Expert Witness Journal - Issue 17

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ISSN 2397-2769

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THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

PSYCHOLOGY

ARCHITECTS AND BUILDING DISPUTES FORENSIC MARKETPLACE

Vol 1 Issue 16 - Autumn 2016 UK £5.00 €6.00

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Welcome to the Expert Witness Journal Hello and welcome to the 17th edition of the Expert Witness Journal, if you are reading this at the Bond Solon Expert Witness Conference please stop by our stands and say hello.

We will be also exhibiting at Law London at Olympia, we find this a great way to promote our experts services to solicitors and local government and other legal professionals.

Some highlights of our Autumn issue are experts views on the Forensic Marketplace, The Medico Legal Aspects of Gastroenterology, An Expert Witness working abroad, plus our regular areas of Psychology, Surveying and Expert Witness matters in general.

We are also proud to announce that we will be publishing a Psychology book entitled ‘Legal Mind’ written by regular contributor Dr Hugh Koch. The book covers all aspects of Psychology in the medico-legal arena and is a must for all Psychologists, instructing parties and anyone with an interest in developing a medico-legal practice. For further information please see page 60 or speak to one of our representatives.

One feature at the EW conference is an experts survey (we have links to this on our website www.expertwitness.co.uk). The survey is open until 28 October 2016. It is anonymous and includes up to 18 questions, which should only take a few minutes to complete. The results will produce an interesting report highlighting some of the issues affecting expert witnesses.

This report will be sent to all experts who complete the survey before it is sent to anyone else.

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 2016. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2016.

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 Arbitration Expert to Steer BDO’s Advisory Team Accountancy and business consulting company BDO has named Gervase MacGregor head of its international advisory, risk and quality group. MacGregor joined BDO in 1994 following its merger with Stoy Hayward, the company where he began his accountancy career in 1982.

tion of damages. His natural resources expertise is complemented by his experience as a petroleum geologist at oilfield services company Baker Hughes, where he worked for two years prior to becoming an accountant.

He has served as an external adviser to the United Nations Compensation Commission regarding compensation energy sector claims against Iraq after its 1990 invasion of Kuwait, and as lead adviser to Kuwait oil sector’s USD 23 billion claim for compensation after the 1991 Kuwaiti oil fires, caused by the Iraqi military.

MacGregor has served as an accounting expert witness in international arbitrations before the London Court of International Arbitration (LCIA), the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), where he currently sits as an arbitrator, the International Chamber of Commerce International Court of Arbitration (ICC) and the International Centre for Settlement of Investment Disputes (ICSID), the World Bank’s dispute resolution body.

In addition, he was an expert witness for the Director General of Fair Trading regarding the removal of resale price maintenance on over-the-counter medicines and acted for the Office of Gas and Electricity Markets (Ofgem) on the accounting disclosures by the six major United Kingdom energy companies.

He also has experience as a litigation expert witness before the Court of First Instance of the European Communities (now the General Court of the European Union), the High Court in London, the Copyright Tribunal and the Restrictive Practices Court.

He was appointed as head of BDO’s advisory team by Paul Eagland, who has this month begun a four-year term as the company’s managing partner and has announced a new leadership team, which would “lead BDO into its next stage”.

MacGregor specialises in the natural resources industry, particularly in oil and gas claims, as well as state-operator and takeover disputes, regulatory matters and quantifica-

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Contents

Some of the highlights of this issue

The Forensic Marketplace

by John Owen, ArroGen Forensics Ltd

page 11

General Practice Facing Austerity Measures in Britain

by Dr Bashir Qureshi

page 15

Bud Young Airphoto Specialist

page 28

Assessing Malingering and Deception in Forensic, Judicial and Clinical Contexts: Are Various Communications “Congruent”?

by By Koch HCH, Newns K, Boyd T & Peters J

page 21

A Foreign Affair

by Chris Deacon & Dr Linda Monaci

page 27

Pulling a Fast One?

by Linda Monaci & Flora Wood

page 31

Surveyors Acting as Expert Witnesses

by Martin Burns

page 34

Architects and Building Disputes

by William Bates

page 36

How to Equip Trees in the Biosecurity Battles

by Mark Chester - Cedarwood Tree Care

page 39

Dangers of Gallbladder Surgery

by Professor J Peter A Lodge MD FRCS FEBS

page 45

I’ve Been There Before: Is the NHS Offering Patients a Failed Channel Management Strategy?

by Mr Gordon Miles

page 51

Medico Legal Aspects of Gastroenterology

by Dr Gerry George Robins

page 53

Why Does Winter Last All Year?

By Gordon Miles, Chief Executive The Royal College of Emergency Medicine

page 53

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 2016. 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 Duff & Phelps Completes Acquisition of American Appraisal Duff & Phelps Corporation, the premier global valuation and corporate finance advisor, today announced that it has completed its previously announced acquisition of American Appraisal Associates, Inc., a global full-service valuation and fixed asset management advisor.

dispute and legal management consulting, M&A, restructuring, and governance and regulatory consulting. The firm’s more than 2,000 employees serve a diverse range of clients from offices around the world. For more information, visit www.duffandphelps.com.

Noah Gottdiener, Duff & Phelps' Chief Executive Officer, said, “We are delighted to complete this transaction and to begin realizing the full promise of this acquisition. Through this combination we now have a valuation practice that spans every asset class, offered in dozens of markets around the world. We look forward to ensuring that our clients benefit from our unique positioning within the global valuation market."

M&A advisory and capital raising services in the United States are provided by Duff & Phelps Securities, LLC. Member FINRA/SIPC. Pagemill Partners is a Division of Duff & Phelps Securities, LLC. M&A advisory and capital raising services in the United Kingdom and Germany are provided by Duff & Phelps Securities Ltd., which is authorized and regulated by the Financial Conduct Authority.

About American Appraisal American Appraisal is a leading valuation and related advisory services firm that provides expertise in all classifications of tangible and intangible assets. It comprises 900 employees, operating from cities throughout Asia-Pacific, Europe, North America and South America. Its portfolio of services focuses on four key competencies: Valuation, Transaction Consulting, Real Estate Advisory and Fixed Asset Management. For more information, visit www.american-appraisal.com.

The American Appraisal brand will transition to Duff & Phelps over the next year. American Appraisal’s Real Estate Advisory Group (“REAG”), which becomes a division of Duff & Phelps with this transaction, will continue to operate under the REAG brand name.

About Duff & Phelps Duff & Phelps is the premier global valuation and corporate finance advisor with expertise in complex valuation,

Cardiovascular Advisors Cardiovascular Advisors is a unique collaboration of clinical experts who offer medico-legal advice on all aspects of injuries sustained to the cardiovascular system, whether as result of personal injury or through clinical negligence.

In addition to medico-legal advice, our clinicians are always on hand to offer one-to-one advice on your cardiovascular condition or illness and/or advice on 'Who is the Best' person to treat you.

With over 50 years of combined clinical expertise, we truly are experts in our field!

Cardiovascular Advisors UHSM, ERC, 2nd Floor, Southmoor Road Wythenshawe, Manchester, M23 9IT The team accepts instructions within & outside of the European Union

Tel: 0161 291 5840 Mob: 07803 376 186 Email: info@cardiovascularadvisors.co.uk Web: www.cardiovascularadvisors.co.uk

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News & Events Fraud Prevention features on New Five Pound Note The Bank of England has launched a new polymer based Five pound note. The new note was issued on 13th September 2016. We asked printing and security reproduction expert Malcolm McReath his opinion on the new note and its enhanced security features.

to ensure they have not been passed a counterfeit note. If you do not see the two images on the silver foil, reject the note!

The primary reason for introducing the new £5 note is to get much more wear out of each note than is the case with the notes currently in circulation. It is expected that they will last in regular use about 2.5 times longer than the current cotton paper substrate that notes are currently printed on.

The £10 note will be issued in summer 2017 and the £20 note by 2020. You can continue to spend paper £5 notes as usual until 5 May 2017. After this they will cease to be legal tender. A charity auction of Bank of England banknotes with low serial numbers will be held on Monday 3 October.

The money raised will be donated to the Myotubular Trust, The Lily Foundation, and Bliss. The auction will be conducted by Spink & Son and more details can be found on their website.

Malcolm McReath FIOP MAE QDR Printing and Publishing Consultant Email: malcolm@m-mcreath.co.uk Website: www.printexpert.net

These new notes are printed onto a polymer material, which is basically a plastic substrate. They are therefore much stronger than the cotton paper variety, and will withstand much better the rough treatment that notes get when in circulation.

Some new anti counterfeiting features have been added.

One is the addition of very small lettering which can only be seen visually by using a microscope. However, of greatest importance is that these letters are beyond the resolution that can be achieved with readily available analogue or digital equipment normally in use for image reproduction in the printing industry. Forgery of the notes could not be attempted without some form of image reproduction being undertaken.

A further feature is the use of a transparent window. Again, this is very difficult to replicate in the middle of a note using equipment that would normally be available to a substrate supplier or a printing business. It becomes especially difficult when the feature would need to be replicated a number of times on each printed sheet as notes could not feasibly be printed singly. They would need to be ganged up probably at least six times to view on each sheet to make a counterfeiting operation viable.

The hologram feature is already in use on other Bank of England notes currently in use. This already gives would be counterfeiters massive problems. It is another feature that is very difficult to forge. The hologram is printed on to silver foil using a special lenticular process which allows two images to be printed on the identical section of foil. If slightly tilted in one direction, one image can be seen, and tilted the other way that image disappears and a second image becomes evident.

In my opinion, the new £5 note and all its features set aside, checking that you can see two images on the silver foil is a very good quick check for a member of the public to make EXPERT WITNESS JOURNAL

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News & Events Expert Witness Seminar at the Museum of Science & Industry The response from the first Expert Witness Seminar held at The Academy of Medical Sciences earlier this year in London undoubtedly indicated that Manchester was to serve as host for the second.

(Partner – Irwin Mitchell LLP), Christopher Melton QC (Bryom Street Chambers) and Maggie Sargent (Community Case Management Services Ltd).

Headway- the Brain Injury Association as well as the Spinal Injuries Association led the way with the support of Irwin Mitchell LLP and Expert Witness to put together an intensive half day seminar aimed at Experts’ and litigating professionals.

All speakers provided useful insight for delegates with a Q & A session as well as a mock trial with cross examination.

For upcoming events please check our events page. www.headway.org.uk/about-brain-injury/professionals/events-and-conferences/

The event was chaired by Deirdre Healy (PartnerIrwin Mitchell LLP) and featured speakers with a wealth of experience such as Catherine Leech

Expert Celebrating 30 Years of Practice We provide services throughout the UK and Europe, USA, and as far afield as Japan and Australia.

Maggie Sargent & Associates have been providing reports now for over 30 years and as a result can provide instructing solicitors with reports that are robust enough to sustain any cross-examination in court. Maggie Sargent herself has given evidence in over 60 cases and you can see a selection of these judgments by clicking the link below. Copies of others can be provided from our office.

Maggie Sargent RGN Nursing Care Expert

Court Judgments Our success is measured by the courts’ acceptance of not only the evidence of Maggie Sargent, but also her associates. We take nothing for granted, ensuring that all associates maintain the highest standards both within report writing and provision of expert advice at conference, joint discussion, and eventually court if necessary.

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.

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.

We work alongside a very busy case management company, Community Case Management Services Limited, and all of our evidence is based on actual working experience of management of clients within the community – therefore we can cross-reference for costs and this helps in providing oral evidence to the courts.

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.

Maggie Sargent & Associates Darlingscott Farm, Darlingscott, Shipston-on-Stour, Warwickshire CV36 4PN. Tel: 01608 682500 Fax: 01608 682372 Email: office@maggiesargent.co.uk Website: www.maggiesargent.co.uk

Maggie Sargent & Associates work with clients with complex needs, and all Expert Witnesses are highly experienced in the management of their conditions.

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Need an Expert Exp pert in Psychiatry y yo Psychology y gyy? y Psychiatry orr Psychology?

We are a well establish We established hed company company,, with a panel of reputable Experts selected for their experience in the field of mental health. Expert iin n Mind Ltd has a strong workin working ng relationship with all panel members, m offering a one stop interface between instr instructing ructing party and Expert.

Our experience in this sector sector,, and knowledge of our Experts enables us to advise you on the best Expert for you. W We e can promptly provide their timescales and fee f estimates. Each Expert is assigned a a personal assistant meaning that you have e one case manager with who m you can discuss any aspec ct of your case from start to whom aspect We call agency,, we are Expert finish. W e are not a ca all centre, nor an agency arre here to ensure a seamless process p in the provision of Exp pert mental health assessm ments and there are no hidden n extras. assessments London Our psychiatrists and psychologists p operate in Lond don and the South East, having g considerable experience in providing medico-lega medico-legal al reports in a range of areas, iincluding: ncluding: • • • • • • •

Clinical Negligence Negligenc ce Personal Personal Injury Family Family Law Risk Assessment Employment T Tribunals ribu unals Capacity Assessments Assessm ments Immigration

Tel: T e el: 01424 444130 444130 F Fax: ax: 01424 234625 2346 625 Email: office@expertinmind.co.uk Web: General Em mail: office@expertinm ind.co.uk W eb: www.expertinmind.co.uk www w.expertinmind.co.uk

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Events Non-Medical Expert Witness Training – Courtroom Skills for the Non-Medical Expert Witness Course dates: 16th November 2016 This course is held in a genuine County Court and will familiarise you with the layout of a courtroom. It is aimed at a range of experts including nurses, occupational therapists and physiotherapists as well as accountants, financial advisers and architects undertaking expert witness work in personal injury and clinical negligence cases. The course looks at court procedure and etiquette and will consider in detail the practical aspects of giving evidence in court as an expert witness. You will learn about examination in chief, cross-examination and re-examination and there will be in-depth discussion about lawyers’ techniques when cross-examining. You will gain practical experience of giving evidence in the witness box in a real court and will be taught coping strategies to enable you to give effective evidence to the court as an expert witness.

Accord Training Medico-Legal Expert Witness Training Report Writing & the Role of the Expert Course dates: 15th November 2016 This course is designed for non-medical experts such as nurses, occupational therapists and physiotherapists as well as accountants, financial advisers and architects undertaking preparation of expert witness reports in personal injury and clinical negligence litigation cases.

Experts will receive an overview of the Civil Procedure Rules(CPR), with an in-depth look at part 35 and the Practice Direction to Part 35 as well as considering the Guidance for the Instruction of Experts in Civil Claims 2014. You will be introduced to the Legal Framework to put your role as an expert into context and be given background information on how the criminal law differs from the civil law. We will look at the hierarchy of the court structure and consider where an expert fits into that structure. There will also be detailed consideration of quantum of damages. You will learn how to prepare excellent quality reports that will withstand scrutiny and be CPR compliant.

While this is a stand alone course, delegates may find it useful to combine this course with the Report Writing and the Role of the Expert course for non-medical experts.

While this is a stand alone course, delegates may find it useful to combine this course with the Courtroom Skills for Non-Medical Experts course

Venue/Location: Blackwood County Court, 8 Hall Street, Blackwood, Gwent. NP12 1NY (Approximately 15 minutes from M4 Junction 32, Cardiff.)

Cost: £395.

Duration: One day Qualification: Certificate of attendance

Venue: Bryn Meadows Golf Hotel and Spa, Maesycymmer, Nr Ystrad Mynach, Caerphilly, South Wales. CF82 7SN ( Approximately 15 Minutes from M4 junction 32 Cardiff ) ( For Sat Nav enter NP12 2RB ) Cost: £395 Duration: One day Qualification: Certificate of attendance Course Overview: * Introduction to the Legal Framework * An understanding of the legal process * Consideration of issues relating to breach of duty and causation * Principles of compensation * Requirements of the Civil Procedure Rules ( Part 35) * Preparing a well-structured CPR compliant expert Report * Consideration of the Guidance for the Instruction of Experts in Civil Claims 2014 * Your duties as an expert * The Jackson Reforms * Training provided by an experienced Judge

Course Overview: * Course held in a genuine County Court * Training provided by an experienced Judge and Barristers * Demystifying the court process * Familiarisation with court procedure * How to comply with the Civil Procedure Rules (Part 35) * How to give effective Expert Evidence in the witness box * How to handle cross examination- handy tips!

This course will provide you with the key skills to give clear, confident testimony in the witness box. It is a highly interactive and informative day designed to fully equip you with all the necessary skills to give effective expert evidence to the court.

This course will provide you with the key skills to produce well written expert reports that comply with the Civil Procedure Rules.

EXPERT WITNESS JOURNAL

To book your place on this course or obtain further information: Please call us on 01656 860644 or email us on: admin@accordtraining.co.uk 8

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Events Excellence in Report writing Starting 14th Nov 2016 09:30 in London Starting 12th Dec 2016 09:30 in London Starting 05th Dec 2016 09:30 in Manchester

Specialist Info Standard (Personal Injury) Medico-Legal Course (a general overview for anyone starting a medico-legal practice): ➢ 16th November 2016 – Manchester (limited places left) ➢ 31st January 2017 – London

Cross Examination Day Starting 07th Dec 2016 09:30 in Manchester Starting 12th Oct 2016 09:30 in London Starting 16th Nov 2016 09:30 in London Starting 14th Dec 2016 09:30 in London See more at: www.bondsolon.com

Clinical Negligence Medico-Legal Course (we recommend moving onto this course only after some basic training has been completed): ➢ 17th November 2016 – Manchester (limited places left) ➢ 1st February 2017 – London

RICS

Advanced Medico-Legal Course (for those who want to update their knowledge): ➢ 11th May 2017 – London ➢ 6th December 2017 – London

Expert witness training Training Manchester and Edinburgh, 13th Mar 2017 This high level and practical course will equip you with the detailed knowledge and skills you need to work confidently as an expert witness and to apply for listing on the RICS International Register of Accredited Expert Witnesses.

Court Room Skills Medico-Legal Course (mock court sessions with realistic cross examination): ➢ 2nd February 2017 – London ➢ 15th September 2017 – London

Built Environment professionals are often called upon to act as expert witnesses in court or arbitration proceedings.

They may need to give evidence either as a written report or by way of oral evidence – frequently subject to aggressive cross examination.

Mediation Training Course (5 days or can be split into 3 Modules - please call for details): ➢ 12th-16th December 2016 - London ➢ 9th-13th January 2017 Manchester For further information about our courses or to book your place direct, please contact me, Lisa Cheyne on 01423 727721 or email me at lisa@specialistInfo.com or visit www.specialistinfo.com

The standard of expert evidence varies considerably, and even highly qualified professionals will benefit from developing a full understanding of the pressures, expectations and legal and ethical duties of an expert witness to the instructing party, the other side and most importantly, to the courts.

Bond Solon Annual Conference Friday 4th November 2016 At The Church House Conference Centre, Westminster, London, SW1P 3NZ The Annual Bond Solon Expert Witness Conference was first held in 1995 and today is the largest annual gathering of expert witnesses in the UK.

www.rics.org/uk/training-events/training-courses/expert-witness-training-/london/

The Academy of Experts Foundation Course for Expert Witnesses Date: 16th-17th November Venue: The Academy

Lord Justice Fulford, the Senior Presiding Judge for England and Wales, will deliver the keynote address.

Into Court Date: 23th November Venue: The Academy www.academyofexperts.org/training/expert-witnesstraining

We welcome a range of other high-profile speakers who are making a real difference to expert witness work.

Throughout the day you will be able to hear speakers and participate in workshops that will be of direct benefit to you as an expert witness, including:

Professional Solutions

Other bond Solon training courses Civil Law and Procedure Starting 13th Oct 2016 09:30 in London

Our expert witness training workshops are held in Central London 3 to 4 times per year. We limit the size of the workshops to allow plenty of time for interaction and discussion during the presentations and breaks.

Many of our presenters have worked with us for over 15 years and have developed and refined our workshops as the role of experts has evolved and changed.

Court Room Skills Starting 06th Dec 2016 09:30 in Manchester Starting 15th Nov 2016 09:30 in London Starting 13th Dec 2016 09:30 in London EXPERT WITNESS JOURNAL

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Events Writing Evidence in Planning Appeals 18th Nov 2016 - 09.30-16.30 Venue: London

English Legal System - The Expert in Context 7th November 2016 EWI Offices Before working as an Expert Witness, it is essential that you understand the legal framework in which you will be working. This course provides a comprehensive overview of the English legal system and will position the expert in context

Writing Expert Reports – Introduction 18th Jan 2017 - 09.30-16.30 Venue: London www.prosols.uk.com/expert-witness For more information, please call Lynden Alexander on 020 7421 7476 or email him at lynden@prosols.uk.com

Report Writing II 21st November 2016 EWI Offices ➢ Understand the importance of legal tests in evidence ➢ Explore the fundamental categories of legal test ➢ Learn how to identify the correct legal test to apply ➢ Apply legal tests in the evidence using a variety of simple and complex factual and technical scenarios ➢ Understand the thought process necessary for applying legal tests correctly when expressing expert opinion. ➢ Develop opinion writing skills for complex cases ➢ Understand how to deal with causation in multi-incident compensation claims ➢ Understand how to deal with the range of professional opinion on issues in dispute ➢ Learn approaches to explaining complex issues ➢ Explore reporting situations dealing with technical difficult issues

The EWI Report Writing I 14th October 2016 EWI Offices This seminar deals with the fundamental skills needed to write high-quality expert reports.

The framework of court rules and procedure that form the context for expert reports will be explained, as will the fundamental evidential writing skills necessary to produce reports that fulfil all the requirements of the litigation process. Finally, extracts from expert reports will be discussed to highlight the differences between well and poorly drafted expert opinion in reports.

Expert Witness Training Course Tuesday 15th November 2016 Wednesday16th November 2016 This two day course is aimed at a range of experts including nurses, occupational therapists and physiotherapists, as well as accountants, financial advisers and architects. The course will suit those who currently undertake expert witness work in the field of personal injury and/or clinical negligence. It will also be ideal for those who are new to this area and are looking to move into a new career.

Day One: Report Writing & the Role of the Expert (Venue – Bryn Meadows Golf, Hotel & Spa, Nr. Caerphilly, South Wales www.brynmeadows.co.uk) This course will introduce you to the legal process and provide you with an in-depth understanding of the Civil Procedure Rules governing expert evidence. It will enable you to produced well-written expert reports which are CPR compliant.

• Introduction to the legal framework with a focus on personal injury & clinical negligence litigation • In-depth consideration of the Civil Procedure Rules • Your role and duties as an expert • Preparation of well-structured CPR compliant expert reports

Day Two: Court Room Skills for the Expert Witness (Venue – Blackwood County Court, Gwent, South Wales) This is a highly interactive and practical day, allowing you to experience what it is like to give evidence in a real courtroom. Examination in chief and cross examination is carried out by a practising barrister.

• Held in a genuine County Court • Demystifying the court process – handy tips!

• Familiarisation with court procedure and etiquette • Practical experience of cross examination by a barrister

Tel: 01656 860 644 www.accordtraining.co.uk

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The Forensic Marketplace

by John Owen, ArroGen Forensics Ltd The Forensic Marketplace, and the way that forensic science is commissioned and delivered, has changed significantly over recent years.

might the DNA have come from?” which, in some cases, will be highly relevant. Source level reports however do not address “activity level” questions, such as “(given the match), how did the DNA get there?” The answers to activity level questions are usually of paramount importance to the court. So, in the absence of a full interpretation of the findings, activity level questions such as: how the DNA was transferred, when it might have been transferred and what body fluid it was associated with are often not addressed. By extension, the scientific findings have not been considered in the context of the case circumstances, that is, in light of the prosecution and the defence scenarios. When the scientific findings are evaluated in a limited framework, the significance of the results can be misconstrued and the findings overall could potentially mislead.

Most outsourced forensic work is now procured via a competitive tendering process, which until recently, has been managed under the National Forensic Framework. Tenders under the Framework have been product based, with police forces commissioning a series of defined tests at known cost from the Forensic Science Providers (FSP). This has been accompanied by a move away from a collaborative culture, where the police investigator and forensic scientist agree the strategy, to a culture where the police set the strategy and authorise the tests to be carried out.

With ever-increasing pressure on budgets, users of forensic science - typically the police, must be selective in their forensic submissions. For example, rather than submit a full set of clothing, targeted items may be selected, or clothing may be first screened in their own laboratory and samples recovered from them and submitted to the FSP for more detailed analysis.

By geographically separating item examination from the context of others or when examining samples in isolation, this removes the opportunity to examine the distribution of material holistically and important information such as could be gleaned from analysis of the overall blood pattern, for example, is lost.

Forensic work is now routinely reported in the form of a Streamlined Forensic Report (SFR) rather than a Full Evidential Statement. SFRs are designed to make the evidence available at the earliest opportunity in order that the defendant can either accept or challenge the evidence, but they are not intended for use at trial. The SFR typically provides no detail of how the findings have been arrived at or the conditions under which the tests were commissioned. Individuals who are not scientific experts can also produce them; for example, a DNA match report could have been generated and reported automatically as part of an administration process. Furthermore, the test results may not have been generated using accredited procedures. In combination, this can mean that it may not be easy for the Defence to establish

The majority of the outcomes of forensic testing are now reported in a staged way and at “source level”.

Source level propositions address the question: “who EXPERT WITNESS JOURNAL

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ArroGen

Advanced Forensic Solutions

Providing Leading Expert Witnesses ArroGen Forensics Ltd is an independent forensic science company originally formed in 2004 as Manlove Forensics.

Our forensic scientists have years of experience and are at the top of their fields of expertise. They will thoroughly review the prosecution evidence, ensure that the relevant examinations have taken place and accurately assess the significance of the findings in the context of the case. Where necessary, we are able to recommend and carry out additional examinations in our own laboratories. We routinely have a significant impact on the outcome of the cases we work on.

In the current climate of financial cut backs and with more and more prosecution work being carried out by the police themselves, it is more important than ever that you fully understand the prosecution forensic evidence: its real significance and its limitations.

DEFENCE AREAS OF EXPERTISE: • • • • • • • • • • • • • • • • • • •

Alcohol Technical Defence Audio enhancement Blood pattern analysis (BPA) Body fluid analysis (blood, urine, semen etc) CCTV enhancement Chemistry (glass, paint etc) Damage Diatomology Digital (computers and mobile phones) DNA (including YSTR, LCN etc) Documents Drugs Entomology Facial mapping/recognition Fibres Fingerprints Firearms Fires and Explosions Footwear

• • • • • • • • • • • • • • • • •

Handwriting Hair analysis Injury causation Marks enhancement Medical Odontology Ophthalmology Palynology (pollen) Pathology Pharmacology Road traffic collisions (RTC) (including reconstruction) Scene examination/reconstruction (luminol etc) Soils Tachograph analysis Toxicology Video enhancement Voice recognition

Whatever your requirement, ArroGen Forensics will be able to assist. You will have direct access to our experts who will provide a professional, timely service and work with you at all stages of the case, from initial enquiry through to court.

We also run a number of CPD accredited seminars and would be delighted to discuss how we may be able to provide general or specific awareness for your team.

Contact us to help you fully understand the evidence in your case. +44 (0)1235 774870 or email Info@ArroGenGroup.co.uk ArroGen Forensics Ltd

| +44 (0)1235 774870

| ArroGenGroup.co.uk | Info@ArroGenGroup.co.uk

Unit 12 The Quadrangle, Grove Business Park, Wantage, Oxfordshire, OX12 9FA. United Kingdom

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whether the evidence is robust or identify if they should challenge it. Our advice is that SFRs should be challenged in order to be able to fully understand the science behind them and robustly assess its significance in the context of your case.

tion. They will evaluate the significance of the scientific findings in the context of the case, ensuring that the defendant’s account of events is fully considered. They will also have the necessary expertise to robustly challenge the findings. For example, in a body fluid case, they will be able to consider the evaluation of complex DNA mixtures, consider more specialist DNA tests and, if necessary, carry out a specialist statistical analysis of the results. They will also look at the chain of evidence to ensure that, for example, anti-contamination procedures have been robustly employed and that the conclusions reached are valid.

The police are now carrying out much forensic work themselves and the recent Government Strategy1 on Forensic Science appears to re-enforce this position.

The Forensic Science Regulator has set a timetable2 in which the work of all providers of forensic science should be accredited to ISO 17025 (or ISO 17020 for some types of work). However, not all work will be required to be accredited. For example, the Forensic Science Regulator has stipulated that “simple” classification of firearms, most of which is carried out

by Force Armourers, does not need to be accredited and it is only if their SFR is challenged that the work will need to be repeated by an accredited organisation. The questions are whether systems sitting outside the accredited framework will operate at a quality that is expected under accreditation and how they know what is expected, and, if not, how will the work be regulated? Equally if good robust systems can operate outside of accreditation, will this undermine the use and value of it?

The way in which forensic science is delivered has changed dramatically and the changes will continue to impact significantly on all those involved in the criminal justice system (CJS). An understanding of the significance of this transformation may help users of the CJS, not least the Defence, in assessing the scientific evidence before them and perhaps knowing when they may need the help of an expert in evaluating its true meaning.

References 1.The Home Office. 2016. Forensic Science Strategy: A national approach to forensic science delivery in the criminal justice system. Available at: www.gov.uk/ government/publications

Given the current situation, understanding the value of an independent assessment of the evidence is paramount. A knowledgeable independent expert will look at the forensic strategy to ensure that all of the appropriate examinations have been carried out and, if relevant, can suggest additional examinations that have the potential to provide valuable informa-

2.Forensic Science Regulator. 2016. Codes of Practice and Conduct for forensic science providers and practitioners in the Criminal Justice System. Available at: https://www.gov.uk/government/organisations/forensicscience-regulator

D & H B Associates Ltd Experts in Road Traffic Offences ◆

Accident Investigation and Reconstruction, both Criminal & Civil Road Traffic Offences from Speeding to Causing Death by Dangerous Driving and Death by Careless Driving ◆ Tachograph Analysis ◆ Stolen Vehicle Examination and Identification ◆ Vehicle and Component Examination ◆ Locus Reports, Scale Plans and Photographs ◆ Statement Taking ◆ Tyre Technology - We are affiliated to New Law Associates Ltd (Tyre specialists) ◆

We work with both Civil and criminal cases and are experts in accidents involving all types of vehicles including cars, motorcycles, buses and heavy vehicles.

Contact: Douglas Boulton Tel/Fax: 01538 722 544 Mob: 07973 289 162 Web: www.dandhb.com Email: mail@dandhb.com

D & H B Associates Ltd. 14 Cavendish Road, Tean, Stoke-on-Trent ST10 4RH New Offices open in Northern England in the Carlisle area please contact for more details

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MedCo Enforcement Action MedCo has identified, monitored and investigated users who appear to have been intentionally manipulating the search function on the MedCo service including repeat searches to achieve the desired outcome. Attempts to bypass the random allocation of Medical Experts and MROs constitutes a serious breach of the Authorised User Agreement.

This action arose after suggestions that medical reporting organisations should be barred from registering more than one company on the new register for whiplash diagnosis.

The government called for evidence on the performance of the online MedCo system after reports that MROs were registering multiple entities to ensure a greater market share.

To date 20 Authorised Users have been notified of their suspension. In line with MedCo’s escalation procedures, suspended users have been asked to make appropriate representations to explain their conduct.

Accreditation Training Medical Experts who were not accredited by the 1st June 2016 deadline will not be able to receive instructions under the MoJ’s Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. Medical reports prepared by Experts who are not accredited by the deadline but were instructed on the case prior to the deadline, may not be valid.

Further users have also been identified manipulating the search function and MedCo is in the process of making contact to enforce User Agreement Compliance Procedures via warnings, suspension, and if necessary termination of the use of the system.

Medical Experts need to have registered as either a Direct Medical Expert or an Indirect Medical Expert, in order to undertake MedCo Accreditation Training.

MedCo has communicated with users to remind them of their obligations under the Authorised User Agreement and will continue to monitor users, taking appropriate enforcement action as required.

CONSULTANT PLASTIC RECONSTRUCTIVE & HAND SURGEON MBA, MBBS, FRCS, DIP EUR B(PLAST), FRCS(PLAST) 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: • 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 is on the GMC’s specialist register in Plastic Surgery and is a member of the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), and member of the society of expert witnesses.

Tel: Email: Web:

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0121 507 3455 atulkhanna@doctors.org.uk www.atulkhanna.co.uk/expert_witness.html

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General Practice Facing Austerity Measures in Britain Dr Bashir Qureshi FRCGP, FRCPCH, AFOM-RCP, Hon FFSRH-RCOG, Hon MAPHA – USA, Hon FRSPH • Expert Witness in Cultural, Religious & Ethnic issues in Litigation.

• Expert Witness in GP Clinical Negligence.

• Author, Transcultural Medicine; Dealing with patients from different Cultures, Religions & Ethnicities.

• Former GP & Paediatrics Clinical Public Health Medical Officer, London, UK. According to the theory of “double doctrine” in philosophy, it is justified to do a bad thing to achieve good results; for example, to kill four hijackers to save 40 hostages. It is also possible to do a good thing to achieve bad results; which may be intended, for example, to close an expensive service or agency. In Britain, most things are achieved by evolution than by revolution. The aims and objectives to get results are usually planned one year, five years or 20 years ahead. The British politicians are clever and often trained in Oxford, Cambridge, Edinburgh and London Universities. They are mostly of real British origins and very loyal to the British flag. Money makes the world go round. Today, Britain is facing shortage of money and austerity measures, in good faith, are essential. Let us look at five actions which look very good for patients and General Practitioners (GPs) but are amicably reducing the number of GPs, their services, cost of medications and referral to hospitals, as intended, while making patients feel powerful, happy and supportive.

Patients Associations are being used by the Government to monitor GPs performances and General Practice facilities. They are also being used by Doctors’ Royal Colleges and Trade Unions as an umbrella. Patients are making demands and complaints to Employing Authorities, General Medical Council and Courts. It is now an irreversible and manmade situation.

Care Quality Commission visits General Practices The patients’ feedback, often less complements and more complaints, is a compulsory requirement by the Care Quality Commission of the NHS. Every GP Practice is forced display a poster in their waiting room, for patients, how to complain and to whom.

Surprised and planned visits take place by trained medical and non-medical inspectors skilled in finding faults in every surgery where possible. They question every member of the Practice staff rigorously.

Practice instruments and oxygen cylinders are checked. The premises must be very clean all the time. These adjustments need more staff, time and funding. There is no extra funding or manpower given by the CQC or Employer Authorities to these Practices. The findings of good and bad grades, after inspections, are displayed on the internet for the whole world to see and assess the competency of GPs.

Patient Power and Patient Associations A patient can complain against a doctor but a doctor cannot complain against a patient. Every doctor is believed to have taken “Hippocrates Oath” but no one has ever done so because it involves a student to give money to the teacher’s family for lifetime. Similarly, a diagnosis is mostly based on symptoms and signs which suggest a number of different diagnoses and the doctor chooses one that is most possible.

Medicine is a science but a diagnosis is an informed guess, except in a few cases such as a fracture of a bone. No diagnosis can always be right but the patients are encouraged to expect it to be always right. This expectation is the basis of increasing complaints against doctors, who indeed experience stress which if repeated makes them leave the practice or licence to practice.

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Annual Appraisal and five yearly Revalidation of every GP No one but no one can pass examinations or appraisals for Revalidation at all times. There are instinctive personal reservations as well, based on factors such as age, gender, social class, culture, religion, ethnicity, university or medical college. If an examiner likes an appraisee for any reason, he/she may move goal post towards the candidate but if there is a dislike, the appraiser would move the goal post away from the appraisee and keep moving. For 15

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available. This was particularly relevant when an operation was needed. The surgical registrar advised the Locum GP firmly that he should do an ECG and a pregnancy test, and then ring him. It was an evening surgery with 10 minute per patient appointments.

Only one receptionist was helping patients. There was no ECG machine and no pregnancy test kit was available and it would have taken a long time. The waiting room was full of patients waiting anxiously for their turn. The locum GP had to write a letter and send the patient to A&E Department to save the patient’s life. I hope that it happened. Currently, these hospital doctors on call are advised to insist that GPs should manage emergencies in their GPs surgeries. This is a Pandora’s Box opened to risk patients’ lives and litigation against GPs.

example; patients’ feedback survey and patients’ audits were not essential for self-employed Locum GPs as they were not employed by any practice which can let them access patients’ notes after consultations were over. Now, it has been made compulsory for Locum GPs who have to leave practice or licence to practice, as a result. The agencies who support them have limited influences. These GPs cannot help themselves. Even God helps those who help themselves.

The current situation is similar to what happens to overseas doctors who wish to practice in the UK. In 1960s, when junior doctors were needed to look after war wounded survivors, about 18000 South Asian Doctors were trained abroad by the British and they were all given work permits, by the Ministry of Labour, to work in the NHS hospitals. They were given Certificates of Acquired Rights to practice in the NHs as General Medical Practitioners. The MRCGP became compulsory only when they were all over 70 years of age. When there was no further need, the PLAB test by the General Medical Council was introduced. I am not sure whether the pass rate depends on the posts available in the NHS but I feel that it may be a possibility. We can be proud of our politicians for their skills.

Moreover, GPs’ non-emergency referrals are firmly scrutinised by a team of referral controlling trained doctors in local CCGs. Many referrals are sent back to the GP. This reduces referrals to hospitals which can remain open only to treat patients referred by local GPs. These austerity measures would reduce the number GPs and increase risks to patients’ lives.

There is a case for the Private NHS today. The patient power and British politicians would soon decrease doctors’ orders or disorders in a NICE way to save money. ■

Computer control of Prescribing by GPs If a GP decides to prescribe a medication, a statement appears on the computer to either change the prescription to a cheaper drug or to give NICE (National Institute of Clinical Excellence) guidelines to forbid prescribing. For example; no prescribing of bonjela; oromucosal gel, for mouth ulcers. No more any prescriptions for Ibuprofen tablets or gel allowed for osteoarthritis pain. No antibiotics prescriptions unless a condition of infection gets worse; sometimes, it may be too late. Some patients, especially with pain or infection, become very angry with the GP as they have waited a long time to get an appointment and now no pain or infection reliever given. Patients’ feedback survey, which is mandatory for a GP’s Annual Appraisal and five yearly Revalidation, becomes very negative. Patients may use the information, provided on the Practice Notice Board, about how and whom to complain against the GP and the Practice. Patients put negative comments on the Practice page on the internet. The GP remains helpless and distressed.

Control of GPs referral of patients to hospitals A Locum GP saw and examined a woman patient with pain and tenderness in right lower abdomen and gastric region for 3 days, getting worse, and suspected “acute appendicitis”. He rang a surgical registrar of the local hospital. It was usual that such an emergency was investigated and treated at hospital, where investigation staff, time, skills and admission facilities were EXPERT WITNESS JOURNAL

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BIM Badge of Compliance Awarded to Adept Consulting Engineers Adept is the UK's first civil & structural engineering firm to achieve BRE Global BIM Level 2 Business Systems Certification. The certificate is awarded to Adept three months in advance of Government’s mandatory requirement for BIM to be applied to all publically procured buildings. ’Well done to Adept - we know that our BIM business certification process is challenging and rigorous but ultimately it will enhance the competitiveness of Adept in national and international markets and enable them to deliver better value to customers throughout the lifecycle of a project’ said BRE Group’s Director for BIM, Guy Hammersley.

Engineering Expertise for the Generation, Power, Process, and Manufacturing Industries

Since 2013 Adept have applied BIM on all their projects including the new Next Distribution Centre in Doncaster, a Staycity Hotel in Manchester, the refurbishment of Leeds Kirkgate Market, the new Humber University Technical College and on residential projects for UK’s McCarthy & Stone and social housing organisations across the UK.

Plant, Machinery, Electrical Systems, Mechanical Handling, Construction Personal Injury UK and International

Adept’s Managing Director Erol Erturan says: 'BIM is a great way of demonstrating to clients that we have the right procedures in place at every level to deliver what are very rigorous Government requirements. It also simplifies the tendering process, as once a business is BIM certified its competence levels are guaranteed.’

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Forensic Structural Engineer - Chartered Building Surveyor Expertise in;

Failure Of Duty Of Care Structural Engineers Design Failures Collapse Investigations Construction and Material Defects Timber Defects

Contact Details Landline: 01494 727 217 Web: www.abillingham.co.uk

Failure Of Duty Of Care for Building Surveyors Survey Reports Contract Administration Design Failures Schedule of Dilapidations The above are just a few of the related topics that encompass my expert reports.

Mobile: 07961 398 049 E-mail: andrew@abillingham.co.uk

5 Cheyne Close, Amersham, Buckinghamshire HP6 5LT

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Bud Young Airphoto Specialist It is quite difficult writing about a subject in which one has been immersed for 40 years but here I am offered an opportunity to advertise my skills. They relate to aerial photography, not taking photos from the air, which many people are involved in, but analysing what was going on the ground using vertically taken airphotos taken from’ the back list’ which stretches to 1944. And doing this in the most surprising detail. For surprising perhaps read incredible!

My first case was in 1983 and involved a heavily wooded residential area in Surrey. There was a house with poorly defined bounding fences. It worked, I got paid and I was on my way.

I have since then done perhaps 150 cases. Some of these were really interesting, some rather routine but nevertheless satisfying – satisfying for the outcomes.

That said we nowadays have the Internet, we have aerial photography on Google Maps and Google Earth and can look back to some extent on the photography of yesteryear. I feel that some of my potential clients are using their undoubted intelligence to sort out their boundary and land use problems in that way. Some of the photography on offer, free, is very good. But all is monoscopic. Is the Judge going to be impressed by ‘their expert credentials’?

It is something I grew up with, working on airphoto analysis for the Government, detail mapping of whole territories – the Bahama Islands all 10 of them was one such. Later I worked in matters to do with planning. I left that behind as many 40 year olds do – there comes a time in life when getting into the country and away from the London 7am/pm commute routine is magically appealing. That is when I focussed on the use of airphotos as evidence.

[And alongside of this, on precise urban mapping for a number of London and other Local Authorities].

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What then is the need for an airphoto specialist, a real expert? How does it help the situation, your client’s long contested case, to employ one?

Settle back here and I will tell you. Stifle your yawn-

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using an additional instrument (a stereometer) and 3D photos which allows me to measure the heights of trees, walls and buildings to a similar 10cm height accuracy.

First off, is that I use airphotos to create a 3D model of the ground. It is an idea going back to Victorian stereoscopes made of mahogany, and 3D photos of the American Civil War, but now pursued using high quality optically based instruments. Computers come into it as well in the preparation of the most advantageous images, digitally sourced. I am aware as many of you are that 3D images can be produced on screen (gorgeous) but this requires expensive software and achieves no more, at single target level, than a pair of overlapping airphotos.

That is all detail. The most important advantage that I offer is many years of experience in recognition of how people use land, gardens, shift boundaries, take advantage of unclaimed areas; ground conditions portrayed in a series of dated photos. The whole business of secure inference. This answers the critical question that my clients come with ‘It used to be like that and then it changed (often when a new neighbour came on the scene). Now it is like this. Can you tell me if this account of things is verifiable’?

The advantage of consecutively taken overlapping airphotos (a standard method in survey) is that they offer that 3D model – they also gives two views of the same piece of land (ie from different angles) and detect any movements. Two views, one for each eye, reinforces the readability of the image. Think how well (NOT) you would drive with one eye blanked off.

There have been some notable cases for example of the discharge of effluent into a tidal river from a ‘ginormous’ industrial plant. Where and when and to what extent? Photos going back to 1947. A second case, to precise the position and accurate height of trees (which had been cleared at groundwork stage) on a development site where some of the houses began to develop foundation problems. That was a job where ‘cheap and cheerful’ automated heighting had already proved less than satisfactory. Imagine measuring the height and spread of 250 trees and setting this out in a coherent map based report accurately related to numbered houses.

A second advantage is that I routinely scale photography and therefore produce measurements accurate to 10 cms ground distance. This brings to mind that, Memory of places How well do you remember places you feel you know, your home ground perhaps for twenty years?

Airphotos give an eyewitness account for year dates that have long since faded from memory. In land claim cases, if you are a witness you might have filled out a claimants’ questionnaire. Horror and embarrassment in court when you are put on the spot. This is cross examination. The barrister is merciless, withering. You are discredited. You flounder and you mis-remember, you start to lie to cover lies.

Another case, one of the most complex, involved placing the physical position of a wall and gateway to an old furniture works when the entire area to the north had been cleared of similar factories and put down to housing. Added to this that the adjacent railway cutting had been filled in and most all previous landmarks were lost. One hundred thousand pounds rode on that decision and again it depended on a series of dated airphotos viewed in 3D. Critically it was the sharpness of the some of the photos that made accurate measurement possible.

And you will not necessarily remember places and that is because your memory is: • Limited by your age at the time • Limited by your range of travel and frequency of visit (it was some way away, we only went there once a year)

I particularly remember the case of access to the rear of an old building – one of those in a complex townscape. The claim was that the other side had always driven into a back yard; the reality as found in one dated photo was that they could not have done this as the way was blocked by a small outbuilding long since removed but clear to see on a photo taken within the legal time limit. I recall speaking about this in an interview for Radio London. Hang on!! Was it Radio London – fortunately I have the cassette tape as solid evidence – but where did I put it! The uncertainty of memory is fundamental to land disputes.

• Limited by your understanding of what you see (frame of reference) • Limited by your indifference to what you see (‘mind on other things’) • Limited by your access to a site, I never went beyond the gate • Biased to what you thought was important • Effaced by the onward accumulation of other information (particularly about a changing site) • Dishonestly biased in pursuit of a property suit or strongly held notion

I half recall the 14 year dates of Railtrack land near Liverpool Station.

• Honestly mistaken for an adjoining place.

• Dishonestly transposed from another place

Many disputes arise out of the width of access, sometimes on farm tracks, sometimes access widths critical to backland development. Other cases are about the

• Non existent because of bad memory!

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use or non-use of paths and bridle ways and is such cases one is looking for gate widths, unrecorded obstacles and track wear.

A most attractive kind of case is the so called Village Green claim in which 20 or 30 local residents recall their use of a piece of land. ‘We always went … we used to play … when my son was a child we picked blackberries … there used to be a bridge …there were no fences … we held village fetes on land next to Number 21 … there was never any form of notice telling us it was private …it was never farmed.’ Many of these claims can be investigated using airphotos, some cannot. But often it is what is not claimed that indicates that those who filled in forms were not familiar with the land. And that emerges in cross examination. I recall people dog walking straight through thick (now vanished) hedges.

And there was the case of the rooftop dormer window in Kensington; the planning start in sand dunes in South Wales; the amazing case of an advertising sign on a building in North London – it actually showed up on a vertical photo that had been taken (as the plane progressed) not from directly above but slightly from the side; the incident of the Cockle Fishers in the Wash.

Airphoto Interpretation MA Geology and Mineralogy, Oxford University MSc Soil Formation and Soil Survey Reading University Sometime visiting tutor in airphoto interpretation at University of Cambridge Chartered landscape architect (MLI) in their landscape science division

Bud Young is a partner at “Airphoto Interpretation”. A two person partnership established 1983.

He is experienced in detailed urban mapping, forest survey, river corridor and greenspace surveys.

He has over 32 years litigation experience based on the notion “Airphotos make Good Evidence.” He is also the professional editor of Landscape Research Extra, now in its 28th year.

Mr Young is experienced in expert witness work Contact: Mr. Bud Young 26 Cross Street, Moretonhampstead Devon TQ1 8NL Area of work Nationwide Tel: 01647 440 904 Email: young@airphotointerpretation.com Website: www.airphotointerpretation.com

And the sea serpent seven miles long. But I mock!

Bud Young

www.airphotointerpretation.com young@airphotointerpretation.com

Graham Rogers and Associates Limited

Professor Charles Claoué Consultant Ophthalmic Surgeon BA, BChir, MB, MA (Cantab), DO, MD, FRCS (Eng), FRCOphth, FEBO, MAE.

Consultant Psychologists

Specialising in; 1) Advanced Cataract Surgery: Surgery for Astigmatism, Multifocal and Accommodating Intra-Ocular Lenses; Small Incision Surgery (Phakoemulsification) and "No Needle No Patch No Stitch" Surgery.

M.Sc., (Ed Psych) M.Sc., (REBT) B.Sc. (Hons)., PGCE., Dip. REBT., C. Psychol., AFBPsS

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Experience at The Central Criminal Court, and The Principal Registry of the Family Division.

3) Corneal Disease and Surgery including Corneal Transplants/ Grafts, Anterior Segment Reconstruction.

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

Reports for medicolegal work are available, including personal injury and medical negligence cases. Professor Claoué is a Bond Solon and Professional Solutions trained medical expert witness in ophthalmology, and a Member of the Academy of Experts.

Contact: Miss Nadia Bouras Tel: 020 8852 8522 Fax: 020 7515 7861 Email: eyes@dbcg.co.uk Web: www.dbcg.co.uk DBCG Legal Ltd 36 New Atlas Wharf, Arnhem Place, London E14 3SS

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Consultant Psychologist

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Assessing Malingering and Deception in Forensic, Judicial and Clinical Contexts: Are Various Communications “Congruent”?

By Koch HCH, Newns K, Boyd T & Peters J Most professionals believe they can detect deception and sometimes ‘common sense’ prevails to reinforce this belief. However, counter-intuitive evidence occasionally emerges which illustrates this is often not the case. A recent study (Leach et al, 2016) examined the assumption that seeing a person’s face (uncovered) was necessary to detect deception. Observers’ performance (in the UK, Canada and the Netherlands) was better when witnesses wore facial covering (i.e. nijabs or hijabs) than when witnesses did not wear veils. These findings suggest that, contrary to judicial and public opinion, facial veils did not interfere with, and may improve, the ability to detect deception.

Professionals working in custodial, forensic, criminal, civil and mental health contexts regularly interview individuals to establish diagnosis, treatment requirements, medico-legal opinion, reliability and truthfulness. A common aspiration is to establish some form of ‘holy grail of detecting truth or deception which then informs decision making, whether it be forensic, clinical or judicial (Koch, 2016; Oxburgh et al, 2016).

The social psychology of lying and deceit detection indicates that deceiving others is an ‘emotional part of everyday social interaction’ (Grant et al, 2016).

Deceptive detection is crucial both in terms of forensic crime detection but also in civil contexts where it is possible that claimants misrepresent what has occurred or types of alleged PI or loss. Recently personal injury claimants have faced large bills in the court when their PI claims were dismissed having been found to be fundamentally dishonest (Litigation Funding, 2016).

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Research indicates that people vary in their ability to lie, but also, people are not consistently good at lie detection. Hence the dilemma! When people lie, they are typically uncomfortable if lying to close friends, but less so when talking to strangers. People lie to give a positive impression, obtain some sort of advantage, to evade penalties, and also to maintain 21

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the equanimity of a relationship, rather than ‘rock the boat’ (Rix, 2011). The social psychological research indicates there are different types of lies, liars and gender, age and personality trait differences between those who lie (Halligan et al 2003).

Lying is logically difficult. The more complicated a lie is the greater non-verbal characteristics and logical inconsistencies are evident.

The degree of motivation also affects lying success.

People who are highly motivated to get away with their lies may behave differently to those who have less personal investment in the outcome of their lying. Hence different motivational effects are found in an offender group, on the one hand, e.g. evade or reduce sentence, accelerate release from custody, and mental-health or civil claimant groups, on the other (e.g. to gain treatment, empathy and compensation).

There are at least six distinct response styles of unreliability or dissimulation (Rogers, 1997). These include: • Malingering • Defensiveness • Non-engaged irrelevant responsiveness • Random responding • Honest but factually incorrect • Hybrid responding (combination of any of the above)

Ability to detect lies The ability to detect differences between liars and non-liars is variable. There is no one, consistently successful, ‘cognitive heuristic’ which governs the detection of lying, and potential judgments about lying and liars is adversely affected by not taking individual differences in behaviour into account e.g. social anxiety. Characteristics of truth-tellers and of good liars include verbal and non-verbal behaviour that is congruent and believable.

A key aspect of deception detection is the importance of assessing verbal and non-verbal behaviour.

Non-verbal behaviour is more difficult to control than verbal behaviour (Vriz et al, 2016) with issues arising in emotional control (guilt, fear, excitement), context complexity (lying being a cognitively complex task), and behavioural control (unsuccessful attempts to suppress signs of lying). An example of some non-verbal behaviours evident at times during lying and deception is illustrated in Fig. I below (Vriz, 2000).

Vriz et al (2016) defined a set of guidelines for the detection of deception via behavioural cues, some examples are illustrated in Fig. 2 below: Fig 2 Deception via behavioural cues (Vriz, 2016)

Fig I Examples of Non-Verbal Behaviour During Deception (Vriz, 2000)

1. Lies may only be detectable via non-verbal cues if the liar experiences fear, guilt or excitement, or if the lie is difficult to fabricate.

Vocal Characteristics 1. Speech hesitations: use of words ‘ah’, ‘um’, ‘er’ and so on

2. It is important to pay attention to mismatches between speech content and non-verbal behaviour, and to try to explain these mismatches.

2. Speech errors: word and/or sentence repetition, sentence change, sentence incompletions, slips of the tongue, and so on

3. Attention should be directed towards deviations from a person’s ‘normal’ or usual patterns of behaviour, if these are known. Each deviation may indicate that the person is lying.

3. Latency period: period of silence between question and answer Facial Characteristics 1. Gaze: avoiding the face of the conversation partner

4. The judgment of untruthfulness should only be made when all other possible explanations have been negated.

2. Blinking: blinking of the eyes

5. A person suspected of deception should be encouraged to talk. This is necessary to negate the alternative explanations of a person’s behaviour. Moreover, the more a liar talks, the more likely it is that they will finally give their lies away via verbal and/or non-verbal cues.

Movements 1. Self-manipulations: scratching the head 2. Shifting position: movements made to change the sitting position (usually accompanied by trunk and foot/leg movements)

6. There are stereotypical ideas about cues to deception (such as gaze aversion, fidgeting, and so on), which research has shown to be unreliable indicators of deception. Not everyone will exhibit these cues during deception, and the presence of such cues may indicate deception, but does not do so in every case.

Data concerning these characteristics show a conflicting pattern i.e. the presence of one or two specific characteristics is not a prima facie indication of lying.

There is no clear, binary relationship between nonverbal characteristics and lying.

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The empirical development of verbal techniques to measure the veracity of statements indicated that deceptive statements often included shorter, more implausible and non-self-references (due to lack of personal experience). This led to the most popular technique to date for assessing deception – the Statement Validity Assessment (Kohnken and Steller, 1988). This was developed primarily in a forensic setting (sexual offences; child abuse context) and consisted of a structured interview, a criteria-based context analysis of the contexts of a statement, and a set of validity-checking questions. The context criteria for analysing statements in clinical consideration of the several characteristics (Vriz, 2000) shown in Figure 3 below:

The utilisation of statement validity assessment is accepted as evidence in both criminal and civil courts in several countries but is not without problems, namely frequency of false/negative classification, subjectivity (of evaluator), and lack of other confirmatory evidence.

It has been argued (Vriz et al, 2016) that memories of real experiences are likely to contain perceptual information (visual details, sounds, smells, tastes and physical sensation), contextual information (e.g. when and where something occurred) and affective information (e.g. detail about how someone felt during the event). These memories are typically ‘clear, strong and vivid’. Untrue descriptions are typically more vague and less concrete. Studies have indicated that reality monitoring might be more useful for analysing adults’ statements than for studying children’s statement, and for analysing statements about recent rather than older events.

Fig 3 Some examples of content criteria for statement analysis General characteristics 1. Logical structure 2. Unstructured production 3. Quantity of details

Psychometric Testing for deception.

Psychometric testing and measurement falls into two categories – general testing (e.g. MMPI, 16PF, SIMS), and forensic neuropsychological testing. The former has received a mixed press both in terms of its validity in detecting deception or lying and also in terms of its time efficiency.

Specific contents 4. Contextual embedding 5. Descriptions of interactions 6. Reproduction of conversation 7. Unexpected complications during the incident 8. Unusual details 9. Superfluous details 10. Accounts of subjective mental state

Clinical neuropsychological testing has, conversely, received better reviews both in terms of identifying deception and malingering and perhaps, of greater utility, assessment of sub-optimal effort and motivation (Thompson, 2011) and has rightfully led to a higher degree of expectation in terms of forensic, clinical and courtroom knowledge, objectivity and utility (Richard, Geiger and Tussey, 2015).

Motivation-related contents 11. Spontaneous corrections 12. Admitting lack of memory 13. Raising doubts about one’s own testimony

There are several psychometric assessments which have been used as an aid to detect malingering: The Minnesota Multiphasic Personality Inventory (MMPI-2), the Structured Interview of Reported Symptoms (SIRS), and the Structured Inventory of Malingered Symptomatology (SIMS) (See Halligan et al, 2003 for details). Studies have found that malingerers can “successfully” evade detection on measures using validity scales in 44% to 80% of occasions (Carmody and Crossman, 2005; Peace and Masliuk, 2011 – cited in Peace & Richards, 2014), hence the empirical ambivalence for using these instrument, both forensically and clinically.

Each of the above criteria may contribute to the assessment of veracity.

The validity-related checklist developed is shown below: Fig 4 Examples of Validity Check-list Psychological characteristics 1. Inappropriateness of language and knowledge 2. Inappropriateness of affect 3. Susceptibility to suggestion Motivation 4. Questionable motives to report 5. Questionable context of the original disclosure or report 6. Pressures to report falsely (e.g. avoid detection; obtain compensation)

A more recent psychometric innovation which has gained credence in the civil claimant context has been that of Interrogative Suggestibility (Frumkin, 2016). False confessions and inaccurate evidence can frequently be based on an individual’s over-suggestibility and intolerance of uncertainty, resulting in the giving of misleading and inaccurate information.

This has been measured by Gudjonsson (2013) and

Investigative questions 7. Inconsistency with the laws of nature 8. Inconsistency with other statements 9. Inconsistency with other evidence EXPERT WITNESS JOURNAL

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focuses on how likely a person is to change his response under pressure or interrogation. The applicability of suggestibility assessment as a factor in both criminal and personal injury civil cases is gaining credence.

1. the strength and consistency of results across various measures and 2. the absence of alternative explanations (Rogers, 1997) Legal and professional issues The use of the term ‘malingering’ or ‘liar’ is a difficult and complex issue. Relevant professional/legal issues pertaining to this include: -

Can professionals be trained to be good lie detectors?

Many individuals are capable of behaving unethically, being deceitful and committing fraud. This varies from habitual crime to one occasional fraudulent action. Fraud and deception impacts on all of us in terms of costs built into subsequent insurance. Hence proactive skills and awareness of how to detect deception continues to have a high priority in the work of forensic, judicial and clinical professionals.

1. In what proportion of forensic and civil cases is the issue of dissimulation part of a clinician’s psycholegal conclusions?

2. Given the far-reaching consequences of forensic and medico-legal evaluations, are different clinical criteria needed to differentiate dissimulators from others?

Training in the use of content analysis and statement validity interviewing increases the effectiveness of reliability assessment and deception detection. Training in non-verbal behaviour identification is useful but it is a complex task to apply this in actual deception detection, due to the inconsistency of non-verbal indicators of deception in each and every liar. In addition to the key overriding primary skill of listening and establishing if the several, various communications from an individual are congruent and consistent with a potential ‘true story’, the professional attempting to catch a liar needs the following micro skills:

3. What influences do descriptions of dissimulation within clinical reports have on legal disposition or clinical treatment.

4. In public policy terms, what errors (false positives or false negatives) is the criminal or civil justice system willing to tolerate with respect to malingering and defensiveness?

Experience and research with individuals in forensic contexts (Rogers, 1997), civil claimants and mental health patients (Koch, 2016) suggest that these are three types of continua on which to classify malingering and defensiveness. These are shown in Fig VI below with descriptions (Rogers, 1997):

• A suspicious, challenging attitude • A probing, repetitious, questioning attitude • A withholding attitude (i.e. non-disclosure of what is already known) • Well researched, background information prior to interview

Fig VI A. Unreliability: Continuum of Reliable – Limited Reliability – Without Reliability

To achieve this level of communication skill requires an awareness and confidence in the micro-skills of face-to-face communication and an ability to mentally accommodate different types of interpersonal cues or behaviour in the interviewee before reaching a conclusion about truthfulness. (Koch, 2016).

1. Self-report with limited reliability: The patient answers most inquiries with a fair degree of accuracy, but volunteers little or nothing and may distort or evade on circumscribed topics.

2. Self-report without reliability: The patient, through guardedness, exaggeration, or denial of symptoms, convinces the clinician that his or her responses are inaccurate. Such cases may be suspected of malingering or defensiveness, although the patient’s intent cannot be unequivocally established.

Several recognised psychological guidelines (in DSMV) have potential components of deception associated with them (e.g. sociopathy and other personality disorders, amnesia, substance abuse and PTSD).

Four main detection strategies for feigned psychopathology include: identification of rare symptoms, indiscriminate symptom endorsement, obvious symptoms and improbable symptoms.

(Rogers, 1997)

B. Malingering: Continuum of Truthful – Mild Malingering – Moderate Malingering – Severe Malingering 1. Mild malingering: There is unequivocal evidence that the patient is attempting to malinger, primarily through exaggeration.

The degree of distortion is minimal and plays only a minor role in differential diagnosis.

The clinician in a civil justice or mental health context must integrate an array of clinical findings on the issue of dissimulation. This includes assessing: -

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2. Moderate malingering: The patient, either through exaggeration or fabrication, attempts to present him- or herself as considerably more disturbed than this is the case. These distortions may be limited to either a few critical symptoms (e.g. the fabrication of hallucinations) or represent an array of lesser distortions.

Tentative

Research studies consistently show statistical significance in the expected direction, but have little or no practical value in classifying individuals.

3. Severe, malingering: The patient is extreme in his or her fabrication of symptoms to the point that the presentation is fantastic or preposterous.

Probable

Research studies consistently establish statistical significance in which cutting score, measures of central tendency, or a similar statistic accurately differentiate between at least 75% of the criterion groups.

Definite

Accurate classification of 90% or more of individual person based on extensive, cross-validated research. Findings are congruent with accepted theory.

C. Defensiveness Continuum of Not Defensive – Mild Defensiveness – Moderate Defensiveness – Severe Defensiveness 1. Mild defensiveness: There is unequivocal evidence that the patient is attempting to minimize the severity but not the presence of his or her psychological problems. These distortions are minimal in degree and of secondary importance in establishing a differential diagnosis.

2. Moderate defensiveness: The patient minimizes or denies substantial psychological impairment.

This defensiveness may be limited to either a few critical symptoms (e.g. paedophilic interest) or represent lesser distortions across an array of symptomatology.

As a counterpoint to the concept of certainty in deception detection, the ‘unanticipated questions approach’ (Sooniste et al, 2016) indicates that liars and truth tellers differ in their ability to answer unexpected questions during an interview i.e. liars competence in answering unanticipated questions is impaired as they, unlike truth tellers cannot rely on simple recall or on prepared answers, and hence appear inconsistent, and lacking in valid detail. This fascinating research illustrates a new wave of detection research and practice characterised by asking questions strategically in order to elicit cues to deception and truth.

3. Severe defensiveness: The patient denies the existence of any psychological problems or symptoms. This categorical denial includes common foibles and minor emotional difficulties that most healthy individuals have experienced and would acknowledge.

Evidential certainty in this crucial area of deception is a complex and multi-layered issue. It is one of the most challenging aspects of forensic, judicial and clinical findings about deceptions can be best seen on the continuum: Definite

Conclusion Practitioners and post graduate students in forensic and clinical psychology all need to be cognizant of the multi factorial nature and complexity of deception detection (Myklebust et al, 2016; Kane & Dvoskin, 2011). Initial identification of one or more characteristics mentioned above need to be followed up and backed up by further evidence before a reliable assessment of deceptiveness in one or more contexts can be substantiated. As has been stated, there is no one ‘holy grail’ predictor of deception.

Instead, the experienced forensic or clinical practitioner builds up an impression of congruence or incongruence of many communications and uses this as the basis and justification for opinions on deception. The use of fabrication, exaggeration or malingering is typically a matter for the courts to decide but they require expert assistance. Continuing professional development in this area includes

unsupportive.

Degree of certainty is and illustrated in Fig VII below.

Fig VII Degree of Certainty in Findings (Rogers, 1997; Koch, 2016) Level of certainty Clinical criteria Unsupported Non-significant or conflicting research findings.

Speculative

Conclusions that are consistent with accepted theory and supported by one or two studies of limited generalizability.

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awareness of research and communication skills training in detection deception, using role play discussion and written statement analysis.

Understanding micro-expressions in verbal, non-verbal, and written communications is the key – analysing its subtlety in the challenge for the criminal and civil justice systems, and police and security services, as they increase confidence and competence in investigative interviewing (Westra and Powell, 2016).

References Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury & Law. Expert Witness Publications, Manchester.

Oxburgh G, Myklebust T, Grant T and Milne R (2016) Communication in Investigative and Legal Contexts. Wiley. London.

A full list of references can be obtained from the first author.

The authors regularly provide medico-legal reporting clinics in Cheltenham and London (Hugh Koch), Cambridge, Luton, Peterborough and Newmarket, Coventry, Leicester and Rugby (Katie Newns, Tom Boyd and Jill Peters) and can all be contacted via www.hughkochassociates.co.uk.

I am grateful for helpful comments from Professor Michael Brookes, Professor of Forensic Psychiatry.

Birmingham City University.

Dr David Rees

Dr Dawn Bailham

Consultant Clinical Psychologist

Consultant Clinical Psychologist

BA (Hons) Dip Clin Psy MSc MBA PhD AFBPsS C Psychol

MSc Forensic Psychology DClinPsych Doctorate in Clinical Psychology BSc (Hons) Psychology

Dr David Rees is a consultant clinical psychologist and Honorary Lecturer in Clinical Psychology.

Dr Dawn Bailham is a Consultant Clinical Psychologist with over 14 years experience working in Child and Adolescent mental health inpatient and community settings, Forensic mental health with adults, adults with learning disabilities, and younger adult males. In her current position Dr Bailham is Lead Psychologist in a low secure CAMHS inpatient service for adolescents aged 12 – 16 years with emerging personality disorders.

His principal clinical interests are with the assessment and treatment of individuals with emotional disorder, including specific anxieties and post-traumatic stress disorder.

Research interests include work related stress and treatment of PTSD.

Dr Bailham has considerable experience spanning 10 years of assessing parents and children within the family courts and preparing reports. She has experience of conducting forensic assessments particularly for domestic violence, sex offending and physical violence.

Dr Rees can act as an expert witness, including the preparation of medico legal reports and appearing in court, in cases relating to all these areas of expertise.

He can act on behalf of either claimant or defendant or as a Single Joint Expert.

She has attended court as an expert witness on numerous occasions giving evidence in the family courts, and on a number of criminal law and personal injury cases. She completed the University of Cardiff Bond Solon Certificate for expert witnesses working in criminal law in September 2013, as well as additional modules in family law.

The majority of his instructions concern the assessment of individuals who have been involved in accidents but he also has expertise in psychological problems arising from clinical negligence.

Tel: 07801 266 010 Email: dawnbailhan@icloud.com

Phone: 0161 720 2810 Email: drdwrees@btinternet.com North Manchester General Hospital Crumpsall, Manchester, M8 5RB - Available nationwide

EXPERT WITNESS JOURNAL

Area of work Northamptonshire and Nationwide.

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A Foreign Affair Chris Deacon & Dr Linda Monaci provide a legal & medico-legal perspective of expert evidence in foreign applicable law cases It is well over two years since the Court of Appeal gave judgment in Wall v Mutuelle de Poitiers [2014] EWCA Civ 138, [2014] 3 All ER 340, but questions remain as to the appropriate approach to obtaining expert evidence in English court proceedings for personal injury damages when a foreign applicable law applies under Article 4.1 of Rome II (Regulation (EC) No. 864/2007).

The practical implication of the Court of Appeal’s decision is that the experts instructed to deal with quantum related issues will need to have regard to wideranging provisions of the foreign applicable law and legal system to accurately determine the claimant’s entitlement to damages, which may include: ■ judicial guidance and conventions; and ■ tables, tariffs and scales.

The decision in Wall v Mutuelle de Poitiers Mr Wall sustained a serious spinal cord injury following a motorcycling accident in France. The parties could not agree on how expert evidence should be provided to the English court under Rome II. Mr Wall argued for the plethora of experts (10 in total) one would usually expect to see before the English courts in a claim for catastrophic injuries. Contrast this with the French insurer’s position: it was arguing that the case should be quantified with reference to the report of one expert alone in accordance with the French Procedural Code.

In many European countries, including Italy, Spain and France, different tables are used to help quantify the percentage of permanent and temporary harm and that assessment is then used by the judge to determine the award of damages. For instance, in Italy for psychological and psychiatric symptoms the most widely used tables are published in the textbook

by Buzza & Vanini.

A separate set of tables, tariffs and scales may then be used by the lawyers to allocate a financial value to the percentage impairment the medico-legal expert has assessed.

The Court of Appeal agreed with Mr Wall that the question of how expert evidence should be adduced is a question of “evidence and procedure” which falls to be assessed in accordance with the law of the forum under Article 15 of Rome II. So for a claim being pursued in the English courts, CPR Pt 35 would be relevant and Mr Wall would be entitled to rely on the evidence of a range of medical and non-medical experts to support his claim for damages.

“Foreign” or “English” expert evidence? When an “English” medical expert (with “English” being a reference to their medicolegal reporting experience rather than nationality) is instructed to consider a claimant’s level of disability and percentage incapacity under the rules of a foreign legal system there may be resistance from the expert, particularly if the case is pre-costs and case management conference (CCMC) and there is no court order requiring the experts to make that assessment. If the medico-legal expert is going to have to consider an array of “foreign” materials then the parties may be tempted to find a “foreign” expert who is familiar with the relevant provisions.

The practical approach to obtaining evidence In Wall the Court of Appeal said that “a narrow view of the law is inappropriate. If there are guidelines [relating to how damages are assessed under the foreign applicable law]…judges will tend to follow them”.

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Whether the parties choose to instruct an “English” or a “foreign” medico-legal expert, in principle the assessment of the injury is likely to be very similar: the expert will consider the impact of pre-existing conditions, current functioning, impact on work, leisure, relationships and future prospects. However, there will be important differences depending on the expert’s background and culture. For instance in Italy, under the court rules, the medicolegal expert is not expressly required to deal with treatment recommendations and further health risks. The assessment in Italy is completed only when the claimant is as good as s/he is going to get which means the expert is not required to consider rehabilitation which it is assumed has already taken place. This approach does not sit easily with that encouraged in England where the rehabilitation code is central to the aims of the pre-action protocol. When obtaining evidence from an expert unfamiliar with Pt 35 of the CPR, the parties should ensure the expert has clear guidance on their duties as an independent expert to the English court and be confident that the expert would ultimately be able to give evidence in person in English proceedings if the case goes to trial.

are not called in court and are not cross-examined (and they are not required to be impartial); the expert instructed by the court in Italy should, however, be impartial and can be called to court to clarify verbally anything that is unclear, however, questions ar agreed in advance. In Italy the medicolegal doctor may use extracts from the reports of the other experts the parties have instructed, no single joint expert, no joint statement or “hot-tubbing” is available and if the legal teams do not come to an agreement, the case goes to court and a new court-appointed expert is called; the parties can also then instruct new experts.

Experts from other jurisdictions should also be warned that their role is not to tell the court what the outcome should be in terms of damages. This is a particular risk when instructing foreign law experts to provide an opinion on how damages are assessed under a foreign applicable law and who may have a natural tendency to adopt the role of an advocate, contrary to para 2.2 of CPR Practice Direction 35.

The parties could instruct a medical expert who is a native speaker of the country in which the accident took place but who is familiar with preparing reports under CPR Pt 35. A native speaking expert may find it easier to become familiar with the tables used in that country when assigning a percentage of temporary and permanent disability based on the claimant’s symptomatology and history. This would ensure that

Experts more accustomed to the rules of evidence in other jurisdictions must be carefully guided on the correct approach under the English CPR. For instance in Italy the experts instructed by the parties

Dr Linda Monaci Consultant Clinical Neuropsychologist Medico-legal assessments for suspected or known brain injury and/or brain dysfunction in Personal Injury and Medical Negligence claims • Acquired brain injury

• Post-concussion syndrome

• Stroke

• Anoxia

• Epilepsy

• Dementia

• Alcohol and drug abuse

• Neuropsychiatric conditions

• Mental capacity & fitness to plead assessments Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments within 2 to 4 weeks, and reports produced in a further 2 to 4 weeks. Assessments can be carried out in Italian. Dr Monaci also has a good knowledge of the Swedish language and has experience of working through interpreters.

Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). Since 2009 she has combined independent practice with ongoing work in the NHS, she is employed as a Consultant Clinical Neuropsychologist.

Contact: linda@monaciconsultancy.com for an initial enquiry.

Main consulting rooms (nationwide locations): Several locations in the UK are available. Domiciliary visits can be arranged when clinically appropriate Ten Harley Street London W1G 9PF Tel. 020 8942 3148

Borough Chambers Keats House 24-26 St Thomas London SE1 9RS

Aston Clinic 26 Kingston Road Surrey KT3 3LS Tel. 020 8942 3148

Correspondence address: Aston Clinic, 26 Kingston Road, Surrey KT3 3LS Tel. 020 8942 3148

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which form part of the binding or non-binding provisions of the foreign applicable law or directing the expert to assess the claimant’s level of disability or incapacity under those provisions. The Master or District Judge may include specific questions in the case management order for the experts to consider so as to assist the court when assessing damages, thereby minimising the risk of the judge having to make an assessment at trial which morereadily falls to the medico-legal experts in the case.

the English rules of evidence are followed and potentially provide a costeffective route to securing the right evidence. Such experts undertaking medico-legal work are, however, few and far between.

Case management, costs budgeting & the appropriate order at CCMC When a claimant is considering which expert evidence it should gather to support the claim, in the majority of cases questions of proportionality and costs are likely to be at the forefront of the decision making process. Under CPR, Pt 35.1, the court is required to restrict expert evidence to that which is reasonably required to resolve the proceedings.

It is easy to see how the costs involved in obtaining expert evidence to support a claim using the benchmark guidance from the Court of Appeal in Wall can become a costly exercise. This is, however, an inevitable consequence of the harmonisation introduced by Rome II. Translation of foreign law evidence and the guidelines the experts need to use could quickly run into thousands of pounds. The approach the English courts may require experts to take will also lengthen the time taken in preparing reports and then in joint discussions as the experts strive to agree any joint statements, particularly given the potential for divergence between experts (even on the same side) when placing the claimant’s level of incapacity/ disability using the “foreign” criteria.

Those additional costs need to be factored into each side’s Precedent H and the parties will need to be ready to provide a justification for the budgeted costs going above what might be considered the norm in any comparable domestic case where issues of foreign law do not arise.

When considering the appropriate case management directions in foreign applicable law cases, careful consideration needs to be given to the sequence in which expert evidence is obtained. Before asking the medico-legal experts to finalise their reports, the parties will need advice from a foreign law expert who can identify exactly which provisions the expert must have regard to when assessing the claimant’s level of accident-related disability.

The parties should ask the experts to make the assessment of the claimant’s injuries, including any percentage impairment under the foreign applicable law/guidelines, so that the court is not being asked at trial to determine issues which more properly fall to a medical expert but which provide the answer to how much damages the claimant should recover.

The case of Syred v PZU [2016] EWHC 254 (QB), [2016] All ER (D) 157 (Feb) illustrates the difficulties which can arise here. Polish law applied to Mr Syred’s claim for damages for serious head injuries following a road traffic accident in Poland. The English High Court had extensive written and oral evidence before it on the approach to assessing general damages for pain and suffering under Polish law. The lower courts in Poland regularly had regard to an ordinance of the minister of labour and social policy when assessing general damages, even though the practice had been criticised by the Polish Supreme Court. The ordinance requires medical experts to assess the extent of the claimant’s incapacity. The medical experts in Mr Syred’s case had not done so and the parties invited the judge to make that assessment. He was prepared to assess damages with reference to the ordinance, even though this practice had been criticised by the Polish Supreme Court; the English judge held that it was part of the lawful practice of the Polish civil courts when assessing general damages for personal injury and he was therefore entitled to follow that approach.

Concluding thoughts Those representing claimants will need to be pragmatic in their approach, building a bank of precedent documents, establishing close links with lawyers in other jurisdictions and, crucially, providing clear guidance when instructing experts to ensure claimants injured in accidents abroad are not prejudiced by both the substance and procedural application of a foreign applicable law, while at the same time managing the costs of the case proportionately. Of course, depending on the substance of Brexit negotiations following the outcome of the Referendum, in years to come the complications of assessing personal injury damages under a foreign applicable law may fall away and we may see a return to the pre-Rome II position where the assessment of damages falls to the law of the forum. ■

This article first appearred in the New Law Journal on the1st July 2016 Chris Deacon, Associate, aviation & travel department, Stewarts Law Dr Linda Monaci Consultant clinical neuropsychologist (www.monaciconsultancy.com)

At CCMC, the Master or District Judge may want to give clear guidance on the approach the experts should take, specifically ordering the experts to deal with placing the claimant under the tariffs or scales EXPERT WITNESS JOURNAL

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Law Society Request for Low Value Personal Injury Case Studies The Law Society are particularly interested in the following cases:

The Law Society is consulting with solicitors and other stakeholders in order to prepare its formal response when the Ministry of Justice consultation on the small claims limit for low value personal injury cases is launched.

â?– road traffic accident/employer's liability and public liability matters from ÂŁ1,000.01 - ÂŁ5,000.00 and up to ÂŁ25,000.00 where liability is admitted

We anticipate that the forthcoming consultation is likely to cover the following proposals which were outlined in the government's autumn statement:

â?– road traffic accident/employer's liability and public liability matters from ÂŁ1,000.01 - ÂŁ5,000.00 and up to ÂŁ25,000.00 where liability is in dispute.

â?– raising the small claims limit for personal injury claims from ÂŁ1,000.00 to ÂŁ5,000.00 â?– removal of the right to general damages for minor soft tissue injuries.

The Law Society are calling on its members to assist them in gathering stories to illustrate the impact that the proposed changes could have on those seeking to bring a genuine action for injuries sustained through no fault of their own.

The Law Society opposes anything other than an inflationary rise in the small claims limit for personal injury cases and outright rejects the proposal to remove general damages for minor soft tissue injuries.

Case studies illustrating the issues faced by those behind the claim will help us raise awareness of the devastating blow that the proposals could have on ordinary citizens seeking to assert their legal rights, leaving potentially thousands of genuine claimants without legal advice, representation or proper recourse.

Case studies will help us illustrate the important role that solicitors play in ensuring access to justice and the danger of creating a system whereby ordinary citizens are left to navigate alone as a litigant in person and, in some circumstances, are deprived of the full effect of the compensation they deserve.

You should not feel obliged by this request to make any disclosure which you believe would breach any duty to your client. The Law Society very much appreciate your help in publicising concerns about these proposals.

4 $8,' 2*(4 !+20$5

Dr Ian Starke

Consultant Physician in Stroke Medicine, Medicine for the Elderly and General Medicine

2157/6$16 24(15,& 5;&+,$64,56 + 5;&+

MSc, MD, FRCP (Lond), FRCP (Edin)

2157/6$16 5;&+,$64,56 5,1&( $1' 2157/6$16 24(15,& 5;&+,$64,56 $6 6+( $59(// /,1,& (',70 (&74( "1,6 42 24*$119* !4756 5,1&( $/52 (',&$/ /($' 5,1&( ,182/8(' ,1 ,13$6,(16 $1' 2763$6,(16 924.

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Dr Starke has been a Consultant Physician in General Medicine, Medicine for the Elderly and Stroke Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988.

Dr Starke undertakes expert examinations and reports for fitness to practise and medical negligence cases in stroke medicine, geriatric medicine and general medicine.

He provides expert examinations 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

+$8( 37%/,5+(' (:6(15,8(/; ,1 3((4 4(8,(9 -2741$/5 $1' %((1 (1*$*(' ,1 $ &215,'(4$%/( $02716 2) 0(',&2 /(*$/ 924. 28(4 6+( /$56 69(16; ;($45 ,1 %26+ 6+( &,8,/ $1' )24(15,& ),(/'5 $&6,1* $5 $1 ,1'(3(1'(16 35;&+,$64,& $55(5524 )24 %26+ /$,0$16 $1' ()(1'$16 +$8( (:3(4,(1&( ,1 $66(1',1* &2746 ,1 $// 0$11(4 2) &$5(5 ,1&/7',1* (4521$/ 1-74; (03/2;0(16 ',5376(5 $1' )$0,/; /$9 &$5(5 276+ #$/(5 24(15,& 5;&+,$64,& (48,&( $59(// /,1,& /$14+;' 4,'*(1' 276+ #$/(5

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Pulling a Fast One? Linda Monaci & Flora Wood examine the approach to applying malingering diagnostic criteria in cases involving head injury fraud or dishonesty. Are we any nearer acknowledging an accepted criterion for malingering which will enable independent medical experts to conclude there is a significant probability that the claimant is malingering?

The introduction of the concept of “fundamental dishonesty” to the defendant’s armoury in personal injury cases raises the stakes for litigants. If exposed, a claimant risks having their QOCS protection taken away or their entire claim struck out if the trial judge finds that they have been fundamentally dishonest in relation to “any aspect of the claim”. This article explores some of the methods used to identify malingering neurocognitive dysfunction (MND) to assist lawyers in deciding whether, perhaps, there are grounds to go as far as to plead fundamental dishonesty in the discrete area of brain injury.

Assessing for symptom validity Internationally it has been agreed that assessing for symptom validity, including effort, is nearly always necessary. There are also guidelines to help identify malingering in acquired brain injury and in chronic pain (eg Bianchini et al., 2005; Slick et al., 1999).

Research has mainly focused on validating assessment tools and the main conceptual framework has considered malingering for the purpose of financial gain (eg Boone & Lu, 2003; Green, 2001; Heilbronner et al., 2009; Iverson & Binder, 2000).

Case law The case law on the application and definition of fundamental dishonesty is still at a fledgling stage but was neatly summed up by Freedman J when considering CPR 44.16 in the case of Zurich Insurance v Bain (unreported, 4 June 2015): “What does fundamentally dishonest mean? It does not, in my judgment, cover situations where there is simply exaggeration or embellishment… Having said that, these cases are fact sensitive and there may be situations where if a claim is patently and obviously exaggerated, the sole purpose being to recover damages to which a claimant is not entitled, it may be that a judge concludes that that renders the claim fundamentally dishonest.

It is important to ensure that the information collected during the neuropsychological assessment is valid. Furthermore, any indication that the data obtained is not valid (failed effort tests and/or significant elevation on symptom validity scales that suggest over-reporting and feigning) must be identified, as being either outright dissimulation or merely symptom magnification, which may not be intentional.

Several methods are offered in current literature to assess symptom validity (eg Bush et al., 2005; Reynolds 1998; Slick et al., 1999). Larrabee (2012) recently suggested the following terms should be used: performance validity (indicating effort) and symptom validity (referring to the validity of symptom report). Effort can be assessed with specific stand alone tests of effort (or embedded ones, but these are less sensitive). Self-report questionnaires can employ strategies, including monitoring the presence of symptom magnification, reporting of unlikely, too specific or absurd symptoms, unusual symptom combinations or positive symptom distortion.

Administering independent tests of effort and other measures of symptom validity, such as questionnaires, increases the validity of assessment results (Bianchini et al., 2001) and provides non-redundant information regarding the examinee’s credibility (Mittenberg et al., 2002). Consistency of information is also important; for instance the information obtained during the interview, test results, observation, self-reported history and symptoms, documented history, third party accounts and known brain functioning.

“Where I am quite satisfied fundamental dishonesty does arise is where it goes to the core of the claim. If the dishonesty is really at the root of the claim then it seems to me that the dishonesty can properly be categorised as being fundamental.”

Can neuropsychological assessment assist in establishing not just a simple exaggeration of the limits of cognitive function, but one which “patently and obviously” exaggerates the seriousness of the impact of the brain injury “so that it goes to the core of the claim?” An example might be a claim for significant past and future care costs (claimed as a result of an alleged inability to live independently due to short term memory or concentration problems) which is clearly discredited by medical experts.

Malingering Malingering is a common human behaviour; it is the fabrication of symptoms with the purpose of obtaining secondary gains, such as financial compensation or avoiding duties such as school or military service.

Judges require clear unequivocal evidence to find EXPERT WITNESS JOURNAL

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response latencies and frequent hesitations, and general confusion during the testing process.” It is important to consider the entire clinical picture as while certain type of brain dysfunction and/or premorbid personality traits may make these behaviours more likely, these could also be consistent with malingering.

Theory for diagnostic criteria The DSM-IV (APA, 2000) considers malingering as a behaviour, not a mental disorder per se, therefore formal diagnostic criteria are lacking. The DSM-IV defines malingering as ‘‘the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs’’ (APA, 1994, p. 683).

The DSV-V (APA, 2013) considers malingering under “non-adherence to medical treatment”. Its definition is very similar to the DSMIV, but although criteria are provided, malingering should be strongly suspected “if any combination of the following is noted: (i) Medico-legal context of presentation; (ii) Marked discrepancy between the individual’s claimed stress or disability and the objective findings and observations; (iii) Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; or (iv) The presence of antisocial personality disorder.” Greiffenstein et al.

(1994) proposed the following criteria for the diagnosis of “overt” malingering of memory dysfunction (in particular to be used in neuropsychological settings, for claimants presenting with post-concussive symptoms): (i) improbably poor performance on two or more neuropsychological measures; (ii) total disability in a major social role; (iii) contradiction between collateral sources and symptom history; and (v) remote memory loss.

Slick et al (1999) proposed a relatively comprehensive system to guide the determination of malingering in the form of categories of possible, probable, and definite malingering of neurocognitive dysfunction (MND) for the purpose of material gains (eg financial compensation) or avoiding formal duty or responsibility (eg stand trial).

Diagnostic categories for MND Definite MND This is indicated by the presence of clear and compelling evidence of voluntary exaggeration or fabrication of cognitive dysfunction and the absence of plausible alternative explanations. The specific diagnostic criteria necessary for Definite MND are listed below: i.

Presence of a substantial external incentive.

Two studies (Greiffenstein et al., 1994; Greiffenstein, Gola, & Baker, 1995) demonstrated a significant link between classifications made according to these criteria and scores on tests of effort. This supports the notion that consistency between symptoms, test performance and behaviour (both during and after the assessment) are essential to help clarifying whether malingering is present.

ii. Definite negative response bias (ie definite or probable negative response bias, discrepancy between test data and known patterns of brain functioning, discrepancy between test data and observed behaviour, reliable collateral reports, or documented background history).

iii.

Behaviours meeting necessary criteria from (ii) that are not fully accounted for by psychiatric, neurological, or developmental factors.

Probable MND This is indicated by the presence of evidence strongly suggesting voluntary exaggeration or fabrication of cognitive dysfunction and the absence of plausible alternative explanations. The specific diagnostic criteria necessary for probable MND are listed below: i.

Presence of a substantial external incentive.

However, others (Pankratz & Erickson, 1990) believe that the diagnosis of malingering should be made based on behavioural observations and that understanding whether the behaviour is intentional is irrelevant. They proposed the following criteria for malingering: (i) marked inconsistency between reported and observed symptoms; (ii) marked inconsistency between diagnosis and neuropsychological findings; (iii) resistance, avoidance, or bizarre responses on standardised tests; (iv) failure on specific measures of faking; (v) functional findings on medical examination; and (vi) late onset of cognitive complaints following accident. Others, such as Faust and Ackley (1998), however highlight the importance of volition and of providing false information (or withholding information) to make a determination of malingering. Iverson (1995) found that strategies used when attempting dissimulation included ‘‘poor cooperation, aggravation and frustration, slow EXPERT WITNESS JOURNAL

ii.

ii.

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Two or more types of evidence from neuropsychological testing, excluding definite negative response bias (probable response bias, discrepancy between test data and known patterns of brain functioning, discrepancy between test data and observed behaviour, discrepancy between test data and reliable collateral reports, discrepancy between test data and documented background history) or one type of evidence from neuropsychological testing, excluding definite negative response bias, and one or more types of evidence from self-report (ie selfreported history is discrepant with documented history, self-reported symptoms are discrepant with known AUTUMN 2016

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if they fail.

patterns of brain functioning, selfreported symptoms are discrepant with behavioural observations, selfreported symptoms are discrepant with information obtained from collateral informants, evidence of exaggerated or fabricated psychological dysfunction). iii.

Insurers and compensators will be keen to use fundamental dishonesty as a weapon against fraud.

The recent case of Hughes, Kindon and Jones v KGM (unreported, 1 April 2016) at Taunton County Court(which resulted in a costs order against the claimants after their claims were dismissed for exaggerating the length of their recovery period) could be the start of a significant new battle to challenge a claimant’s honesty. Claimant solicitors are naturally concerned for their genuine clients and defendants must be able to justify their allegations or face costs penalties and bad publicity. Expert evidence will inevitably be a key factor and the Slick categories could provide a useful framework to assist judges in considering the merits of an allegation of malingering in brain injury cases.

Behaviours meeting necessary criteria for neuropsychological testing and self-report are not fully accounted for by psychiatric, neurological, or developmental factors

Possible MND This is indicated by the presence of evidence suggesting volitional exaggeration or fabrication of cognitive dysfunction and the absence of plausible alternative explanations. Alternatively, possible MND is indicated by the presence of criteria necessary for definite or probable MND except that other primary aetiologies cannot be ruled out. The specific diagnostic criteria for possible MND are listed below: i.

Presence of a substantial external incentive ii.

Evidence from self-report (ie selfreported history is discrepant with documented history, self-reported symptoms are discrepant with known patterns of brain functioning, selfreported symptoms are discrepant with behavioural observations, selfreported symptoms are discrepant with information obtained from collateral informants, evidence of exaggerated or fabricated psychological dysfunction).

iii.

Behaviours meeting necessary criteria from (ii) are not fully accounted for by psychiatric, neurological, or developmental factors or criteria for definite or probable MND are met except for primary psychiatric, neurological, or developmental aetiologies cannot be ruled out. In such cases, the alternate aetiologies that cannot be ruled out should be specified.

It should not be forgotten that the obvious route to “successâ€? for a defendant where malingering is strongly suspected (and supported by medical opinion) is to make a well timed and carefully calculated Pt 36 offer. In cases worth less than ÂŁ25,000 defendants will not get indemnity costs, even if their offer is not beaten, but in the higher value cases a win on costs can be more significant that the final compensation award. â– Dr Linda Monaci, Consultant clinical neuropsychologist Flora Wood, Partner at Ashfords LLP

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Arguably, only the first two categories are likely to support an allegation of fundamental dishonesty.

The Slick criteria do not appear to be extensively used in the UK and perhaps the determination of malingering is seen as a finding of fact and as such outside the remit of a medico-legal expert. However, given the importance of ensuring no part of a personal injury claim is exaggerated, it appears even more important that clinical neuropsychologists always consider the validity of the data obtained during a medicolegal evaluation.

In the vast majority of cases there will most likely be insufficient evidence to claim an exception to the QOCS rule or dismiss an entire claim under s 57, Compensators should apply a sensible level of caution in raising these issues, unless they are prepared to accept the significant costs consequences EXPERT WITNESS JOURNAL

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Surveyors Acting as Expert Witnesses

by Martin Burns Chartered surveyors are the ultimate experts in matters relating to land, property and construction.

RICS qualifications signal the fact that someone is highly competent, routinely keeps up to date on his/her specialist subject, and is robustly regulated to make sure s/he maintains high levels of professional competence.

through published statements on professional practice, which are mandatory for all chartered surveyors.

Surveyor experts know and accept they must be, and be seen to be, independent and unbiased. They understand they must only deal with matters that fall within their personal expertise, experience and knowledge, and that they must be truthful at all times

Many surveyors spend a lot of their professional time helping clients who are involved in disputes, and many of these end up getting appointed to act as expert witnesses. The appointments may see surveyors giving written and/or oral evidence to courts of law, and other tribunals, such as: arbitrators, construction adjudicators, rent assessment committees, leasehold valuation tribunals and planning inspectors.

But acting as an expert witness requires surveyors to obtain additional knowledge about law and practice, and a real understanding of what is expected of them. Experts must be exceptionally good at communicating what they know about their specialist subject in a way that ensures the tribunal understands it. Surveyor experts must bear in mind, at all times, that the job is to help the tribunal understand a particular issue enough so that it can make an informed decision on the substantive dispute before it.

Surveyors, who take on instructions to act as expert witnesses, must be genuine subject matter experts.

That is, they must have considerable knowledge and experience in the precise issue(s) on which expert evidence is required by the relevant tribunal.

Whilst chartered surveyors will have exceptional and varied skills in built environment matters, those who act as expert witnesses will often need to complement their knowledge by adding another “string to their bow�.

Surveyor experts must remember that, regardless of who is paying them to prepare their written reports and present oral evidence, their overriding duty is always to the tribunal. They are not to perform as advocates for their clients when they are acting as expert witnesses.

Most will already understand requirements around professional integrity and impartiality. These matters are at the heart of RICS ethics and will be reinforced throughout every surveyors’ professional lifetime through ongoing training and development, and also

In recent years, instructing lawyers have become increasingly careful to ensure their expert witnesses are suitably qualified and capable of providing written and oral evidence to a high standard and in accordance with established legal requirements.

EXPERT WITNESS JOURNAL

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detached in discharging the role of expert witness as they are when undertaking their day-to-day professional work as surveyors.

When assessing the suitability of experts, instructing parties and lawyers are likely to favour surveyors who have been trained and assessed by recognised training organisations. Formal qualifications provide assurance that those who hold themselves out as an expert witnesses are able to demonstrate real understanding of their primary roles and duties as experts.

Those who instruct experts also need to be reassured that the expert is able to meet deadlines, produce court compliant reports, be credible in the witness box and have a thorough understanding of the relevant court procedures and rules.

Clients naturally expect expert witnesses to perform to best practice legal standards in their role, and it seems surveyors are responding by getting themselves equipped to discharge the role to higher standards by undertaking formal training, and submitting to assessments and interviews which test their abilities.

There is greater realisation amongst surveyors today, that when acting as expert witnesses they really must possess essential legal knowledge and practical skills, and be confident in the witness box. And all this is in addition to their skills and experience in surveying matters.

In my experience, more and more surveyors are actively undertaking training and assessment in the role and duties of expert witness. It seems to me that the beginning of a genuine trend for surveyors to obtain formal qualifications as expert witnesses can perhaps be traced to the Supreme Court’s decision in March 2011 in Jones v Kaney.

Going forward, the demands on surveyor experts may ultimately lead to formal qualifications being requisite. Whilst this is not currently the case, it is apparent that surveyor experts who are trained and accredited have an advantage over those who are not when it comes to obtaining instructions. ■

The removal by the Court of experts’ immunity from being sued in negligence has not, at least in my experience, resulted in a plethora of cases being brought against surveyor experts. Even so, it seems the decision brought into sharp focus the requirements for surveyors to be as professional and

Martin Burns

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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Architects and Building Disputes

by William Bates It is not easy being an architect these days. In the past, architects were protected by mandatory (later, ‘recommended’) fee scales, and obtaining planning permission for a building and then successfully getting it built was somehow much simpler than it is now. Today, everyone considers themselves to be experts in the field of architecture, by virtue of having watched a few episodes of Grand Designs and other aspirational television programmes. As with most professionals, architects are bombarded with information overload. Apart from basic construction skills, contemporary architects are expected to possess an adequate working and up to date knowledge of Planning Regulations, the Building Regulations, Building Contracts and Construction Law, hundreds of British Standards and Codes of Practice, Party Wall legislation, Rights of Light, Health and Safety, energy performance and sustainability, building economics, and a host of other complex issues. Architects are expected to be masters of all aspects of their craft and it is not altogether surprising that they sometimes fail to meet one or more of the obligations placed upon them.

all professional persons, architects are expected to exercise reasonable skill and care in the performance of their duties. In judging if an architect has complied with this standard, the courts will assess whether the architect has met the standard of the average competent architect and whether his actions are likely to be supported by a significant body of opinion within the architectural profession, i.e. whether his peers are likely to have acted in a similar manner. If not, the architect may well be found to be negligent.

I have dealt with claims from architects for unpaid fees and for alleged copyright infringement, but the majority of building disputes involving architects are generally initiated by the client. The common thread of these disputes is that, rightly or wrongly, the client considers that he has been let down by the architect.

The client’s aspirations have not been met in some way. Sometimes the reason for this is obvious – perhaps the building leaks and the client sees the architect as being responsible for the defect, either because the design and/or specification is seen to be faulty or it is alleged that the architect has failed to carry out his inspection duties with due diligence.

But occasionally, the client will make more obscure claims. In the early part of my career as an architect, I had to respond to a threatened claim from a client after a project had been completed that it was not as large as he had been expecting. Since this was a loft conversion and thus an existing structure and it had been constructed fully in accordance with my design drawings (that the client had approved), this was not an easy claim to sustain and, fortunately, it soon dissipated and my fees were paid.

The architect is an easy target. He or she is still perceived to be the leader of the building team and, when things go wrong, the architect will invariably find himself in the firing line. He will often be joined in a claim by other professionals, such as the structural engineer or the quantity surveyor, and/or by the building contractor.

In my role as an architect expert witness, I have come across numerous examples of my fellow professionals who have failed to meet the appropriate standards. But what are these standards? As with EXPERT WITNESS JOURNAL

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Many building disputes are concerned with building defects. Building design is an increasingly complex skill and it is becoming more and more specialised.

The individual elements that make up a construction have to satisfy a plethora of performance criteria and possess the ability of working effectively in combination. Depending on the particular context, a construction detail may have to be structurally sound, adequately fixed, thermally efficient, sound and fire resistant, secure and vandal resistant, water and draught resistant, durable, maintenance friendly, economic and, of course, aesthetically pleasing. Increasingly, the individual components also have to have been obtained from a sustainable source. Often, it is the interface between materials and components that causes a failure. Despite the advent of 3D CAD design and Building Information Modelling (BIM), the junctions between components are frequently ill considered and left to be ‘sorted out on site’.

Another common feature of the cases that I have been involved with is confusion regarding the terms of engagement and the roles that the various parties involved considered that they were performing.

Despite the fact that it is a code requirement of both the Architects Registration Board (ARB) and the Royal Institute of British Architects (RIBA) that the terms of any appointment are clearly set out in writing and agreed by both parties, it is astonishing how many of the disputes I have been involved with have imprecise or ambiguous terms of engagement (or none at all) at the core of the dispute. Unless the appointment is precise and the roles and responsibilities are clearly defined at the outset of a project, misunderstandings are likely to occur. This is particularly prevalent in small projects where the architect does not wish to frighten the client with reams of legalistic conditions and where the overall finances available are such that the client is often reluctant to engage specialist consultants. In an effort to please the client and move the project forward, many architects will take on roles for which they are not properly qualified. Thus I have seen examples of architects thinking that they were structural engineers or quantity surveyors or party wall surveyors and making major errors as a consequence.

EXPERT WITNESS JOURNAL

With so many often conflicting criteria to satisfy, architects occasionally get it wrong. What enables them to sleep at night in the face of all this is the professional indemnity insurance that all architects are required to maintain. This has actually become cheaper to obtain in recent years due to competition.

However, the very presence of their PI insurance means that they represent tempting targets for clients and their solicitors. â–

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Company Expose Family to Risk of Asbestos A Hertfordshire-based home improvement company has been fined after the unsafe removal of asbestos material from a domestic property.

Control of Asbestos at Work Regulations 2012, and The Health & Safety at Work etc. Act 1974, Section 33 (1) (g) in that it failed to comply with an Improvement Notice, and was fined £100,000 and ordered to pay costs of £2,118.50.

St Albans Magistrates’ Court heard how Ace of Hearts Home Improvement Limited (AOH) removed asbestos containing materials (ACM) from a domestic property in St Albans.

The Health and Safety Executive (HSE) is Britain’s national regulator for workplace health and safety. It aims to reduce work-related death, injury and ill health. It does so through research, information and advice, promoting training; new or revised regulations and codes of practice, and working with local authority partners by inspection, investigation and enforcement. www.hse.gov.uk

Asbestos damage The Asbestos Insulation Board (AIB) soffits surrounding the underside of the guttering around the front, gable end and back of the property had been dismantled in an unsafe manner creating the serious risk of respiratory exposure of asbestos fibres to the two workers and the residents of the property (family of four including two children).

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Unsafe removal of asbestos Ace of Hearts Home Improvements Limited, of Alldicks Road, Hemel Hempstead, Hertfordshire, pleaded guilty to breaching Regulation 8(1) and Regulation 16 of the

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How to Equip Trees in the Biosecurity Battles

by Mark Chester - Cedarwood Tree Care Tree health has been in the headlines in recent years, as various species of trees common to the UK have come under attack from what seems to be an army of pathogens. In the late 1990s, Horse Chestnuts were suffering from the onslaught of Phytophtera, which can cause Bleeding Canker and killed many trees.

The English Oak has suffered from Sudden Oak Decline, Larch are being wiped from forest plantations and there are fears for the future of the Ash with Ash Dieback caused by Chalara fraxinea. With some prophecying the pending loss of these trees from the British landscape, how can we help?

checked before it passes through customs, the risk of pathogens being brought in is significantly reduced.

Dutch Elm Disease was introduced in imported timber. There is evidence that Chalara fraxinea, if not introduced by humans, has certainly been spread towards the west coast and the north of the UK by infected plant material. This has been accentuated by transporting young saplings to woodland sites. In terms of economics, it is less costly to export one – year old ash trees (known as whips) and grow them on nurseries in Holland, and then bring them back to the UK for planting a year later!

Readers of a certain vintage may remember the English Elm, which dominated the landscape and was a symbol of rural life until Dutch Elm Disease arrived in the 1960s and rapidly spread. Few trees were able to withstand the attack and little remains of the original population. Do Horse Chestnut, Oak and Larch have a better chance? There are a range of tools which we can use to assist the population, and some lessons to learn from tree management elsewhere.

Of course, what I am describing here in terms of quarantine is the panacea. It is an ideal which not only requires support from the UK Government but also global partners. At the time of writing, Britain is preparing to negotiate her exit from the European Union. Keith Sacre, Chair of the Drafting Committee for BS8545 ‘Young Trees From Nursery to Independence in the Landscape’(2014), faced the realities of the politics of the EU market and the Single Market. Recognising the importance and value of quarantine as a tool for biosecurity, he arranged for quarantine to be included as a recommendation in this new British Standard. However, this was thwarted by the principles of the Single Market and was vetoed by other members who were reluctant to

One of the most comprehensive tools we can use, especially here in the UK and being an island nation, is quarantine. By ensuring that plant material is Above, main picture a veteran tree. Inset picture, Asian Long Horn Beetle EXPERT WITNESS JOURNAL

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see any restrictions on free trade between member states. The document could only be published if the reference was removed.

talis and the Spanish Plane (Platanus hispanica). The Plane tree is particularly vulnerable to Plane Tree Wilt (Ceratocystis fimbriata f. platini). The additional challenge is that the Oriental Plane propagates vegetatively so there is little genetic variation within the population. The London Plane is an important part of the tree population of the capital, and elsewhere.

The consequences to the landscape if this disease became prevalent are ones many arborists are dreading.

We seem to operate a policy here in the UK of shutting the stable door after the horse has bolted.

Once a pathogen has established its presence here, further imports of infected material can be banned.

In fact, there can be total bans of importing, whether material is infected, or not.

Clearly, this strong weapon of prevention is not currently available. However, there are other tools in the armoury. Diversity is important. When we have a population of trees of the same species, and even the same family, pathogens, whether pests or diseases, can spread more easily and become established if provided with a larger number of hosts. So often, trees and shrubs are selected for planting schemes based on their colour, leaf shape, availability or simply personal preference of the architect or landscape specifier. The suitability of the selected trees and shrubs to the new environment, and landscape, is often a factor overlooked.

I referred earlier to the situation in the US, where the disease control approach is to fell, even if this involves 100% of the population. This approach is not preferred here in the UK. It tends to drastically change the landscape. However, the management technique has been applied to controlling the spread of Phytophtera in Larch. This does relate primarily to forestry plantations with their monoculture cropping which enables the pathogen to spread more widely than in our urban landscapes. One of the main reasons for the total clearance approach with Larch is also about timber quality. The Larch plantations exist to provide timber, and its quality deteriorates as the disease spreads. By harvesting before the disease can spread, even if the trees have not yet attained maturity, the available timber can be saved.

Why does this matter? Some pathogens attach members of the Maple family, genus Aceracea. This is a large family including the Field Maple, Sugar Maple and Norway Maple. Diseases such as Anthracnose and Virticulum wilt can spread among different Maples. In parts of the United States, more than 30% of the trees planted in certain neighbourhoods are Maple, and the consequences of a pathogen attacking can be devastating, actually changing the appearance of the landscape. It may come as a surprise to consider that the humble Rowan, Sorbus aucuparia, is, alongside the domesticated rose and native Dog Rose (Rosa rugose), a member of the Rose family. As such, it is vulnerable to pathogens which attach roses.

I was working as a local authority tree officer when the consequences of Phytophtera, which causes Bleeding Canker in Horse Chestnut, became apparent. Part of my brief included managing the trees on several cemeteries, one of which had an avenue of Horse Chestnuts which sloped downhill. The disease is passed from tree to tree in soil water. I watched over the course of several years as the disease spread from those trees uphill to the lower ones. In the end, a number of trees had to be felled as their condition declined so much and branches were being shed.

At the time, I was pessimistic about the future of the Horse Chestnut. I wondered whether any would be left in ten to twenty years’ time. Then something began to happen. Or rather, it didn’t. Some Chestnuts didn’t succumb. It became apparent that there was a degree of resistance within the wider population. Genetic variation, it seems, can help the Chestnut.

The solution isn’t to necessarily stop planting Maples and Rowans, but to ensure species diversity within planting schemes. The recommendation is that no one species should exceed 10% of the planting list, by number. Those related by family should be limited to about 35%. This is a real challenge. So many tree enthusiasts have favourites, and in some situations, where, for example, tolerance to fluctuations in water supply, or drought, or coastal conditions, may be defining limitations, the species choice can be restricted.

It was this that got the plant pathologist Dr. Glynn Percival thinking. Why, he mused, did some trees succumb, and others not? Was it simply genetic variation? He began to explore the differences between trees which remained healthy and those which were unable to resist the advance of various pathogens.

There are design challenges. For example, if one is designing an avenue of trees as a landscape feature, it usually consists of a single species, or at the least, species from the same genera. If one were to select from the Tilia genera (Lime, it is possible to use several different species). However, with London Plane, an ideal street tree, there are two main species widely grown: the Oriental Plane, Platanus x orienEXPERT WITNESS JOURNAL

One thing we have known for some time is that the ability of a tree to resist a disease attack can reduce with age (the ‘hard as nails’ London Plane, which can live for 300 years, stubbornly resists Innotus hispidus 40

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when I have to deliver the message which my client would rather not hear; the decline has progressed too far and it is unwise to invest further in resources aimed at helping a tree to recover. It is important to be proportionate in ones’ response.

whereas the Common Ash, a veteran at 100 years, is more vulnerable). Glynn decided to stop thinking of the tree as a woody structure standing helplessly as a plethora of pathogens launch a barrage of assaults until finally it is overcome. He noted that trees suffering drought stress seemed to be more vulnerable. Stress can also come from the various operations associated with construction, including compaction of soil, the removal of soil and changes to both water and soil levels.

I have been working closely with Kevin Martin, the Arboricultural Manager at Kew Gardens. He manages this internationally important collection which numbers some 14,000 trees. There can be a tendency, once a tree shows signs of decline, to fell and replace. Often, in pure economic terms, this is the preferred option especially when one has very finite resources. However, for Kevin, with many historically, botanically and biologically important trees felling is often the last option, only to be explored once others have been fully explored. Fortunately, Kevin has a naturally inquisitive mind; he likes to explore.

If we can help trees to avoid stress (through the application of best practice on construction sites) and equipping them to resist stress, they will then be better equipped to resist the pathogens. There are a range of tools which the modern arborist has access to. There has been recent press coverage about the potential of biochar to strengthen Ash trees. Trials which Glynn unexpectedly found himself supervising (biochar had been used to treat the trees as part of site management rather than in a formal experiment) indicated that it could be effective in the battle with Chalara.

He recently shared with me about the journey to find out why a Japanese Pagoda tree was showing signs of stress. This particular tree was part of the original collection when the Botanic Gardens were founded in the 1760s. One might naturally conclude that time had taken its’ toll. In addition, due mainly to the historic significance of the specimen, it is the most popular member of the tree collection at Kew. One can only imagine the effects of the traffic from all of those visitors.

One thing that I value with Glynn is that he is unwilling to be drawn prematurely on research. With these trials, interviewed on the BBC Countryfile programme, he was asked whether this was the solution for Ash. More research is needed, he cautioned. However, what delights me is that, through the work of Glynn and others, an array of tools is being identified which enables me, the arborist, to be better equipped in the battle. The skill is to know what to use, and when, and I feel better equipped than I did fifteen years ago. There are times

One of the key principles in arboriculture is that what happens below ground is as important as above ground. Kevin began to explore. The tree had a mulch of gravel. This is useful in the right place, but I find it is mainly suitable for footpaths and driveways.

The absence of organic matter limits its value for trees. Kevin shared with me that he removed some four tonnes of gravel from the base of this tree! Below the gravel was a weed suppressant membrane which was not only really effective in stopping weeds growing upwards, but also water filtering downwards. The ground below the membrane was dry and had little organic matter, and needed Kevin’s expert touch to bring restoration. The tree is recovering well.

The application of chipped bark mulch can be an invaluable tool in helping a tree to thrive and equip Opposite, A healthy young tree. Below, Oak Processionary Moth

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the response of chlorophyll fluorescence to sunlight.

It is invaluable because the chlorophyll shows stress within the plant much sooner than it is revealed through physical symptoms. Glynn, who helped to develop the technology for arboriculture, has shared with me how, when assessing some nursery trees which had recently been planted in the landscape, he identified one batch to be suffering drought stress.

The supplier was adamant that the stock was healthy.

Glynn had to wait for three weeks for the physical symptoms to appear, and was relieved when his observations became evident and the trees began to decline.

it in the battle against pathogens. However, care is needed. Fresh mulch can drain the soil of nutrients whilst too can damage the trunk. Interestingly, the same applies to water: excess can be more damaging than too little.

I have looked so far at equipping the tree within the landscape for the challenges it will face. However, it is becoming increasing evident that the successful journey actually begins on the nursery, when the tree is growing and being prepared for ‘adulthood’ in the landscape. An over view of best practice for nursery production was published in 2014, the new BS8545: Young Trees – Achieving Longevity in the Landscape.

Above ground elements such as the importance of a strong central leader are covered. However, the development of a good root system is also important.

I recall, years ago, a friend was growing a young oak tree in their garden. They were delighted at how the tree was developing a strong and deep tap root, and wanted to know how they could transplant this tree to me without damaging the root. The reality is that actually, to develop a successful rooting system, the tap needs to be severed early in the life of the tree, to encourage lateral roots to form. We now have access to technology enabling us to assess the vigour of the tree both in the nursery and within the landscape. This is enabling monitoring from the earliest days. One element that surprised me is that, in part because trees are usually sent from the nursery to the landscape when they are dormant, is that some are dead when they are dispatched!

I have spoken about this technology before. It uses

Whether one considers climate change to be fact or fiction, one thing is apparent: drought conditions are becoming more common and widespread, especially in the urban environment. We know that some trees are better equipped to thrive in drought conditions.

One of Glynn’s colleagues is focusing on this. He is exploring whether we can identify the characteristics of trees with drought tolerance. If we can, then we can be more informed in species selection.

There are a range of tools now available to equip the arborist in helping trees to resist pathogen attacks, ranging from variations in species selection to good plant health and biosecurity. We are better informed than ever before in understanding how trees resist attacks. The key element remains knowing what to use, when and how. As I continue on my journey to know more, I am able to help tree owners to look after their trees and enjoy this asset in to the future. ■

Electrical Investigations Principle Consultant

Mark Chester

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

Dr Antony Anderson CEng FIEE

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

Electrical Consultant and Expert Witness Investigates and reports on causes of electrical system & machine failures including alleged automobile cruise control/electronic throttle control malfunction (uncommanded sudden acceleration)

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.

Capability Statement on electrical failure investigations Offers ideas and solutions the improve design/manufacturing processes

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."

www.antony-anderson.com 26 Westfield Drive, Gosforth, Newcastle upon Tyne, NE3 4XY Tel +44 (0) 191 285 4577 Email: antony.anderson@onyxnet.co.uk

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

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How and Why Plastics Failure Occurs Smithers Rapra looks at the reasons for premature failure in plastics and rubber products and the importance of systematic failure analysis when preparing scientific and engineering evidence.

Expensive warranty claims, legal disputes and product recalls can result from the unexpected or premature failure of plastic and rubber products.

It has been found that although it is common for a combination of effects to contribute to failure there is often a human factor to its cause. The pie chart below (chart 2) shows 45% of the plastics failures investigated resulted from a poor material selection choice or a misunderstanding of the performance specification required for the product at its design stage.

Smithers Rapra is one of the world’s largest independent failure investigators of failed plastic and rubber components and products. Th ecompany provides a comprehensive expert witness support service relating to polymer based failures, quality issues, disputes over design and manufacturing processes.

Chart 2

Reasons for Failure Over 5000 plastic product failures have been undertaken by Smithers Rapra over the last 25 years.

These have been classified below into root cause to highlight how and why failure occurs.

Chart 1 Common factors that are often overlooked where products fail include: ➢ Long-term behaviour- rubber and plastics mechanical properties are both time and temperature dependent. ➢ Environmental effects - exposure to chemical environments and elevated temperature can reduce long term performance.

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Product manufacturing effects – errors in manufacturing polymer products can introduce complications that have a detrimental effect on the performance of the product.

Best Practice Expert Witness for Polymer Products In order to provide robust expert witness support in depth, experience combined with exposure to the preparation and presentation of evidence to court is vital.

Many polymer product manufacturers are often unaware of the consequences of their process on part performance.

The Smithers Rapra consultancy team comprises of plastics materials engineers, polymer chemists, rubber specialists and manufacturing consultants each with typically over 20 years’ experience in their field.

Many applications for plastics are for metal replacement components and the design requirements are becoming more arduous with the operating environment having higher continuous operating temperatures and more aggressive chemicals.

Expert witness services extend to a wide range of industry sectors including; pharmaceutical, transport, automotive, industrial and consumer.

The two main forms of mechanical failure are ductile and brittle failure. Ductile failure is, by definition, failure at high strain. It is relatively straightforward to design plastic components to avoid ductile failure.

However, in practice, ductile materials often fail in a brittle manner, which becomes much more difficult to predict. Brittle fracture is a low energy process characterised by failure at low strain, with little or no deformation. Components can contain small, crack-like defects which can act as stress concentration features; these micro-cracks grow under load and may eventually lead to rapid failure.

Recent cases have included products such as medical devices, packaging materials, building components, toys and engineering plant. â–

Failure Investigation Process In undertaking failure investigations at Smithers Rapra, a wide range of testing and polymer analysis tools can be called upon using its own UKAS accredited material testing, polymer chemical analysis and product testing laboratories in order to get a true picture of the reasons for failure.

Sudden component fracture caused by a combination of poor design, material selection and processing Smithers Rapra has extensive experience testing materials and products manufactured from rubber and plastics.

We are also highly skilled in the testing of engineered assemblies and products constructed from other materials that incorporate plastic and rubber components including metal and composite structures.

A typical analysis on a failed product may require microscopic examination followed by chemical analysis to confirm material and additives type, examination of polymer molecular distribution to determine material degradation status and thermal analysis to understand temperature transition responses.

Clients in a wide range of industries use our testing services from automotive, aerospace and industrial products to consumer, medical and pharmaceutical. We serve clients throughout the supply chain from material supply and processing to manufacturers and end users.

A manufacturing process audit may be appropriate to determine any influences on the failure. The product under load or its manufacturing process may be modelled using computer simulation.

The laboratories at Smithers Rapra are UKAS accredited in accordance to ISO17025 and the majority of our projects are carried out to this quality standard.

Components or products are sometimes subjected to mechanical testing in creep or fatigue modes in specific operating environments to simulate in service conditions.

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Dangers of Gallbladder Surgery Professor J Peter A Lodge MD FRCS FEBS Consultant Surgeon, Leeds Teaching Hospitals NHS Trust www.peterlodge.com Surgical removal of the gallbladder by cholecystectomy is now one of the most commonly performed abdominal operations in the West, with rates approaching appendicectomy in the United Kingdom. According to the Royal College of Surgeons of England and the Association of Upper Gastrointestinal Surgeons (AUGIS), around about 57,000 cholecystectomies were performed in England in 2012 but interestingly there was more than a threefold variation across clinical commissioning group (CCG) areas, ranging from 112 procedures per 100,000 population to 371 procedures per 100,000 population. Whilst commonly viewed as routine, it remains an operation that can be fraught with difficulty and danger.

and because cholangitis and pancreatitis are most often caused by a stone that has left the gallbladder and passed into the common bile duct and this can sometimes also result in the development of jaundice.

In the most usual situation, patients with gallstones experience episodes of epigastric (upper central) or right upper quadrant abdominal pain, frequently radiating to the back. These patients should have liver function tests checked and be referred for an ultrasound examination. Confirmation of gallstones should then result in a discussion with the GP of the merits of a referral to a surgical service regularly performing cholecystectomies. However, in patients with significant co-morbidities, the risks of surgery may outweigh the benefits. In patients with gallstones, the decision to operate should be made by the patient but with guidance from the surgeon. This will include assessment of the risk of recurrent symptoms and complications of the gallstones (50% risk per annum of further episode of biliary colic and 1–2% risk per annum of development of serious complications), and the risks and complication rates of surgery in relation to the individual patient’s co-morbidities and preference. These are important issues when considering consent for surgery. The laparoscopic approach to cholecystectomy is the standard for the majority of patients and most should expect to undergo surgery under general anaesthesia as a day-case. Indeed, the laparoscopic approach has revolutionised gallbladder surgery in terms of rapid recovery, with most patients expecting to be back to all normal activities within about 10 days.

Most patients with symptomatic gallstones present with a self-limiting attack of pain, known as biliary colic, that lasts for only a few minutes or hours. This can often be controlled successfully by GPs in primary care with appropriate analgesia, avoiding the requirement for emergency admission, but when pain cannot be managed or if the patient is otherwise unwell, then there is a need for referral to hospital as an emergency. Further episodes of biliary pain can be prevented in around 30% of patients by adopting a low fat diet as ingestion of fat promotes the release of cholecystokinin, a hormone which precipitates gallbladder contraction and this results in biliary pain.

However, patients should be referred to hospital as an emergency if they have with features of acute cholecystitis (gallbladder infection), cholangitis (infected bile) or acute pancreatitis (inflammation of the pancreas), as these are life threatening conditions EXPERT WITNESS JOURNAL

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In a cholecystectomy operation, whether open or laparoscopic, the surgeon attempts to identify the triangle of Calot. This was described by Calot as an isosceles triangle with the common hepatic duct at its base, the inferior edge of the cystic duct and the superior border of the cystic artery as its sides.1 Having identified these anatomical structures, the surgeon then ligates or clips the cystic duct and cystic artery, divides them and removes the gallbladder by freeing it up from the undersurface of the liver. The difficulty for surgeons is that the inflammatory process associated with gallstones and cholecystitis can make the anatomy hard to determine accurately at the time of surgery.

Although, some experts suggest that carrying out an intraoperative cholangiogram (an x-ray examination of the bile ducts) during cholecystectomy may reduce the incidence of bile duct injury, this remains a matter for debate as there is little evidence to suggest that intraoperative cholangiography prevents bile duct injury. There is, however, some evidence to suggest it may allow earlier recognition or lessen the injury that occurs.4 So, in my opinion, although many experts argue that failure to carry out a cholangiogram during a cholecystectomy operation is negligent this is based on bias from their own practises and it is not an argument that should stand up in court.

Perhaps the most convincing approach to prevention of bile duct injury during cholecystectomy is the use of the “critical view of safety” as described by Strasberg in 1995.5 In this technique, the triangle of Calot is cleared of fat and fibrous tissue until two and only two structures can be seen entering the gallbladder. Furthermore, the lower third of the gallbladder’s attachment to the liver is dissected free such that there is a wide clear angle visible prior to applying clips. If this critical view cannot be achieved then a cholangiogram (performed to aid clarification of anatomy) or conversion to an open procedure is mandatory. This approach has become the standard practice of many surgeons in their approach to laparoscopic cholecystectomy and indeed the Dutch Society of Surgery has made it mandatory that the critical view image should be recorded photographically prior to division of the cystic duct as a quality standard.6 In the UK, a reasonable body of general and hepatobiliary surgeons should argue that this approach demonstrates exemplary care during the surgery but in this instance it would be for the Court to decide if an injury constitutes negligence should it occur despite using this method. Photographic or intra-operative video evidence from the operation itself may be helpful for an expert to determine what has gone wrong.

The introduction of laparoscopic cholecystectomy was unfortunately associated with an increased incidence of bile duct injury.2 In 1995, McMahon et al reported the incidence of bile duct injury in open cholecystectomy to range from 0% to 0.5%, an average of one bile duct injury in every two hundred to three hundred cases of open cholecystectomy. Laparoscopic cholecystectomy appeared at that time to be associated with an increased risk of between 0% and 2.8% and this was thought to relate to a “learning curve” as the new procedure was being developed. The overall mean incidence appeared to be 0.3% in 1995, close to that of open cholecystectomy and this rate has not really changed over the years since then. McMahon et al suggested that the incidence of laparoscopic bile duct injury could be reduced by techniques related to careful dissection, definition of the anatomy of Calot’s triangle and lack of hesitation of converting to open cholecystectomy if the anatomy could not be safely identified or if troublesome bleeding occurred.

Way et al applied human performance concepts in an attempt to understand the causes of laparoscopic bile duct injury in order to try to prevent it.3 They identified the primary cause of error in 97% of cases to be a visual perceptual illusion. Faults in technical skill were present in only 3% of injuries. 25% of injuries were recognised at the index operation although only 6% were identified at an early enough stage to limit the injury that occurred. They attributed this to difficulties in understanding the exact anatomy that was seen during the surgery and review of video tapes demonstrated the persuasiveness of the illusion in what in many cases were thought to be routine operations. In summary, their data suggested that errors leading to laparoscopic bile duct injuries stem principally from misperception, not errors of skill, knowledge or judgement. What I mean by this is that it is possible for a very skilled surgeon to misinterpret anatomy during surgery, particularly laparoscopic surgery such that an injury may occur and not be recognised. However, most experts agree that whilst this is an explanation about how bile duct injuries may occur it is not a defence.

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An initially unrecognised injury to the bile duct at cholecystectomy usually results in the development of an abdominal bile collection. Although some experts may suggest that this should be recognised at an early stage, it can be notoriously difficult. Lee, Stewart and Lawrence have looked in detail at post-cholecystectomy abdominal bile collections and their manifestations.7 This group are world renowned as international experts in cholecystectomy and complications relating to cholecystectomy. They specifically noted that “Unless drains have been used, a bile leak leads to accumulation of bile in the abdomen. Previous reports have suggested that bile peritonitis, with guarding and rebound tenderness, is the principal manifestation of an abdominal bile collection, but this is actually an uncommon presentation early in the patient’s course. While a few 46

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patients do have such clinical findings, most have much milder symptoms, best referred to as bile ascites.” This review looked at 179 patients with bile leaks following cholecystectomy of which 154 patients had undrained bile collections and 25 patients had a drain placed at the original operation. It was noted that “Overall, a symptomatic bile collection was initially missed in 77% of patients; their symptoms were considered non-specific or insignificant”. In this series, 42% of patients with significant bile collections greater than 500ml did not have drainage instituted within 7 days of the operation and 19% had not had drainages instituted within 14 days of the original operation. The authors commented that “The symptoms caused by bile collections were often quite subtle. Most patients with bile collections did not present with peritonitis; instead they had bile ascites with mild, relatively non-specific symptoms. Consequently, the presence of a bile collection and associated biliary injury often went unsuspected for a time until symptoms worsened and delays in diagnosis and treatment allowed bile peritonitis and serious illness to develop. Among our series, the correct diagnosis was missed initially in 77% of patients.” Further they comment that “In fact, many of the patients who became seriously ill never passed through a phase that included prominent abdominal pain and tenderness.

In short, it was not possible to distinguish those who would become critically ill from those who would not based on the early clinical presentation.” In addition, they commented that “The presence of a drain did not guarantee that a bile collection would be avoided; drains can malfunction.” So, although some experts may suggest that a bile duct injury should be recognised quickly, unless it is actually seen at the time of the original surgery it may go undetected for a relatively prolonged period of time and it would be difficult to prove negligence in relation to delays in detecting the bile duct injury, although once recognised further delays in management can be criticised.

as the success rate of repairs carried out by expert surgeons is superior to those who would carry out such a repair occasionally.8 They pointed out that early repair resulted in a similar outcome to a late repair. This view was supported by Sicklick et al who stated that “Early referral to a tertiary care centre with experienced hepatobiliary surgeons and skilled interventional radiologists would appear to be necessary to ensure optimal results”.9 There is now much compelling data that suggests that if a patient has a bile duct injury recognised then they should be immediately referred to a specialist hepatobiliary surgery centre for revisionary surgery - to delay referral and attempt a repair in a non-specialist unit will usually now be regarded as negligent unless an expert hepatobiliary surgeon has travelled urgently to the unit to offer support during the surgery at the time of injury.

Whilst it is routine practice to convert from a laparoscopic approach to an open surgical approach if there is a significant worry about chances of causing a biliary injury, there is a general reluctance with surgeons to do so as this impacts on the patient in terms of more post-operative pain, prolonged hospitalisation and a prolonged recovery. There is no clear evidence that conversion to an open approach reduces the risk of the injury, although there has been a higher rate of biliary injury noted following the advent of laparoscopic surgery. A reasonable body of general surgeons should suggest that in cases of difficulty during laparoscopic cholecystectomy it is sensible to convert to an open approach in order to lessen the chance of injury or in order to define and repair an injury if it has already occurred. Further, a reasonable body of general surgeons should also argue that if a surgeon recognises an injury as having occurred then it would be normal to convert to an open approach unless the surgeon felt that he could repair the bile duct laparoscopically. In addition, a reasonable body of general surgeons should argue that in a case where the anatomy has not been properly defined then the risks of carrying on with the surgery laparoscopically outweigh risks associated with post-operative

Thomson et al have suggested that patients with biliary injury should be referred urgently to a specialist unit experienced in the management of biliary injury

Professor J. Peter A. Lodge

MD FRCS

Recognised internationally as an expert in complex surgery for disorders relating to the liver, gallbladder and bile ducts as well as weight loss (bariatric) surgery Surgical training primarily under the guidance of Professor Geoffrey R Giles, and the New England Deaconess Hospital (Harvard Medical School), Boston, USA, under the guidance of Professor Anthony P Monaco.

Please enquire via my website, www.peterlodge.com Email: peter.lodge@nhs.net Telephone: Secretary +44-(0)113 2065175 Fax: +44-(0)113 2448182 Mobile: +44-(0)7775 825934 Address: HPB and Transplant Unit, St James's University Hospital, Leeds LS9 7TF EXPERT WITNESS JOURNAL

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morbidity following on from conversion to open surgery.

If an associated major vascular injury does occur then the outlook can be poor. Buell et al reviewed 49 patients who had sustained significant cholecystectomy-associated vascular injuries.16 Out of 13 patients with arterial injuries, five died. Strasberg and Helton have also reported an extensive review of vascular injury combined with biliary injury in laparoscopic and open cholecystectomy.17 They noted that the most common arterial injury that can occur is injury to the right hepatic artery and that injury to the common hepatic artery is very rare. Of nine patients who suffered an injury to the common hepatic artery, three died and the outcome of two was not known.

They commented that the pathogenesis of injuries to the common hepatic artery remains unclear and they suspected that underreporting may occur. This was also true when considering injuries to the portal vein that they felt was much less vulnerable to injury at cholecystectomy than the right hepatic artery. Strasberg and Helton identified 16 cases where the portal vein was injured. Thirteen of these were also associated with injury to a major hepatic artery. Seven out of the 16 patients developed rapid necrosis of the right liver and required an emergency right hemihepatectomy within a few days of cholecystectomy, and three of these patients died from postoperative complications. Another patient required a liver transplant and subsequently died. They felt that it is highly likely that injuries leading to rapid infarction of the liver are under-reported as a result of rapid deterioration and death prior to referral to a tertiary centre.

Further, they recognized that there was a general reluctance to report poor outcome so this injury may be more common than is currently thought. Deaths following cholecystectomy are thankfully rare in the UK: the overall rate of inpatient mortality after cholecystectomy is thought to be 0.49%, but only 0.16% for elective cholecystectomy.18 The risk of death is greater in low volume centres that carry out only a small number of cholecystectomies each year.

The unfortunate minority of patients who sustain laparoscopic cholecystectomy bile duct injuries have a 10-25% incidence of long-term morbidity mainly due to recurrent cholangitis, biliary strictures requiring repeat interventions, and, occasionally, progressive secondary biliary cirrhosis causing end stage liver disease.10 Thus, a major bile duct injury van be a debilitating complication of laparoscopic cholecystectomy that results in significant long-term physical and psychological morbidity.10,11 If an early repair of a bile duct injury is carried out by an experienced hepatobiliary specialist surgical team then the overall outcome in terms of freedom from complications is at the highest level, but there is still a possibility of the development of a late bile duct stricture which carries with it the need for further surgery.8,11 Perera et al have reported that overall, 14% of patients undergoing an early repair of a significant bile duct injury have needed a further intervention: 5% recurrent stricture, 12% cholangitis, 5% needing radiological intervention for stricture dilatation, and 2% requiring further surgery for recurrent stricture. In my own experience, if a patient’s liver function tests are normal and there are no significant symptoms of cholangitis during the first 2 years after surgery then the risk of needing a further intervention (radiological or surgical) is low (less than 5%). Some experts labour the point about a risk for the development of recurrent episodes of cholangitis causing progressive liver disease and the need for a liver transplant. In fact, this risk is very small as only a very few cases have been reported in the medical literature.12, 13 In my experience, it is only patients who experience repeated episodes of symptomatic cholangitis in association with abnormal liver function tests who will develop significant chronic liver disease and the need for a liver transplant, so the life time risk of a need for a liver transplant is considerably less than 1%.

When a surgeon recognises operative difficulty in laparoscopic cholecystectomy, it is standard teaching to convert to an open approach. Unfortunately, there is little evidence to suggest that conversion to an open approach in a difficult cholecystectomy reduces the risk of biliary or vascular injury or reduces its severity. It is also standard teaching that in a difficult cholecystectomy where accurate definition of anatomy cannot be achieved, there are several possibilities to consider. A fundus first (sometimes called “retrograde�) cholecystectomy can be attempted but this should not be persisted with if anatomy cannot be defined. In that situation, it is reasonable to consider accepting that the whole of the gallbladder cannot be removed and that a sub-total cholecystectomy should be carried out. This involves removing the stones from the gallbladder and removing part of the wall

Unfortunately, biliary injury at cholecystectomy can also be complicated by a vascular injury, most commonly an injury to the right hepatic artery. Tzovaras and Dervenis have pointed out that this is an underestimated problem. Although this may contribute to the development of strictures following biliary repair, there is no strong evidence to support a long term negative impact.14 Stewart et al noted that right hepatic arterial injury had no influence on the success of bile duct injury repair in sixty-six cases noted to have a right hepatic artery injury in a series of two hundred and forty-six cases of laparoscopic bile duct injury.15 However, right hepatic arterial injury was more commonly associated with abscess formation, intraoperative bleeding, postoperative bleeding, haemobilia (bleeding into the bile duct), right liver lobe ischaemia (reduced blood supply) and subsequent need for liver resection.

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of the gallbladder and then suturing the cystic duct inside the gallbladder to prevent bile leakage.

Another alternative is to abandon the procedure and to refer the patient to a specialist hepatobiliary unit.

Unfortunately, once a major injury has occurred during cholecystectomy, recognition of this injury often occurs too late. It is the surgeon’s responsibility to call for help at the appropriate time and a failure to do so should be regarded as negligent.

In summary, whilst commonly regarded as routine, cholecystectomy remains an operation that can be fraught with difficulty and danger.

References 1. Haubrich WS. Calot of the Triangle of Calot.

Gastroenterology 2002; 123:1440.

2. McMahon AJ et al. Bile Duct Injury and Bile Leakage in Laparoscopic Cholecystectomy. British Journal of Surgery 1995; 82:307-313.

If a biliary injury occurs during a cholecystectomy operation, the risks of a need for more surgery do not just relate to the bile duct injury. For example, as in any laparoscopic operation, port insertion can cause a bowel injury. Bile leakage and subsequent surgery can lead to the development of abdominal adhesions and there is also a risk of incisional hernia formation.

These risks are difficult to quantify but it is my opinion that a reasonable body of general surgeons would suggest that most Claimants would have an approximate 10% risk of the need for a hospital admission for sub acute small bowel obstruction related to adhesions, a 1% risk of a need for surgery for adhesions and a 10% life time risk of the development of an incisional hernia with a need for surgical repair. Almost all patients will develop some abdominal adhesions after any laparotomy and that these can be a significant cause for chronic post-operative pain.19 Many incisional hernias are not detected until more than 5 years after surgery and there is a steady increase in risk year on year, so the fact that a Claimant is showing no signs of incisional hernia formation in the early years following surgery does not mean that they will never develop one.20,21

3. Way LW et al. Causes and Prevention of Laparoscopic Bile Duct Injuries - Analysis of 252 Cases from a Human Factors and Cognitive Psychology Perspective. Annals of Surgery 2003; 237:460-469.

4. Massarweh NN and Flum DR. Role of Intraoperative Cholangiography in Avoiding Bile Duct Injury. Journal of the American College of Surgeons 2007; 2004:656-664.

5.Strasberg SM, Hertl M, Soper NJ. An analysis of the problem of biliary injury during laparoscopic cholecystectomy. J Am Coll Surg. 1995;180(1):101-25.

6. Wauben LS, Goossens RH, van Eijk DJ, et al. Evaluation of protocol uniformity concerning laparoscopic cholecystectomy in the Netherlands. World J Surg. 2008;32(4):613-20.

7. Lee CM et al. Post Cholecystectomy Abdominal Bile Collections. Archives of Surgery 2000; 135:538-544.

8. Thomson BNJ et al. Early Specialist Repair of Biliary Injury. British Journal of Surgery 2006; 93:216-220.

9. Sicklick JK et al. Surgical Management of Bile Duct Injuries Sustained During Laparoscopic Cholecystectomy Perioperative Results in 200 Patients. Annals of Surgery 2005; 241:786-795 10. Perera MTPR, Silva MA, Shah AJ, Hardstaff R, Bramhall SR, Issac J, Buckels JAC, Mirza DF. Risk factors for litigation following major transection bile duct injury sustained at laparoscopic cholecystectomy. World Journal of Surgery 2010; 34: 2635-2641.

Another final aspect is to consider who will pursue legal action after a cholecystectomy disaster. In 2010, Perera et al looked at patient perceptions and outcomes in relation to litigation for bile duct injury during cholecystectomy, pointing to adequate consent and communication as major issues.10 Most patients felt they had been inadequately informed prior to surgery and also after the bile duct injury had occurred, and a majority remained "psychologically traumatized" at the time of evaluation. Of 67 patients studied, 22 had started litigation by means of a ‘‘letter of demand’’ or prosecution. Nineteen of the 22 cases had been closed in favour of the Claimant at the time of publication, demonstrating that bile duct injury is difficult to defend. Although there was no significant difference between the awards for a letter of demand versus prosecution cases, the average compensation was £40,800 versus £89,875, respectively. Associated vascular injury, immediate nonspecialist repair, and perceived incomplete recovery following the injury were identified as independent predictors for possible litigation, emphasising the involvement of a specialist hepatobiliary surgeon is essential once an injury has been recognised.

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11. Perera MTPR, Silva MA, Hegab BH, Muralidharan V, Bramhall SR, Mayer AD, Buckels JAC, Mirza DF. Specialist early and immediate repair of post-laparoscopic cholecystectomy bile duct injuries is associated with an improved long-term outcome. Annals of Surgery 2011; 253: 553-560.

12. De Santibanes E et al. Liver transplantation for the sequelae of intra-operative bile duct injury. HPB 2002; 4: 111-115.

13. Oncel D et al. Bile duct injury during cholecystectomy requiring delayed liver transplantation: a case report and literature review. Journal of Experimental Medicine 200; 209: 355-359 14. Tzovaras G and Dervenis C. Vascular Injuries in Laparoscopic Cholecystectomy - An Underestimated Problem. Digestive Surgery 2006; 23:370-374.

15. Stewart L et al. Right Hepatic Artery Injury Associated with Laparoscopic Bile Duct Injuries - Incidence, Mechanism and Consequences. The Society for Surgery of the Elementary Tract (SSAT) Abstracts 2003, Abstract ID 100938.

16. Buell JF, Cronin DC, Funaki B, et al. Devastating and fatal complications associated with combined vascular and

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bile duct injuries during cholecystectomy. Arch Surg.

2002;137:703-10.

17. Strasberg SM, Helton WS. An analytical review of vasculobiliary injury in laparoscopic and open cholecystectomy.

HPB. 2011;13:1-14.

Matthew Long

18. Harrison EM, O’Neill S, Meurs TS, et al. Hospital volume and patient outcomes after cholecystectomy in Scotland — Retrospective National Population Based Study. Br Med J. 2012;344:1-14.

MD, FRCOG Consultant Obstetrician, Gynaecologist & Mininmal Access Surgeon I have over 25 years experience in dealing with obstetric and gynaecological health issues. In addition to my clinical practice, I have had academic papers published in peer reviewed national and international medical journals.

19. Van Goor H. Consequences and complications of peritoneal adhesions. Colorectal Diseases 2007; 9 (Suppl 2): 2534.

I act as a medico-legal expert in the field of clinical negligence and personal injury for both Claimant and Defendant in the following areas:

20. Mudge M, Hughes L. Incisional hernia: a 10 year prospective study of incidence and attitudes. British Journal of Surgery 1985: 72: 70-71.

The obstetric management of labour and delivery; Urinary incontinence & pelvic floor problems, including pelvic organ prolapse; Minimal access surgery including hysteroscopy, laparoscopy and treatments for menorrhagia; General gynaecology.

21. Itatsu K et al. Incidence of and risk factors for incisional hernia after abdominal surgery. British Journal of Surgery 2014; 101: 1439-1447.

I am fully compliant with the GMC and RCOG regulations on specialist registration and continuing education.

Need an expert fast?

Cannot find the right expert?

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

Try our award winning website ranked top of google www.expertwitness.co.uk or call 0161 834 0017

w: www.specialistgynaecologist.co.uk

Prof Charles M Court-Brown

Dr Gordon Williams

Professor of Orthopaedic Trauma

Consultant Cardiologist

MD, FRCS Ed (Orth)

MB BCh FRCP FACC

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.

Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT Tel: Fax: Mob:

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.

Email: sandra.ellerbeck@spirehealthcare.com Member British Cardiac Society Consultant Cardiologist at Yorkshire Heart Centre, Leeds General Infirmary and York Teaching Hospitals NHS Trust, involving all aspects of congenital and acquired cardiology, the management thereof and invasive and non-invasive diagnostic procedures.

Civil aviation approved cardiologist.

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.

Contact: Prof C M Court-Brown Craigesk House, Lothianbridge EH22 4TP, Tel: 0131 660 4227 Email: ccb@courtbrown.com

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0113 218 5943 0113 218 5987 07702 550 758

Medico-legal expertise in Invasive and non-invasive investigations, Diagnostic techniques, Coronary artery disease, Hypertension, Heart failure, Congenital heart disease, Sudden cardiac death screening and General cardiology.

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I’ve Been There Before: Is the NHS Offering Patients a Failed Channel Management Strategy?

Mr Gordon Miles, the chief executive officer of the Royal College of Emergency Medicine spent a significant part of his previous career with the NatWest Bank.

It became obvious to us that some of the urgent care plans proposed by NHS agencies were already familiar to him in a different guise. Consequently, we asked him to write this piece……

As CEO of RCEM, I spend quite a bit of my time in meetings with the great and the good of UK healthcare discussing the challenges facing emergency medicine and, alongside our president and other officers of the College, advocating our STEP Campaign. We often find ourselves rehearsing arguments that I am very at home with because of my financial background, especially the strategy of channel management. This is the concept of delivering services to customers through specific “channels”, such as face to face, by telephone, via the internet etc.

by the merger of the Westminster Bank and the National Provincial Bank and often dated back over 50 years. So what was to be done?

The banking gurus of the time needed a way to discourage customers from coming in to the local branches. (Is this starting to sound familiar?) So they thought that telephone banking would be the answer.

A one-stop phone service in call centres, using standard processes would be cheap to run and would stop the need for customers to visit long-established branches. Confidently, they launched the new service. What then happened was perhaps predictable.

The new free telephone service was used but, when problems were encountered or the answer wasn't to the customer’s liking, they went to the branch just as before. Thus the impact on branch “foot flow” as it was called, was not what was expected or certainly what had been hoped for!

As some of you may know, I spent many years working for NatWest, before I joined the world of healthcare. I started in the days when bankers were more popular than double glazing salesmen and fortunately, left just before it all went wrong! My time included being a corporate financier for small and large businesses as well as some years in the strategy team. “So what?” I hear you physicians saying! Well, I think that, in many ways, the dilemmas facing retail banking in the 1990s have echoes in the NHS of today. Let me explain…….

Still trying to reduce the ”foot flow”, the ever-optimistic gurus then saw the newly-emerging potential of the internet as the answer. Online banking would surely do the trick. Another free-to-use service was taken up but, unfortunately, just as before, customers phoned, went online and then visited the bank. Once again, the new channel was used, but the pull of the old traditional channels remained stubbornly high.

Charging for branch use was also considered but the competitive market meant that it wouldn't be successful. (Bankers need customer loyalty and subsequent income.)

In the 1990s, it became clear that the retail banking network was over-supplied with branches. There were more than 1700 of them owned by NatWest alone. These branches were essential in the past as the places where the processing of financial transactions occurred, where deposits were kept and where business was done. However, the centralisation of back office procedures and phone calls (telephony) into “centres” gave economies of scale and improvements in processing consistency. This reduced the branches to cashiers with a small team whose primary task was to sell products and deal with customer enquiries.

The next idea was to shut branches of the bank. That would surely force the customers to use the new channels. And indeed it did in part, but some customers left to join competitor banks whilst others found another NatWest branch nearby and used that.

The branches were a financial drain - expensive to maintain and run - and the staff there didn't generally generate much income by way of sales. Moreover, the buildings were often situated in the wrong part of town because the NatWest network had been created EXPERT WITNESS JOURNAL

The real breakthrough came when the main need for branches was almost removed. The debit card revolution meant that people rarely wrote or received cheques. Cash machines were installed all over the 51

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country as another very effective channel of delivery.

These machines were cheap and, if other bank’s customers used them, then NatWest would charge that bank £1 each time! So the new channel actually made money. Consequently, it is no accident that many of the major railway stations still have a NatWest cash machine. The de-skilling and staff reductions in the branches meant that visiting them for advice became a largely futile exercise and, at last, NatWest succeeded in reducing its branch network. And this process in retail banking continues today. TSB is presently trimming its branch network drastically.

oping Multi-Channel Strategy”, Dr Stan Maklan and Dr Hugh Wilson of Cranfield University offer just that. They state that: “Customers make channel choices alongside their product-service choices and expect suppliers to offer sales, marketing and service across multiple channels - online, telephone and physical presence. Offering all channel choices to all customers across all products and services is too costly for most companies. For many companies, channel strategy is now every bit as critical to their success, as are brand and product range policies. Companies must now determine how to service indifferent customers through a combination of channels that meets customer needs at competitive cost.” If we did a word search and replaced the word ”customer” with ”patient” and ”companies” with “NHS Trusts / commissioners”, this could well have lessons for us all.

So back to the NHS and our STEP Campaign. The reason that RCEM is calling for primary care co-location is that the power of the A&E brand trumps all appeals to “only attend in an emergency”. I often find myself pointing out that encouraging the public not to attend the ED except in exceptional circumstances has a 25 year legacy of failure. There are a variety of reasons for this, not least the brand-pull argument above, but also the rational choices made by patients themselves. Their choice is influenced by where, in their perception, is the best place to go, the availability of other services, the impact of the visit on work life and indeed what other NHS service providers tell them to do - and many refer patients to the ED. Of course, whatever the choice, this is a free service (at least to the user)!

So the STEP campaign, in my view, stands up well to a channel management strategy scrutiny. It is patientcentric and acknowledges the choices made by them.

Additionally, it is potentially effective for the supply side too. One big challenge with co-location of services is space and estates, but often much can be achieved locally without the need for large infrastructure projects. The alternative is to try to reduce demand and we know how successful that strategy has been over the past few years! Growth rates of 2% per annum in ED patient attendance don't sound much but lead to an overwhelming demand on services over just a few years. And so next time you stand at a cashpoint with your plastic card, remember the banks and the lessons about patient flow that they can teach us!

The other alternatives are bleak. In a world where patient numbers, acuity and demands are rising faster than supply, then queues are inevitable - a bit like my old bank branches where long queues used to form, particularly at lunchtime, consisting of angry, disgruntled people. The urgent care world is already experiencing this; the College receives report after report about the challenges of hospitals with fourhour and 12-hour waits.

Another option is closure and rationalisation of EDs. We can see this occurring at the present time with the consequent pressure that it puts on other local units.

Unlike the bank customer, who was given a debit card and cash machines in many convenient locations or simply trotted off to a competitor’s outlet, closing an ED often offers a patient little alternative other than to simply travel further. Sometimes closure can be presented as centring demand on places with particular expertise but the patient doesn't start off with the perception that the closed unit delivered substandard care and so doesn't understand this argument easily.

When the patient accepts the premise, it risks eroding trust in the NHS brand. A patient might ask: why would the NHS allow sub-optimal practices to persist?

Or perhaps why was this not done years ago?

In my view, the channel management strategy of the NHS is in need of some resuscitation. A good place to start is with some sage advice. In their book “DevelEXPERT WITNESS JOURNAL

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Medico Legal Aspects of Gastroenterology

by Dr Gerry George Robins Consultant Gastroenterologist FRCP Lond, MD, MBBS A healthy gastrointestinal system is something that many of us take for granted, and only when it goes wrong do we realise the impact on quality of life, family and employment. Gastrointestinal disease is traditionally something that we in the UK are not very good at talking about, yet in the UK gastrointestinal disease is the third most common cause of death, the leading cause of cancer death and the most common cause of hospital admission (gastrointestinal disease is estimated to be responsible for 1 in 6 admissions to hospital in the UK).

Clearly there are many different types of gastrointestinal disease, and in the field of medicolegal work, first thoughts often turn to abdominal and biliary surgery and its potential complications. However, in the non-surgical field of gastrointestinal disease (Gastroenterology) there is a significant burden of disease, often chronic, which can be overlooked. For example, the Irritable Bowel Syndrome (IBS) is estimated to affect 10 to 25% of the general UK population (with the prevalence in women being between 2 to 4 times greater than in men) and about half of patients with IBS will present to their GP because of symptoms. There is very clear evidence that stress, both acute and chronic, will both precipitate and exacerbate IBS, although the mechanism is not fully understood. There have been numerous trials looking into putative mechanisms, and there is clear data showing that in individuals with IBS who experience stressful or anxiety inducing events, there are changes in the inflammatory profile of both the gut and central nervous system, changes in the endocrine profile of the affected individual (e.g. levels of hormones such as corticotropin and melatonin alter) and also in the bacteria that live within the gut, to name just a few possible mechanisms. Clearly it is entirely plausible that a different mechanism predominates in different individuals, and that there may be multiple mechanisms at work within the same individual. Prognosis in patients with IBS is variable, and compared to healthy controls, patients with IBS are often documented to have extra-abdominal symptoms (e.g. insomnia, sexual dysfunction, urinary symptoms and headache), significantly reduced quality of life, difficulty socialising, reduced participation in sport and travelling and increased absence from work, with a significantly reduced length of working life (with the associated financial implications consequent upon this).

From a medicolegal perspective these facts are important considerations in Claimants who have either developed IBS or had a worsening in their pre-existing IBS symptoms due to a significant life event.

Significant life events often precipitate the need for a medicolegal opinion in their own right (e.g. road traffic accident, medical negligence, wrongful dismissal) but the effect on underlying pre-existing, or new, gas-

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troenterological conditions is often overlooked by Claimant’s lawyers when considering all aspects of the case. In other circumstances Claimants who already suffer with IBS may not get the recognition they need from their employer with regards to making appropriate reasonable adjustments within the physical environments of their workplace, and the nature of the work expected to be undertaken. Often patients with IBS need only a relatively small change in work practice to allow them to continue to be productive members of the work team. Simple examples of changes employers could make include allowing the Claimant to come into work an hour or two later (patients with IBS often have worse symptoms first thing in the morning), allowing more working at home (so patients have ready access to their own toilet facilities) and minimising the need for long work-associated periods of travel. The assumption by employers and others that “it’s just IBS� and such patients are exaggerating the impact of their disease on their ability to work, completely underestimates the severity of symptoms that some patients with IBS can have - these symptoms need to be taken seriously.

the ongoing symptoms, the need to spend a significant period of time in one’s hotel room unable to participate in activities and/or relaxation is a source of frustration for many people in this circumstance.

Often symptoms will continue for a period of time after return to the UK (1 in 20 patients will have symptoms lasting longer than 2 weeks), with Claimants having to miss time off work and reduced other activities for days to weeks afterwards. A causative organism for traveller’s diarrhoea is not identified in up to 70% of cases (as many cases are due to viruses such as norovirus, and many people often do not submit a stool sample), but in those cases where a pathogen is identified, E.Coli is the most common culprit. Destinations considered high risk for traveller’s diarrhoea include South America, Sub-Saharan Africa and South and South East Asia.

All inclusive holidays (including cruise ships) and backpacking are also known to increase the risk of developing traveller’s diarrhoea. Typically, episodes of traveller’s diarrhoea start during the first week of travel with most episodes lasting approximately 7 days. A few examples of warning signs for Claimants that hotels or cruise ships may be breaching their duty of care with regards to providing safe food and drink include continually reheating food, serving or handling uncooked food and cooked food together, not serving food at a correct temperature (either not hot enough or not chilled enough), staff handling food not wearing gloves, the presence of animals and insects around eating areas and serving drinks that are watered down or have ice in.

As IBS is so prevalent another potential mishap is the misinterpretation by a medical practitioner of the development of new symptoms within a patient as heralding the onset of IBS, when in fact the development of new symptoms such as bloating, change in bowel habit, or non-specific abdominal pain is the manifestation of a significant organic disease such as bowel cancer, ovarian cancer or coeliac disease.

Occasionally symptoms that should never be interpreted as IBS, are - with potentially significant consequences. Examples of such symptoms that at least initially should not be assumed to be due to IBS include nocturnal symptoms, weight loss, persistence of symptoms despite evacuation of stool, and rectal bleeding. There are very well defined criteria for diagnosing IBS (Rome III criteria) and IBS should always be a “positive� diagnosis and simply not a label given to a patient because their symptoms do not sound like another problem.

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In addition to chronic diseases such as IBS, there are acute gastroenterological diseases, which may warrant consideration of a medicolegal opinion. One of the most common scenarios in this group is travel-associated gastroenteritis or traveller’s diarrhoea. In those travelling abroad, especially to countries with a low GDP, it is estimated between 20% and 60% will experience at least one episode of diarrhoea. Whilst usually a self-limiting illness, and rarely life-threatening traveller’s diarrhoea often affects enjoyment of holiday for both the individual affected and other family members and friends in their travelling group.

For many families, holidays abroad represent an investment of a significant amount of their disposable income and notwithstanding the unpleasantness of EXPERT WITNESS JOURNAL

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mortality. Again, in medicolegal cases, where the sum total of harm done to the Claimant is being considered, this is an aspect that can be overlooked as it is not always seen as being directly relevant to the complication that occurred.

Whilst acute diarrhoeal illnesses are also common in the UK, they do predominate in settings with high levels of contact and potentially compromised hygiene, such as hospitals and nursing homes.

Norovirus is the most common cause of outbreaks of infectious diarrhoea in hospitals. This is generally self- limiting and introduced from the community into the healthcare setting through infected patients, visitors and staff (often in the asymptomatic phase of the disease). Clostridium difficile however, whilst a component of the normal gut bacteria of between 3% to 10% of the adult population, is a bacteria that causes a diarrhoeal illness that is one of the most prevalent problems in UK hospitals. The incidence of Clostridium associate diarrhoea increased 4-fold between 1999 and 2004. Prolonged hospitalisation and repeated courses of antibiotics are significant risk factors for developing Clostridium difficile associate diarrhoea. This means it is more likely to be seen in people who are undergoing a complicated recovery from many medical and surgical problems – as by definition this group will very often have a prolonged stay in hospital and often need prolonged and repeated courses of antibiotics. Clostridium difficile associated diarrhoea can evolve into a more severe form of pseudomembranous colits, which in turn can be life threatening and Clostridium difficile infection per se is associated with significant morbidity and

In summary therefore, gastroenterological symptoms are common in the general population at large, and particularly in patients with other medical problems.

Whilst many chronic gastroenterological conditions, such as IBS are often considered as trivial they frequently have a significant effect on quality of life and employment. Chronic gastroenterological symptoms can be a consequence of other significant trauma and life events, or by themselves can be an important factor in why Claimants are perceived as being unable to pursue certain careers and activities, even though there is no medical reason why this should be the case if certain, simple allowances are made. Certain environments which people expose themselves to on a regular basis, such as hotels, cruise ships, care homes and hospitals increase the risk of developing acute, infectious gastrointestinal symptoms and although often self limiting, again this can be a component of medicolegal cases which is not considered or opinion sought upon despite the profound effects it can have on Claimants. ■

All our articles and latest news are at www.expertwitnessjournal.co.uk

Dr Edwin Bonner

Dr Joshua Adedokun FCARCSI, FRCA, FFPMRCA

BDS MDent

Chronic Pain Expert

Specialist Dentist /Prosthodontist

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.

Main fields of interest include: • General restorative dentistry • Dental prostheses (dentures, crown and bridges, implants) • Facial, head and neck pain including whiplash

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.

• Temporo-mandibular joint (tmj) dysfunction.

Dr Ed Bonner has 48 years experience, 30 as a specialist prosthodontist.

He has been in NHS, private and hospital practice and lectured at university dental schools and organisation in the UK and South Africa.

He has written over 2,500 dento-legal expert witness reports, mainly for the claimant, in personal injury and negligence cases. A Sloan fellow of the London Business School, he advises practices in leadership/ management and has written over 1000 journal articles.

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: Lorna Brindle, 07711 963 200

Correspondence: 57a Dartmouth Road, London NW2 4EP Area of work Nationwide (by arrangement)

Tel: 0161 449 7442 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk

Phone: 07766 601 338 Email: bonner.edwin@gmail.com www.bonnerdentalexpertwitness.com

EXPERT WITNESS JOURNAL

Spire Hospital Manchester, Russell Road, Whalley Range, Manchester M16 8AJ

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Why Does Winter Last All Year?

By Gordon Miles, Chief Executive The Royal College of Emergency Medicine • There were 171,300 total delayed days in June 2016, of which 115,400 were in acute care. This is an increase from June 2015, where there were 139,500 total delayed days, of which 91,100 were in acute care.

This isn’t a story from the popular Game of Thrones series but one about the crisis in our Accident and Emergency Departments (A&Es). In England during 2016 we have seen a steadily worsening performance at our A&Es when measured by their ability to see, treat, admit or discharge patients in under four hours.

This is not just something that happens during the winter season. The latest data available to me regarding my context, Emergency Medicine, as I write this was June 2016 where the following key points emerged: • Attendances up by 2.1% on June 2015 to 1,951,000

• The main reason for NHS delays in June 2016 was “patients awaiting further non-acute NHS care”. This accounted for 29,500 delayed days (28.8% of all NHS delays). The number of delays attributable to this reason showed a general increase between June 2015 and March 2016, but since then appears to be showing a gradual downward trend.

• Type 11 A&E department attendances were at 1,282,499 – up 2.7% on the same month last year

• The main reason for Social Care delays in June 2016 was “patients awaiting care package in their own home”. This accounted for 19,700 delayed days (35.7% of all Social Care delays), compared to 15,000 in June 2015.

• There were 480,000 emergency admissions in the month, 4.7% higher than the same month last year. Emergency admissions via Type 1 A&E departments increased by 5.3% over the same period. Emergency admissions over the last twelve months are up 3.7% on the preceding twelve month period.

• 1,124,990 calls offered to the NHS 111 service in England in June 2016, a 14.0% increase on the 987,107 in June 2015. Of calls triaged in June 2016, 13% had ambulances dispatched, 9% were recommended to A&E, 60% were recommended to primary care, 4% were recommended to another service, and 15% were not recommended to attend any other service3.

• 90.5% of patients seen within 4 hours – up from the previous month, but down from 94.8% in June 2015 • 85.8% of patients were seen within 4 hours in Type 1 A&E departments, compared to 92.3% for the same month last year. The Times2 reported this as the worst ever performance recorded.

The wider NHS system is under pressure and we are often asked: why does winter last all year?

Why does winter in A&E last all year?

The Royal College of Emergency Medicine has been campaigning since June 2013 to improve emergency care in the A&E departments of the UK. Key to this has been our STEP Campaign: where we focus on

• There were 35,300 four-hour delays from decision to admit to admission this month, which compares to 19,100 in the same month last year.

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demand, capacity and flow of patients through the system, as described by the four elements of our campaign: 1. Staffing: matching the people resources to the volume of patients, and so expanding the workforce, reducing emigration and improving retention of emergency physicians.

The College is of the view that redirection and re-education strategies have largely failed. This is not to suggest that we do not recognise the need to decongest our departments but it is our opinion that this is best done by co-location of key out of hours urgent care services. It is worthwhile highlighting that 84% of A&E attendances are by people who live within 7.5 miles of a major A&E department.

2. Tariffs & Terms: getting the systems that pay hospitals for A&E work to fairly cover the costs involved whilst also getting the rights terms and conditions for the workforce in place to stop the leaching of talent 3. Exit Block: tackling the exit blocks to A&E departments that stop patients flowing on to hospital wards 4. Primary Services: co-locating primary care services with A&Es, into an A&E hub, where the emergency department is part of the ‘hub’ not the sole provider In Scotland where pressures were first experienced at an acute level over four years ago, on our recommendation the government boosted recruitment and worked closely with our College try and tackle the challenge. The results there are now showing an improvement and in recent data Scotland’s performance is the best of the UK nations. That is not to say that the work is done as we are working to make further improvements for patients.

In the other parts of the UK for varying reasons the challenges remain or are worsening, we are working with politicians and NHS management to address the issues but some long term systemic problems remain.

A co-located model is partially implemented in some sites already and has huge potential for collaborative working with better patient focused service provision.

We call this model an A&E hub, in which key components of urgent health care are physically and functionally co-located to allow the alignment of behaviours with resources.

Demand The Urgent and Emergency Care review has been progressing in England since 2013. Much of its attention has been directed at reducing patient demand on A&E Departments. This is commendable, though the College is of the opinion that the gains realisable from such a strategy are limited. In this context it is worth noting that the UK has a relatively low usage of A&E departments when measured as visit per annum per capita. The UK has 27% of its population that used Emergency Departments in the past two years according to a 2013 survey by the Commonwealth Fund International Health Policy Survey as compared with 22 in Austria and Germany and 41 in Canada.

This model is endorsed by each of the key stakeholders; the Royal College of General Practitioners, the Royal College of Psychiatrists, the Patients Association, the Royal Pharmaceutical Society and the British Geriatric Society.

The College believes that providing such a hub of services within easy travelling distance of 80% of the population is both effective and efficient. For those not within easy travelling distances non-urban urgent care centres could provide all but hospital based services.

Under shared locally agreed governance, the co-location of the Out of Hours Primary Care Team, Community Pharmacy, Out of Hours Mental Health Team, Frailty Team and the Emergency Department will provide patient services more appropriate to case-mix and skill mix than the current arrangements. This is not to argue for new services but for the co-location of existing services around the point the patients attend: the A&E department.

Over the past five years we have experienced a rise in patient attendances: by some 611,250 per annum but importantly admissions have disproportionately risen by 443,059. Three out of every four additional attendances above the 2011 benchmark have required admission. It is therefore clear that redirection strategies will be of diminished value.

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This endorsement of the British Geriatric Society is particularly important given the rapid changes in the elderly demographic within the UK. The trend data demonstrate that the number of people over 85 years of age will grow by almost 90k per year for the next 20 years. Compared to 2011 there are an additional 500,000 people aged over 85 alive today.

In-reach frailty services based upon a Comprehensive Geriatric Assessment are proven to reduce admissions and length of stay and must be regarded as an essential component of 21st century acute services. The care of this section of our population more than any other will determine the success or otherwise of the acute care system.

Capacity The increase in attendances in the last 5 years is equivalent to the workload of 10 medium sized departments in England alone. Unfortunately the mismatch between patient volumes/casemix and senior medical staff has been exacerbated by the problem of retaining emergency medicine registrars and, to a lesser extent, consultants.

Currently the probability of admission is directly correlated with age. It is imperative that this default option is challenged. However it is vital to recognise that meeting this challenge will require a multi-disciplinary approach with skilled and expert teams working together, as the burden of illness carried by this elderly cohort is substantial.

Non-Emergency Medicine Attenders The College recognises that a significant proportion of patients attending an A&E department can be managed at least as well if not better by other services/ staff. Data from the Royal College of Emergency Medicine Sentinel Sites study published in 2014 shows that more than a third of attendances could be managed without input from an EM doctor.

Moreover A&E has become ‘Anything and Everything’ in the out of hours period, a function it is not resourced to deliver. The lack of other services for urgent care needs leads to clinically improbable spikes in attendances at weekends and bank holidays.

450 registrars were lost to the system as they chose other specialties or emigrated. Although recruitment and retention in 2015 reached a five year high the permanent loss of these senior trainees will be felt for many years.

Workload has therefore increased by a volume equivalent to 10 A&E departments yet the senior workforce has seen an attrition rate equivalent to 15 A&E departments. The cumulative shortfall is the resource equivalent of 25 A&E departments.

These staff shortages are accentuated by the variability in patient attendances per hour. Surges in demand can occur rapidly throughout the day or week and effectively exacerbate acute staff shortages. Such surges lead to queue formation and diminished efficiencies. As such even if departments are staffed for average attendance numbers it is frequently the case that they are substantially understaffed for much of the time.

The following graphic highlights this phenomenon and the consequent increase in A&E dispositions by NHS 111 to A&E at weekends.

Exit Block Over the last 5 years the number of beds available for admission of acutely ill and injured patients has fallen.

Establishing an A&E hub model of service provision would ensure that many of the additional weekend attenders were seen by more appropriate services further decongesting the emergency department.

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an ‘appropriate bed’. In turn this leads to greater lengths of stay, reducing the available bed stock and perniciously increasing the frequency and severity of exit block.

Conclusions The preceding data, analysis and opinion describe the pressures and constraints that are non-seasonal.

The winter period is atypical in that although overall ED attendances per day are lower in winter than summer, the reverse is true of admissions. Whilst most diagnostic categories have seen a steady rise in admissions over the past few years there is a very clear seasonal variation in respiratory admissions, which almost double in December and January.

We now have the lowest number of beds per capita in Europe and England has the lowest number within the UK.

Set in the context of more patients, more admissions, fewer senior medical staff and fewer acute beds it is hardly surprising that performance against the 4 hr standard has fallen. Indeed it is perhaps more surprising it has not fallen further. The seasonal demand of winter merely highlights the lack of surge capacity endemic within understaffed and under-resourced departments. and the aforementioned bed pressures. Delayed transfers of care exacerbate these bed pressures.

Data shows that admissions are likely to continue to rise by more than 50,000 patients per year. It is beyond dispute that our hospitals will need greater acute bed capacity and more senior decision makers within the emergency department and A&E hub.

Planning must address the need to cope with rising numbers of attendances by the frail elderly – with complex interactions between health and social care and long term co-morbidities rather than focussing on reducing attendances by other groups – which are already amongst the lowest per capita in Western Europe. Correct funding of emergency care, fairness of contracts to promote a sustainable career in emergency medicine and the creation of A&E hubs to decongest emergency departments will underpin a successful strategy that is patient centred, affordable, efficient and effective. ■

The winter has seen familiar headlines about performance but plotting the data makes a compelling statement.

Not only has the four hour standard performance declined but the rise in 12 hour trolley waits has increased by 200% in the last 3 years.

References 1, Type 1 – A consultant led, 24-hour service with full resuscitation facilities and designated accommodation for the re caption of emergency department patients.

These trends provide both cause and effect with respect to A&E department capacity. Reduced flow through the emergency department impedes the accommodation of new attendances. In turn there is a consequent deterioration in ambulance off-load times.

2, The Times Friday August 12 2016 ‘NHS crisis deepens as bed blocking costs £6bn’ 3, A&E performance June: https://www.england.nhs.uk/statistics/statistical-workareas/ae-waiting-times-and-activity/statistical-work-areasae-waiting-times-and-activityae-attendances-and-emer gency-admissions-2016-17/

Exit block is proven to be associated with both significant morbidity and mortality. The latter has been estimated at 1000 patients per year in the UK.

DTOC: https://www.england.nhs.uk/statistics/statisticalwork-areas/delayed-transfers-of-care/2016-17-data/ NHS 111: https://www.england.nhs.uk/statistics/statisticalwork-areas/nhs-111-minimum-data-set/nhs-111minimum-data-set-2016-17/

Paradoxically exit block is associated with a greater number of patients admitted to ‘any bed’ rather than EXPERT WITNESS JOURNAL

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