy-Jones & Resnick (2014). There have been a number of cases where individuals have claimed to be hearing voices telling them to do certain antisocial acts. To verify that this is really the case is not easy. Atypical auditory hallucinations
From what has been stated there is a considerable complexity in attempting to diagnose mental illness and for the courts to decide on criminal responsibility or insanity. What follows will be an effort made to EXPERT WITNESS JOURNAL
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(AVH) have to be assessed carefully to evaluate their veracity. It is likely that better tools may need to be developed to evaluate the mental state and whether to consider an individual responsible for a crime or indeed being insane by having diminished capacity (Packer, 2013). Having had a previous mental illness helps when diagnosing the possibility of a psychotic disorder. Rosli et al. (2011) considers the importance of getting a second opinion when there is an insanity plea or a temporary insanity plea.
original work by Jay Ziskin (6th ed). (pp. 535-541). New York, NY, US: Oxford University Press.
Effort has been made to identify insanity via neuro-imaging evidence. Using such techniques it is hoped that a jury would be more likely be convinced by such objective evidence (Schweitzer & Saks, 2011). Unfortunately things are not as yet sufficiently tested to rely on. Unless other procedures coincide with neuro-imaging evidence one must still rely on a number of objective and projective psychological testing to obtain the most valid evidence pointing to sanity or insanity. â&#x2013;
Lurigio, A. J., & Babchuk, L. (2013). Insanity defense. In J. B. Helfgott (Ed.), Criminal psychology, vol : Theory and research, vol 2: Typologies, mental disorders, and profiles, vol 3: Implications for forensic assessment, policing and the courts, vol 4: Implications for juvenile justice, corrections, and reentry. (pp. 307-331). Santa Barbara, CA, US: Praeger/ABC-CLIO.
Gowensmith, W. N., & et al. (2013). How reliable are forensic evaluations of legal sanity? Law and Human Behavior, 37(2), 98-106. Kaliski, S. (2012). Does the insanity defense lead to an abuse of human rights? African Journal of Psychiatry, 15(2), 83-87. Kramer, G. M., & Gagliardi, G. J. (2009). Forensic evaluation of insanity: Assessing valid symptom report in defendants with major metal disorder. Journal of Forensic Psychology Practice, 9(1), 92-102.
Mason, T. (2011). The insanity defence and diminished responsibility. In P. Barker (Ed.), Mental health ethics: The human context. (pp. 317-324). New York, NY, US: Routledge/Taylor & Francis Group. McCarthy-Jones, S., & Resnick, P. J. (2014). Listening to voices: The use of phenomenology to differentiate malingered from genuine auditory verbal hallucinations. International Journal of Law and Psychology, 37(2), 183-189.
References Acklin, M. W. (2008). The Rorschach test and forensic psychological evaluation: Psychosis and the insanity defense. In C. B. Gacono & F. B. Evans (Eds.), The handbook of forensic Rorschach assessment. (pp. 157-174). New York, NY, US: Routledge/Taylor & Francis Group.
Packer, I. K. (2013). Evaluation of criminal responsibility. In R. Roesch & P. A. Zapf (Eds.), Forensic assessments in criminal and civil law: A handbook for lawyers. (pp. 32-46). New York, NY, US: Oxford University Press.
Alden, A. L. (2015). (Dis)articulating morality and myth an ideological history of the insanity defense. US, Proquest Information & Learning, 75.
Packer, I. K. (2015). Legal insanity and mens rea defenses. In B. L. Cutler & P. A. Zapf (Eds.), APA handbook of forensic psychology, vol 1: Individual and situational influences in criminal and civil contexts. (pp. 87-114). Washington, DC, US: American Psychological Association.
Brendel, R. W., & Glezer, A. (2010). Forensic psychiatry: Opportunities and future challenges. Introduction. Harvard Review of Psychiatry, 18(6), 315-316. Capps, D. (2013). John W. Hinckley, Jr.: a case of narcissistic personality disorder. Pastoral Psychology, 62(3), 247-269.
Resnick, P. H. J., & Harris, M. R. (2002). Retrospective assessment of malingering in insanity defense cases. In R. I. Simon & D. W. Schuman (Eds.), Retrospective assessment of mental states in litigation: Predicting the past. (pp. 101-134). Washington, DC: American Psychiatric Publishing.
Costanzo, M. L., & Costanzo, M. A. (2013). Teaching clinical (and nonclinical) psychology through applications to the legal system: Violence risk assessment and the insanity defense. Teaching of Psychology, 40(3), 252-256.
Robinson, D. N. (2013). The insanity defense as a history of mental disorder. In K. W. M. Fulford, M. Davies, R. G. T. Gipps & et al. (Eds.), The Oxford handbook of philosophy and psychiatry. (pp. 18-36). New York, NY, US: Oxford University Press.
Daftary-Kapur, T., & et al. (2011). Measuring knowledge of the insanity defense: Scale construction and validation. Behavioural Sciences & the Law, 29(1), 40-63. Denney, R. L. (2012). Criminal responsibility and other criminal forensic issues. In G. B. Larrabee (Ed.), Forensic neuropsychology: A scientific approach (2nd ed.) (pp. 473500). New York, NY, US: Oxford University Press.
Roesch, R., Zapf, P. A., & Hart, S. D. (2010). Forensic psychology and law. Hoboken: NJ: John Wiley & Sons. Rosli, N. H. M., & et al. (2011). Second opinion on insanity plea in murder and attempted suicide case: A case report. ASEAN Journal of Psychiatry, 12(1), 117-121.
Donahue, A., & et al. (2008). Legal insanity: Assessment of the inability to refrain. Psychiatry, Psychology and Law, 5(3), 58-66.
Sadoff, R. L. (2011). Expert psychiatric testimony. In R. L. Sadoff, J. A. Baird, S. M. Bertoglia, E. Valenti & D. L. Vanderpool (Eds.), Ethical issues in forensic psychiatry: Minimizing harm. (pp. 97-110). Hoboken: NJ: Wiley-Blackwell.
Duke, D. (2013). Not excused by reason of agency: A discourse analysis of the insanity defense. US, Proquest Information & Learning, 74. Elmore, S. K. (2015). The insanity defense: Public opinion and the public's tendency to implicate mental illness in highprofile crimes. US, Proquest Information & Learning, 75.
Sadoff, R. L., & Dattilio, F. M. (2011). Criminal responsibility. In R. L. Sadoff, F. M. Dattilio, E. Y. Drogin & T. G. Gutheil (Eds.), Handbook of forensic assessment: Psychological and psychiatric perspectives. (pp. 121-144). Hoboken: NJ: John Wiley & Sons Inc.
Frederick, R. I. (2012). Insanity defense, diminished capacity, mitigation. In D. Faust (Ed.), Coping with psychiatric and psychological testimony: Based on the
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Schopp, R., Wiener, R. L., Bornstein, B. H., & Willborn, S. L. (2010). Mental disorder and criminal law;
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responsibility, punishment and competence. New York: Springer Publishing.
GOOD NEURORADIOLOGY
Schweitzer, N. J., & Saks, M. J. (2011). Neuroimage evidence and the insanity defense. Behavioral Sciences & the Law, 29(4), 592-607. Scott, R. (2012). Amphetamine-induced psychosis and defences to murder. Psychiatry, Psychology and Law, 19(5), 615-645.
Dr Catriona Good MBChB, FFRad(D), FRCR, PhD
Slovenko, R. (2007). Noninsanity psychological evidence. In A. R. Felthous & H. SaB (Eds.), International handbook on psychopathic disorders and the law (Vol 2). (pp. 303-315). New York, NY, US: John Wiley & Sons Ltd.
Dr Catriona Good is lead Consultant in Neuroradiology and Honorary Senior Lecturer at Brighton and Sussex Medical School. Dr Good is suitably qualified to provide expert opinions on all aspects of brain and spinal neuroimaging. Including: all aspects of diagnostic brain and spine imaging, brain and spinal trauma, brain haemorrhage and stroke, neurodegeneration including dementia, movement disorders, skull base, orbital and ENT imaging, TMJ imaging and Peripheral nerve imaging.
Torry, Z. D., & Billick, S. B. (2010). Overlapping universe: Understanding legal insanity and psychosis. Psychiatric Quarterly, 81(3), 253-262. Torry, Z. D., & Weiss, K. J. (2012). Medication noncompliance and criminal responsibility: Is the insanity defense legitimate? Journal of Psychiatry & Law, 40(2), 219-242.
Dr Good has been undertaking medicolegal work for the past 12 years and is a vetted expert for Academy of Experts, Faculty of Experts and APIL (1st tier). Cases include personal injury, clinical negligence, criminal cases and GMC and Irish Medical Council fitness to practice proceedings. She undertakes both Claimant and Defendant work and has been instructed as a Single Joint expert. Dr Good has attended Coronerâ&#x20AC;&#x2122;s Court on four occasions and an Irish Medical Council hearing. Medical Report turnaround time is usually 2 -3 weeks but she can provide reports in 5 working days in urgent situations. Dr Good can also supply Screening Reports.
Zapf, P. A., & et al. (2009). Insanity in the courtroom: Issues of criminal responsibility and competency to stand trial. In D. A. Kraus & J. D. Lieberman (Eds.), Psychological expertise in court: Psychology in the courtroom, Vol 2. Burlington, VT, US: Ashgate Publishing Co.
Ludwig F. Lowenstein Ph.D. Southern England Psychological Services, Allington Manor, Allington Lane, Fair Oak, Eastleigh, Hampshire, SO50 7DE, Email: Ludwig.lowenstein@btinternet.com
Tel: 01444 441881 ext 5718 Email: catriona.good@btinternet.com Web:www.goodneuroradiology.com Area of work Nationwide
Dr Charles Essex
Electrical Investigations
Consultant Neurodevelopmental Paediatrician MB, ChB, FRCPCH, DO, DCCH, Cert Ed 30 years experience in paediatric neurology, neurodevelopment, learning difficulties, special needs, head injuries, and child protection. Experienced and special interest in cerebral palsy (causation and condition and prognosis), epilepsy, autism, victims of road accidents, child development and child protection.
Dr Antony Anderson CEng FIEE Electrical Consultant and Expert Witness
I prepare reports as a single joint expert in child protection cases, alleged non-accidental injury, care proceedings, failure to thrive and factitious and induced illness [FII] with frequent Court experience in giving evidence in these cases.
Investigates and reports on causes of electrical system & machine failures including alleged automobile cruise control / electronic throttle control malfunction (uncommanded sudden acceleration)
Regular clinics held in paediatric neurology, genetics, neonatal follow up and ophthalmology (all paediatric). I am a member of the British Paediatric Neurology Association (BPNA). I prepare reports for plaintiffs and defendants, reports for CICA and COP3 reports.
Capability Statement on electrical failure investigations Offers ideas and solutions the improve design/manufacturing processes
www.antony-anderson.com
Contact: Mob: 0797 104 8544 Email: charles.essex@virgin.net Web: www.drcharlesessex.co.uk Address: Suite 115, 41 Oxford Street Leamington Spa, Warwickshire CV32 4RB
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26 Westfield Drive, Gosforth, Newcastle upon Tyne, NE3 4XY Tel +44 (0) 191 285 4577 Email: antony.anderson@onyxnet.co.uk
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Receptionists Could Help Prevent Stroke Deaths extra receptionist training about stroke, as well as other life-threatening conditions, could help.
Teaching doctors' receptionists to spot the warning signs of strokes could save thousands of lives a year. Educating staff about the warning signs of a stroke, such as a droopy face and speaking difficulties, could lead to improved outcomes, a new pilot study concluded.
The main symptoms of a stroke can be remembered with the word FAST: Face â&#x20AC;&#x201C; the face may have dropped on one side, the person may not be able to smile, or their mouth or eye may have dropped
The study was carried out by researchers from the University of Oxford and was supported by the National Institute for Health Research (NIHR), Collaborations for Leadership in Applied Health Research and Care for Birmingham and the Black Country. The study looked at a large sample of GP practices in one region of the UK. Researchers asked receptionists to take a series of unannounced calls where actors with various stroke symptoms asked for advice.
Arms â&#x20AC;&#x201C; the person may not be able to lift both arms and keep them there because of arm weakness or numbness in one arm Speech â&#x20AC;&#x201C; their speech may be slurred or garbled, or the person may not be able to talk at all despite appearing to be awake Time â&#x20AC;&#x201C; it is time to dial 999 immediately if you see any of these signs or symptoms
In about two-thirds of calls the receptionist acted appropriately, either passing them on to a GP or telling them to contact the emergency services. Generally, the receptionists were more likely to refer on if more common symptoms were described â&#x20AC;&#x201C; a drooping face or mouth, a weak arm or slurred speech â&#x20AC;&#x201C; and with the greater number of these symptoms given.
Stroke is one of the leading causes of death and disability, and is estimated to result in 5.7 million deaths worldwide. Timely recognition of symptoms and prompt medical care is essential for the best outcomes. The GP is said to be the first point of contact for between a quarter and half of people who have had a stroke or mini-stroke (a transient ischaemic attack or TIA), but not all receive the correct emergency referral. â&#x2013;
These results are likely to give a good indication of how receptionists would respond if a patient called with stroke symptoms and asked for advice. As the researchers suggest,
Dr Ian Starke
Consultant Physician in Stroke Medicine, Medicine for the Elderly and General Medicine
MSc, MD, FRCP (Lond), FRCP (Edin)
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Dr Starke has been a practising Consultant Physician in General Medicine, Medicine for the Elderly and Stroke Medicine at University Hospital, Lewisham and Guyâ&#x20AC;&#x2122;s, Kingâ&#x20AC;&#x2122;s and St Thomasâ&#x20AC;&#x2122; School of Medicine since 1988.
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Dr Starke undertakes expert examinations and reports for fitness to practise and potential litigation cases in stroke medicine, geriatric medicine and general medicine.
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He provides expert examinatons and reports for solicitors, immigration and HM prison services. He is able to assess clients within or outside London. Contact: University Hospital Lewisham Lewisham High Street, London SE13 6LH Tel: 0208 333 3379 Fax: 0208 333 3381 Email: ianstarke@nhs.net
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Loneliness: A Rising Epidemic in Modern Life? by Dr Rebecca Harris - University of Bolton experience less stress in difficult or challenging situations when we have someone present with us and even the knowledge that we have a good network of social support reduces the stress we experience when others cannot be present. Research shows that loneliness is an adaptive mechanism that motivates us to seek out others when our social connections are lacking. As such it would be very normal to experience high levels of loneliness when starting university, moving to a new area, or any change in our social situation.
The rising levels of loneliness in modern society have caught the public eye and many media articles have been written about this, but is loneliness really on the increase, who does it effect and what causes it? Certainly loneliness is on the increase in modern society and is at the highest levels in elderly populations and in the Generation Y. People are reporting higher levels of loneliness and suggest that they find it harder to make friends than 10 years ago. Interestingly when large scale population surveys are carried out, against public perception, the loneliness epidemic is greatest in 18-35 year olds. A survey carried out in 2010 by the Mental Health Foundation found that that 18-35 year olds were more likely to feel lonely, had anxiety about being alone and felt depressed about being lonely than over 55s. In another survey in April this year by the Big Lunch loneliness was also greatest in 1835 year olds.
But it is when loneliness persists for a number of years that it is linked to poor physical and mental health. Loneliness has been shown to have a large impact on our physical health: it is associated with increased risks of cardiovascular disease, poor recovery after surgery, decreased immune system functioning, and increased visits to the doctors. In fact, experiencing prolonged loneliness has a higher mortality risk than smoking 15 cigarettes a day or being obese.
Being with others and feeling that we are connected to other people is good for us. Positive relationships with others are like essential vitamins or minerals for us, promoting our physical and mental health. People with good quality social connections are healthier and have increased life expectancy. We EXPERT WITNESS JOURNAL
So why are we getting lonelier? Although there has not been a great deal of empirical research into the reasons for the rise in loneliness a number of factors have been suggested. 113
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A change in modern lifestyle is an important factor: we live further away from where we work and typically move away from family and friends for work commitments, people work longer hours and find it harder to fit in time for social activities.
anxiety about forming friendships. As typically the Generation Y is surrounded by people and streams of social information through social media but still feel lonely, it is important then that strategies that are suggested to reduce loneliness for this group, focus not only on providing new opportunities for making friends (e.g. joining an interest club or volunteering) but also work on challenging the negative mind frame about social interaction and work on reducing anxiety.
But why is loneliness so high in the Generation Y and baby boomers? It is likely that different factors influence the prevalence of loneliness at different ages and life stages. The loneliness experienced by these two groups is different, in younger populations people can sometimes be surrounded by others but yet still feel very lonely whereas in elderly populations loneliness is often the result of social isolation and reduced mobility. Although loneliness is experienced in the same way, each group is a very different population in relation to the reasons for loneliness.
Loneliness in an elderly population, in comparison, is much more linked to social isolation. Older people often experience loneliness as a result of losing loved ones and a reduced mobility making it difficult to stay in contact with others. Strategies that have attempted to reduce loneliness that support elderly to reconnect with others or provide opportunities for them to stay in contact with loved ones (i.e. through the use of social media) have been successful.
For young adults the cause of loneliness is often reported to be the increased use of social media in modern life. This is the result of many studies which find that there is an association between social media use and loneliness. However, there are only a few studies that have examined this relationship over time and these studies show a different picture. Although use of the internet does lead to increases in loneliness, in some circumstances using social media actually reduces loneliness. It is the way that people make use of the internet that is the result of increasing loneliness. When social media is used as a way to make new friends, enhance existing relationships or maintain long distance ones it can reduce loneliness. But when social media is used in a way that replaces face-to-face communication it increases loneliness. In fact researchers are starting to demonstrate that relationships formed on-line that become off-line friendships or romantic relationships have increased levels of liking and are often longer lasting and more satisfying.
Loneliness is known to have a very specific health implication on an elderly population in that it increases normative age-related declines. In addition to the loneliness epidemic in baby boomers, a dementia epidemic has also been noted in this group. Given the link between loneliness and cognitive decline in older cohorts, it is very likely that amongst other risk factors, the rising levels of loneliness in older populations is linked to this “dementia time bomb”, in that, loneliness will speed up the development of dementia. What is important here is that the two populations are not mutually exclusive: the burdens on the generation Y make it difficult for them to visit older family members and offer this social connection that elderly people would have had in the past. A survey by Alone has linked these two issues with loneliness being on the increase in over 65s in Ireland being linked to the increase in migration of younger adults.
Researchers have also shown that there is an anxiety epidemic in the generation Y. Fear and anxiety is on the increase in under 30s with many young adults finding this has a disabling impact on their daily life. One of the causes of loneliness in this population may be a result of this increase in generalised anxiety resulting in an anxiety about being alone. Many people believe this is a result of the increase in social media that makes it more evident to people that they may be ever more connected to others but only superficially, thus making them feel lonelier.
Although, individual strategies have been suggested that may help reduce loneliness in lonely people. Strategies that target awareness and understanding of loneliness and encourage us to change the way communities operate, are likely to have the greatest impact in reducing loneliness in our society. We should make time for each other and ensure that we have “social time” in our busy schedules and make time to communicate with or visit those in our communities and direct family networks that are the most socially isolated. ■
John Cacioppo argues in his 2009 book titled “Loneliness: Human Nature and the need for Social Connection” that when someone is lonely they often respond in social interactions with a sensitivity to picking up negative and rejecting information which leads to the lonely person withdrawing from social situations, and if prolonged, will result in EXPERT WITNESS JOURNAL
Dr Rebecca Harris University of Bolton June 2015 114
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