PSYCHOLOGY- RICS - FINANCE by ExpertWitness

ISSN 2397-2769

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

PSYCHOLOGY- RICS - FINANCE Vol 1 Issue 25 - Autumn 2018 - £5.00 €6.00

ISSN 2397-2769

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

Welcome to the Expert Witness Journal

PSYCHOLOGY- RICS - FINANCE Vol 1 Issue 25 - Autumn 2018 - £5.00 €6.00

Hello and welcome to the 25th edition of the Expert Witness Journal. Inside this issue we have a mixture of articles, featuring an informative article by Carl Islam and Dr Hugh Series exploring the practical interface between the advocate and the expert, a great article from Dr Bashir Qureshi on the misunderstanding of cultural gestures and an interesting piece from Giles Eyre and Dr Linda Monaci entitled ‘MCA, Borderline Cases and the Impact of Dunhill v Burgin’ You will also notice that we have included a special London/South-West supplement inside this issue. While this is aimed at informing and promoting our London/ South-West based experts, there are many interesting articles within the supplement. Our next issue will feature a wide range of topics including, Fire Investigation, Forensic Accountancy and Money Laundering, along with our usual general related articles. We will also be producing a ‘Northern Supplement’, promoting our Northern England experts. If you would like to submit or comment on any articles, please contact myself at the email below. Many thanks for your continued support.

Chris Connelly 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’. All rights reserved, material in this publication may not be reproduced without written consent. Editorial material and opinions expressed in The Exper t 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. 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. The information in this magazine does not constitute a legal standpoint. Printed in Great Britain 2018. Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

EXPERT WITNESS JOURNAL

AUTUMN 2018

Bitcoin Enthusiasts Store Crytpocurrency Passwords in their DNA by Anthony Spadafora Keeping your bitcoin and private keys safe has been a struggle for many in the world of cryptocurrency but a new startup called Carverr is looking to change that by storing users' private keys in DNA.

"DNA is the only thing that won't become obsolete. So the way I look at it, this is a trust or 401(k) that you can allocate some of your assets to and keep for a very, very long period of time."

For some time now, scientists have been experimenting with DNA as a way to store data and they have gone so far as to store a music video and other files inside human DNA. Carverr's CEO and co-founder Vishaal Bhuyan is now taking this same process and applying it to the world of cryptocurrency.

While hard drives can become corrupted or break over long periods of time, DNA can safely store data for years which is why even Microsoft is exploring building its own DNA storage system. Carverr's business plan may seem a bit odd to those outside of the loop when it comes to cryptocurrency but storing data inside DNA will likely play a huge role in the future of cybersecurity.

So far 28 customers have signed up and paid a $1,000 fee to have their personal keys stored in DNA. While the price may seem high for those just dabbling in Bitcoin, serious investors are always looking for new ways to protect their cryptocurrency assets and DNA provides an added layer of security that goes beyond hardware wallets.

Many thanks to Anthony Spadafora and DĂŠsirĂŠ Athow at ITProPortal & TechRadar Pro Future, 1-10 Praed Mews, Paddington, London, W2 1QY www.futureplc.com

Bhuyan explained to CNET why DNA is the perfect way for users to securely store their private keys, saying:

EXPERT WITNESS JOURNAL

AUTUMN 2018

Contents

Some of the highlights of this issue News and Events

page 4

The Dream Star by Dr Thomas Walford

page 6

All Experts Must Comply with the Admissibility Test by Mark Solon

page 8

The Advocate and the Expert in the Court of Protection by Carl Islam and Dr Hugh Series

page 10

Expert Witness or Advocate? The Perils of Blurring the Boundaries by Gavin Stuart

page 33

Ten Cultural Gestures Which can be Misunderstood in Courts Worldwide by Dr Bashir Qureshi

page 35

Court of Appeal Overturns Decision Granting Very Broad Non-party Access to Court Documents by Rachel Lidgate

page 38

MCA, Borderline Cases and the Impact of Dunhill v Burgin by Giles Eyre and Dr Linda Monaci

page 44

A day in the life of an Expert Witness by Hugh Koch

page 48

The NHS Winter Examined by Gordon Miles FRCEM (Hon) MBA and Dr Simon Howes

page 51

The Role of an Expert Witness: More Than Just a Report by Bush & Company

page 57

Defending Clinical Negligence Claims Made Against GPs by Dr Claire Wratten

page 67

Hand Surgery and Professional Negligence by Professor David Warwick

page 69

A Mediator Should always be an Expert in the Subject Matter in Dispute by Martin Burns

page 71

The MD of Inspire MediLaw Talks About Expert Witness Training

page 77

Professor J. Peter A. Lodge

MD FRCS FEBS

Recognised internationally as an expert in surgery for disorders relating to the gallbladder, liver 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 look at my website www.peterlodge.com for more information but inquire by email: peter.lodge@nhs.net Telephone: PA +44 (0) 113 2185944 - Fax: +44 (0) 113 2185987 Address: Spire Leeds Hospital, Jackson Avenue, Leeds LS8 1NT EXPERT WITNESS JOURNAL

AUTUMN 2018

Events working in collaboration with the GMCs. Clinical Negligence Conference 1 October 2018 The Principal Edinburgh Charlotte Square 38 Charlotte Square, Edinburgh, EH2 4HQ

Inspire MediLaw Inspire MediLaw’s medico-legal conferences cover a whole range of medical and legal issues relating to clinical negligence. Our Medico-Legal conferences focus on providing medical knowledge for legal professionals with presentations by leading medical experts, lively discussion and debate and the latest case studies. With an interesting balance between medical and legal speakers our APIL CPD accredited conferences will be of interest to both claimant and defendant practitioners.

Negligence in Gynaecology & Obstetrics Conference 5 November 2018 The Principal Manchester Expert Witness Training for Medical Professionals 14 November 2018 De Vere Oxford Thames Hotel

The Expert Witness Training for Medical Professionals. Our training is delivered from three perspectives:Successful Medical Expert Witness Practicalities of setting up a medico-legal practice, understanding your duties as an expert, the roles of various players, the law relating to clinical negligence, what to expect from instructing parties, preparing, structuring and writing medical reports, identifying the issues that need to by addressed by your report, review of sample good and bad reports, the business of being an medical expert – terms of engagement, how to get paid, developing your practice and winning instructions.

Annual Medico-Legal Expert Witness Conference & Networking Event 4 December 2018 St Anne’s College, Oxford Inspire MediLaw, Merchant House 5 East St, Helen’s Street, Abingdon, OX14 5EG Phone: 01235 426870 Email: info@inspiremedilaw.co.uk Website: www.inspiremedilaw.co.uk

Experienced Medical Negligence Lawyer Addressing the legal issues – breach of duty, causation, condition, prognosis, medical advice and consent, conflicts. Working with your lawyer, understanding the language lawyers use, the claims process, conferences, joint statements, discussion of expert, CPR (Civil procedure Rules) Part 35

The EWI Annual Conference Experts under the Judicial Microscope: cases, commentary and criticisms Join us at the Expert Witness Institute Annual Conference at Church House as we will welcome expert witnesses, solicitors, barristers and eminent judges with a programme filled with informative legal updates, vibrant debate and case law analysis. This is an unmissable opportunity to network with fellow experts and the legal community to strengthen your role in the legal sphere and increase your earning potential.

Leading QC (medically qualified) specialising in Medical Negligence Rules on Witness Training, Before Court, Hot Tubbing, giving evidence, reports, cross examination, re-examination, points to consider in giving your evidence, role play – examination in chief, cross examination and re-examination, what happens when it goes wrong.

Venue: Church House Conference Centre Dean's Yard, London SW1P 3NZ Email: events@ewi.org.uk Call: 020 7936 2213 Start Date 27/09/2018 09:00 End Date 27/09/2018 21:00 Website: www.ewi.org.uk

Giving you all the knowledge you need to run a successful medico-legal practice. Why book Expert Witness Training with Inspire MediLaw? In addition to the two days training the cost covers:Unlimited support/mentorship for 12 months following the training the Inspire MediLaw Legal team.

RICS RICS Dilapidations Forum Annual Conference 2018 Firmly established as the UK’s leading dilapidations event, The RICS Dilapidations Forum Annual Conference returns in 2018 to provide critical updates for practising building surveyors, valuers and legal experts.

Marketing to our vast network of clinical negligence and personal injury lawyers. Admin support to get your CV, T&Cs and Reports in a format lawyers like to see.

Chaired by Paul Spaven of TFT, this event will provide a one-stop shop for all your essential legal, technical and valuation guidance.

Invitation to join our Medico-Legal chambers. CPD accredited (7 hours per day) training that is recognised by law firms.

This year’s breakout sessions once again offer delegates the chance to tailor their agenda to best suit their specific areas of interest, with a choice of content focussed on mechanical and electrical installations and dilapidations valuations. Plus enjoy the post-event Drinks Reception where you can

Excellent course material with a wealth of information to refer to following the training. Inspire MediLaw is delighted to announce that we will be EXPERT WITNESS JOURNAL

AUTUMN 2018

Join 400+ attendees to receive the very latest updates and ensure you remain at the forefront of this complex area of practice.

Venue Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP Speaker, Simon Randle and Lynden Alexander

Thu 27 Sep 2018 Time: 08:30 AM - 05:20 PM Venue: Victoria Park Plaza Hotel, 239 Vauxhall Bridge Road, London, SW1V 1EQ

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

Phone: +44 (0)24 7686 8555 UK Training enquiries: +44 (0)24 7686 8584 Email: contactrics@rics.org

Bond Solon Expert Witness - Annual Conference Friday 09 November 2018 At The Church House Conference Centre, Westminster, London, SW1P 3NZ

Professional Solutions 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.

Now in its 24th year, the Annual Bond Solon Expert Witness Conference is the largest annual gathering of expert witnesses in the UK. Keynote address: The Rt Hon Lord Justice McFarlane, Lord Justice of Appeal Topics include: Artificial Intelligence in the courtroom Data and the expert – risks and responsibilities Annual legal update A judge’s perspective on experts’ reports Working with solicitors and working with counsel Specialist sessions for Medico-legal, Criminal, Commercial and Family expert witnesses

Writing Evidence in Planning Appeals 03 October 2018 Venue Chartered Institute of Arbitrators 12 Bloomsbury Square, London WC1A 2LP Speaker, Lynden Alexander

To secure your place, either book online or call us on 020 7549 2549. or visit; www.bondsolon.com/expert-witness/conference.aspx

Giving Evidence in Public Inquiries 08 & 09 October 2018

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk Mr Paul Partington

MR SAMEER SINGH

Consultant Orthopaedic Surgeon

MB BS FRCS FRCS (T&O)

MBBS, BSc, FRCS (Trauma and Orthopaedics)

Provision of timely, detailed medico-legal reports in trauma, and clinical negligence for both claimant and defendant. Specialist interest and expertise in joint replacement complications and metal on metal claims. I have particular interest in hip and knee joint replacement and revision (re-do joint replacement) surgery, knee and hip arthroscopy and arthroscopic hip impingement surgery.

Specialist interests – All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders, Whiplash Injuries Medical Reporting Personal injury and Medical Negligence Expert

I organise Royal College of Surgeons Hip and Knee Replacement courses, and have taught recently in the UK, Germany, Ireland and Italy on the subject of joint replacement. I am currently an examiner for the FRCS (Trauma and Orthopaedics) examination. Current member of the British Hip Society.

Clinic locations in

Expert, Association of Personal Injury Lawyers. Consultations Newcastle, Washington, Morpeth and by arrangement nationwide.

The Manor Hospital, Church End, Biddenhamm Bedford MK40 4AW The Saxon Clinic, Chadwick Drive, Saxon Street Milton Keynes, Buckinghamshire MK6 5LR

Contact: Mr. Paul Partington Tel: 07541 878 329 Email: paulpartington@me.com

Tel: 01908 305127 Mob: 07968 013803 Email: orthopaedicexpert@gmail.com Web: www.orthopaedicexpertwitness.net 61 Church End, Biddenham, Bedford MK40 4AS

EXPERT WITNESS JOURNAL

Web: www.pfpartington.co.uk Address: Dilston House, Corbridge, Northumberland NE45 5RH

AUTUMN 2018

The Dream Star This case, heard in the Singapore High Court, concerns the collision of two bulk carriers in Singapore waters on 16 May 2014. The plaintiffs owned the Meghna Princess (‘MP’), a single screw bulk carrier built in 1995 and laden with 46k metric tons of cement clinker from Vietnam, destined for Bangladesh. The ship owned by the defendants, the Dream Star (‘DS‘), was younger, larger, and carrying 78k metric tons of coal. Both ships had fully functioning navigational equipment and the weather and visibility was good. A VHF (‘Very High Frequency’) conversation took place between the vessels at 12.25 pm – the MP requested the DS to slow down, to allow the DS to pass to astern as the MP accelerated to join the lane of the Singapore Strait Traffic Separation Scheme (TSS). The MP then changed her mind and communicated that she was reducing speed, asking DS to speed up so that she could pass the bow of MP- a course of action agreed to by DS. The collision took place within minutes.

not kept a proper lookout and her automatic radar plotting aid was not being used to find or track DS. She initiated VHF communication, giving contradictory instructions to DS which increased the risk of collision. It would have been preferable to follow COLREGS and rely on good navigation and reliable seamanship throughout. Although the primary fault lay with MP, DS contributed to the risk of collision by also failing to keep a proper lookout and not being responsive to the developing close quarters situation.

The art of communication is the language of leadership.” James Humes

Both sides had called expert witnesses and the Judge commented that the navigational situations were both within the competence of the experts, but ‘How the experts conducted themselves in the witness box is an entirely different matter’.

The plaintiffs alleged that the DS struck the MP whereas MP maintained that both vessels collided into each other. Either way, both sides alleged multiple breaches of the COLREGS (‘International Regulations for Preventing Collisions at Sea’). There was a dispute on whether the ‘crossing rule’ or ‘overtaking rule’ applied, and therefore which vessel was the ‘give-way’ vessel. This affects the apportionment of liability between the parties, and the degree to which each vessel was at fault in causing the collision. There was no allegation, by either side, that the weather, wind and tidal conditions at and before the collision affected the navigation of either vessel.

The particular circumstances of this case involved one of the expert witnesses having also acted as the marine casualty investigating officer to determine the facts of the collision. Whilst this does not in itself matter (so long as the expert’s previous role is disclosed), the two roles are distinct. If he is called on to testify as investigating officer he is treated as a witness of fact. Having been called as expert witness, it was patently wrong of him to refer to what the crew had told him in his earlier role as if it were fact, in his testimony as expert witness. He had blurred his two separate roles and made use of hearsay information as a factual base for an expert opinion. Further, he denied that the VHF conversation had taken place, even though they were played twice in court and the transcripts read to him.

The trial was on the issue of liability alone and was held before Mrs Justice Belinda Ang Saw Ean. She noted to the court that neither case had been presented well and that there was ‘evidential deficiency’. She observed that with both vessels being of different size and weight, and with one entering and one leaving port, the court would have found it helpful to have had information on the manoeuvrability of each vessel. This would include stopping distances and turning characteristics at different speeds with regard to each vessels’ load. No evidence of this kind was brought before the court.

The Judge emphasised the duties and responsibilities of the expert witness:Expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation; An expert’s opinion must be objective and unbiased. He should neither attempt nor be seen to be an advocate of or for a party’s cause; and

After much deliberation, it was held that the liability between the parties would be 70:30 in favour of the defendant DS, as the MP was more to blame. She had

EXPERT WITNESS JOURNAL

AUTUMN 2018

An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinion.

Professor Robert Woodwards Consultant Oral & Maxillofacial Surgeon

Above all, the independence and impartiality of an expert witness are paramount as [their] duty is to assist the court to come to a decision, irrespective of who instructed or called them to testify as the expert. Link: The ‘Dream Star’ [2017] SGHC 220

BDS, FDS. RCS., MB. BCh., FRCS, MD, CAA Aviation Medical Examiner

Professor Robert Woodwards is a Consultant Oral & Maxillofacial Surgeon based in Lancashire. He has over 23 years experience in the (then) North Manchester Healthcare NHS Trust. Starting with the specific responsibility of establishing a surgical oncology service for patients with oro-facial and salivary malignancy. From a relatively small base in 1994, this area of clinical activity has developed substantially and had allowed him to gain extensive experience in the management of patients suffering from head and neck malignant disease.

Expert Evidence Limited prides itself on assisting throughout the legal process where required and is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

Secondary to this, Professor Woodwards has developed a specialised service for the management of surgical dermatological problems and has considerable experience in the treatment of skin cancers, particularly around the head and neck. The maxillofacial service provides treatment for the full range of oral and maxillofacial conditions, including the surgical removal of buried, retained and impacted teeth, surgical management of periapical disease, the placement of dental implants for the retention of dental and oro-facial prostheses and the treatment of trauma and malignant disease. Professor Woodwards is regularly engaged in the treatment of the full range of these injuries, from fractured teeth to complex multiple fractures of the skull and facial bones, together with the concomitant injuries to the facial soft tissues.

Copyright of Expert Evidence 2018 This and other useful articles on instructing and acting as an expert witness are available from: http://expert-evidence.com/expert-witness/. Relevant legal cases can also be found on http://expert-evidence.com/resources/.

He has undertaken training as a medico-legal expert with Bond Solon in conjunction with the Faculty of Law of the University of Wales. He has also undertaken the required training and qualified as a CAA Aviation Medical Examiner. Contact Name: Yvette Mclean (PA to Professor Woodwards) Tel: 01706 517142 Mobile: 07902 084169 Email: bob_woodwards@hotmail.co.uk The Highfield Hospital, Manchester Road, Rochdale, Lancashire OL11 4LZ Area of Work: North West England & Nationwide

Dr Thomas Walford Expert Evidence Limited Expert Evidence International Limited 36 Old Park Avenue London SW12 8RH Tel: +44 20 7884 1000 Mob: +44 7769 707020 www: expert-evidence.com

Jack Ross Chartered Accountants have a long standing involvement within the legal profession and understand its terminology, complexities and pressures. Our approach to all of our clients, irrespective of size, is to deliver a tailored service on a personal level by ascertaining our client’s individual needs and striving to meet their expectations. We provide specialist professional services in all aspects of accounting, taxation and business advice to legal practices. This includes sole practitioners, traditional partnerships, LLPs or limited companies, and prides ourselves on our approach ability and high level of personal service. Jack Ross Chartered Accountants Phone: 0161 832 4451 Fax: 0161 832 5316 Email: info@jackross.co.uk Website: www.jackross.co.uk - www.barrister.expert Address: Barnfield House, The Approach, Manchester M3 7BX

EXPERT WITNESS JOURNAL

AUTUMN 2018

All Experts Must Comply with the Admissibility Test Even the most eminent expert must comply with the admissibility rules, says Mark Solon. The Judgment of DJ Zani handed down in Westminster Magistrates’ Court on 13/04/18 in extradition case of Bucharest Appeal Court, Romania v. Alexander Adamescu provides some interesting insight into what is allowed as expert evidence.

to furnish the court with … information which is likely to be outside the experience of a judge and jury.’ (ii) Relevant Experience: “The individual claiming expertise must be an expert in the relevant field. This was described in the South Australian case of Bonython as a requirement that the individual ‘has acquired by study or experience sufficient knowledge of the subject to render his (or her) opinion of value’, a description which has found favour in England and Wales. Against those points, however, it should be noted that the threshold cannot (we suggest) be any lower than a requirement of proof on the balance of probabilities: secondly, that amateurs are not qualified to give some types of expert evidence, and thirdly, that explicit guidelines for determining expertise are now being formulated for certain scientific fields”.

Part of the evidence in the case was “expert evidence” from Lord Carlile. This was entitled An Expert Report in relation to UK Extradition Proceedings, by SC Strategy Ltd. This company is an international strategic consultancy founded in 2012 by Sir John Scarlett KCMG OBE and Lord Carlile of Berriew CBE QC. Sir John, as a former Head of MI6, should know a thing or two about international affairs and Lord Carlile, as a leading expert on issues of fraud and corruption ostensibly formed the expert dream team. Their first report considered events relating to a conspiracy against The TNG Group and its officers who were actors in the case. The second report accompanied various statements from anonymous witnesses. Sir John would clearly know about the need for anonymity and the report explained the reasons these witnesses required anonymity and the personal risks they faced if they lost anonymity.

The Report continues “A recent judicial comment suggests, moreover, that the threshold for demonstrating expertise is quite low (see (Doughty v Ely Magistrates Court (2008) EWHC (Admin) at paragraph 24 … ‘whether the claimant is a good expert or not is neither here nor there. The quality of his report is neither here nor there… These matters are not a sufficient basis for having ruled the claimant to be simply not competent to give expert evidence at all”.

Despite all of this, the reports from SC Strategy were held inadmissible as incapable of satisfying the test for admissibility in Bonython, and insofar as it was based on anonymous sources was in conflict with B & ors v. Westminster Magistrates’ Court [2015] AC 1195.

(iii) Impartiality: The expert must be able to provide impartial, objective evidence on matters within his or her field of expertise.

The main lesson from the case for all instructing solicitors is that however eminent and learned the experts they use, the experts must still comply with the basic rules around expert evidence.

(iv) Evidentiary Reliability: The expert’s opinion must in other respects satisfy a threshold of acceptable reliability.

The Basics Let’s look at some of those rules. It is an established legal principle that the hearsay provisions of the Criminal Justice Act 2003 do not apply in extradition proceedings (see, Friesel v USA (2009) EWHC 1659 (Admin). It has also been established that extradition proceedings are to be treated as criminal proceedings (see R v Governor of Brixton Prison ex parte Levin (1997) UKHL AC 741.) The Report released by the Law Commission on 21 March 2011 is an important document that deals with Expert Evidence and needs to be considered. This Report helpfully sets out a number of relevant factors to be taken into account:

DJ Zani said: “The relationship between the limbs (i) to (iv) above was set out at point 2.17of the Law Commission Report. Once the Turner test regarding its probative value has been resolved, the purpose of the other 3 limbs is said to be “to ensure that such expert evidence is admitted in criminal proceedings only when it satisfies a minimum threshold of general reliability, what might be called ‘reliability in the round’.” The authors of the Law Commission Report recommended that primary legislation should provide that expert evidence in criminal proceedings should only be admitted if; (1) the ‘Turner test’ is satisfied and (2) it is proved on the balance of probabilities that the

The Current Law Admissibility Test (i) Assistance: In accordance with the leading case of R v Turner (1975) QB 834, an expert’s opinion … ‘is admissible EXPERT WITNESS JOURNAL

AUTUMN 2018

individual claiming expertise is qualified to give such evidence.

Mr Simon Fulford MBBS, FRCS (Eng), FRCS (Urol)

Furthermore, Part 19 of the Criminal Procedure Rules was amended (as from October 2015) to include a new rule about an expert’s duty to the court. It confirmed that an expert must help the court to achieve the overriding objective by giving opinion which is (i) objective and unbiased, and (ii) within the expert’s area or areas of expertise.

Consultant Urologist I have been Consultant Urological Surgeon at James Cook University Hospital, Middlesbrough since 2001. I am also Consultant Urologist to the regional spinal injuries unit based at James Cook University Hospital which provides acute and long term care to patients with spinal cord injury from the whole of the North of England. In addition I have a private and medico legal practice based at Woodlands Hospital, Darlington.

The judge found that the SC Strategy reports and Lord Carliles’ oral evidence did not satisfy the admissibility test for a number of reasons including that Lord Carlile was not an expert in Romanian politics, he had little first-hand knowledge of the factual matters in the report, he referred to sources of expert opinion on matters he was not an expert in and the sources of much of the material were anonymous. The “expert evidence” didn’t help poor Mr Adamescu who was extradited. So make sure that the admissibility test is satisfied before calling an expert.

Within my clinical practice I specialise in neuro-urology (including spinal cord injury), urodynamics and reconstructive surgery for incontinence and bladder dysfunction. I regularly teach on national courses about these topics. I also regularly perform radical cystectomy for bladder cancer and pelvic exenteration for advanced gynaecological and colorectal cancer. I also maintain a general urology practice. I have been preparing expert witness reports since shortly after appointment and have attended training courses in medico legal report writing. I have appeared in court as an expert witness. I currently receive four to six instructions per month including medical negligence and criminal cases. I have worked for both claimant and defendant and have acted as a single joint expert.

Mark Solon, Chairman, Wilmington Legal and Founder, Bond Solon

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

E: mark.solon@bondsolon.con W. www.bondsolon.com

Mrs Robyn J S Webber

Mr Roger Helm Consultant Orthopaedic Surgeon

Consultant Urological Surgeon

MB, ChB, FRCS (Eng), FRCS (Edin( (Orth) CertMR Parts 1 and 2

MD, FRCSEd (Urol)

Consultant Orthopaedic Surgeon at Doncaster Royal Infirmary since 1991. General Orthopaedic/trauma practice with a special interest in hand and upper limb surgery. Royal College specialty tutor for 10 years. Over 30 research papers published in international journals.

Consultant Urologist based in Fife, Scotland. My medicolegal areas of interests are; personal injury, pelvic and genitourinary trauma, clinical negligence in all aspects of urological surgery, including delayed diagnosis and complications related to implanted surgical materials.

Over 20 years experience in Personal Injury and Clinical Negligence medico-legal work including report preparation (several hundred yearly), conferences and Court appearances and lecturing. Approximately 80% instructed by Claimant and 20% by Defendant. Contact: Monika Stenton Email: RogerHelm@aol.com Address: Park Hill Hospital, Thorne Road Doncaster DN2 5TH Alternate Address: (Non-Correspondence): 6 Bendall Mews, London NW1 6SN Tel: 01302 865131 Fax: 01302 864205 Mob: 07796 958255

EXPERT WITNESS JOURNAL

Mrs Robyn Webber P O Box 29237, Dunfermline KY12 2DZ. Tel: 07915 423924 Email: medicalreport@btinternet.com Web: www.robynwebber.co.uk

AUTUMN 2018

The Advocate and the Expert in the Court of Protection by Carl Islam, Barrister TEP, 1 Essex Court (www.ihtbar.com) and Dr Hugh Series DM, FRCPsych, LLM, MB, BS, MA. Consultant old age psychiatrist, Oxford Health NHS Foundation Trust; Member, Faculty of Law, University of Oxford; Member, First tier tribunal (mental health) (www.hughseries.co.uk). Table of contents Introduction The Court of Protection The MCA Jurisdiction Remedies Case-management powers

10 11 11 11 11 11

Fundamental Concepts Legal test of capacity Best interests Proceedings Burden and standard of proof Inquisitorial method Zone of influence Human rights

12 12 13 14 14 14 15 16

Expert Evidence Relevance Permission Restriction Duty

17 17 17 17 17

18 18

The Expert Tips for experts

18 21

Advocacy Manner Rapport Communication Opening submissions Examination-in-chief Cross-examination 10 cardinal rules Re-examination The closing speech

22 22 22 23 24 25 26 28 28 28

Deprivation of Liberty Sagefuards

Mediation

Bibliography

in supported living arrangements or hostels, the application for authorisation must be made directly to the COP. In 2017 there were 3,955 DOL applications to the court, a rise of 27% compared to 2016. As applications for authorisation should be made for everyone who lacks capacity and is deprived of liberty, and as this will include many people with dementia or intellectual disability, these figures, although large, are likely to be substantially less than the number that should be made. A largely unexplored question relates to the position of those who are in fact deprived of liberty but for whom no application has been made.

Introduction The aim of this article is to explore the practical interface between the advocate and the expert in proceedings before the Court of Protection (‘COP’), and is written for both lawyers and experts. Unless otherwise stated, all statutory references are to the Mental Capacity Act 2005 (‘MCA’), and the person over whom the court has jurisdiction is referred to as ‘P’. The COP has the power to make declarations and decisions on behalf of a person who lacks capacity. One area of the court’s work which is growing very rapidly is deprivation of liberty (DOL), discussed further below. People lacking capacity who are deprived of liberty in hospitals or care homes must have that deprivation authorised by the local authority. The number of applications for DOLS has been growing very fast year on year since the DOLS were introduced in 2009, and for the year 2015–16 there were 195,840 applications. Appeals against a DOLS authorisation may be made to the COP under section 21A MCA. In relation to people deprived of their liberty outside hospitals or care homes, for example

EXPERT WITNESS JOURNAL

Reliance Weight

At the apex of the MCA pyramid, Section 1 sets out a decision-making framework consisting of five ‘overriding principles’ as follows: (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 10

AUTUMN 2018

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

ers and duties to provide public services. Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA. The Supreme Court Press Summary in N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Remedies MCA section 15 provides that: (1) The court may make declarations as to— (a) whether a person has or lacks capacity to make a decision specified in the declaration;

Therefore the analytical starting point is that: • capacity is ultimately a question of fact for the court to decide on the balance of probabilities with a presumption of capacity;

(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; [and]

• an adult is presumed to have the mental capacity to make a particular decision, until the contrary is proved, Section 1(2) (the rebuttable Statutory Presumption);

• in arriving at a determination the judge must answer the question, what is in the best interests of P?;

A declaration involves the court declaring the law or a person’s rights or interests in relation to a particular matter, historically without reference to enforcement. It registers what exists and declares what it finds.

• expert evidence is only opinion; and • the judge is free to reject expert opinion. The Court of Protection The COP is a superior court of record which derives its jurisdiction from the MCA Part 2. The court has its own procedure, the Court of Protection Rules 2017 (as supplemented by Practice Directions) (the ‘Rules’), and enjoys the same powers, rights, privileges and authority as the High Court (including the power to grant injunctions). In addition to the Rules there is a Code of Practice to the MCA (the ‘Code’), which experts must have regard to when providing assistance to the court.

With one exception judicial review is the only proper remedy to challenge unreasonable or irrational decisions made by care providers and other public authorities, including an alleged breach of statutory duty by a local authority under the Care Act 2014 (‘CA 2014’). Exceptionally, where a public authority has acted in breach of convention rights by refusing to fund a particular form of care, that can be raised in the COP by way of a formal application under Section 7 of the Human Rights Act 1998, which is rare. Under s. 17 MCA, the court is empowered to make decisions (or appoint deputies to make such decisions) on matters including: (a) deciding where P is to live; (b) deciding what contact, if any, P is to have with any specified persons; (c) making an order prohibiting a named person from having contact with P; (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; [and] (e) giving a direction that a person responsible for P's health care allow a different person to take over that responsibility. Case-management powers The court’s case management powers are contained in Part 3 of the Rules, which need to be read alongside the overriding objective and the duties of the parties contained in Part 1.

The MCA The MCA sets out a comprehensive integrated jurisdiction for the making of personal welfare decisions, health care decisions and financial decisions on behalf of people who lack capacity to make specific decisions for themselves, and is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would if he were of full capacity. Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67. Jurisdiction The MCA focuses on capacity in relation to a specific decision or matter. Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16. There is scope under section 16 for the court to make a decision on P’s behalf, or to appoint a deputy to make such decisions, and the court’s powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons. These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P. The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the ‘available options’. Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powEXPERT WITNESS JOURNAL

s. 3.1 which provides: (1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have. (2) The court may— (a) extend or shorten the time for compliance with any rule, practice direction, or court order or direction (even if an application for extension is made after the time for compliance has expired); 11

AUTUMN 2018

(b) adjourn or bring forward a hearing; (c) require P, a party, a party’s legal representative or litigation friend, or P’s rule 1.2 representative, to attend court;

the new Court of Protection jurisdiction [then] a nominated High Court judge could deal with both matters together … If a case requires transfer in whole or part to the Court of Protection, if a judge is also nominated to sit in the Court of Protection, he can reconstitute himself as a Court of Protection judge and make appropriate orders to bring the case within that court. He may also dispense with the need to make an application. Ashton (2018), paragraphs 8.124 and 1.125.

(d) hold a hearing and receive evidence by telephone or any other method of direct oral communication; (e) stay the whole or part of any proceedings or judgment either generally or until a specified date or event; (f) consolidate proceedings;

Fundamental Concepts Two fundamental concepts underly the scheme and purpose of the MCA: (i) lack of capacity; and (ii) best interests.

(g) hear two or more applications on the same occasion; (h) direct a separate hearing of any issue; (i) decide the order in which issues are to be heard; (j) exclude an issue from consideration;

These are private law issues. Whilst the COP’s powers under s. 16 in relation to P’s personal welfare extend to deciding where P is to live, the COP has no power to decide a public law issue. The relationship between best interests decision making and the public law duties of statutory bodies responsible for meeting community care needs was recently examined in the case of N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22, in which King J emphasised the danger of: blurring of the distinction as between the Court of Protection’s statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide.

(k) dismiss or give judgment on an application after a decision is made on a preliminary basis; (l) direct any party to file and serve an estimate of costs; (m) direct or limit the means of communication to be used by the parties; and (n) take any step or give any direction for the purpose of managing the case and furthering the overriding objective. (3) A judge to whom a matter is allocated may, if the judge considers that the matter is one which ought properly to be dealt with by another judge, transfer the matter to such a judge. (4) Where the court gives directions it may take into account whether or not a party has complied with any rule or practice direction. (5) The court may make any order it considers appropriate even if a party has not sought that order.

Legal test of capacity MCA s. 2 provides: (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(6) A power of the court under these Rules to make an order includes a power to vary or revoke the order. Rules 1.3 to 1.6 concern the duty of the court to further the overriding objective by actively managing cases, and the duty of parties, legal representatives and unrepresented litigants to assist the court in furthering the overriding objective.

(2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to— (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

A party who seeks to rely upon any provision of or right arising under the Human Rights Act 1998 or who seeks a remedy available under that Act must inform the Court in the manner set out in the relevant practice direction specifying the Convention right which it is alleged has been infringed and details of the alleged infringement, and the remedy sought and whether this includes a declaration of incompatibility. The Court may not make a declaration of incompatibility unless 21 days notice, or such other period of notice as the court directs, has been given to the Crown, and a minister or other permitted person will then be joined as a party on filing an application. Ashton (2018), paragraph 8.44.

(5) No power which a person (“D”) may exercise under this Act— (a) in relation to a person who lacks capacity, or (b) where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16.

It should also be noted that a nominated judge may sit in a dual capacity, i.e. in the COP and also the civil or family court. Where for example,

(6)

a local authority has made a decision about the placement of an incapacitated adult, and it may be necessary, if that decision is to be challenged, to proceed both by way of proceedings for judicial review and a best interests claim under EXPERT WITNESS JOURNAL

Subsection (5) is subject to section 18(3).

S. 3 further states: (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— 12

AUTUMN 2018

(a) (b) (c) (d)

to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or to communicate his decision (whether by talking, using sign language or any other means).

that] it is necessary to have regard to the circumstances under which a person with potentially impaired capacity may be seeking to make decisions and, where it is clear that they will be seeking to make decisions in the context of an oppressive social situation from which it is not possible realistically to remove them, it is possible to conclude that they in fact fall with the scope [of the MCA]. Ashton (2018), paragraph 2.61.

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

Best interests MCA s. 1(5) states, ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests,’ and so the advocate must convince the court that the order sought is in P’s best interests.

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

While the Act does not define best interests, paragraph 5.38 of the Code states, In setting out the requirements for working out a person’s “best interests”, section 4 of the Act puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, their wishes and feelings, beliefs and values should be taken fully into account – whether expressed in the past or now. But their wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests. Any such assessment must consider past and current wishes and feelings, beliefs and values alongside all other factors, but the final decision must be based entirely on what is in the person’s best interests.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision. A person will lack capacity if any of the four limbs of s.3(1)(a) to (d) is satisfied. The definition of capacity in MCA 2005 is intended to build on, rather than contradict, the terms of pre-existing common law tests. The Code suggests that, as cases come before the court, judges may adopt the statutory definition if they see fit and use it to develop common law rules in particular cases. In applying the test for capacity set out in Sections 2 to 3 to determine whether an individual has capacity to make a particular decision, the Code advises that a two-stage procedure must be applied: (i) it must be established that there is an impairment of, or disturbance in the functioning of, the person’s mind or brain; and

MCA s. 4 sets out how best interests are to be determined: (1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of— (a) the person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(ii) it must be established that the impairment or disturbance is sufficient to render the person unable to make that particular decision at the relevant time. The ‘causative nexus’ is crucial. Whether the diagnostic aspect is considered before the functional aspect, or afterwards, the determinative question is always whether there is a sufficient causative link between the identified impairment or disturbance and any functional inability to take the decision in question. The true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction. Parker J in NCC v PB and TB [2014] EWCOP 14, [2015] COPLR 118.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

Whilst it is suggested that this is, indeed, the true question, it is easier to state than it is to answer in practice…the answer will then send those concerned down very different routes as regards the relief that might be available from the courts, because it will determine whether they lack capacity or are to be regarded as a vulnerable adult. In seeking to answer this question, it may in due course be that the Court of Protection will find assistance from the decision of the Singaporean Court of Appeal in Re BKR [2015] SGCA 26 [in which the court reached the pragmatic conclusion

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

EXPERT WITNESS JOURNAL

(3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(6) He must consider, so far as is reasonably ascertainable— (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to 13

AUTUMN 2018

(c)

influence his decision if he had capacity, and the other factors that he would be likely to consider if he were able to do so.

COP proceedings are supported and facilitated by three key bodies: • the Official Solicitor to the Senior Courts (who is an independent statutory office holder appointed by the Lord Chancellor to represent parties to proceedings who are without capacity, deceased or unascertained when no other suitable person or agency is able and willing to do so) – frequently appointed as P’s Litigation Friend;

(7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

• the Public Guardian (whose functions include reporting to the court on such matters relating to proceedings as the court requires); and • the Independent Mental Capacity Advocate (‘IMCA’) service (who provide safeguards for people who: (i) lack capacity to make a specified decision at the time it needs to be made; (ii) are facing a decision on a long term move or about serious medical treatment; and (iii) have nobody else who is willing and able to represent them or be consulted in the process of working out their best interests).

(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which— (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

Burden and standard of proof Capacity must be proven on the balance of probabilities (MCA s. 2(4)). In other words, having decided what the facts are, and having applied the law to those facts, the judge must decide whether on balance P is more likely to have capacity, or more likely to lack capacity to do something. As HHJ Paul Matthews recently stated in Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch):

(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. (10) “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

Our system of fact-finding is binary. It is either one thing or the other. There is no room for maybe. As I have said, the standard of proof in a civil case is the balance of probabilities, that is, that a thing is more likely to have happened than not. In mathematical terms, more than 50%. It is not scientific certainty at 100%.

(11) “Relevant circumstances” are those— (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.’

Whether or not the burden of proof has been discharged depends upon the weight and value that the judge attaches to the various strands of evidence. This involves weighing up the credibility or reliability of the evidence, and ultimately comes down to deciding which version of the relevant matters is more likely to be correct. At trial the judge is concerned with the balance of probabilities rather than certainty. Having decided what the facts are, and having applied the law to those facts, a trial judge must decide whether on balance P is more likely to have had capacity, or more likely to have lacked it.

Proceedings Whilst COP judges vary in their approaches, and no doubt High Court judges sitting in the court adopt a different approach to district judges, hearings are usually conducted in a relatively informal fashion. It is a mistake however, to confuse a relaxed atmosphere in court, with a lack of intellectual rigour, because at trial, every fact in dispute needs to be proved by cogent and convincing evidence. In that respect proceedings in the COP are no different to those in any other court: • the customary order of speeches is usually followed;

Inquisitorial method The distinguishing characteristic of the COP is that: the processes of the court…are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests. Mr Justice Baker in Cheshire West v P [2011] COPLR Con. Vol 273 at [52]

• evidence is tested by the advocates (who, when cross-examining a witness, must put their client’s case); and • in closing, the advocate must persuade the court that the burden of proof has been discharged, or otherwise. The outcome is binary. However, the opportunity exists through negotiation/mediation, to craft a mutually satisfactory solution around common agreement about what in principle is in P’s best interests.

EXPERT WITNESS JOURNAL

AUTUMN 2018

In contrast to the adversarial method, which aims to get at the truth by two competing parties arguing their case and the judge arriving at a conclusion in favour of the probability of one version of events in preference to another, the aim of the inquisitorial method, is to get at the truth through extensive investigation and examination of all of the evidence.

general legal rule]…In a modern view, the judge has a certain latitude in interpreting legal rules and in formulating the norm that is to be applied in the specific case. In this view, the judge is no longer considered as the “mouth of the law” who automatically deduces the decision from the general rule, but he establishes the meaning of the legal rule in the context of the specific case. In this conception, legal rules do not have a context-independent meaning, but the judge must decide in the individual case what the exact meaning of the legal rule is. In this decision process judges have a certain discretionary power and they have to account for this discretionary power in their justification. In the justification of their decisions judges must specify the considerations that underlie the choice for a particular interpretation and formulation of the legal rule for the concrete case. Feteris (2017)

This requires a more collaborative approach. In particular, legal representatives are required to help the court to further the overriding objective by amongst other things addressing whether the case can be swiftly resolved. The judge will expect [the advocates] to have all communicated with each other before [they] go into court in order to try and narrow down the issues that the judge has to consider that day… [Advocates] are simply wasting…the court’s time if [they] are not ready when the case is called in simply because no one has spoken to each other… Whatever the issues may be between you and the other parties, be pleasant to each other. Unpleasantness rarely produces positive outcomes for anyone. If you are pleasant and speak in a calm and rational manner you are most likely to engender support from other parties and most importantly the judge. Turning up at court being belligerent by not speaking to the other parties but saying you only want to speak to the judge will not help further your case. Politeness and manners cost nothing but the benefits may be immense…Ultimately remember that the court only wants to have to make decisions about matters which cannot be resolved amicably between the parties. Essentially it is the last resort if the court has to make orders. Attending court early gives you the opportunity to speak to the other advocates and parties in the case to see whether you can resolve what may have been fundamental issues between you…One of the first things a judge will ask all parties when they attend before them will be whether any agreement has been reached on the issues which the judge is being asked to decide. If the judge is told at that stage that none of the parties has spoken to each other prior to coming to court, you must expect the judge to show a level of exasperation. Remember court time is precious…It is equally important to remember that the order the judge may make may actually not make anyone happy. If a compromise can be reached that everybody can live with, that is often so much better as a way forward…If all the issues are agreed before the hearing starts, the judge may endorse a consent order that has been drafted by the parties. Keehan (2016)

Unlike a rule that can be analysed as a conditional statement of the form, if p then q, the legislator has left it to the judge to decide what is in P’s best interests on the facts. To persuade the judge to rule in favour of your client, you must consider the discretionary space in which the judge can move to decide what is in P’s best interests. That is the zone of influence counsel needs to enter and navigate in order to win. Because P’s best interests are paramount, in exploring that space, the court will also seek to ascertain what P’s actual or likely wishes, views, and preferences are. COP PD 1A states: 1. Developments in the case law both of the European Court of Human Rights and domestic courts have highlighted the importance of ensuring that P takes an appropriate part in the proceedings and the court is properly informed about P; and the difficulties of securing this in a way which is proportionate to the issues involved and the nature of the decisions which need to be taken and avoids excessive delay and cost. 2. To this end, rule 1.2 makes provision to— (a) ensure that in every case the question of what is required to ensure that P’s “voice” is properly before the court is addressed; and (b) provide flexibility allowing for a range of different methods to achieve this, with the purpose of ensuring that the court is in a position to make a properly informed decision at all relevant stages of a case.

The advocates should therefore exchange position statements/skeleton arguments (which in part can serve the purpose of opening submissions) sufficiently in advance of the hearing, and arrive at court allowing enough time to engage in a constructive discussion (on instructions) about how issues can be narrowed and agreed before the parties go in and see the judge.

What are the mechanics of judicial fact finding? Most judges adopt the approach of first seeking out agreed facts as an anchor or base from which to build up a picture of what they can safely find is the more likely to have happened when forced to choose between conflicting events. If the likelihood is finely balanced and it is difficult to make a value judgment as to which evidence to prefer, they will rely on the burden of proof to come to a decision. If he who asserts a fact has to prove it, the task of the judge becomes far easier when deciding whether or not the standard of proof required has been met sufficient to discharge respectively the evidential and legal burden.

Zone of influence The zone of influence is the space in which the judge can move to decide what is in P’s best interests. [In] the nineteenth century philosophy of law, in light of Montesquieu’s idea of the separation of powers, the task of the judge was to apply the law as it was formulated by the legislator [i.e. by subsuming the facts of a specific case under a EXPERT WITNESS JOURNAL

AUTUMN 2018

Many judges admit to a fairly strong intuitive approach which develops with experience. They will fit the facts to a gut feeling of whether someone is lying, or of where the justice of the case rests. This can be limited to their analysis of specific material before them rather than the outcome of the whole case. Sometimes they use their intuition at the point where it becomes necessary to stand back and take in the whole picture; or where a key exchange in evidence becomes the centre of gravity of the entire case. Goodman (2018)

Protection—may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person's wholly understandable wish to return home…A fundamental point in this case is the principle articulated by Macur J in LBJ v RYJ (supra) that in evaluating capacity the court must recognise that different individuals may give different weight to different factors. There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis and conclude that the person under review should attach greater weight to the physical security and comfort of a residential home and less importance to the emotional security and comfort that the person derives from being in their own home. I remind myself again of the danger of the "protection imperative" identified by Ryder J in Oldham MBC v GW and PW (supra). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.

As the jurisdiction of the court is essentially inquisitorial, a COP judge will frequently take a very active role in questioning witnesses. The judge must be absolutely satisfied that evidence necessary to decide whether P has or lacks capacity, and where P’s best interests lie is before the court. Once all the witnesses for the applicant have given their evidence, the witnesses for the next party will give their evidence. The court will usually want to hear from any experts who have been called to assist at the end of all the other evidence. This will allow the experts to have (hopefully) heard the evidence given by the other witnesses, and therefore be in a better position to be able to give their final opinions as to the matters upon which they are assisting the court. The normal practice where the Official Solicitor is instructed on behalf of P is that the Official Solicitor’s lawyers will call the expert(s) and take the lead in confirming, for instance, the expertise of the expert. If a person other than the Official Solicitor is acting as the litigation friend (and especially if they are acting without the benefit of legal representation), then the court may well look to the representatives of any public authority involved formally to call the expert. Once all parties have given their evidence, the judge will usually want to hear closing submissions, in other words oral arguments as to what the judge should do or find on the basis of the evidence that is before them. The usual practice is that the judge will want to hear from or on behalf of the litigation friend acting on behalf of P at the very end. Ruck Keene (2014)

The assessment of whether P has capacity, and if not, what is in P’s best interests, are distinct issues and must be approached in a manner that is detached and objective. Advocates and experts must ensure that they specifically address the issue of capacity within the framework of the MCA. An analysis of the s.3 test will always be necessary. [However]…experts must be careful not to set the bar too high, nor to add elements into the test that are unsupported by statute or relevant jurisprudential tests. Medical practitioners assessing capacity would normally seek to take into account all aspects of the personality and behaviour of the person, including vulnerability to exploitation. However, vulnerability to exploitation must not of itself lead to the conclusion that there is a lack of capacity. Hodgkinson and James (2015)

There is a trap door inside the zone of influence through which an unwary advocate may fall, because when looking at P through the eyes of a COP Judge, an advocate must not conflate a capacity assessment with a best interests analysis. As Mr Justice Baker put it in CC V KK and STCC [2012] EWHC 2136 (COP) at [25]: There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC 136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the "child protection imperative", meaning "the need to protect a vulnerable child" that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person—including, of course, a judge in the Court of EXPERT WITNESS JOURNAL

Human rights Skimming the atmosphere of English jurisprudence and the ambit of the COP’s jurisdiction and powers, is Article 5 of the European Convention on Human Rights (‘ECHR’)—the protection of liberty. Detention in a care home or hospital, has been designated as a Convention right for the purposes of the Human Rights Act 1998 (’HRA’). Domestic courts will therefore consider ECHR rights, because an individual who has exhausted domestic remedies has the right to bring a case in Strasbourg. It follows that each branch of government (legislature, executive, and judicial) is responsible for giving effect to Convention rights when exercising public powers. However various concepts apply in the interpretation and application of Convention rights which will not be familiar to lawyers brought up on the common law and statute law: (i) Not only can proceedings be brought against a public authority in relation to Convention rights (the ‘vertical’ effect), but as the courts are public authorities they must apply Convention rights when adjudicating on proceedings between private individuals (the ‘horizontal’ effect). So litigants can 16

AUTUMN 2018

argue their human rights in the courts and these must be respected.

relation to the matter to which the application relates or as to his or her best interests. An applicant may only rely upon such evidence to the extent and for the purposes that the Court allows … In a simple or non-controversial situation a single expert may be allowed or appointed. Where each party instructs their own expert there may be a direction for these experts to communicate with one another and produce a joint statement of issues on which they are agreed and issues on which they disagree, with reasons. There are also provisions for “single joint experts” who will be instructed by the parties jointly. An expert may request directions from the Court to clarify his or her function, and the Court may allow the parties to put written questions to the expert on his or her report. Where a party has disclosed an expert’s report, any party may use this as evidence at any hearing in the proceedings. Ashton (2018), paragraphs 8.87 and 8.89

(ii) To some extent the European Court adopts a hands-off approach to the way that individual countries apply Convention rights, although this ‘margin of appreciation’ has no application to national courts. This reflects the fact that those courts are in a better position to assess the needs and standards of their own society and the national authorities should be deferred to (especially in moral matters and social policy) as long as the whole process is fair and the outcome is true to the convention. (iii) Where a state interferes with a Convention right, the means (‘the limitation’) must be balanced against the end (‘the permitted purpose’) and shown to be necessary. There must be a reasonable relationship between the goal pursued and the means employed. This follows from the fact that any limitation on a convention right must be in accordance with law and ‘necessary in a democratic society’, and has become the principle of ‘proportionality’.

When deciding whether to give permission the court is to have regard in particular to— (i) the issues to which the expert evidence would relate; (ii) the questions which the expert would answer; (iii) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings; (iv) any failure to comply with any direction of the court about expert evidence; and (v) the cost of the expert evidence.

(iv) A ‘principle’ of legality is derived from the use by the ECHR of the phrases ‘in accordance with the law’ and ‘prescribed by the law’ and the use of the word ‘lawful’. It has been stated to mean: (a) the legal basis for any restriction on Convention rights must be identified and established by the domestic law; (b) that law must be accessible and not interpreted according to unpublished criteria; and (c) the law must be clear to those affected by it so that they can understand it, although it may allow some discretion as long as the limits are clear.’ Ashton (2018), paragraph 1.182

Restriction The court has the power to: • restrict expert evidence (Rule 15.5); and • direct that evidence be given by a single joint expert (Rule 15.12). Rule 15.3 provides, (1) Expert evidence shall be restricted to that which is necessary to assist the court to resolve the issues in the proceedings. (2) The court may give permission to file or adduce expert evidence as mentioned in rule 15.2(1) and 15.5(1) only if satisfied that the evidence— (a) is necessary to assist the court to resolve the issues in the proceedings; and (b) cannot otherwise be provided either— (i) by a rule 1.2 representative; or (ii) in a report under section 49 of the Act.

Expert Evidence Relevance The court must ultimately decide whether P has capacity and, if not, what would be in P’s best interests. Whilst an absence of medical evidence must not be a bar to a court finding lack of capacity, but where medical evidence cannot be obtained, the court should be particularly cautious before concluding that there has been a disturbance of the mind. In NHS Trust v DJ [2012] EWHC 3524 (COP) at 81, (a decision reversed by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, but not for misstatement of the law), Mr Justice Peter Jackson emphasised that, where medical matters are concerned, the court must have regard to the unanimous expert advice. In particular, the evidence of the burdens of this kind of treatment must carry heavy weight. Even so, that advice is bound to be based on an assessment of probabilities, and there will be a very small number of cases where the improbable occurs. Moreover, the assessment of best interests of course encompasses factors of all kinds, and not medical factors alone, and reaches into areas where doctors are not experts. Permission No person may file expert evidence unless the Court or a Practice Direction permits, or if it is filed with the permission or application form and is evidence that the incapacitated person is a person who lacks capacity to make a decision in EXPERT WITNESS JOURNAL

Duty An expert owes an overriding duty to the court. Rule 15.4 provides, (1) It is the duty of the expert to help the court on the matters within the expert’s expertise. (2) This duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid. It is the duty of an expert to help the court on matters within the expert’s own expertise. Expert evidence should be the independent product of the expert uninfluenced by the pressures of the proceedings. An expert should assist the court by providing objective, unbiased opinion on matters within the expert’s expertise, and should not assume the role of an advocate. An expert should consider all 17

AUTUMN 2018

material facts, including those which might detract from the expert’s opinion. An expert should make it clear: (i) when a question or issue falls outside his expertise; and

idence about what has taken place and their part in it, while expert witnesses apply their knowledge and expertise of the area to the factual evidence in order to reach an opinion. This general distinction may be blurred in section 49 reports prepared for the COP (see below) because professionals involved in the care of P are also asked to give their opinion on matters before the court.

(ii)when he is not able to reach a definite opinion, for example because the expert has insufficient information.

Weight The duty of the court is to consider the expert evidence in the light of the facts, not in isolation from them, and where a case involves substantial elements of both opinion and factual evidence, the court may accord as much weight to each as it sees fit.

If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court. 8. An expert's report should be addressed to the court and not to the party from whom the expert has received instructions. 9. An expert's report must— (a) give details of the expert's qualifications;

The probative value of an expert opinion depends upon proof of the underlying facts. There is a difference between the facts which form the basis of the expert’s opinion, and his opinion. If the facts which form the basis of the opinion are not proven, then the opinion is essentially worthless.

(b) give details of any literature or other material which the expert has relied on in making the report; (c) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based (or annex the instructions insofar as they are in writing);

It is vital as a preliminary point to remember that: when the opinion of an expert is based upon the report of facts, those facts, unless within the expert’s own knowledge, must be proved independently; an expert may (in an appropriate case) give evidence upon ‘ultimate questions’ going to factual matters, for instance as to the accuracy or truthfulness of a witness, but the final decision remains for the judge; likewise, the ‘ultimate’ questions of whether P had capacity and as to what is in their best interests are matters for the court. Ruck Keene (2018)

(d) make clear which of the facts stated in the report are within the expert's own knowledge; (e) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision; (f) where there is a range of opinion on the matters dealt with in the report— (i) summarise the range of opinion, and (ii) give reasons for the expert’s own opinion; (g) contain a summary of the conclusions reached; (h) if the expert is not able to give his or her opinion without qualification, state the qualification; and (i) contain a statement that the expert understands the expert’s duty to the court, and has complied and will continue to comply with that duty.

As Charles J observed in A County Council v K.D and I [2005] EWHC 144 (Fam), ‘… it is important to remember (i) that the roles of the court and the expert are distinct; and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence … the judge must always remember that he or she is the person who makes the final decision.’ The court must determine capacity on the basis of, ‘all the relevant evidence. Clearly the opinion of an independently instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important.’ PH v A Local Authority and others [2011] EWHC 1704 (Fam), per Baker J.

10. An expert's report must be verified by a statement of truth as well as containing the statements required in paragraph 9(h) and (i) above. 11. The form of the statement of truth is as follows— ‘I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true and that the opinions I have expressed represent my true and complete professional opinion. COP Practice Direction 15 A

A judge may therefore depart from the expert evidence put before him. Where a departure concerns the potential level of risk to the welfare of P it is submitted that the judge should provide appropriately detailed reasons.

Reliance Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at any hearing in the proceedings (Rule 15.9). In COP proceedings the opinions of professionals will be admitted as expert evidence but considered alongside factual evidence from those who know P and will only be persuasive if the expert has been given all relevant information and applied the correct legal test. In general, professional witnesses provide factual evEXPERT WITNESS JOURNAL

The Expert Acting as an expert witness demands a particular set of skills and interests. It is not for everyone, but it is a rewarding and challenging activity. An expert must always remember that his central duty is to assist the court on matters within his expertise. He is unique 18

AUTUMN 2018

amongst witnesses in that he is allowed to offer opinion evidence as opposed to factual evidence. His opinion is only as good as the information on which it is based, and on his own knowledge and experience of the subject.

ence), clearly divided into sections according to the source. Failing this, a partial solution is for the expert to prepare a detailed chronological table as he reads through the source files, transcribing relevant extracts into the table as he reads. Some experts prefer to paraphrase extracts from each source in turn, but that has the disadvantage that it is very difficult for the reader to build up a chronological picture of the sequence of events as they unfolded. A decision has to be made whether to transcribe sources as accurately as possible or to paraphrase. Whichever route is taken, it is important that the reader knows what editorial procedure has been adopted. Given the difficulty of identifying the relevant pages and referring back to the sources, there is much to be said for a transcription so that the court can decide for itself if the record in fact demonstrates what the expert claims it demonstrates. Even then, the expert must decide whether to transcribe exactly (which, because of the terminology, abbreviations, and often rather careless typing or illegible handwriting in many records) may result in something that is nearly incomprehensible to non-medical readers. It may be helpful for the expert to include explanations of terms in square brackets or as footnotes or a glossary.

In offering an opinion to the court, the expert is bound by the court’s own rules and practice directions. The COP has its own rules, and on matters not covered by the COPD rules, the civil procedure rules apply. The COPD rules and practice directions are freely available on the internet and are reproduced in Ashton (2018). Part 35 of the civil procedure rules, also freely available on the internet, deals with expert evidence. An expert must have specific knowledge and experience relevant to the subject matter of the case. It is important for the solicitor preparing to instruct an expert that this is established at the outset. It is embarrassing and unhelpful for an expert to admit under cross examination that he does not in fact have the relevant knowledge and expertise. The COP often orders that an expert be instructed jointly by the parties in the case. One solicitor will usually take the lead in providing instructions, but the letter of instructions should be agreed by all parties. The solicitor’s instructions to the expert must be clear, comprehensive, and precise. The solicitor should summarise the background to the case, the nature of the proceedings, and identify precisely the questions which are being put to the expert. Medical experts are doctors rather than lawyers, and will need to be advised of the relevant legal tests and relevant case law. An excellent model letter of instructions for an appeal under section 21A of MCA is given in Ruck Keene (2018).

It will probably be found that many pages of source material have little bearing on the case and can be skimmed very quickly, while other parts are critical and must be considered very carefully. Once the material has been examined and compiled, the expert can consider it ‘in the round’ in order to reach an opinion. The second key component of the material on which the expert must base his opinion is an examination of P. The interview will need to be arranged in advance in the usual way. The expert will need to introduce himself to P and explain why he is there. He must try to obtain consent from P to conduct the interview and provide a report. This can be problematic if P is cognitively impaired and lacks capacity to consent to the interview. In that situation, the assessor must proceed on the basis of best interests, and it may well be the case that it is in P’s best interests that the assessment should go ahead so that the court can make a proper determination in the case. On occasion, but rarely, P may object strongly or decline to cooperate with the assessment. It is not possible to compel an unwilling person to be assessed, but it may be that it is possible to set up the appointment on another occasion on another day under different conditions, perhaps with someone else present who can support P or give him confidence so that the interview can go ahead.

Having received instructions and confirmed that he has the relevant knowledge and expertise, the expert must consider what evidence is required to form his opinion. There will usually be a need to interview P, and possibly others involved in the case who have knowledge of P, and to review documents. COP cases often involve very large quantities of documents. There will be a court bundle, and there may be medical records (GP and hospital records), social care records (local authority), and care home records. There may be witness statements. It is not at all unusual for there to be 2,000 pages or even considerably more. It is regrettably rare for these to be provided in a paginated form, and records files are often very disorganised. Records are often provided as they are received by the solicitor, over a period of time. These factors make it very difficult for the expert to refer in his report to specific entries in the records. If records are provided electronically, it is easier to refer to a page in an electronic file. This may enable the expert to keep track of the source pages and to refer back to them if necessary, but it is not helpful to others involved in the case unless everyone has access to the same electronic files, which is rarely the case. Very occasionally in this author’s experience, but very welcome, the expert may be sent paginated records (paper or electronic, according to preferEXPERT WITNESS JOURNAL

The expert may wish to interview other people concerned in the case such as relatives or carers (professional or otherwise). It is important to keep records of such interviews and, if they are relevant, to describe them in the report. In the interests of limiting time and costs, some of these interviews may be conducted by telephone. The letter of instructions will have put some very specific questions to the expert (usually based on the

AUTUMN 2018

court order). As noted above, capacity and best interests are the two key concepts in COP cases. It is common for different experts to be instructed on each of these matters. Although at times they can seem to be closely connected, it is important for the expert to limit himself to the questions put to him. It is essential to read the instructions very carefully. Capacity to do what? When? Capacity is time- and decision-specific. Capacity can fluctuate, and that presents particular difficulties in assessment. The law as it stands is not particularly illuminating in defining how fluctuating capacity is to be approached. The expert can describe and explain what he finds, but he should not try to invent the law on fluctuation: that is for the court to deal with. The expert’s job is limited to his professional expertise.

decision. It will be helpful to identify and set out explicitly what information the expert thinks is relevant to the specific decision. In a deprivation of liberty case which is often about capacity to make decisions about care and accommodation, this is likely to include an understanding of what the problems with previous (more independent) care and accommodation were such that the local authority now thinks that a deprivation of liberty is necessary, and what options are now under consideration. This information should be included in the documents provided to the expert. In practice, at the time the expert is instructed, the options under consideration may not always have been identified. However, it is impossible for an expert to discuss the person’s views of the options until those options are known. It may be necessary to go back to the instructing solicitor to request more information about those options, and possibly to delay the assessment until that information is available.

Chapter 4 of the Code of Practice sets out what is meant by capacity and how it should be assessed, and chapter 5 deals with best interests. In terms of capacity, an assessment that a person lacks capacity should not be made on the basis simply of age, appearance, assumptions about their condition, or any aspect of their behaviour. That does not mean that these things are irrelevant (for example, older age is a very strong risk factor for dementia, which is a common cause of incapacity), but it does mean that these factors should not be relied on without further evidence of incapacity. Regarding appearance and condition, the Code says: 4.8 The Act deliberately uses the word ‘appearance’, because it covers all aspects of the way people look. So for example, it includes the physical characteristics of certain conditions (for example, scars, features linked to Down’s syndrome or muscle spasms caused by cerebral palsy) as well as aspects of appearance like skin colour, tattoos and body piercings, or the way people dress (including religious dress). 4.9 The word ‘condition’ is also wide-ranging. It includes physical disabilities, learning difficulties and disabilities, illness related to age, and temporary conditions (for example, drunkenness or unconsciousness). Aspects of behaviour might include extrovert (for example, shouting or gesticulating) and withdrawn behaviour (for example, talking to yourself or avoiding eye contact).

An assessment for the court is not the same as a standard medical assessment. It must be conducted in order to answer the questions put to the expert, and it will not be helpful simply to provide a description of the person’s current medical condition (although that description may well be part of the information in the expert report). An expert report must comply with the rules and procedures of the court. It must set out the expert’s relevant experience and qualifications; it must describe his instructions; it must separate the evidence on which he bases his opinion from that opinion. In order to be helpful, an expert report should be clearly set out, coherently argued, and deal with the questions put to the expert. It should not try to resolve matters of fact which may be disputed. It is often helpful to provide a summary of the case and summary of the opinion near the beginning, and to provide a table of contents (especially in a longer report). The opinion should deal with each question in turn, and should show how the conclusion follows from an application of the relevant legal test or definition to the evidence. Where conclusions are uncertain (as they often are), the report should set out the range of possible opinion, and why the expert favours one view over another. The expert should address as carefully and precisely as he can why each part of the capacity test is or is not met in the particular case.

The first part of the capacity test requires the identification of the impairment of, or disturbance in the functioning of, the mind or brain which gives rise to incapacity. The Code (4.12) gives a non-exhaustive list of examples: • conditions associated with some forms of mental illness • dementia • significant learning disabilities • the long-term effects of brain damage • physical or medical conditions that cause confusion, drowsiness or loss of consciousness • delirium • concussion following a head injury, and • the symptoms of alcohol or drug use.

Once the report has been provided, the parties have an opportunity to put written questions to the expert. These must be answered within the specified timeframe. In a joint instruction, the expert must be open in his communication with all parties. In practice, practical matters such as timing of the interview and report, and access to documents are usually agreed with the instructing solicitor, but any significant matters must be agreed with all parties. In a joint instruction it is not permitted to have confidential communications with one party only.

In considering the second part of the capacity test, the so-called functional test, the expert must be clear about what the relevant decision to be made is, and then assess if P is able to understand, retain, use or weigh the relevant information, and communicate his EXPERT WITNESS JOURNAL

In some cases, the expert will be called to court to give oral evidence. This requires a different set of skills from report writing. Experts unused to giving oral evidence may wish to consider attending one of the training courses available. It may also be helpful for 20

AUTUMN 2018

experts to consult some of the books on advocacy described in this paper so that they can understand better how the advocates are likely to approach the matter before the court, and how they may frame questions. Rather counter-intuitively, answers are best addressed to the decision-maker (the judge) rather than the advocate who has put the question. This may mean turning from one to the other before answering. Experts may reasonably expect the court to treat them respectfully (although not necessarily to accept what they say), and if an expert feels that under crossexamination he has not been able to say something which is relevant and important, he can turn to the judge and ask if he can say it. It would be very unusual for a judge to refuse a reasonable request of that kind.

6. You may need to explain to the solicitor what records you will need to see and how to obtain them. You are likely to know more about which hospitals/GP surgeries/care homes/local authorities may have relevant information. 7. In Court of Protection cases, experts are often asked about several different kinds of capacity, for example: to make decisions about care and accommodation; to make decisions about treatment; to make decisions about finance and property; to conduct litigation/instruct a solicitor. Each of these needs to be considered separately, and some of them have specific case law which should be set out in your instructions. If unsure, ask. 8. It is helpful in framing your questions to P and in explaining your view in your report to be explicit about what you think is the relevant information in relation to each question. It is possible to alter the apparent threshold of capacity by making the relevant information more or less complex. In general, courts are wary of setting the bar too high, thereby rendering P incapacitous. Ultimately, the decision on where the threshold lies is a matter for the court, not the expert.

Courts can request expert evidence either by ordering that an independent expert be instructed, or requiring a report to be made under MCA s. 49. The latter allows the Court to require that a report be made by the Public Guardian, or a Court of Protection Visitor, or by a local authority or an NHS body. This means that an NHS trust may be required to provide a report, even if P is not under current care. It will usually be provided by a consultant psychiatrist, but not necessarily by one who has experience of working as a court expert, nor one who has previously been involved in assessing or treating the person. The advantage to the court is that no fee is payable for a s. 49 report, while an independent expert will expect a fee (usually at the current Legal Aid Agency rates). Such reports can be helpful, but it may also transpire that the report does not adequately deal with the mater instructed, and the court then has to instruct an independent expert.

9. In considering capacity to make decisions about care and accommodation, the assessment needs to be based on concrete options. The expert needs to know what these options are in order to discuss them with the person concerned. Do not be embarrassed to delay the assessment until these options are known (local authorities sometimes leave it until late in proceedings to set out the options). 10. Make sure you understand the legal tests or concepts which relate to the questions. If unsure, ask the solicitor.

In relation to fees, the expert will usually be required to submit a quotation in advance. This should be split into elements for reading, interviewing, writing, travel time, and travel expenses. At the time the quote has to be provided it may not be clear how much documentation there will be to read. If more is provided than originally quoted for, it may be necessary for the expert to go back to the instructing solicitor with an amended quote for the extra material. This must be done in advance as the request will not usually be granted after the work has been carried out.

11. If you think you will not be able to meet the required timeframe, discuss this with the solicitor as soon as possible. It may be possible to seek an extension of time, but this will require the agreement of the parties and the court. 12. An expert report is not the same as a medical history and examination, although it may contain them. It is an opinion given in answer to specific questions.

Tips for experts 1. Before you accept instructions, consider if you have the necessary professional knowledge and experience.

13. Do not try to answer questions which should be left to the court. You are allowed to give evidence only because you have special knowledge and expertise which the court does not have.

2. Many organisations provide training courses in acting as an expert. These can be extremely helpful.

14. Check your report very carefully before you send it off. You may be cross examined on it in detail and have to explain why you have said what you have said. If you are called to give evidence, it may be months after you wrote the report, and your report will be the main document on which you are questioned. It should clearly set out the evidence and argument by which you reached your opinion.

3. Make sure you have an understanding of the relevant court rules of procedure. 4. Stay within your expertise. If something is outside it, say so. 5. Make sure you have clear instructions from your instructing solicitor, with clear questions. If unsure, go back and ask. Sometimes you are asked what appears to be the wrong question to resolve the case. If so, discuss with the solicitor whether the question should be put in a different way. EXPERT WITNESS JOURNAL

15. A chronological table constructed from the records is not the only way to present the data on which your opinion is based, but it can be a very useful one. 21

AUTUMN 2018

16. Mental capacity is often a grey area. Even if the court ultimately disagrees with your opinion, your evidence, both in summarising the records and in reporting your interview with the patient, may be very useful.

atory, but often we should rather speak in a quiet, low-keyed, and gentle manner…so much is accomplished by speaking thoughtfully and with a certain taste.’ Although forceful advocacy is not the norm in the COP, you must be ready to switch gears when required. Whatever your personal style is, be yourself, present your case with confidence (i.e. with a rhythm and tone that allows you to communicate your message effectively, and the audience to listen, understand, and remember what you are saying). Speak slowly and use short sentences. Look the judge in the eye, and engage in a conversation. To entrench your message, use memorable words and phrases as a psychological sign-post on the road-map of your argument.

17. Matters are decided on the balance of probability, and there is a rebuttable presumption that the person has capacity. In many cases, the records will contain previous assessments of capacity which do not agree with each other. If you really cannot decide one way or the other, say so, but you do not have to be sure to give an opinion which is based on the balance of probability. 18. Be honest and truthful. Your overriding duty is to the court, not to the party/parties instructing you. A useful test for yourself is to consider what opinion you would have given if the other side had instructed you. If it is not the same as the opinion you have given, ask yourself very carefully why not. However, in COP work, many cases are given as a joint instruction.

‘Keep it simple. Give it life. Be brief… Irresistibility… is the hallmark of the truly great advocate. An irresistible argument is just that – an argument that is irresistible. The tribunal cannot fight it. It sweeps them happily, effortlessly, to your conclusions… To be irresistible, an argument is three things:

Advocacy Manner More is communicated by you as a person than simply what you say. People look at how you say it, with what tone, with what expressions, and with what body language. With a sympathetic hearing, there is more opportunity to be persuasive, so try to be liked by the judge. People are more sympathetic to those they like: it is human nature.

Reasonable, not emotional Softly delivered, and Common sense… [The] most persuasive feature of any case is if it accords with common sense. If you can find the common sense position in any argument, then you have the beginnings of something irresistible. You then weave around the common sense position careful words and a careful delivery… The irresistible argument is usually the easy, simple argument. Always ask yourself, what is the easy, simple argument? Where is the common sense in this case? Morley (2015) Rapport Real life is not like an episode in Suits. ‘There are many things going on in the present for the judge for which you have no appreciation. What you can certainly anticipate, however, is that the judge does not see your case, your client, or you, the way you do…you should anticipate that opposing counsel also does not see your case, your client, or you, the way you do…One of the choices you can make is to take all steps you can to get along well with others. There are few situations in which aggression, conflict, arrogance, or single-mindedness represents the best strategy…your chances of success improve as you develop rapport with the court, with counsel, and with lay folk…[This] requires that we act in a manner that is courteous and dignified. In other words, we have to act as professionals…Outbursts and rudeness increase stress…To deal with people appropriately, you have to know what impact you make on others…Rapport starts with trust…A calm demeanour helps build trust; an angry one does not. A calm demeanour helps to resolve disputes; an angry one adds fuel to the fire…Stay calm and polite… Sincerity, empathy, thoroughness, and professionalism all lead to rapport. [The Ten Commandments of rapport are]; • be punctual; • [be comfortable and have everything with you that you need]; • be prepared; • be understood;

Everyone with whom you come into contact has an agenda. That agenda may appear to be compatible with your own, but in reality, it might not be. This suggests that you should take the attitudes of other people into account when you consider your own behaviour. First, you should observe other people so that you can adapt your tactics and communications to their willingness to accept your idea. Second, you should observe how other people react to you … In practice, all that opposing counsel must do is present a face of moderation and good judgment. The judge will lean as far as is practical in that direction. This is simply an application of the principle that one can rely upon people who demonstrate good judgment. Excessive language is the enemy, and often demonstrates the opposite of good judgment. Hollander (2018) Therefore in face to face discussions outside the door of the court: • stay calm; • always allow others to speak; • solicit the input of others, then acknowledge it as seriously intended; and • allow others to finish their thoughts without interruption. Whilst displaying poise in the marshalling of detailed facts and in the handling of complex medical evidence, be sensible and realistic in making your submissions. Your tone of voice is critical. Whilst an advocate can captivate by speaking with vigour and conviction, he will offend if he crosses the line and is perceived to be rough and arrogant. As Cicero observed, ‘we don’t always have to employ vigorous orEXPERT WITNESS JOURNAL

AUTUMN 2018

• • • • • •

communicate; be practical; [do not spring surprises on your opponent]; be honest; be open minded; and be level-tempered – Consider that the opposing client will react poorly to your excessive language, and that this reaction may prevent resolution and lead to protracted stress.’ Hollander (2018)

• 60% of a message is conveyed by body language and visual appearance generally. • 30% of the message is conveyed by tone of voice. • Only 10% of a message comes through the words used. • Only 10% of what people hear gets remembered. If, on the other hand they see something connected with what they are hearing, as they are hearing it, they remember 50%.Lawyers tend not to know these statistics, just as they don’t seem to realise that they are operating all the time in the Video dimension. Evans (2010)

It is also salutary to remember the volume of cases with which judges have to deal and the time pressure they are under. Consequently, trial judges working at the coal face

In his book the Golden Rules of Advocacy, Keith Evans adds, [At trial what the judge normally has to do] is decide which parts of the evidence [he] prefers. An advocate’s job is to lead his or her fact finder to a preference and thus to an opinion…Your fact finders may arrive at their preference and their opinion entirely as a result of thinking. But that’s not very likely, is it? Even trained thinkers like us, in choosing between two conflicting witnesses, often ask ourselves what our gut reaction is…The process of getting to a preference and an opinion involves both – thinking and feeling. In a trial by judge alone you are before a trained thinker: here there may be more thinking than feeling involved in the search for preference or opinion. I say “may be” because that isn’t by any means certain. Judges are human too…You see lawyers behaving as if their fact finders had no feelings at all, whereas it is their feelings you should be reaching out to all the time. Your job is to make them feel, as well as think, that they prefer your version. It is your task, in total honesty, to lead them to this. And if you take this as your starting- point all sorts of guidelines present themselves. Evans (1993)

at the lower end, are concerned principally with the facts before them, and to engage in the adjudicative process as efficiently, and perhaps, conveniently as possible. By and large, first instance judges do not like to make new law. They tend to work intuitively, within general legal concepts and look for precedent only where the facts of a relevant authority and facts of the case before the court are either indistinguishable or substantially the same. Judges at first instance are most happy when the finding of facts alone determines the outcome of a case, and will avoid becoming enmeshed in legal argument unnecessarily if they can. If a trial judge has to consider legal issues, he usually first finds the facts, then looks at the relevance of the previous case and decides whether the legal reasoning in the previous case can be compared and applied to the facts before him. He will not wish to make new law, far less give vent to any policy considerations. Even the higher courts tend to shy away from making indications of policy on questions lacking general importance, and to the surprise of many advocates appearing before it, the Supreme Court is as equally concerned with the factual matrix of a case as the puisne judge. Judges like other professionals require both confidence and experience to arrive at firm conclusions. Even the most experienced judge may be troubled by an oddity or perhaps the general peculiarity of a situation with which he is faced. He may be dissatisfied with submissions by the advocates appearing on both sides. He may be troubled by a recent authority that appears to be out of step with his own thinking or a common sense approach to solving the problem. Or he may face real uncertainty as to what to do…Judges in the lower courts also tend to be conscious of the disapproval in the profession of intellectual dishonesty. “Distinguishing” is sometimes an ingenious intellectual contrivance to avoid having to follow an inconvenient previous decision which would otherwise bind the court. Goodman (2018)

Keith Evans’ guidelines include: Be likeable – Leave the macho advocate where he belongs, on the television screen. The nice approach is infinitely more effective. If you are likeable, affable and kindly you will evoke all your fact finders nicest feelings. They will want to believe you. Coming across as utterly real and genuinely nice works wonders in court. The sympathy rule – Try to imagine what it must be like sitting where your judge is sitting, seeing what she is seeing, hearing what she is hearing. Try and put yourself as completely as you can in her position. Do it as they come into court at the outset and do it now and again right through the trial. Imagine yourself into the individual’s skin: get behind his or her eyes. This simple exercise puts you in far greater sympathy with them and, somehow or other, they are subconsciously aware of it. The result is that they give sympathy back to you. They will listen willingly.

Communication The trial advocate should remember at all times that Human beings are far more video than audio. The way we collect most of our information is through our eyesight…Intent listening is something we do with surprisingly rarity…What most lawyers ask the fact finders to do in court is to use their second best device for gathering understanding. And the fact finders do it: on the whole they do it well. But since we don’t tie blindfolds on them, they don’t switch off their best information gathering device… People who have studied the psychology of communications have some terrifying statistics for us lawyers. Examples:

EXPERT WITNESS JOURNAL

They will put the kindest interpretation on what you say. They will feel reluctant to deny you what you ask. They will feel inclined to overlook your mistakes. The rule of equals and opposites – If you pay attention to the sympathy rule you won’t get into a confrontation with your fact finder. Most advocates go barging into confrontation with the fact finder as a matter of course. The rule is simple. You push and they’ll push back. You pull and they’ll resist. You demand and they’ll refuse you. You insist and they’ll turn you down. An action almost invariably produces its equal 23

AUTUMN 2018

and opposite reaction, and it’s one of the most important Golden Rules of Advocacy.

straight at you from this final plan. Show them the way home – Home is the goal we are aiming at, the objective, the only reason we are in court. Everything we have done has been done for this. Your fact finder usually starts out as a complete stranger to your case. They come like travellers in a new land. Somewhere in this country is the city you want to take them to, the city called verdict. You know their journey to that city could be a difficult one. If this weren’t so you wouldn’t be in court. And you have an opponent who wants to take them somewhere else altogether. Both of you are there, as the travellers arrive like tourists wondering what lies ahead of them, and from the outset you are like two tour operators in competition for those tourists. The brilliant advocate grabs them all, there and then. He paints them a picture of an easy, enjoyable journey, through interesting countryside, over smooth, paved roads. He sells them his city as a place where they’ll feel content to be, a place worth having arrived at, a place where they’ll be so welcome, a place where they’ll be more than just tourists, a place where they’ll experience a new and exciting sensation: the pleasure of bringing right where before there was wrong. And off they’ll all go, with the other tour guide chasing along behind, desperately trying to catch up and never even coming close. Unless there is a catastrophe in the evidence they never swerve. They choose the guided tour they prefer and stick with it. Evans (1993)

Include the fact finder – Think ‘we’, never ‘they’. The witnesses tell us not you. The fact finders must always feel included rather than as dispassionate umpires sitting on the side lines. Prepare them – If you have weaknesses in your case, and all cases have weaknesses, make sure that you are the first to mention them. Get to your difficulties before anybody else does. You will handle them so much more sympathetically than your opponent. Always aim to be the honest guide – By the time the fact finder has spent 20 minutes in your company they should be beginning to feel, not only that you are honest, but that they can trust you. More than that, they should already have started to get the feeling that they can trust you completely, that you are not going to dupe them in any way. There’s no substitute for real sincerity and real honesty and real niceness. Don’t ask them to believe the unbelievable – If you press them to accept something that is beyond them, your credibility will vanish in a puff of smoke. Any good you may have accomplished so far will be undone. When there is a weak point in your case don’t pretend that it isn’t a weak point. Admit it and show them how you still ought to succeed despite that weakness. Don’t misquote the evidence in any way at all and don’t put a slick interpretation on any part of it. Make sure that you always come across as being absolutely fair.

Never become angry with the judge. You may think you have every justification, but you will lose. If you save the face of the court, you retain the respect of the court. A respected advocate, although sometimes not popular, is a credible advocate. And a credible advocate is a persuasive advocate. A shouting advocate without respect is useless.

Practice listening intently. Stop dead in your tracks – As soon as you realise your sentence is a failure, stop. Say something like: “I’m not putting this clearly. Let me start again.” Use repetition very sparingly.

An advocate who is not respected is an advocate without credibility. Without credibility, we are unpersuasive. The quickest way to lose respect is by being quarrelsome with the judge, or with the opposition, by taking mindlessly dull points…by being high handed with witnesses, condescending, pointed, irritated, arrogant, slightly sneering, and pompous. Morley (2015)

The coffin nail exception – If, in cross-examination you get a witness on the run and you have a list of things which you know he is going to have to admit, then you can use one form of repeating the question over and over again, driving the nails into the lid of the coffin.

Opening submissions A speech consists of two essential parts: (i) The Statement, that is to say the statement and explanation of what has to be proved.

The Mark Anthony exception – In your final speech (and in the rarest of cases in your opening) you might be able to find a short form of words that you can repeat like a theme. “For Brutus is an honourable man, so are they all, all honourable men.” If you can find such a theme, use it. But make sure it’s worth hearing again and again.

(ii) The Proof, that is to say the arguments in support. The proof falls into two divisions, which need not, of course, follow one another consecutively, but may be intermingled. The first division consists of the arguments in support of one’s own case; the second is the refutation of the argument advanced, or likely to be advanced, on the other side… [Arguments] ought not, in a legal speech, to be set out in a continuous sequence, but worked in here and there… [An argument] may be refuted in two ways: either by objecting to its validity on one ground or another, or by setting up a counter argument. In addition to these essential components – which must always be present – a speech may also contain:

Sit down and write your final speech – As soon as you have an approximate idea of what a new case is about, sit down and write your closing speech. Then read it. See how well the available evidence supports it. At once you will see the gaps, the missing bits. Trying to close those gaps is the preparation of your case. When you think you are getting close sit down and write your opponent’s final speech. This will concentrate your focus more sharply on what you still need to do by way of preparation and on the weak points you will have to reach and deal with before anybody else does.

(i) An introduction, sometimes known as the Excordium or Proemium; and (ii) A Peroration, also described as the Epilogue or the Recapitulation.

Perfect your final speech – This is the blueprint of your trial. It becomes a record of your progress through the case, a shopping list of all you have to do, a foolproof checklist. The evidence you need and the way you need to present it stares EXPERT WITNESS JOURNAL

AUTUMN 2018

If the subject is plain and short, there is no need for an introduction. Its object is to pave the way, as it were, for the main speech. Thus in his introduction a speaker seeks chiefly to arouse interest, in order that attention may be given to his arguments; he seeks also to remove prejudices, and to make his audience favourably disposed towards the case he is about to present. Munkman (1991)

plicated and impossible to follow story…[Argument] is best that goes to the jugular of the case…There is in every case a cardinal point around which lesser points revolve like planets around the sun…a central fortress which if strongly held will make the loss of all the outworks immaterial…your argument should be directed principally to that issue. Garner (2009) ‘Pick your best independent reasons why you should prevail— preferably no more than three—and develop them fully…Select the most easily defensible position that favours your client. Don’t assume more of a burden than you must…Don’t try to defend the indefensible…Make a virtue of a necessity. Boldly proclaim your acceptance of [a point of fact and law which goes against your case to demonstrate your reasonableness then go on] to explain why the conceded point makes no difference or why other factors outweigh it…[A weak argument] speaks poorly of your judgment and thus reduces confidence in your other points…Always start with a statement of the main issue before fully stating the facts. Scalia & Garner (2008)

The purpose of a written opening is to educate the judge. Define the issues before the court. Summarise your case and that of your opponent. Avoid pitching your case too high, because the evidence has yet to be tested. Identify the relevant principles and authorities. Where you are aware that there is an area of controversy, flag it up. The opening should be accompanied by a bundle of authorities. These should be agreed if possible. The oral opening is another opportunity to bring the judge up to speed, and draw his attention to the principal issues in the case. Establish what he has read. Identify the principal areas of controversy and bring out the main points of your case. Draw attention to the most important documents. Keep it concise. Hochhauser (2013)

Examination-in-chief The purpose of examination-in-chief is to get into evidence the facts necessary to prove your case. To achieve this purpose, it is necessary to elicit each witness’s evidence in a clear and concise manner, and to anticipate, so far as is necessary and possible, any attack on that evidence likely to be made in cross-examination. When examining his own expert witness the advocate’s aims include: • ensuring that the judge understands the expert’s evidence; • persuading the judge of points essential to the case; and

The single most important rule concerning opening statements is to present a coherent theory of the case… clearly, succinctly, and persuasively… Your trial theme… should be expressed in a single sentence that captures the moral force of your case. A theme communicates to the [judge] the reason that your client deserves to win. Thus introducing a theme in opening is particularly effective as a persuasive matter since it can focus the [judge’s] attention on a cognitive image that you will return to throughout the trial … Your case can be only as persuasive as the theory behind it, and your theory can only be persuasive if it ties the evidence to the legal issues. Your opening statement, then, must address the legal issues in your case. Lubet (2004)

• anticipating the other side’s cross-examination and fortifying against that assault. In relation to the expert, the court will expect the advocates to address: • the expert’s qualifications;

When logic permits, put your winning argument up front in your affirmative case. Why? Because first impressions are indelible. Because when the first taste is bad, one is not eager to drink further. Because judicial attention will be highest at the outset. Because in oral argument, judges’ questioning may prevent you from ever getting beyond your first point… If you’re the first to argue, make your positive case and then pre-emptively refute in the middle – not at the beginning or the end. It’s an age old rule of advocacy that the first to argue must refute in the middle, not at the beginning or the end. Refuting first puts you in a defensive posture; refuting last leaves the audience focussed on your opponent’s arguments rather than your own. Scalia & Garner (2008)

• the opinion sought; • the information available to the expert (who in the COP will usually be a single jointly-appointed expert); • assumptions made by the expert; • what the expert did, i.e. interviews tests, and investigations; • the methodology used by the expert, and: (i) whether there were multiple methodologies available; (ii) why one methodology was chosen; and (iii) limitations on that and other methodologies; • whether the expert reasoned from: (i) the information available; (ii) the assumptions made; (iii) his expert knowledge and experience; and (iv) whether there are any gaps in the reasoning process;

The gift of selection is the genius of victory…The most important single element of successful oral argument is the ability to select the heart of your case – the nub – the core, upon which all else depends…rather than “go for the jugular”, many lawyers spend oral argument “going for the capillary”. They – and their message – get bogged down in a swamp of murky and difficult to follow detail. One judge compared such an argument to being cornered at a party by someone from whom you cannot get away who insists on telling a comEXPERT WITNESS JOURNAL

• the expert’s opinion and: (i) the clarity of communication and authority of the opinion (i.e. any equivocation, expression of doubt) and qualification; (ii) whether it follows logically from information and the expert’s reasoning process; • how it compares with any opposing opinion, and: (i) whether the basis of the opinion and reasoning is 25

AUTUMN 2018

sound compared with the opposing expert’s; and (ii) its reasonableness in light of all the other evidence;

clarify their testimony through the use of such imagery. Lubet (2004)

• how professional the expert is, and whether the expert: (i) has demonstrated his understanding of an expert’s duties to the court; (ii) (and his report) has complied with professional protocols and the Rules and Practice Directions; and (iii) has acted diligently and demonstrated accuracy; and

Cross-examination There are…two rules of practice, firmly established in British courts, which must be complied with. The first is that the witness must be cross-examined on all material facts which are disputed. Otherwise the court will take it that his evidence is not contested. The second rule is that an advocate, in crossexamining must put to the witness the case he is going to set up, so far as it lies within the witness’s knowledge; such crossexamination is a necessary preliminary to the calling of contradictory evidence…A real artist…will comply with the rule that he must challenge the adverse evidence not in any perfunctory and formal manner, but by using all the resources of his technique to weaken, undermine or destroy it. Likewise, instead of formally putting his case to obtain denials, he will try to insinuate it and build it up out of the witness’s own mouth. Sometimes of course, there is no scope for anything but a formal challenge. Munkman (1991)

• whether the evidence should be acted upon; and • whether: (i) the expert is impartial and trustworthy; and (ii) the expert’s opinion is unbiased and trustworthy. The expert is obliged to state his qualifications in his report (PD 35, paragraph 3.2(1)). The usual practice at trial is for the judge to be referred to the relevant page in the report and for the advocate to then move on to the substance of the expert’s evidence. In almost every civil case the expert will have written a report before the trial which will have been disclosed to the other parties pursuant to a direction of the court. This report should have been pre-read by the judge and examination-in-chief is usually relatively brief consisting of the advocate highlighting the important sections of the report and asking the expert to amplify or clarify ambiguities in the report and, sometimes, to comment on issues raised by the other side’s expert (albeit that this has usually been done in the expert’s joint statement) and/or issues that have arisen since he wrote the report. The bulk of the expert’s time in the witness box is usually taken up with cross-examination. In many civil cases (in particular those involving a single joint expert) all of the expert evidence is given by report alone and, thus examination-in-chief does not arise. Hodgkinson and James (2015)

Cross-examination of an expert witness is a hazardous undertaking. ‘A witness under cross-examination does not want to agree with you. He will fight tooth and nail to confound you. He will misunderstand your questions. He will provide evasive answers. He will try to use your questions as an excuse to repeat the deadly features in his testimony which destroy your case. Unlike TV, a witness has no script which must be followed. He will try everything to wriggle out from under your questions. Every question in crossexamination is an invitation to disaster. It is an opportunity for the witness to hammer you and your case. So your first thought is don’t do it. Always start from the point of view: if I can avoid it, I will.’ Morley (2015) Where the aim of cross-examination is to advance your own case, the advocate should seek to establish facts that fit in with or corroborate his case. In doing so the advocate’s manner should not appear hostile. Where the aim is to undermine your opponent’s case, just as a party must in cross-examination challenge evidence of fact given in chief by a lay witness which is not accepted, so the opinions of an expert must be challenged if they are to be disputed.

The opinion of an expert, however correct, is of no use to the court unless it is clearly formed by inference from facts which have been or are to be proved in evidence. The expert must always, in expressing an opinion, indicate which facts he relies upon. Counsel calling an expert should therefore in examinationin-chief, ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination. ‘Unless a witness states in his evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless.’ Cadbury Schweppes v Durrell Lea [2007].

The cardinal rule of cross-examination is that you must put your case. You must challenge all material parts of the evidence given by witnesses called by your opponent that your client (or his witnesses) do not accept. The rule is that witnesses must be given the opportunity while in the box to answer the case presented contrary to their account of the facts. This does not mean that an advocate has to challenge every unessential detail, but he must cross-examine on material particulars.

After the expert’s opinion has been stated, provide the underlying theory. The theory should furnish the nexus between the expert’s conclusion and the data used to support the conclusion. In other words the examination should follow this pattern: (i) here is my opinion; (ii) here are the principles that support my opinion; and (iii) here is what I did to reach my final conclusion. Having stated and supported his theory choice, the expert can then specify the nature of his investigations and tests. It is not necessary to explain or outline every hypothesis used by your expert, but the more important assumptions should be noted and supported. The examination in chief of an expert should conclude with a powerful restatement of his most important conclusions. Many complex ideas can be made understandable with examples, analogies, or metaphors. Expert witnesses should be encouraged to EXPERT WITNESS JOURNAL

Forceful advocacy in the COP is usually inappropriate unless an expert or professional witness is being evasive to the detriment of P, and it is rare to seek to exclude evidence or undermine an expert’s credibility. …when “putting your case”…you have the chance to develop your case in the sense that you can begin to show your audience the way you want them to look at all the facts. It is usually better to let the facts speak for themselves … [be 26

AUTUMN 2018

subtle] when putting your case. Although in most cases, the witness will not agree with your client’s version of events, at the very least you will introduce and develop your theory of the case and prepare the way for your witnesses to give evidence in support to it. Aim to do this without labouring your points or making them in a heavy-handed way.’ Advocacy

Trustworthiness question: Is E personally reliable as a source? Consistency question: Is A consistent with what other experts assert? Backup evidence question: Is E’s assertion based on evidence? The expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs. Palmer (2003)

Effective cross-examination of an expert is no different than that of any other witness: you must have a sound analytical approach to the witness so that you can determine whether to cross-examine and, if so, how to organize and execute the cross-examination to carry out realistically attainable goals. This approach involves the following basic considerations.

An expert may therefore be: (i) challenged as to credit in relation to his opinion as he may in respect of facts;

Should you cross-examine? Not every witness needs to be cross-examined. If the expert has not hurt you, or if you have no effective points to make, or your own experts have been more persuasive, consider not cross-examining.

(ii) asked to justify or deny particular opinions expressed on other occasions (including evidence given in similar cases) to cast doubt upon the opinions he has expressed in the present case;

How should the cross-examination be organized? All cross-examinations have two possible basic purposes: eliciting favourable testimony, and conducting a destructive cross. Eliciting favourable testimony ordinarily comes before a destructive cross. If the expert has substantially helped you by agreeing to helpful facts, consider not attempting a destructive cross at all, although you have destructive ammunition.

(iii) asked about his attitude to the parties, i.e. if it is suggested that he is biased; and (iv) questioned about whether he is or was not in a physical or mental state to express a proper opinion. When cross-examining an expert witness the advocate’s aims specifically include: (a) limiting the witness’s apparent expertise. Narrow the extent of his or her expertise/experience by showing that it is not directly applicable to the case in question or, perhaps, by contrasting it to the experience of your expert;

Effective cross-examinations have a structure that starts strong, and keeps it simple. They maintain control over the witness by asking simple, leading questions and stop when the point is made. What favourable information can you elicit? Did the witness say things on direct that you can have her repeat on cross? Can the witness admit facts not yet mentioned that support your case? What must the witness admit that helps?

(b) showing that the witness has had less involvement/contact with the case than your expert; (c) showing your knowledge of the expert’s subject. Using your knowledge of the technical terms involved or the way in which any tests were carried out, the expert will be less inclined to avoid your questions. Contrast this approach with the way you may deal with an ordinary witness of fact by simplifying technical terms; (d) inviting the witness to define technical terms and sometimes in highly complex matters it may be necessary to invite the expert to use common language;

What discrediting or destructive cross-examination can you do? Are the witness’s perception, memory, or communication skills vulnerable? Can the witness be impeached? Can you expose the witness’s bias, interest, or motive? Has she made prior inconsistent statements? Can the witness be impeached by a treatise? A good approach to any cross-examination is to ask yourself: what will I say about this witness in closing arguments? Planning the cross-examination is then a matter of determining what facts you can realistically make the witness admit during cross-examination that support your planned closing argument.’ Mauet (2017)

(e) challenging his or her methods, for example showing that there were other tests that the expert could/should have carried out that might have produced a different result. Remember to check that the expert’s facts, calculations and methods do actually produce the results set out in his or her report and, if they do not, challenge the expert as this may undermine the confidence and credibility of the expert’s evidence;

In general, if wishing to contest the opinion of an expert being called by our opponent, we can either contest the factual basis of the opinion, or we can contest the opinion itself. If the factual basis of the opinion is disputed, then we should be able to get the witness to agree in cross-examination that if the facts were as we contend, then his or her opinion would be different. If it is the opinion which we are contesting, on the other hand, then we will probably need to call our own expert witness…

(f) inviting the witness to agree with the propositions that form the basis of your expert’s opinion – he or she is unlikely to disagree with everything your expert says, and you should know from your own expert those areas that are in dispute. Remember to ‘put your case’ to the expert by inviting him or her to deal with your expert’s methods/opinions/conclusions; (g) inviting the witness to agree that, in his or her field, legitimate differences of opinion frequently occur between qualified experts. This shows that the witness is not infallible and that his or her evidence is ‘opinion’ only; and

There are six critical questions we can ask about experts: Expertise questions: How credible is E as an expert source? Field question: Is E an expert in the field that A is in? Opinion question: What did E assert that implies A? EXPERT WITNESS JOURNAL

(h) using hypothetical facts to test the strength of the expert’s opinion. Testing whether a different interpretation of the same 27

AUTUMN 2018

facts or a slight change in those facts would affect the expert’s opinion.’ Advocacy

has raised a certain probability or inference: and afterwards in cross-examination, a fact or a possibility is suggested to weaken this. Re-examination will then be directed either to excluding the suggested fact or possibility, or to bringing out something further to tilt the balance in favour of the original inference.’ Munkman (1991)

The advantage of a cross-examiner over even the most prepared witness is that only the cross-examiner knows which questions are going to be put next. 10 cardinal rules (i) Always put your case to a witness in so far as it is relevant to that person’s evidence. Failure to do so may damage your case and may result in the witness being recalled.

The closing speech Closing is when you draw together all of the case, all the answers from the witnesses, all the legal incidents which arose at trial, and you present your theory of the case… Closing is all about persuasion… This means 100% comment. It is not about the facts; it is about comment on the facts. It is not about repeating what the facts were: it is about explaining why the facts as they emerged in trial mean you win. Morley (2015)

(ii) Keep your xx to what is absolutely necessary. (iii) Leading questions are permissible and should be used. Put propositions to a witness. Don’t give them a chance to give equivocal answers. Listen carefully to what they have to say. If a witness avoids answering the question put it again until he/she does.

In sum, the final argument must tell the whole story of the case but it cannot just tell any story. The final argument has to complement the portrait begun during the opening statement, and, even more important, must reflect and encompass the evidence in the case. This goal can be best accomplished only when the case is presented according to a well-defined theory…To be successful, the theory presented in a final argument must be logical, believable, and legally sufficient. Lubet (2004)

(iv) Do not ask multiple questions. Keep them short and keep a tight rein on the witness. You should be in charge. (v) Permissible – forceful/insistent. Impermissible – hectoring/bullying. XX does not mean being cross. Never lose your temper with a witness. (vi) Let the witness finish his/her answer, before proceeding to the next question. If a damaging answer has been given, pause before proceeding. Silence is golden. Let it sink in.

In viewing the expert evidence through the eyes of the judge before commenting in closing, the advocate should bear in mind that in assessing materiality, reliability, and weight, a judge will usually consider: • whether any norms used by the expert are mutually consistent;

(vii) Watch the judge’s pen. No matter how good the XX is, if the judge cannot record it, it may be lost. On a long trial, try to get a daily transcript if possible, it is very helpful for closing speeches. (viii) Never put questions on a false premise. It denudes the XX of its force and makes you look bad/ incompetent/unprepared.

• the degree of certainty stated; • any boundaries have been crossed between different professional activities;

(ix) Never misrepresent a witness’s earlier answer. (x) Put questions, don’t make speeches/submissions. Don’t clutter the questions with comment – save that for closing.’ Hochhauser (2013) Re-examination The purpose of re-examination is to correct, clarify or expand matters arising out of cross-examination. No question may be asked in re-examination which does not arise out of cross-examination. The basic rule about re-examination is do not do it, i.e. ‘break glass in the event of emergency’.

• the impression given by the demeanour and authority of the expert; • whether the expert was dogmatic or flexible in his opinion; and • whether the expert has taken in the facts of the case adequately. Where (unusually) there is more than one expert and the judge must choose between them, he must be able to show that he has a reasoned basis for his preference. The factors by which a judge has drawn a distinction include: • what the witnesses said;

The advocate is not allowed to ask leading questions. [In principle re-examination] is simply the insinuation of facts or possibilities which give a different turn to the answers in cross-examination, but as the advocate is examining his own witness, a roundabout approach is unnecessary. The real difficulty of re-examination is twofold. The first difficulty is to think of helpful points – which reduces itself to quick thinking and a detailed knowledge of the case. The second difficulty is to frame simple and straightforward questions without leading, for in view of the complications introduced in crossexamination, there is a tendency for questions in re-examination to be introduced by lengthy preambles and to be appallingly long-winded. The solution to this is, of course, a mastery of the use of language … As it is the technique of insinuation which introduces something new in cross-examination, the object of re-examination is, more often than not, to counteract an insinuation. Suppose the evidence-in-chief EXPERT WITNESS JOURNAL

• the extent to which their qualifications and experience lent authority to what was said; • the relationship between their respective qualifications and experience and the task in hand; and • where the weight of the evidence in terms of general principle lies. Deprivation of Liberty Safeguards The law on deprivation of liberty has gone through a profound transformation in the last 20 years, and at the time of writing a Bill is going through Parliament which is likely to change it again. The story begins in 28

AUTUMN 2018

1953 with the coming into force of the European Convention on Human Rights (ECHR) signed by the 47 member states of the Council of Europe, including the UK. The context at that time was the terrible events of the Second World War. Article 5 of the Convention limits the circumstances under which a person may properly be deprived of his liberty, one of which is that the person is of unsound mind. Anyone who is deprived of his liberty has a right under ECHR article 5(4) to speedy access to a court capable of ordering his discharge. Patients with mental disorder who required treatment in hospital can be detained under the Mental Health Act 1983 (MHA), even if they are refusing treatment. The MHA automatically gives patients the right to appeal to a tribunal, satisfying the article 5 requirement. Until 1997, if they lacked capacity to consent to treatment and did not appear to be objecting, patients were usually admitted informally and treated on the basis of the doctrine of necessity, that is, that it was in their best interests to receive treatment. However, the landmark case of Bournewood challenged that position by asserting that it was a breach of article 5 to hold a person lacking capacity in hospital on the basis that it was necessary and in his best interests, without further authorisation. The case went through the English courts to the House of Lords, as it then was, and was then appealed to the European Court of Human Rights, which found that there had been a breach of article 5 in those circumstances because there was no mechanism by which the person deprived of liberty could speedily appeal to a court (HL v The United Kingdom 45508/99 [2004] ECHR 720).

authorisations, with the result that the statutory time limits for authorisation cannot be met and large numbers of people in hospitals, care homes, and elsewhere are, strictly speaking, being deprived of their liberty unlawfully. A House of Lords post legislative scrutiny committee concluded that the present law is ‘not fit for purpose’. The government accepts that this is an unworkable position and, following a consultation by the Law Commission, has introduced a Bill to Parliament with the aim of simplifying and streamlining the process. At the time of writing the position is that hundreds of thousands of people in England and Wales are being unlawfully deprived of their liberty, either because those responsible for the deprivation have not sought authorisation from the local authority (or, in the case of those deprived of liberty outside hospitals or care homes, directly from the Court of Protection), or because the local authority has not yet been able to carry out the necessary assessments. These include people with disorders such as dementia and learning disability in care homes and supported living arrangements. Some of these people are in psychiatric hospitals, where a decision must be made between detention under MHA and deprivation of liberty using DOLS. A patient who lacks capacity but appears to be objecting to all or part of the treatment is ineligible for DOLS and therefore MHA must be used. In general hospitals, the legal position is particularly difficult. Patients who lack capacity because of delirium or other medical causes (probably a very large group), those under general anaesthetics, and the majority of those in intensive care units would appear to be being deprived of their liberty according to the definition in Cheshire West, and very few of them have had their deprivation authorised in the required way, which may suggest that they may be unlawfully deprived of liberty. At present, people who die while subject to a deprivation of liberty authorisation are considered to have died in state detention, and the death must be referred to the coroner irrespective of the views or feelings of the family. The case of Ferreira (Regina (Ferreira) v Inner South London Senior Coroner [2017] EWCA Civ 31) concerned a woman who had died while being intubated in ICU. Although she had not had a deprivation of her liberty authorised under the procedures in the MCA, nor was she detained under the MHA, it was argued that, as she had died in state detention, her death should be reported to the coroner for an inquest. However, the Court of Appeal found that her physical condition and the lifesaving treatment which she required was responsible for her loss of liberty, rather than the state, and therefore she was not in ‘state detention’, and her death did not have to be referred to the coroner.

Parliment responded in 2007 by bringing in the Deprivation of Liberty Safeguards (DOLS) which are set out in schedules 1A and A1 of the MCA, together with a Code of Practice. Under these procedures, the ward manager (for patients in hospital) of anyone who lacks capacity and is deprived of liberty must seek authorisation for the deprivation. The ward manager can authorise urgent deprivation for up to seven days, renewable for a further 7 days while an application to the local authority is made for authorisation of the deprivation of liberty for longer periods. The local authority must send two assessors, one of whom must be a doctor, to investigate whether six qualifying requirements are met. These are: the person is aged 18 or more; lacks capacity; has a mental disorder; there are no relevant objections; the deprivation is in the patient’s best interests; and the person is ‘not ineligible’ for detention under MHA. At the time that these procedures were introduced it was anticipated that there would not be very many applications. However, following the landmark judgment in Cheshire West (P v Cheshire West and P and Q v Surrey County Council [2014] UKSC 19), where the meaning of ‘deprivation of liberty’ was clarified as being a state of continuous supervision and control where the patient was not free to leave, the number of applications for DOLS authorisations escalated to the point where local authorities across the country were (and are) unable to meet the requests for EXPERT WITNESS JOURNAL

The Mental Health Act is also being reviewed currently. The future position on deprivation of liberty is uncertain.

AUTUMN 2018

These might include matters that could not be achieved through litigation alone…

Mediation Undoubtedly, some disputes require a bargaining approach and some require a problem-solving approach. Mediators with sensitivity will deal with each according to its needs. And many may involve a mixture of both approaches … although negotiation can be conducted in such a way as to create joint gains for both parties, an essential tension in negotiation exists between co-operation moves to create value and competitive moves to claim it. Brown & Marriott (2018)

It is important to evaluate in the light of the evidence what the client can realistically achieve in the litigation. If mediation fails what is the likely outcome of a contested hearing? Is there any reason (on an objective evaluation) to believe that any of the other parties have not agreed to mediate in good faith? The potential benefits of mediation should be weighed, even if it is unlikely to deliver a full resolution: might it narrow the issues or at least improve the parties’ ability to communicate? With this point in mind advisers are encouraged to manage their client’s expectations…

An application to the COP can include a request for an order that the parties attend mediation. In furtherance on the overriding objective (Rule 1.1), the court is expected to encourage the parties to use an alternative dispute resolution procedure where appropriate, and once proceedings are issued, the court can consider whether all or any of the issues subject to application are suitable to be referred to mediation. When is mediation appropriate?

Court of Protection cases pose particular challenges. P’s interests need to remain central to the process. If P is a party, he or she is likely to have a litigation friend who is likely to be present (or be represented) at the mediation. The litigation friend should make every attempt to ascertain P’s wishes and feelings on the issues which are being mediated. By definition, P is unlikely to be able to take part in the process of compromise and give-and-take that may be involved in mediation. It is the mediator’s role to ensure that P remains the focus of the mediation and to reduce the time spent disproportionately on satellite issues which may be considered important by the other parties. The second difficulty is that Court of Protection cases will frequently involve an imbalance of power between the parties, as they may typically involve a dispute between a statutory body and one or more individuals. It is suggested that this requires the mediator to satisfy him or herself that even though one party may be in a much stronger position, that party remains willing genuinely to consider an element of compromise. Ruck Keene (2018), paragraphs 19.33 to 19.41.

The issues covered in case studies mediated ranged from residence (most frequently cited, with 59% of cases involving residence) to medical treatment and statutory wills (each raised in 7.4% of cases). Almost one-third of cases involved finance and property. Other issues in the cases mediated included Power of Attorney, Deputyship, holidays, and Deprivation of Liberty…The success rate in the reported cases was high, with 78% of reported cases reaching an agreement either during or following mediation. Written agreement was reached in 52% of cases, with a further 19% achieving written agreement following the mediation. Oral rather than written agreement was reached in 7% of cases. In 22% of cases there was no agreement. In most of those where an agreement was reached (59%), the terms of agreement were incorporated into a court order. Reasons for lack of agreement being reached included entrenched positions, too many parties and too little time, and the existence of allegations of financial abuse and fraud. Examples given of approximate cost savings were between £6,000 and £30,000 – the exact savings depended on length of case and when in the proceedings the mediation took place, as well as estimates of savings of judicial and court staff time, and time of counsel and local authority professionals.

In for example a residence dispute governed by the Care Act 2014, that is inextricably linked with COP proceedings, the mediator could be a leading specialist QC, who could be both facilitative and evaluative. The co-author of this article, Carl Islam, has developed a new technique, called ‘BME Mediation’, for the amicable resolution of trust and estate disputes (which will be fully outlined in his forthcoming book for the Law Society, the ‘Contentious Trusts Handbook’: https://newsite.carlislam.co.uk/contentioustrusts).

Mediating Court of Protection cases – Summary of research’ by Charlotte May: https://ukaji.org/2017/05/03/mediating-court-ofprotection-cases-summary-of-research/

‘BME’ stands for ‘beginning’, ‘middle’, and ‘end’. The steps in the procedure are:

For those who have proposed mediation or responded to a suggestion by the court or another party, it is essential to consider what to expect from the mediation. Advisers will need to have a clear grasp of the strengths and weaknesses of the client’s case. Perhaps for this reason, many Court of Protection mediations take place after the receipt of experts’ reports … This is an ideal time to take stock of the evidence as it now stands, in as objective a way as possible…In anticipation of the mediation the following issues should be considered:

Beginning (1) Commercial analysis - joint evaluation of: • estate/trust assets; • ownership; • claims; • value; • opportunities (i.e. commercial exploitation of hidden value, e.g. IPR rights in relation to a work of art); • risks (e.g. the IHT/CGT consequences of a DOV executed after the s.142 IHTA 1984 window has closed, or the actual impact of BREXIT on the property market, e.g.

Assuming that new evidence (especially in the form of expert reports) has been received, what if any impact has this evidence had on the views and positions of the parties? Advisers should explore with their clients as neutrally as possible whether there are any concessions which the client feels they could offer which might promote an agreement. EXPERT WITNESS JOURNAL

AUTUMN 2018

if in the surrounding locality for valuation, a business fails or moves abroad, resulting in: (i) unemployment; (ii) a surge in mortgage default; and (iii) an increase in the volume of comparable properties being sold ‘cheap’ at auction, placing downward pressure on the market);

End Agreeing a fair and sensible split of estate/trust assets (i.e. X + Y) that avoids the ongoing and increasingly large risk of C either: (i) exhausting the available value (including hidden value) of X and Y, or (ii) the risk of either or both A and B, ending up in negative equity. This requires pragmatism because in the long term ‘less can mean more’ if litigation is avoided/discontinued.

(2) Legal risk analysis – separate evaluation of the: • facts (i.e. a chronology); • issues; • law; • evidence; • remedies & procedure; and • costs.

In relation to COP proceedings: • X & Y = P; • the value of P = costs of implementing a ‘best interests’ decision (‘BID’); • based upon expert evidence about P’s capacity; assessments and reports provided by a local authority about P’s needs and the available options, and resulting costs (‘RC’), the COP can endorse a BID agreed in mediation between e.g. two warring local authorities (‘LA’s’) about how RC is to be funded (‘F’); • in agreeing F, the LA’s can address adjustments e.g. to take account of voluntary payments already made by one LA (‘LA1’) toward P’s residential care costs following a move by P to the administrative area of the other LA (‘LA2’), which LA2 can compare to the future costs of litigation (including possibly a referral to the Secretary of State and where a convention right is engaged and the claim qualifies, proceedings in the ECHR).

Middle Exploration/mapping of: (1) needs/preferences e.g. retention of land to run a farm as a viable going concern versus assets available for sale to generate liquidity (and their saleability / current market value based upon condition/status quo); (2) opportunities e.g. planning permission to release/exploit hidden or trapped value or tax e.g. the RNRB for deaths after 6 April 2017; (3) choices - if e.g. party ‘A’ is willing to settle for asset ‘X’ and party ‘B’ for asset ‘Y’, evaluating the difference in value arising from the asymmetry between: • the value of each party’s respective claims on the estate/trust assets as a whole i.e. X + Y); and • the individual market values of ‘X ‘and ‘ Y’; and • the cost of extracting value from ‘X’ and ‘Y’, e.g. if a property requires renovation before it can be sold, which when calculated may illustrate that the difference between the value at which ‘A’ and ‘B’ will settle (the ‘Zone of Difference’) is in fact less than 5%. In other words, that a symmetrical BATNA would = settlement at the mid-point of 2.5% (if actually doable, i.e. practicable); (4) adjustments to be factored into the settlement equation, i.e. which can reduce the Zone of Difference (‘Z’) to zero; and

The point being that in mediation: • LA1 and LA2 can at the ‘beginning’ agree upon what is in P’s best interests based upon expert evidence; • in the ‘middle’ they can then work collaboratively to identify the practical options available and costs involved; and • at the ‘end’ can jointly develop a plan (including transition), to implement a BID for P that can be approved by the COP judge. That should result in a win/win outcome all round because: • P’s best interests will have been met; • LA1 and LA2 will have spent their precious resources on developing a plan for implementation, instead of on legal fees; • the plan can be implemented by the COP (who do not have jurisdiction to decide public law issues and therefore cannot order a LA to pay for P’s ongoing/future care); and • LA1 will exit on terms that are satisfactory to LA2.

(5) arithmetical comparison of Z (as a crunched number) with the potential costs of litigation (‘C’) on: • the standard basis if a party wins i.e. because that party would usually fail to recover around 1/3 of their actual costs (which e.g. in a trial costing around £150K each = a loss of £50K); • liability for own costs and other party’s costs (on standard basis if a party loses) (e.g. £250£300K); and • chances of success (which at the early stage of any proceedings, i.e. before disclosure has taken place and witness statements have been exchanged is difficult to forecast with any accuracy, hence a conservative estimate is unlikely to be greater than 60/70% on either side = a difference of 30:35. EXPERT WITNESS JOURNAL

The acme of the advocate and the expert in the COP is therefore to work collaboratively in P’s best interests with the aim of the parties agreeing a BID for approval by the court that is possibly better for both P and each LA, instead of pursuing an aggressive litigation strategy with a win/lose binary outcome at court. From the outset of a mediation the mediation advocate could say to the other counsel, 31

AUTUMN 2018

‘Thank you for meeting with us today.

Bibliography

I will be corrected if I am wrong, but what I think you say about the facts and the law is…It is not my job to persuade you that your arguments will not succeed at trial.

Baker, The Hon Mr Justice et al (2018). Court of Protection Practice 2018. LexisNexis, Jordan Publishing. Cicero, Marcus Tullius (2016). How to Win an Argument – An Ancient Guide to the Art of Persuasion. Princeton University Press.

As you know we say that we will succeed. I am not interested in having an argument with you about whose view is right.

Evans, Keith (1993). The Golden Rules of Advocacy. Blackstone Press.

I suggest that litigation is not going to be a great outcome for either you or my client. The risks are…

Evans, Keith (2010). Common Sense Rules of Advocacy for Lawyers. TheCapitol.Net, Inc.

I am here because I believe that we can reach a principled and fair deal that is not only good for my client but also better for you.

Feteris, Eveline T (2017). Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions. 2nd edition, Springer.

I hope that you will work with me to achieve this today’.

Garner, Bryan A. (2009). The Winning Oral Argument. Thomson/West.

Each issue in dispute can then be approached constructively: • from the point of view of needs, interests (with P’s ‘best interests’ taking priority), and options, rather than fault and blame; and • by focussing on the best possible outcome for all of the parties.

Goodman, Andrew (2018). How Judges Decide Cases – Reading, Writing and Analysing Judgments. 2nd edition, Wildy, Simmonds & Hill Publishing. Hochhauser, Andrew (2013). Nuts and Bolts of Trial Advocacy, a talk presented on 23 March 2010 at Inner Temple Hall. Hodgkinson, Tristram, and Mark James (2015). Expert Evidence: Law & Practice. 4th edition, Sweet & Maxwell.

Both sides can then work to maintain an open and reasonable atmosphere, with the mediation advocates emphasising objectivity, resulting in a potential settlement being judged against agreed criteria to test fairness.

Hollander, Charles (2018). Documentary Evidence. 13th edition, Sweet and Maxwell. Keehan, Mr Justice, Claire Wills-Goldingham, Marie Leslie, and Paul Divall (2016). Court of Protection Made Clear. Bath Publishing.

Because the ‘beginning’ requires preliminary groundwork by each party, in preparing: (i) a commercial analysis; and (ii) a legal risk analysis, to be provided privately to the mediator ahead of the mediation, i.e. as a ‘road-map’ to educate him about the issues, facts, law, and dynamics underlying resolution of the claim, there is no need for a plenary session, other than to discuss ‘house-keeping’ matters. In other words, instead of exchanging partisan position papers, and wasting precious daylight engaged in posturing and positional argument about who is ‘right’ and who is ‘wrong’, resulting in tempers being inflamed, and the further entrenchment of positions, resulting in ‘road-blocks’ that prevent the making of a deal before 5pm, the parties can set the mediator free to work his magic, and get on with the business of ‘doing a deal’. They can then start to engage constructively with each other in a joint-problem solving exercise, conducted by ‘proxy’, through the mediator. If progress has been made in agreeing principles but the detail and conditions of the deal remain to be agreed, perhaps because an issue has emerged which requires further investigation and proper evaluation so that a sensible and informed commercial decision can be made about allocation/sharing of risk, then the parties can resume their discussion through emails and if necessary a round-table negotiation, which does not require further involvement by the mediator. Terms of settlement can then be agreed and documented in order to implement a practical and efficient plan of action in the best interests of P.

EXPERT WITNESS JOURNAL

Lubet, Steven (2004). Modern Trial Advocacy. 3rd edition, National Institute for Trial Advocacy. Mauet, Thomas A (2017). Trial Techniques and Trials. 10th edition, Wolters Kluwer Law & Business. McPeake, Robert (2018). Advocacy. 19th edition, Oxford University Press. Morley, Ian (2015). The Devil’s Advocate. Sweet & Maxwell. Munkman, John (1991). The Technique of Advocacy. Lexis Nexis Butterworths. Palmer, Andrew (2003). Proof and the Preparation of Trials, Thompson Law Book Co. Ruck Keene, Alex (2014). Acting as a litigation friend in the Court of Protection, http://www.39essex.com/wp-content/uploads/2015/01/Acting-as-a-Litigation-Friend-in-theCourt-of-Protection-October-2014.pdf. Ruck Keene, Alex, Kate Edwards, Anselm Eldergill and Sophy Miles (2018). Court of Protection Handbook, a user’s guide. 2nd edition revised, Legal Action Group. Scalia, Antonin and Bryan A Garner (2008). Making Your Case – The Art of Persuading Judges. Thomson West. Shipman, Shirley A, Benjamin D. Waters, and William Wood (2018). Brown & Marriott’s ADR Principles and Practice. 4th edition, Sweet and Maxwell. Sime, Stuart and Derek French (2018). Blackstone’s Civil Practice 2018. Oxford University Press.

AUTUMN 2018

Expert Witness or Advocate? The Perils of Blurring the Boundaries by Gavin Stuart, Partner, Bartier Perry Pty Limited If you have acted as an expert witness, you will know one of the most fundamental rules is that you must be impartial and not act as an advocate. This is codified in expert witness codes of conduct throughout Australia and is an established precedent in decided court cases. Despite this, experts regularly act as an advocate for the party which retained them, placing their reputation and future work at risk. In this bulletin, we will explore a few ways experts can end up acting as advocates and suggest ways to avoid this.

dence, the expert may make it obvious they are not impartial, are unprepared to see the matter objectively, and are simply advocating one party’s position. This first way is to be distinguished from the second. Rather than becoming an advocate during the process of preparing evidence, an expert may also slip where the expert acts as a representative for their client, for examples to a third party. This can occur before or during litigation, but before the expert has prepared any evidence. Should the expert later seek to act as an expert, he or she will be exposed to arguments from the opposing party that their evidence should be afforded little weight because the expertise is not impartial and is continuing to advocate the party’s position.

The Rule The rule that an expert is not, and must not become, an advocate for a party is contained in expert witness codes of conduct in all Australian jurisdictions. Underpinning this rule is the principle that an expert witness is engaged to provide impartial assistance, so the court or tribunal will have the necessary evidence in the area of specialised knowledge and the claim can be properly decided.

The risk of this is heightened when the subject matter of the expert opinion is closely aligned to the legal issue to be determined, as in matters involving the valuation of land.

The courts have repeatedly been required to decide cases involving expert witnesses that have assumed the role of an advocate. In a case in the Federal Court of Australia, Foster J stated: “He tended to be abrasive, partisan and dogmatic. He not infrequently appeared to assume the role of an advocate rather than of an impartial expert...Dr K’s theorising was shallow, unsubstantial and unacceptable.”

In a case of the Land Court of Queensland, a real estate company acted for applicants challenging the valuer-general’s valuations of certain properties, and also provided expert evidence to support the applicant’s claims as to value. The court stated that this compromised the valuer’s independence and the weight to be given to his evidence, and that the valuer became an advocate for the real estate company rather than for the client. The court also said the manner in which the real estate company ran the appeals was contrary to the API code of professional conduct.

Where a court believes an expert is acting as an advocate, and fighting a cause rather than assisting the court, it is likely to give little or no weight to his or her evidence, thereby disadvantaging the party which engaged them. In addition, the expert runs the risk of losing their credibility, reputation, and future work.

The API has taken disciplinary action against members who have failed to provide independent and impartial expert evidence by assuming the role of an advocate and expert in the same matter, and/or allowing themselves to be influenced by the client’s needs.

Some professional organisations, such as the Australian Property Institute (API), have adopted rules that require members to maintain independence and impartiality when acting as an expert witness. Expert members of these organisations may also face sanctions from the relevant body, impacting their ability to continue practising in their field.

However, it is easy to understand how an expert could unwittingly fall into such a trap. Consider a land owner who receives a notice of intention to compulsorily acquire land in NSW under the Land Acquisition (Just Terms Compensation) Act 1191 (NSW). In such cases, the owner has six months to negotiate a claim before the issue of a ‘Proposed Acquisition Notice’ (PAN). The issuing of the PAN gives rise to the right challenge the proposed acquisition amount in court.

The Issue Generally, there are two common ways an expert may slip into acting as an advocate for a party. The first is when acting as an advocate whilst: 1. Preparing a report and opinion; 2. Conducting a joint conference and preparing a joint report; and/or 3. Giving evidence

Now let’s say a valuer is engaged by the land owner to provide advice and guidance in the pre-PAN negotiations. If the expert advocates for the land owner in those discussions, problems may arise if the expert

This is the conduct referred to by Foster J above. By his or her conduct in reporting and delivering eviEXPERT WITNESS JOURNAL

AUTUMN 2018

then acts as an expert witness in court once PAN is issued. In such a case, the expert’s evidence may be given little weight on the basis he or she is still advocating the land owner’s position, rather than presenting an independent and impartial opinion.

• Prepare your expert reports in a clear, concise and unemotional manner, properly indentifying all assumptions and facts, their sources, the basis for your opinions and your reasoning process; • Argue your position in joint-expert meetings and in court unemotionally, based on the facts, assumptions and proper reasoning process only;

Another way such a conflict could occur is in building dispute work. A common first step is for one party to engage a building consultant to assess the work on site. The expert can easily begin discussing the matter with the builder on the party’s behalf, and could equally begin advocating the party’s position. If the issue cannot be resolved, and the matter is taken to a court or tribunal for resolution, the expert could face difficulties if he or she then seeks to act as expert witness for the party. Again, the expert could be challenged for not being independent and impartial, and his or her evidence may be given little weight.

• Make concessions where appropriate, and always remember that your role is to assist the court or tribunal to understand the specialised subject matter rather than to stand by the position contended for by the party instructing you; • Avoid straying into commentary and opinion on areas outside your expertise, especially legal issues; and • Ensure you provide your opinion to the party instructing you, and not to the other party (that communication should fall to the party instructing you). If you must present your opinion to the opposing party directly, make it clear that you are delivering your client’s position on the expert issue only, and nothing else.

What should experts keep in mind to avoid acting as an advocate? Remember that your impartiality will be assessed on the entirety of your conduct from receipt of instructions and preparation of reports through to the provision of evidence before a court or tribunal. You must ensure that you: • Are properly engaged with an appropriate letter of instruction that refers to the relevant expert witness code of conduct;

Gavin Stuart is an Australian lawyer, and the statements made in the article reflect Australian law, and in any event should not be relied upon as legal advice. Many thanks to Bartier perry Pty Limited for permission to reproduce.

• Are transparent in your correspondence with your instructor, so there is a clear document trail in respect of the documents/information you relied on in forming your opinion;

Dr Bashir Qureshi

Dr Joshua Adedokun

FRCGP, FRCPCH, Hon. FFRSH, RCOG, AFOM-RCP, MICGP, DCH, DHMSA, DPMSA, FRIPH, Hon.FRSH, Hon.MAPHA-USA

FCARCSI, FRCA, FFPMRCA

Expert Witness in Cultural, Religious & Ethnic Issues in Litigation. Expert Witness in GP Clinical Negligence.

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

As a specialist in Cultures, Religions and Ethnicities, since 1992, I have written reports, given advice, and evidence in tribunals or courts. In cases of medical negligence, discrimination in employments, personal injuries, accidents, murder inquiries by police, family or marital disputes, child abuse, sexual abuse, immigration, asylum and other litigation cases.

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.

Languages spoken: English, Urdu, Hindi, Punjabi.

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.

Author of ‘TRANSCULTURAL MEDICINE’ Dealing with Patients from different Cultures, Religions & Ethnicities.

Contact: Tel: 0208 570 4008 Fax: 0208 570 4008 Mob: 07710 402 276 Email: drbashirqureshi@hotmail.com Web: www.drbashirqureshi.com 32 Legrace Avenue, Hounslow West, Middlesex TW4 7RS

EXPERT WITNESS JOURNAL

Contact:

Tel: 01625 526 665 Email: expertpainreports@gmail.com Web: www.expertpainreports.co.uk Spire Manchester, 170 Barlow Moor Road, Manchester M20 2AF

AUTUMN 2018

Ten Cultural Gestures Which can be Misunderstood in Courts Worldwide By Dr Bashir Qureshi FRCGP, FRCPCH, AFOM-RCP, MICGP, Hon. FFSRH-RCOG, Hon. FRSPH, Hon. MAPHA-USA. • 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. Oh, East is East and West is West and never the twain shall meet. (Rudyard Kipling). What ever happens in intercultural encounters, it usually has innocent reasons and good intentions. The courts, judges, juries, lawyers, expert witnesses, clients and public present in court or watching on media, worldwide are becoming multicultural, multireligious and multiethnic. This is due to political and economic factors. This trend is really to continue.

the question. In the West, it does not have the same meaning. The Westernised Eastern interpreter might not be able to help because they are trained to interpret language but not cultural gestures. 3. Thumb and Index finger circle. (Right hand) In the West, it is a symbol of appreciation, it means “wow, very good, I like it”. In the East, it means “I will f--k you”, This circle also means “your anus”. It is extremely rude and may provoke abuse back response. Just imagine that if a Western barrister shows his thumb and index finger circle to his Eastern client in the witness box, what an anger provoking gesture it would be, to a Non-Westernised client, Jury, public and media. Even if I were to be present there as an Impartial Expert Witness, I would not be able to speak without being asked by the judge, who won’t ask. Hidden anger can influence proceedings negatively.

I was born in multireligious India, grew up in multicultural Pakistan and worked in London, multiethnic England. Therefore, I can perceive some intercultural gestures impartially while respecting Eastern as well as Western cultures. As an Impartial Expert Witness in Cultural, Religious and Ethnic issues in Litigation in the UK since 1992, I am writing this guest editorial to inform all colleagues about 10 cultural gestures which are commonly used and can create mutual tension, misunderstanding and conflicts. Please mind the gap!

4. Index finger up; stationary or moving forward (Right hand) In the West, it means “one” or “say one fact”, but in the East it means “stop speaking” and “sit down”. The Eastern clients and witnesses would recollect their teachers in school asking them to stop speaking and sit down or be ready for punishment. The Court proceedings and decisions may be affected adversely in such confused circumstances.

1. Thumb up; stationary (Right hand) In the West, thumb up is a good gesture of complement, saying “well done”. In the East, it is very rude indeed; it means “up your Ars”. When I looked at the attached picture of President Donald Trump of the USA showing his thumb up to President Kim JongUng of North Korea, who did not reciprocate but looked embarrassed. I thought that the people and media in the Eastern countries may be annoyed with their happy counterparts in the West, for insulting them. It will not be a fake news. In a Court, a judge may appreciate an Eastern witness in this way, with bad results.

5. Two fingers back facing other person (Right hand) It is very rude in the West, as it means “f—k off ” or “buzz off ” or “go away”. It means only “two” in the Eastern culture. An Eastern witness who may say to a Western Judge “I make two points, sir” and put two fingers up, with back of fingers facing the Western Judge. Nobody would ever know the extent of the judge’s anger and negative verdict. As an Impartial Expert Witness, I have occasionally witnessed such events.

2. Thumb up; moving laterally (Right hand) If a judge of Western culture were to ask an Eastern man in witness box, who does not know English language well, in a court hearing, “did you get anything?”, the respondent may move his thumb laterally and persistently because he is replying “nothing”. It also means that “I shall give you nothing”. The Western Judge and Jury and barristers may perceive it being rude and not answering EXPERT WITNESS JOURNAL

6. Fist up; stationary (Right hand) A closed fist is a symbol of power in both cultures. However, it means “unity and strength but no threat” in Western culture but “power to use against the 35

AUTUMN 2018

other party, now or later” in Eastern culture. I can only imagine this gesture being used between two opposite parties in waiting court rooms or outside the courts.

people even in court hearings. This would startle the Westerners. It is a British colonial custom adopted by local rulers in Eastern countries. It would be frowned upon by Western court officers and attenders, especially Etonians, who started it in the first place, a long time ago.

7. Whole hand up; stationary or moving sideways (Right hand) This gesture is used by a Western judge to ask the audience to be ““quiet””. It can also be used by our Royal family or political leaders to acknowledge public’s “appreciation”. However, it could be a symbol of a “power which could be threatening, akin to showing a slap” to an Eastern person. Of course, there are regional variations in the East, in its interpretation.

10.Touch wood; touching a table (Right hand) Good memories die hard. I remember watching on television, Her Majesty the Queen was visiting the late Shah of Iran in Tehran. During her dinner speech to Iranian Royal supporters, she touched the table and said “touch wood, we can build our mutual friendship”. Everyone laughed as a reflex and then stopped laughing suddenly as a gesture of respect. The Queen paused and then completed her speech. “Touch wood” is a symbol of good luck by nature, in the West only. I am sure she must have been informed that it is only a Western gesture; in the East it is God or King or President who decides everything. They have nothing to do with any wood. Such innocent incidents could occur in courts worldwide.

8. Fingers scratching one’s own head (Right hand) A Western person would scratch the head in “surprise”. It is not an Eastern habit; Easterners may scratch their heads due to sweat caused by a turban, if wearing one, or due to having headlice in their thick hair, a possibility more common in the Eastern countries. If an Eastern witness does this, a Western judge could interpret it a surprise and may react with contempt but not consider it as contempt of court.

Finally, I would suggest that only a sincere understanding can remove transcultural misunderstandings. Positive understanding of each other’s cultural, religious and ethnic differences can eliminate or lessen tensions, conflicts and wars.

9. Both hands in one’s trouser pockets. This custom is popular among British army and police but not among civilians. Some Eastern upper social class people, especially visitors, would keep their hands in their pockets when meeting Western

EXPERT WITNESS JOURNAL

AUTUMN 2018

Addressing the Admissibility of Expert Evidence in Criminal Proceeding. published on 22 March 2011, Expert Evidence in Criminal Proceedings in England and Wales.

The problem In a criminal trial, a jury or magistrates’ court is required to determine disputed factual issues.

In the report we recommend: l a new admissibility test for expert evidence l that expert opinion evidence would not be admitted unless it was adjudged to be sufficiently reliable l new guidance for judges for applying the test, setting out the key reasons why an expert’s opinion might be unreliable l a proper framework in criminal proceedings for screening expert evidence at the admissibility stage l codifying the uncontroversial aspects of the present law, so that all the admissibility requirements for expert evidence would be set out in a single Act of Parliament l giving the Criminal Procedure Rules Committee the power to create further procedural rules

Experts in a relevant field are often called as witnesses to help the fact-finding body understand and interpret evidence with which that body is unfamiliar. The current judicial approach to the admissibility of expert evidence in England and Wales is one of laissez-faire. Too much expert opinion evidence is admitted without adequate scrutiny because no clear test is being applied to determine whether the evidence is sufficiently reliable to be admitted. This problem is exacerbated in two ways: First, because expert evidence (particularly scientific evidence) will often be technical and complex, jurors will understandably lack the experience to be able to assess the reliability of such evidence. There is a danger that they may simply defer to the opinion of the specialist who has been called to provide expert evidence.

The draft Criminal Evidence (Experts) Bill published with the report (as Appendix A) sets out the admissibility test that judges would apply to exclude unreliable expert evidence.

Secondly, in the absence of a clear legal test to ensure the reliability of expert evidence, advocates do not always cross-examine experts effectively to reveal potential flaws in the experts’ methodology, data and reasoning.

Result The Ministry of Justice responded on 21 November 2013, indicating that it did not intend to act on the majority of our recommendations at this time.

Juries may therefore be reaching conclusions on the basis of unreliable evidence. This conclusion is confirmed by a number of miscarriages of justice in recent years.

We have, however, achieved a great deal by other means: l The Criminal Procedure Rules Committee has adopted as many of the recommendations as it could through the Criminal Procedure Rules and accompanying Criminal Practice Directions. As a result, while the common law remains the source of the criteria by reference to which the court must assess admissibility, the Rules list those matters which must be covered in the experts’ report so that the court can conduct such an assessment and the Practice Directions list the factors the court may take into account in determining the reliability of expert opinion.

The project We published a consultation paper on 7 April 2009, in which we made a number of provisional proposals which would reform the law governing the admissibility of expert evidence in criminal proceedings in England and Wales. The consultation period closed in July 2009. In our 2009 consultation paper we agreed with the view of the House of Commons’ Science and Technology Committee that a reliability test for expert evidence should be formulated in partnership with judges, scientists and other key players in the criminal justice system.

Meanwhile, in a parallel development, a series of cases concerned mainly with the use of Low Template DNA has established a requirement that the court can only admit expert evidence if it is reliable. l

In a development at least as significant as the other two, the Advocacy Training Council has adopted our recommendations in this report as the basis for its training. In this way, we are confident that the entire approach of the profession to expert evidence in both criminal and civil proceedings can be fundamentally reformed and the risk of miscarriages of justice greatly reduced. l

Our provisional view that there should be a new reliability-based admissibility test was broadly (but not universally) supported by our many consultees, including judges, scientists and other key players in the criminal justice system. A summary of the responses we received is available. Following consultation, we formulated our final recommendations, produced draft legislation and again consulted with judges, lawyers and experts.

For more information, pease see www.lawcom.gov.uk/project/expert-evidence-incriminal-proceedings/

Recommendations Our final recommendations and our draft Criminal Evidence (Experts) Bill are set out in the report we EXPERT WITNESS JOURNAL

AUTUMN 2018

Court of Appeal Overturns Decision Granting Very Broad Non-party Access to Court Documents by Rachel Lidgate, Partner, Dispute Resolution Division, London Herbert Smith Freehills LLP The Court of Appeal has overturned a High Court Master’s order granting non-party access to the entirety of the hard copy trial bundles in a case that settled before judgment. The decision helpfully clarifies the extent of the court’s discretion to grant nonparty access to court documents, both under the CPR and under its inherent jurisdiction: Cape Intermediate Holdings Limited v Dring [2018] EWCA 1795 (Civ).

cannot prevent documents becoming publicly available by settling the case before judgment. The principle of open justice will be engaged once there is a hearing; a judicial decision is not required.

The upshot of the decision is that the court has no discretion to permit non-parties to inspect trial bundles generally, or documents merely referred to in skeleton arguments, witness statements/expert reports, or in open court. In addition to formal documents kept on the court file, which may be provided to non-parties under CPR 5.4C, the court has an inherent jurisdiction to permit inspection of:

Background In brief, Graham Dring (on behalf of an asbestos victims support group) brought an application to access the trial bundles and other documents used at the trial of claims against the respondent relating to its former employees’ alleged exposure to asbestos. These earlier proceedings had settled in March 2017 (after trial).

▪ witness statements and expert reports that stand as evidence in chief during trial (but not documents exhibited to them); ▪ documents which are read or treated as read by the court, ie because they have been read out in open court, the judge has been specifically invited to read them (whether in open court or outside court), or it is clear or stated that the judge has read them; ▪ skeleton arguments/written submissions and similar advocates’ documents deployed at a public hearing; and ▪ any other specific documents necessary for a non-party to inspect in order to meet the principle of open justice.

The application was made primarily under CPR 5.4C, which codifies the common law principle of open justice. CPR 5.4C(2) provides that a non-party to litigation may, if the court gives permission, “obtain from the records of the court a copy of any other document filed by a party” (that is, any document other than a statement of case or judgment or order made in public, which are available without permission under CPR 5.4C(1)). In the alternative, the applicant contended that the court had power to grant access to such documents under its inherent jurisdiction.

Rachel Lidgate, a partner in the disputes division of Herbert Smith Freehills, considers the decision further below.

The High Court (Master McCloud) granted the application in respect of almost all categories of documents sought, including the entirety of the paper trial bundle as well as skeleton arguments and transcripts. She did not grant access to documents appearing solely in an electronic trial bundle, which comprised the totality of the parties’ disclosure documents whether or not relied on at trial.

In terms of the exercise of its discretion, the court has to balance the non-party’s reasons for seeking inspection against the parties’ interests in preserving confidentiality. The court is likely to lean in favour of granting permission where the principle of open justice is engaged and the applicant has a legitimate interest in inspection – and this decision confirms that the principle of open justice will be engaged as soon as there is a hearing of the matter, whether or not it settles before judgment. Conversely, where the open justice principle is not engaged, the court is unlikely to grant permission unless there are strong grounds in the interests of justice.

The respondent appealed. The appeal was heard by the Court of Appeal (rather than a High Court judge) in view of the importance of the issues raised. Decision The Court of Appeal allowed the appeal, overturning the Master’s very broad order. It clarified the extent of the court’s jurisdiction to order non-party access to court documents, both under CPR 5.4C and its inherent jurisdiction, and the basis on which that discretion should be exercised. Hamblen LJ gave the leading judgment, with which Newey LJ and Sir Brian Leveson P agreed.

This decision will be welcomed by litigants as restoring more limited boundaries to the court’s discretion to grant non-party access to court documents, in contrast to the very broad approach taken by the Master in this case. However, even following the Court of Appeal’s decision, it is clear that litigating parties EXPERT WITNESS JOURNAL

AUTUMN 2018

The court’s jurisdiction under CPR 5.4C First, the court agreed with the respondent that the Master had exceeded her jurisdiction in purporting to make her order under CPR 5.4C. The “records of the court” for the purposes of that rule are essentially documents kept by the court office as a record of the proceedings, many of which will be of a formal nature. They do not include: trial bundles; trial witness statements or expert reports (though they may include evidence filed for an interim application); skeleton arguments or written submissions; or trial transcripts.

Documents read or treated as read in open court: Under CPR 31.22 a party may only use a document that has been disclosed in litigation for the purposes of that litigation, subject to certain exceptions including where it has been “read to or by the court, or referred to” at a public hearing. The Court of Appeal referred to the decision in Barings v Coopers & Lybrand [2000] 1 WLR 2353, which suggested a presumption, for these purposes, that where documents are put before the court for the purpose of being read in evidence, they have in fact entered the public domain unless the contrary is shown (eg because the judge did not read them).

The court’s inherent jurisdiction The respondent accepted that the court’s inherent jurisdiction to grant non-party access goes beyond the express powers in CPR 5.4C and includes (as established in GIO Personal Investment Services Ltd [1999] 1 WLR 984) copies of skeleton arguments or written submissions used in lieu of oral submissions. The justification is that open justice requires the public to have the same opportunity to understand the issues as they would have had if the written submissions had been delivered orally.

In the present case, the Court of Appeal held that, in the context of non-party access to court documents, any such presumption should be limited to documents which the judge is specifically invited to read, such as those referred to in a reading list. It should not include documents which are merely referred to in some other document, whether that is a skeleton argument, witness statement, expert report or some other trial document. The court gave the following list of documents which fall within the court’s inherent jurisdiction on this basis, saying they are all documents which are likely to have been read out in open court had the trial been conducted orally: ▪ Documents read out in open court; ▪ Documents which the judge is invited to read in open court; ▪ Documents which the judge is specifically invited to read outside court; and ▪ Documents which it is clear or stated that the judge has read.

The Court of Appeal rejected the respondent’s submission that the court’s inherent jurisdiction did not go beyond this. It said GIO still stands as authority that the jurisdiction does not extend to allowing nonparty access to trial documents simply on the basis that they have been referred to in a skeleton argument, witness statement, expert report or in court. However, there was one aspect of the GIO decision in relation to which law and practice had moved on. In light of the increasingly common practice of judges being invited to read documents for themselves, rather than having them read out in court, the court should be regarded as having inherent jurisdiction to allow non-parties access to documents read or treated as read in open court, so as to put non-parties in the same position they would have been in had the trial been conducted orally (see further below).

▪ Other documents necessary to meet the principle of open justice. The public would be allowed to access documents not falling into the above categories where “it is not possible for a reasonable observer to understand the trial evidence, argument or issues without inspection of the document or documents in question”.

The Court of Appeal helpfully summarised the current legal position by reference to the main categories of documents that might be sought by a non-party, as follows: Trial bundles: There is no inherent jurisdiction to allow inspection of trial bundles generally.

The exercise of the court’s discretion The Court of Appeal referred to the High Court decision in Dian AO v Davis Frankel & Mead [2005] 1 WLR 2951, in which the court distinguished between documents which have been considered as part of the court’s decision making process, and those which have not been judicially considered. It agreed with that distinction, saying that the former category engages the principle of open justice whereas the latter does not.

Skeleton arguments: The court has inherent jurisdiction to allow inspection of skeleton arguments provided that there is a public hearing at which they are deployed. The same applies to other advocates’ documents such as chronologies, dramatis personae, reading lists and written submissions. Witness statements: Under CPR 32.13 non-parties have the right to inspect witness statements which stand as evidence in chief in the course of the trial. The court has an inherent jurisdiction to allow inspection of such statements after trial. The position is the same for experts’ reports. Exhibits to witness statements: There is no inherent jurisdiction to allow inspection of exhibits.

EXPERT WITNESS JOURNAL

The Court of Appeal rejected the respondent’s submission that the open justice principle is not engaged where a case settles before judgment. The principle is engaged, the court held, once there is an effective hearing. The principle may be “more fully engaged” if the hearing proceeds to a judgment, but it is still engaged where there is a hearing. It is only where an application is determined on the papers, and so there is no hearing, that a judicial decision is necessary to enage the principle. 39

AUTUMN 2018

In exercising its discretion to grant non-party access, whether under CPR 5.4C(2) or the court’s inherent jurisdiction, the court has to balance the non-party’s reasons for seeking copies of the documents against the parties’ private interest in preserving their confidentiality. The decision provides some clarity as to the factors relevant to the balancing exercise, which the court said are likely to include: ▪ The extent to which the principle of open justice is engaged;

Consultant Ophthalmologist MB ChB, BSc, FRCOPhth, CertLRS, MD Mr Philip Jaycock is a consultant ophthalmic surgeon specialising in cataract, cornea and refractive surgery at Bristol Eye Hospital. He has over 16 years experience in ophthalmic surgery. Mr Jaycock completed his fellowship in cornea, external disease and refractive surgery at Moorfields Eye Hospital in London. He has been appointed as the external examiner to the University of Ulster.

▪ Whether the documents are sought in the interests of open justice; ▪ Whether there is a legitimate interest in seeking copies of the documents, and whether this is a public or a private interest;

Mr Jaycock is the Consultant lead for the regional cornea and refractive surgery service at Bristol Eye Hospital, treating patients from the South West of England. The service also provides excellent teaching and training.

▪ The reasons for seeking to preserve confidentiality; and

He has developed a National profile in the fields of cataract, cornea and refractive surgery through publishing and presenting his innovative research work. He is widely published with 19 peer reviewed papers and has given over 30 International and National presentations.

▪ Any harm which may be caused to the legitimate interests of other parties.

He has undertaken and completed specialist training in the Bond Solon expert witness training course.

The court endorsed the approach adopted in Dian that the court is likely to lean in favour of granting permission where the principle of open justice is engaged and the applicant has a legitimate interest in inspection. Conversely, where the principle is not engaged, the court is unlikely to grant permission unless there are strong grounds for thinking that it is necessary in the interests of justice to do so.

Bristol Eye Hospital, Bristol, BS1 2LX Tel: 07811 184474 Mobile: 07811 184474 Email: philipjaycock@hotmail.com Website: www.philipjaycock.co.uk

In the present case, the Court of Appeal held that the principle of open justice was engaged for all documents in respect of which it found the court had jurisdiction. Further, the Master was clearly entitled to find that the applicant had a legitimate interest and that finding was not open to challenge on appeal. There was no need to go further and find “strong grounds in the interests of justice”. Many thanks for permission to reproduce this article

Dr Ilan Lieberman

Rachel Lidgate Partner, Dispute Resolution Division, London Herbert Smith Freehills LLP www.herbertsmithfreehills.com

CONSULTANT IN PAIN MEDICINE MANCHESTER MB BS FRCA FFPMRCoA

Need the right expert call our free searchline on 0161 834 0017

Able to advise and report on personal injury, musculo-skeletal pain, neuropathic pain, complex regional pain syndromes (RSD), fibromyalgia, osteoarthritic pain, myofascial pain syndromes & post surgical pain and chronic pain conditions

Our service is completely free to the solicitors, CPS, barristers, media and legal professionals

I accept work both in the personal injury and medical negligence fields.

Alternatively visit www.expertwitness.co.uk

For all enquiries please contact my secretary For Helen Westall on: 0161 883 2728 Email: helen@ilanlieberman.co.uk Web: www.chronicpaincare.co.uk

EXPERT WITNESS JOURNAL

I have acted as an expert witness for both litigant and defendant solicitors with subject matter expertise in chronic pain related issues, since 2002. As part of this work I am available for pro bono telephone advice prior to instruction by a solicitor.

AUTUMN 2018

How To Give Evidence Internationally by Dr Thomas Walford, Expert Evidence Who does an expert witness owe a duty to? This is probably the most important aspect of an expert’s work. His duty is to the court and he has to maintain his independence at all times. This has been enshrined in the court rules in many parts of the world.

– Links to practice directions in all Canadian States for testifying experts.

An expert is someone who has succeeded in making decisions and judgements simpler through knowing what to pay attention to and what to ignore.” Edward de Bono

Hong Kong uses the Rules of the High Court precedent.

Bermuda uses the Ikarian Reefer precedent, Dubai International Financial Centre (‘DIFC’) Rules part 31 and Schedule A.

Singapore – Evidence Act – Opinions of third persons when relevant , Criminal Procedure Code – Report of qualified persons , Rules of the Court Order 40 and 40A,

Originally the duties of an expert were covered in a court case, which is now known as the Ikarian Reefer rules. This follows a judgement by Mr. Justice Cresswell in National Justice Compania Naviera SA v Prudential Assurance Company Limited in 1993.

US – Federal Rules of Civil Procedure, Rule 26 and also by Federal Rules of Evidence, Rule 706. There are also some places which still have no rules but then it is common to adopt the rules from a known jurisdiction usually the English ones. One such place is Ireland, which although has an established basis on which expert evidence is given, there are not formal rules. It is anticipated that they will institute their own before too long.

Since then various legal jurisdictions have produced detailed rules such as: English Civil – Civil Procedure Rules Part 35, Practice Direction 35 and the Protocol for the Instruction of Experts to give Evidence in Civil Claims and the Guidance for the instruction of experts in civil claims 2014.

Please do not expect an expert to support the case irrespective of the facts, it will avoid disappointment. Although he will not be part of the legal team who is arguing for a litigation party – he is probably a real asset if he is used correctly.

English Criminal – Criminal Procedural Rules part 19. Scotland – No formal rules but there is a Code of Practice and case law similar to Ikarian Reefer principles.

Expert Evidence has a large international business and regularly is called to give evidence in courts around the world.

Northern Ireland – Codes of Practice for Experts PD 1/2015 , PD 7/2014 , PD 2/2009 & PD 6/2002. Please note that the expert declaration in 6/2002 has been replaced by 7/2014.

Ask a question about expert witness services. We are here to help! Copyright of Expert Evidence 2018

Jersey – Civil Evidence (Jersey) Law 2003 revised to 1 January 2013 and detail. Guernsey – The Evidence in Civil Proceedings (Guernsey and Alderney) Rules 2011.

This and other useful articles on instructing and acting as an expert witness are available from: http://expert-evidence.com/expert-witness/. Relevant legal cases can also be found on http://expert-evidence.com/resources/.

Switzerland – Article 272 of Swiss Civil Procedure Code. Europe – Civil Litigation Guide (to be enacted) and published in 5 languages – Expert’s European Guide for Legal Expertise including Code of Conduct.

Dr Thomas Walford Expert Evidence Limited

Council of Europe – Human Rights and Rule of Law – European Commission for the Efficiency of Justice (‘CEPEJ’) – Guidelines on the role of court-appointed experts in judicial proceedings of Council of Europe’s Member States.

Expert Evidence International Limited 36 Old Park Avenue London SW12 8RH Tel: +44 20 7884 1000 Mob: +44 7769 707020 www: expert-evidence.com

Australia – Practice Notes for the Federal Court. Canada – Rule 53.03 Code of Conduct for Expert of the Federal Court Rules and The Advocates’ Society EXPERT WITNESS JOURNAL

AUTUMN 2018

When is a Document Covered by Litigation Privilege? The High Court has clarified in a recent judgment the criteria which must be satisfied in order to sustain a claim of litigation privilege. The judgment makes clear that a party claiming privilege must provide all material necessary to enable the court to assess whether litigation was the dominant purpose of the document. The judgment also indicates that the court will take a nuanced approach to a privilege claim, and may order discovery of documents attached or annexed to a document which has been found to be privileged. In Artisan Glass Studio Ltd v The Liffey Trust Ltd,1 the dispute related to a fire which broke out on the premises of Slovak Ltd (“Slovak”) and spread to the plaintiff ’s premises, causing severe damage. Slovak had the benefit of a fire insurance policy with Aviva Ltd (“Aviva”). Aviva claimed privilege over a record of inspection and a report, each prepared by Burgoynes Consulting Scientists and Engineers (“Burgoynes”), who had been appointed to conduct forensic inquiries two days after the fire.

Lord Wilberforce stated that litigation must be the sole or the dominant purpose of the document, and “to carry the protection further into cases where that purpose was secondary or equal with another purpose would seem to be excessive.” The dominant purpose of a document is, the judge held, a matter for objective determination by the court, which is not bound by a bald assertion in an affidavit. The judge pointed out that the affidavits filed by Aviva presented real difficulties as they asserted that litigation was the dominant purpose of the creation of the documents without making any attempt to explain the other purpose(s) of the documents. He said that a party claiming privilege should provide all sufficient explanations and materials to allow the court to assess whether litigation was the dominant purpose of the document. In the absence of such explanations, the court must make its own assessment based on the content of the documents and the evidence before it.

Issues: litigation reasonably apprehended? McDonald J noted that the first issue in determining whether these documents were privileged was whether litigation was reasonably apprehended at the time of their creation. The record of inspection and the report were created on 15 November 2002 and 20 March 2003 respectively. The fire had occurred on 2 November 2002. Aviva first appointed loss adjusters on 4 November 2002 who in turn appointed Burgoynes on the same day to investigate the loss on Aviva’s behalf. Aviva appointed solicitors on 16 November 2002, the day after the record of inspection was created. McDonald J found that having regard to this chronology, and the fact that there had been considerable communication among the solicitors, loss adjusters and Aviva on the potential for third party claims prior to the creation of the record of inspection, litigation was contemplated at the point of its creation. He also concluded that there was no doubt that litigation was contemplated when the report was created on 20 March 2003, as the plaintiff ’s solicitors had already written to Slovak intimating an intention to pursue a claim in February 2003.

McDonald J noted that the first question an insurer will wish to address in a case such as this is whether the loss is covered by the policy. In this case in particular, Aviva would have wanted to satisfy itself that the fire was not caused by a deliberate act of the insured. Indeed, this assessment was borne out by the contents of the record of inspection. It made reference to the fact that Slovak’s unit was well-maintained and the rent was paid three months in advance. These comments appeared to be directed at the character of the insured and therefore relevant to Aviva’s consideration of its own exposure to the insured. The judge concluded that there was nothing that would indicate that the dominant purpose of the record of inspection was contemplated litigation with third parties and it was not covered by litigation privilege.

Issues: dominant purpose? McDonald J next considered whether litigation was the dominant purpose of the documents, it being accepted that the documents in question were brought into being for the purpose of litigation. He cited with approval the judgment of the House of Lords in Waugh v British Railways Board2 where

EXPERT WITNESS JOURNAL

With regard to the report, the court found that by the time of its preparation, Aviva was not still considering the question of its own liability to the insured. The report constituted a careful examination of the cause of the fire and was therefore directed at enabling Aviva to defend any claims which might be

AUTUMN 2018

made against Slovak. As such, the dominant purpose of this document was the apprehended litigation and the document was protected by litigation privilege.

necessary nor appropriate to require production of any parts of the document which taken separately would not be privileged.

Issues: redaction? McDonald J finally considered the plaintiff ’s submission that extracts of the report which contained a factual description of the site could be made available, while any parts relating to liability could be appropriately redacted. The judge referred to the decision in Duncan v Governor of Portlaoise Prison,3 where it was held that “the proposition … that the court ought … to direct the production of the documents in respect of which legal professional privilege is claimed and then, in effect, edit them so as to make factual matter in them disclosable … would be to dilute in very considerable measure the whole notion and effect of legal professional privilege” which is “..much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests”.4 He also noted that in Quinlivan v Governor of Portlaoise Prison,5 the Supreme Court had held that there is “no authority … to provide justification for this concept of editing communications between professional legal advisors and their clients. It appears to me to be wrong in principle.” On this basis, the judge was satisfied that it would be inappropriate for him to embark on editing the text of the report so that extracts could be released to the plaintiff.

References 1, [2018] IEHC 278. 2, [1980] AC 521. 3, [1997] 1 IR 558. 4, R v Derby Magistrates Court ex parte B [1995] 3 WLR 681, 695. 5, Unreported, Supreme Court, 5 March, 1997. This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed. Many thanks to Megan Hooper and Kevin Kennedy at McCann FitzGerald for permission to reproduce this article. www.mccannfitzgerald.com

Need the right expert call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk

However, he took a different view in relation to photographs attached to the report (which were essentially separate documents attached by way of reference to the report). He noted that it was not clear when the photographs were taken. If they were taken when Aviva was still considering its own liability to Slovak, then they would not be privileged for the same reasons outlined in connection with the record of inspection. He therefore decided that it would be appropriate for Aviva to separately list the photographs and the dates of their creation in a supplemental affidavit. He reached a similar conclusion in relation to a fire brigade report annexed to the Burgoynes report. The fire brigade report was discoverable on the basis that it was requested on 13 November 2002, at a time when the dominant purpose of Aviva’s retainer of Burgoynes could not be said to be litigation.

Dr Pravir Sharma Consultant Psychiatrist MRCPsych, DPM, MSc, MBBS I have been an Expert Witness for over 10 years. I have undertaken assessments on; PTSD, Road traffic psychological injuries, mental capacity assessments and completed reports for the court.

Conclusion This lucid judgment usefully summarises the key principles applicable to claims of litigation privilege and how they should be applied in practice. These include that for such a claim to succeed, litigation must be reasonably apprehended at the time of the document’s creation, and that litigation must be the objectively-determined dominant purpose for which the document was created. Appending non-privileged documents to a privileged document will not convert them into privileged documents, but once a document is litigation-privileged, that privilege extends to the document as a whole and it is neither EXPERT WITNESS JOURNAL

My Claimant defendant ratio is 70:30. I have undertaken professional courses in report writing, recent case law changes and court room skills. I am able to see clients at short notice and complete reports within 2 weeks of appointment. I work in the West midlands area, appointments available in the evenings and at weekends in designated consulting suites in Birmingham or at clients’ homes. Tel: 0121 227 0785 Mobile: 07985 883 664 Email: ruth.brind@phf.uk.com. Web: www.phf.uk.com PHF Services Ltd Castle Cavendish Works, Dorking Road,Nottingham, NG7 5PN

AUTUMN 2018

MCA, Borderline Cases and the Impact of Dunhill v Burgin by Giles Eyre and Dr Linda Monaci Case study John, now 19 years old, is pursuing a personal injury claim against his employer. He had sustained a severe traumatic brain injury (TBI) and some orthopaedic injuries in an accident at work. Liability was established at trial but damages are yet to be assessed.

The initial neuropsychological assessment found he did not have capacity to litigate but it was recommended that this should be re-assessed after a period of rehabilitation as interpersonal problems and mood were likely to have a negative impact on his mental capacity.

Background history: John lived in a flat organised by social services since 13 years of age due to physical abuse by his mother and step-father. He left school at 15. He regularly smoked cannabis and for a period also heroin. He worked 6-months on a building site but left after an argument with his manager. Just before the index event he found further employment on a building site, where the accident occurred.

A second neuropsychological assessment was carried out 3 years post-accident. John continued to live alone but his girlfriend (they met 2 years post-accident) and their daughter (2 months old) visited him every day. The girlfriend reported that John’s extreme moods made living together impossible. John had not yet been accepted for a return to work and he continued to experience interpersonal difficulties with limited social interactions; he continued to use cannabis in moderation but no other drugs or alcohol. Spare cash went on fixed odds betting machines. His sister continued to support him but overall he appeared improved in mood and more able to deal with everyday life. She no longer wished to act as Litigation Friend, saying she was not needed, although it appeared she found John’s moods difficult to manage.

At discharge from hospital, he returned to his flat. He received little community rehabilitation. At the first neuropsychological assessment, 13 months post-accident, John was not coping well at home; he was eating ready meals or snacks and he rarely went out. The assessment findings were that the TBI likely caused a mild reduction of processing speed but otherwise intellectual abilities were intact. John experienced moderate memory problems and results on tests of executive skills were variable. He reported some issues controlling his temper with interpersonal difficulties, fatigue and lack of interest in pursuing goals. He was not dealing with correspondence or returning Solicitor’s calls; an older sister had been appointed his Litigation Friend.

EXPERT WITNESS JOURNAL

John lived on state benefits and paid his utility bills, his shopping and household items; he contributed £20 most weeks towards his daughter’s expenses. On formal cognitive testing, he continued to show a reduction of processing speed, moderate memory problems and variable results on tests of executive skills.

AUTUMN 2018

John’s solicitor asked for an expert opinion on whether John had re-gained capacity and whether a Litigation Friend was still needed. The solicitor also sought expert opinion on whether John had the mental capacity to handle the substantial damages he was considered likely to receive. Legal principles The solicitor’s instructions raised the issues of capacity to conduct litigation and capacity to manage finances. Capacity is to be judged in relation to the decision or activity in question and not globally. ‘A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ (Section 2 Mental Capacity Act 2005 (MCA 2005)). But ‘a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’ (Section 1(3) MCA 2005).

a. deciding one way or another, or b. failing to make the decision.’ To make that assessment more difficult ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision.’ (Section 4 MCA 2005). The expert must address: • Whether the person has an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works, whether the impairment or disturbance is temporary or permanent? (the ‘diagnostic threshold’) • If so, does that impairment/disturbance mean that the person is unable to make the decision in question at the time it needs to be made? (the ‘functional’ test) The expert must then go on to assess the ability to make a decision by answering the following questions: • Does the person have a general understanding of what decision they need to make and why they need to make it?

Under Section 3 MCA 2005 it is provided that ‘a person is unable to make a decision for himself if he is unable: a. to understand the information relevant to the decision b. to retain that information c. to use or weigh that information as part of the process of making the decision d. to communicate his decision (whether by talking, using sign language or any other means).’

• Does the person have a general understanding of the likely consequences of making, or not making, this decision? • Is the person able to understand, retain, use and weigh up the information relevant to this decision? • Can the person communicate his or her decision? For capacity to litigate, the Claimant must have ‘first the insight and understanding of the fact that he has a problem in respect of which he needs advice . . .

‘The information relevant to a decision includes information about the reasonably foreseeable consequences of:

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 assessments Medico-legal services: Instructions from Claimants, Defendants and as a Single Joint Expert. Appointments usually 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. Clinical services: neurorehabiliotation services are also available Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law). 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

EXPERT WITNESS JOURNAL

AUTUMN 2018

Secondly, having identified the problem, it will be necessary for him to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise him appropriately . . . Finally, he needs sufficient mental capacity to understand and make decisions based upon, or otherwise give effect to, such advice as he may receive’ (Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889). The Claimant must be able to conduct the claim with the assistance of lawyers, not just be able to understand the advice of his lawyers.

meal or his typical weekly shopping and whether he budgets for larger items of expenditure, and how John believes he is managing money, for instance if he overspends, and how that compares with before the TBI. As Claimants with TBI may have poor awareness and be unreliable historians, additional information, from interviews and sometimes witness statements, from third parties is important; reports of family/partner/friends, and from the Claimant’s Solicitor can be particularly helpful. It is helpful to understand the Claimant’s engagement with various activities (including dealing with the solicitor) and interactions with people close to him, his understanding of common everyday life issues and his ability to weigh up pros and cons. Any history of financial mismanagement is important.

The expert’s task Carrying out mental capacity assessments is a complex task. For instance, in this case, John presented with pre-morbid emotional vulnerability, and limited education and life experiences. It was important to take into account how he used to make decisions before the TBI because an individual with mental capacity is entitled to make unwise decisions. Although he had lacked capacity to conduct litigation, it appeared he had since been able to return to manage some aspects of his daily life reasonably well. His sister also indicated that she no longer felt that her role as Litigation Friend was justified.

Solicitors can assist by describing how they have found the Claimant in their dealings with him, which can stretch over years. In particular, specific information on what issues have been discussed with the Claimant about the claim (e.g. disputed liability, outstanding issues) and financial matters (e.g. discussion about a Trust fund, its pros and cons, the appointment of trustees and the impact on the Claimant’s freedom of action) is helpful.

The expert, in the clinical interview, seeks an indication of the Claimant’s level of functioning in everyday life and the way in which he deals with problems, what decisions he can make independently and what he may need help with, so indicating his ability to deal with issues. This can then be compared with the reports and information acquired from third parties. A formal cognitive assessment of the Claimant (not just a screening) is helpful to understand the Claimant’s cognitive functioning, namely intellectual, memory, language and executive skills, which will all impact on his ability to make decisions, together with specific questions aimed at assessing mental capacity. In relation to capacity to conduct litigation and therefore to instruct a solicitor, questions will be aimed at establishing John’s understanding of the claim, for instance what happened to him, how the claim has progressed, the role of his lawyers and of the other party, and of the Judge and what can happen if the case goes to Court. It is helpful to understand the Claimant’s awareness of issues in relation to liability, and the nature of issues that are in dispute or have not been resolved in relation to the amount payable.

Reflections/considerations/learning points - Whenever any doubts arise as to capacity, it is essential to instruct an expert to carry out a mental capacity assessment to avoid possible issues later on, which could include setting aside a settlement reached without a Litigation Friend being in place (see Dunhill v Burgin [2014] UKSC 18). - The expert must reach a conclusion on capacity, on the balance of probabilities, applying the statutory tests in the MCA 2005. - The expert must justify that conclusion logically from the findings of fact, and the factual information provided, from the Claimant, from witnesses, from the lawyers and from formal assessment. - It is important not to penalise a Claimant for having limited life experience and lower educational attainment. An important consideration is the Claimant’s ability to give instructions and seek, understand and follow the advice of his legal team. - When considering capacity to administer an award and manage finances, it is important to consider the Claimant’s ability to budget and to anticipate future expenditure, and his understanding of the heads of claim and the purpose for which damages are awarded (even though a claimant with capacity is free to spend damages as he wishes).

In relation to capacity to administer the award and to manage finances, questioning is aimed at verifying John’s knowledge of his assets, amounts available in a bank account, any loans, the cost of running the household, how much is spent every week/month, how much income he has, what financial decisions he makes, how he would apply for a credit card or loan, how he would go about applying for a mortgage, how interest is calculated, what he would do if he were awarded a large amount of compensation, and what the purpose of such compensation would be. It is also relevant to ascertain that the Claimant is aware of the cost of usual everyday items, depending on his habits, for instance the cost of milk, cigarettes, beer, a ready EXPERT WITNESS JOURNAL

Summary John is a borderline case, particularly in relation to administering the award, and the opinion on capacity will depend on a close consideration of the evidence available and whether the burden of proof (that he lacks capacity) has been satisfied.

AUTUMN 2018

Giles Eyre Barrister, Associate Member of Chambers at 9 Gough Square, London. Co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (Eyre & Alexander) (2nd edition 2015), published by Professional Solutions Publishing (www.prosols.uk.com) Blogs at www.Medico-LegalMinder.net Gives training and seminars to and holds workshops for experts on providing effective expert reports and giving effective evidence in court.

Dr Ian Starke Consultant Physician in Stroke Medicine and Geriatric Medicine MSc, MD, FRCP (Lond), FRCP (Edin)

Dr Starke has been a practising Consultant Physician in Stroke Medicine, Geriatric Medicine and General Medicine at University Hospital, Lewisham and Guy’s, King’s and St Thomas’ School of Medicine since 1988. Dr Starke provides expert reports for clinical negligence and medical injury cases in stroke medicine and geriatric medicine and on fitness to practise.

Dr Linda Monaci Consultant Clinical Neuropsychologist. Dr Linda Monaci provides a nationwide specialised and comprehensive neuropsychology assessment and treatment service for individuals (aged 16 years and over), insurers, solicitors and other agencies. Assessments can also be carried out in Italian. Consulting rooms in Surrey, London (Harley Street and London Bridge) and other locations. www.monaciconsultancy.com

He has provided expert examinations and reports for 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

This article was previously published in the New Law Journal. Many thanks for permission to reproduce.

Need an expert fast call our free searchline

on 0161 834 0017 or visit www.expertwitness.co.uk EYE-LAW CHAMBERS

Eye-Law Chambers provides Expert Reports for all eye-related medicolegal cases including alleged clinical negligence, personal injury, criminal and employment tribunals. Our Experts have a wide and extensive experience. Fast-track service available.

Professor Charles Claoué

Mr. Louis Clearkin

Mr. Saj Khan

Mr. Samer Hamada

Mr. Shahram Kashani

Miss Vickie Lee

Mr. Shahriar Nabili

Mr. Kashif Qureshi

Mr. Richard Bowman

Dr. Michael Wolffe

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

EXPERT WITNESS JOURNAL

AUTUMN 2018

A Day in the Life of an Expert Witness Hugh Koch, Clinical Psychologist and Visiting Professor in Law & Psychology to Birmingham City University Try asking yourself or a colleague what interesting things happened to them in the past five working days. It is surprising how fascinating people’s lives are both at work and at home. Any one of those five days will have some intriguing moments interspersed with necessary and mundane ‘filler’ moments. The ‘day’ described below is an amalgam of some of my recent work experiences which both, at the time, and on reflection at a later date, make me remember how much I enjoy my work.

The first half of my day consists of meeting five people coming to see me for a variety of reasons. They include: • Someone adjusting to adverse life events including work stress and a close family member diagnosed with terminal cancer • A driver dissociating due to by a recent motorway rear shunt who has flashbacks to the noise and the scene of the crash • A 40 year old woman who had a shoulder injury and now has what’s called ‘functional overlay’ due to her depression and pain becoming, in her view, inextricably linked

Any time after 5:30am, I start to awake from my slumber. A small headache is replaced by anticipation for the day ahead. Depending on the degree of closure, the night before, about uncompleted or difficult tasks, I try to focus on a positive thought or expectation.

• A man from a poor African country who, following a work injury developed ‘catastrophic’ negative thinking and low mood

Today, I’m travelling to middle England for a 7 hour clinic – the taxi and train on time are a good start. The new trains travelling east to London, south to Exeter and north (with me) to Manchester fascinate me, reminding me of a human-size Hornby Train Set. A relaxed walk along the platform reminds me of Dad’s similar early morning promenade on Rickmansworth Station back in the day.

• Someone who having just overcome travel fear following a nasty road accident had a further even more frightening road accident a week before seeing me. A walk to get a quick sandwich and fresh air rejuvenates me for the next session. In the afternoon, my clinic consists of three claimants, all of whom are bringing a personal injury claim following a road accident (2) and a work accident (1). The first is an Afghanistan taxi driver who has been in the UK for ten years and recently had a road accident in which an oncoming bus driver misjudged space and collided with his cab. He was very depressed about the adverse effect this episode had had on his confidence and financial livelihood. Having completed the interview and obtained the necessary information for me to complete a report, I asked him what work he had done in Afghanistan before coming to the UK, and his face which had been very sombre for the past 45 minutes, lit up and he became much more animated. “Oh”, he said, “I was an Afghani Air Force Pilot”. The next 10-15 minutes were spent with him recounting his fascinating and eventful life back home.

Arriving at my destination station, I have already had one coffee (an early morning ‘must’) and conversations with taxi driver, ticket provider and ‘on train’ host – about non-consequential but ‘warmup’ topics. When I arrive at my destination, my taxi driver at the front of the station rank is engrossed reading a book which given his and the book’s appearance make me think his book is the Koran – I interrupt his train of thoughts as we move off asking if his book is interesting. He tells me that ‘all things around us are found in this book’, I’m not usually lost for words but the guy’s fundamental or black and white belief stops me in my track and we sit in agreeable silence for 10 minutes to my destination. I arrive at my clinic, based today in a well-known private hospital for a six hour medico-legal clinic. The environment is great: clean, tidy, not crowded and run by happy administrative and nursing staff who welcome me with a smile and my name. I have a potential new colleague sitting in with me today to watch how the medico-legal interview takes place and see if she wants to join my team. She arrives at 08:45am so I can brief her on what to expect.

EXPERT WITNESS JOURNAL

A quick coffee, a phone call to my office to clarify an administrative matter, and I was reading my notes for my second client. He was a factory worker who was responsible for the process of producing metal plating for beer cans (famous ‘yellow/orange’ brand) – he had been involved in a machine malfunction whereby his right hand had been trapped for 30 seconds. He had suffered a significant injury to his hand with 48

AUTUMN 2018

referred pain up his arm to his shoulder. Being right handed, this injury had a significantly adverse affect on working and also his leisure life as a guitar player and his domestic activities. Despite these adverse effects, he had maintained a resilient and emotionally robust attitude and despite minor mood and sleep disturbance had tried very hard (and succeeded) to continue working and keeping positive.

As well as my medico-legal and clinical/treatment work, I also enjoy writing, professionally and usually have one or two articles or a book/book chapter ‘on the go’ at any one time. The next hour is spent reviewing a draft of a paper describing a case report on specific travel phobia to be submitted by the end of the week. Looking at my iPad diary, I review and take stock of my commitments for next week – a clinic in London, a case conference in Bristol, some telephone discussions on problematic cases and ongoing working commitments in the office. Not all my time is diarised as unforeseen requests or demands on my time will happen plus time for essential and very welcome coffee breaks.

The third claimant was a man who had been riding a motorbike when a lorry emerged suddenly from a right hand turning and collided with him and his bike. He had suffered significant and extensive right leg and arm injuries, losing his right leg and was now dependant on a wheelchair for mobility. He was agitated, angry and depressed with what had happened, which was very understandable. Following my assessment, I recommended cognitive-behavioural therapy sessions to help him adjust emotionally to such extensive and life-changing injuries. Although this wouldn’t alter the physical disabilities he had, I hoped therapy would help him adjust and cope even better emotionally.

Returning to my comments at the start of this article, it is usually not difficult for me to find my “five intriguing moments” – sometimes I share them with someone who is interested to listen and sometimes I just log them in my own memory bank to reinforce how much I enjoy my job! This paper is an amalgamation of two chapters in books published by Hugh (Koch, 2016; 2018).

Seeing and talking to people who have had moderate or, at times, severe injuries and trauma not only makes one feel very sympathetic to others but also, inevitably, makes one grateful for one’s own good fortune and lack of disability. It also shows how resilient people are in adversity. You hope that your own response to them has, in some small way, helped them or given them an empathic and genuinely caring response.

Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester. Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. LCB Publications. Manchester.

What a cosmopolitan and fascinating group of very different individuals. Irrespective of why they came to my clinic and whether or not I was able to help them, they offered me a valuable insight into different nationalities, different stresses and strains, as well as the main presenting problems they came with.

Hugh Koch is a clinical psychologist and visiting professor in Law and Psychology at Birmingham City University.

My taxi arrived at 5pm to start me on my one and a half hour journey back home – the driver invited me, on questioning, to guess his country of origin – overcoming my fear of offending him by getting it wrong, I guessed Iranian (he was Iranian Kurd). He then disclosed during the ten minute journey to the station plus a further ten minutes parked, that his Polish wife of 8 years (and 3 children) wanted to leave him and what could he do – a genuinely distressed guy. We discussed some of the life factors that may have contributed to this unhappy situation. I felt I had been sympathetic but had a dilemma that I wanted to help more but, 100 miles from home, did not think this practicable – I felt I had listened and ‘witnessed his distress’.

Hugh Koch Associates, established in 1993, provides a comprehensive and independent psychological and orthopaedic assessments service plus access to a psychological treatment service, throughout the UK. Hugh Koch Associates offer expert witness services including psychological, neuropsychological, orthopaedic, and pain Assessments. We offer a rapid assessment of specialists and experts throughout the UK who have been involved in one of the following situations: Personal Injury Types of situation: Road Traffic accidents (car, bike, lorry, pedestrian) Train Accidents (driver, passenger) Work Accidents Medical Accidents Assaults Emotional, Physical and Sexual Abuse Natural Disaster Accidents

A ten minute drive back to my office and an hour’s paperwork to draft my three reports from the clinic. Then a 15 minute catch up with the office staff before phone calls. With over 50 colleagues around the UK carrying out similar clinics, I often get phone calls from them wanting to share a particular interviewrelated issue. These never take long, are interesting and a valuable way of keeping in touch with colleagues. Typically, some helpful clarifications and suggestions from me resolve some ambiguity in any one particular case and give them support and confidence.

EXPERT WITNESS JOURNAL

Refugee and Asylum Seeker Mental Health Problems Brain Injuries Work place stress (bullying, harassment, relationship conflict and workload-related) Health Issues (physical and psychological) including anxiety, depression, drug misuse and chronic pain In addition, we also provide psychological therapy carried out by experienced therapists using up to date treatment techniques such as Cognitive Behavioural Therapy. Telephone: 01242 263715 - Fax: 01242 528299 Email: enquiries@hughkochassociates.co.uk - Web: www.hughkochassociates.co.uk Head Office: Hugh Koch Associates LLP Ground Floor, Festival House, Jessop Avenue, Cheltenham, GL50 3SH

AUTUMN 2018

A Good Medicolegal Report Could Tip the Balance The knowledge of your medical expert will be critical to your personal injury or medical negligence case, however the value of a well-written and well-structured medico legal expert witness report shouldn’t be underestimated. A good report could be instrumental to the outcome of a case. Medicolegal Associates has a lot of experience preparing reports for claimant and defendant in a variety of personal injury or clinical negligence cases and we receive a lot of positive feedback regarding the quality and speed of delivery of our medico legal reports. Our experts produce more than 150 reports per year and in this article, one of Medicolegal Associates’ pain experts, Dr Ivan Ramos-Galvez, explores what makes a good medico legal report.

any potential problems – which can be helpful when variances arise – allowing the reader to understand the full impact their injuries or condition has on all aspects of their life. 5. Quality presentation There is a fine balance between including detailed qualitative information to build a holistic picture, without including excessive, overwhelming amounts of detail which detract from the key points in the report.

1. Expressing and owning an opinion Every opinion in an expert report needs to be based on detailed analysis of the available facts. A logical thought process should support the opinion expressed and clear and informed reasoning should be in evidence. The expert providing his or her opinion needs to demonstrate a holistic understanding of the condition and be well established in their areas of specialism.

6. Plain English Good medico legal reports are also written in plain English and should be understandable for everyone, not just legal counsel or the medical profession.

2. Detailed evidence-gathering The collection, organisation and thorough analysis of a range of information, including historical medical records, expert reports and witness statements are vitally important. It is largely this information that will dictate the outcome of a case and, very often, this information is highly subjective, regarding a relatively un-measurable experience. Analysis of the claimant’s current state of health in an objective, detailed way is crucial.

About Medicolegal Associates Established experts, quality reports, quick turnaround. Our aim is to assist the court to achieve a fair outcome through providing thorough, impartial information. We organise a medical examination within 7 days of instruction and our reputable, medical experts provide their reports within 4 weeks. Our experts are also experienced expert witnesses, should you require their presence in court. We accept instructions on personal injury and clinical negligence claims from screening reports to condition and prognosis reports, causation and joint instructions. Our experts are trained to act for either the claimant or defendant and viewing a case from both sides makes for a robust report and conclusion. We make the process of commissioning an expert medico legal report easy and efficient for you and your client. You will find we are responsive, flexible and very professional.

Where relevant, good quality coloured photographs to highlight scars or injuries could be included. 3. Chronological presentation of events A complete chronological medical history of the claimant both pre- and post-incident is necessary to help drill down and access further information relevant to the case that may otherwise have been overlooked. Information presented clearly within a relevant time context acts as an internal set of signposts for examining facts and questioning findings. Omissions or inaccuracies in the chronology of events can have very serious consequences and undermine the opinions reached in the report.

Please get in touch for more information, to book an appointment at a clinic, or to arrange to speak to our experts about your case.

4. Focus on specifics as well as allied areas A good medico legal report will include a detailed, holistic picture of the claimant’s life bringing to light EXPERT WITNESS JOURNAL

www.medicolegal-associates.com T: 0207 118 0650 50

AUTUMN 2018

The NHS Winter Examined by Gordon Miles FRCEM (Hon) MBA and Dr Simon Howes For many years readers will have become familiar with the Winter headlines about the performance of the NHS healthcare systems across the UK. This Winter will be no different, unless of course it is even worse.

The project has proven invaluable and has now commenced data collection for its fourth year. As was the case in previous years, each participating Provider will submit weekly data on attendances, Four-Hour Standard performance, delayed transfers of care and cancelled elective operations. This data together better reflect pressures, constraints and consequences for system performance.

We are entering the Winter period with Emergency Departments across the UK under more stress than at any time in the last 15 years. That doesn’t auger well for the coming Winter; whether or not it is accompanied by an influenza and/or norovirus outbreak.

However, in an effort to reflect on-going difficulties in recruiting sufficient numbers of permanent staff, last year the project also asked its participating Providers how many locum and agency staff are working in their Emergency Departments. This additional fifth question is being retained for the coming year.

Work has been undertaken on some long-term solutions, which largely centre around an expansion of the medical workforce in Emergency Departments in England. However, in Scotland, Wales and Northern Ireland the Royal College of Emergency Medicine, continues to advocate for an effective workforce strategy that will deliver the trained staff required to deliver safe effective care for a growing and aging population. However, that is not to say we are alone in needing more workforce resources, clinical and nursing colleagues in other specialties are similarly placed and every Royal College in the UK is acutely aware of a shortage of trained staff.

How does this Project work? The data from individual Providers is aggregated to ensure the focus of consideration is the wider health care system rather than the performance of individual Trusts/Boards. Published on a Friday of the week following data collection, the summary data provide a current overview of ‘winter pressures’. The College is grateful to the participants who represent Trusts/Boards of all sizes and geographical locations. Unlike NHS England datasets, there is no suggestion that our project represents a complete or permanent scrutiny of the healthcare system. Our data include all four countries of the UK though the majority of participating sites lie within England. It is just a sample of Trusts/Boards, albeit a large and representative one.

Why is Winter so difficult? To shine a torch into the morass of explanations about why Winter is so difficult, in 2015 the Royal College of Emergency Medicine launched the ‘Winter Flow Project’. Our aim was to highlight the difficulties facing an NHS struggling with unprecedented financial difficulties and insufficient resources. So why is Winter so difficult?

The data has proven to be of immense value and allows timely informed comment and analysis rather than just speculation. This would not be possible if we were to rely on the data sets published by NHS England, which – with the exception of the Winter Sitrep Data – is published significantly after the events they describe have actually taken place.

The Winter Flow Project seeks to find some answers to this question by looking at an area that our emergency physicians tell us is critical to timely care provision in Emergency Departments (ED): patient flow through the ED and into the hospital. The Winter Flow Project looks at patient flow within Emergency Departments and the hospitals in which they function, from the beginning of October until the end of March. It has been a great success because of the generosity of its contributors, with over 50 NHS Trusts and Health Boards from across the UK submitting data over a six-month period. This data has helped to provide a better understanding of system pressures and Four-Hour standard performance.

What happened during the 2017/2018 Winter? In February 2018, NHS Improvement published its ‘Quarterly performance of the NHS provider sector: quarter 3 2017/18’. As the name suggests this gives an overview of NHS performance up to the end of December, and on the basis that four-hour standard performance at all ED facilities had only declined to 89.5% from 89.6%, this report declared that ‘the yearon-year decline in performance experienced during this period over the previous four years has halted.’

The findings have enabled the College to broaden the debate around Emergency Medicine beyond the usual narrow focus on the four-hour standard and meant that providers, commissioners, the national press and governments in each of the four nations of the UK were better informed about the challenges faced by staff working on the NHS frontline.

EXPERT WITNESS JOURNAL

Looking at the Winter Flow Project data from the last three years can help set this statement in its proper context and helps us assess the extent to which it stands up to scrutiny. So what happened last Winter to provoke this College to call it as the worst Winter for a generation? 51

AUTUMN 2018

No matter how excellent the planning was, the service was under acute pressure, because plans without the resources to deliver them are likely to fail. Having a plan doesn’t fill rota gaps; emergency physicians take seven years to train so a quick fix isn’t possible. Similarly, increasing locum opportunities for the existing workforce only gets you so far as there is a limit to how many hours that can be worked by the existing workforce without fatigue compromising patient care. Last Winter saw a continued deterioration in FourHour Standard performance across the UK and was the worst overall performance the Winter Flow Project has ever recorded. During the 2017-18 Winter Flow Project a total of 56 sites each contributed 26 consecutive 4-hour performance scores. The range of performance against the Four-Hour Standard was 49.13% to 99.47%, with an overall average of 81.21%. The overall weekly trend is shown in figure 1.

The total number of cancelled elective operations recorded by the Winter Flow group over the 26 week period was 88,509. This was higher than the numbers recorded by Winter Flow in the previous two years. The weekly number of cancellations recorded by Winter Flow in 2017-18 was 129% higher than 2015-16 (3410 /week compared to 1491/week). This was both bad news for those patients who were immediately affected and bad news for Providers whose income from elective work will have been restricted as a result. The number of locum staff employed on the frontline increased by around 22% over the 26 weeks of the 2017-18 Winter Flow Project. This shows the lengths that Providers are willing to go to in order to maintain patient safety, but this also comes at a significant cost.

Figure 1 Source: RCEM Winter Flow Project Final Report: May 2018

Given that this year’s Winter Flow Project recorded average Type 1 four-hour standard performance of 81.21% compared with 81.98% the previous year, to declare the year on year decline in Four-Hour Standard performance has been halted, might seem like a tempting conclusion. It would nonetheless be misguided.

Hospital systems improved the proportion of patients with Delayed Transfers of Care (DToC) compared to the previous winter, but this remained inadequate to cope with demand. For 51 Providers within Winter Flow the weekly DToC number increased from week one to a maximum over the 26 week period. In 32 Providers the increase in acute bed stock was greater than the highest point of the DToC increase. This means that those Providers were able to make additional bed capacity available notwithstanding the strain of increasing DToC cases.

While these figures might seem similar on a superficial level, a closer examination of the data indicates that the ability of Providers to see, treat, admit or discharge their patients has continued to deteriorate. Between January and March, the Winter Flow Project recorded average four-hour standard performance of 79.02%. This is the lowest quarterly score we have ever recorded. Moreover, it is 2.99 percentage points lower than in 2016-17 and 4.48 percentage points lower than was the case in in 2015-16. [See Figure 2]

However, 19 Providers were not able to increase the bed capacity to cover the spike in DToC cases and therefore, in certain weeks had no further capacity to accommodate the seasonal increase in admissions. This means that those Providers experienced a net loss in bed capacity in certain weeks despite their efforts to create additional capacity to meet seasonal demand.

The reality is that faced with attendances and admissions that have continued to rise — figures from NHS England indicate that attendances at Type 1 emergency departments have risen by 1.10% compared with Quarter 3 & 4 2016-17 and admissions have risen by 6.10% in the same period — NHS Providers did a remarkable job despite the fact that the resources provided to deliver the expected levels of service were ‘demonstrably’ inadequate1.

The DToC rate is a surrogate marker of the increased numbers of patients who were medically optimised but unable to return to care in the community. This is a consequence on inadequate social care provision and exacerbates crowding in the hospital and the ED. [See Figure 2] EXPERT WITNESS JOURNAL

RCEM Wi t Fl P j t Fi l R t M 2018 Figure 2 Source: RCEM Winter Flow Project Final Report: May 2018

AUTUMN 2018

In this respect it is telling that in March 2018, when four-hour standard performance at Type 1 EDs was 76.4%, NHS England (while retaining their commitment to the Four-Hour Standard) effectively abandoned the idea of returning to 95% performance until 2020.

Figure 4 Source: RCEM Winter Flow Project Final Report: May 2018 Figure 3 Source: RCEM Winter Flow Project Final Report: May 2018

Improving the flow of patients from Emergency Departments into hospital and out into Social Care also has a crucial role to play in improving the situation. Some hospital systems do this much better than others. Good hospital systems proactively draw patients from the Emergency Department into wards once a decision to admit has been made. Poorer systems leave it to the emergency physicians to try to push the patients who need admission into the wards whilst simultaneously practising corridor medicine. Delivering care in corridors is at best undignified and at worst unsafe.

Why did it happen? The College believes that there has been under investment in key areas of the NHS & Social Care that have impacted with increasing effect on urgent and emergency care systems in the UK. We estimate for example that there is a lack of at least 5,000 acute beds in hospitals in England alone. Hospital systems are using a range of reactive levers including cancellation of elective care to try and manage the demand upon their systems. A number of other factors have also compromised the ability of flow and wider hospital system engagement to support Emergency Department function. The prolonged cold snap undoubtedly had an impact, despite the fact that planning for cold weather in winter is hardly unusual.

The fact that some hospitals manage patient crowding better than others points to the fact that wider hospital management can have an impact on this issue. This is why the Royal College of Emergency Medicine is currently developing guidance to help hospital boards consider these issues in the run up to the Winter period.

Our own evidence shows the lengths to which Providers have gone to try and support performance. Between January and March it appears that the Providers within the Winter Flow group responded to pressures by flexing2 their acute bed stock to a slightly greater extent than was the case last year, although this was far out stripped by increases in admissions. [See Figure 4]

So what can be done? There is a pressing need for clear and realistic planning that will optimise flow of patients from the Emergency Department and into the wider hospital, should they need admission. This also means that the secondary care sector (hospital Providers) must be given the resources to be able to do. Funding for social care - to address the needs of vulnerable patients who have been medically optimised and are otherwise fit to return home â&#x20AC;&#x201C; needs to be improved after years of decline in both absolute and relative terms.

Unfortunately, the situation was still more adverse in the wider NHS. NHS England data for both Quarter 3 and Quarter 4 shows that, as was the case in previous years, NHS Providers have tried to accommodate an ever-larger number of needy patients with an everdiminishing bed base. The predictable result has been bed occupancy at record levels and thousands of patients stranded on trollies for more than 12 hours.

Systems must have a range of proactive and reactive steps in place to ensure patients flow, as well as wider engagement to maintain that flow. RCEM have made a number of recommendations in this area, for which see the Collegeâ&#x20AC;&#x2122;s Vision 2020 Strategy3.

However, extra acute beds are only part of the answer: the real challenge comes in staffing those beds. There is a chronic shortage of doctors and nurses across all medical specialities, but this is particularly pronounced in Emergency Medicine. In addition, patterns of leave around the festive season and weather-related sickness for both patients and staff make a challenging situation even worse. EXPERT WITNESS JOURNAL

There is now a clear Emergency Department workforce strategy in England that must be fully implemented. The Devolved Governments of the UK must ensure a similar strategic focus to improve care delivery for patients within their different health systems. 53

AUTUMN 2018

provision consistently obstructs their ability to move medically optimised patients out of hospital. Similarly, a profound shortage of trained staff, and wider financial constraints have made opening additional acute beds problematic.

Conclusions As we have highlighted, NHS England data for both Quarter 3 and Quarter 4 2018-18 showed that, as was the case in previous years, NHS Providers have tried to accommodate an ever-larger number of needy patients with an ever-diminishing bed base. The predictable result has been bed occupancy at record levels and thousands of patients stranded on trollies for more than 12 hours.

The Royal College of Emergency Medicine welcomes recent Government discussions about additional resources for the NHS. It is in the interests of both patients and staff that these discussions yield tangible results for emergency medicine as well as the wider system. The previous Secretary of State the Rt. Honourable Jeremy Hunt reiterated the Government’s commitment to returning four-hour standard performance to 95%. Our hospitals need the means to turn these aspirations into reality.

However, a sustained effort to fill gaps in rotas by employing ever greater numbers of locum and agency staff show that Providers did not sit on their hands. It is also credit worthy that a determined drive to reduce the numbers of patients subject to Delayed Transfers of Care appears to have yielded results; albeit without reaching the 3.5% of bed stock mandated by the Secretary of State for Health and Social Care.

For more information on the College’s Winter Flow Project and to track how the system is coping with this coming Winter, visit the College website (www.rcem.ac.uk) using this shortened link for ease: https://bit.ly/2MTfgv1

But there is still no getting away from the fact that throughout the Winter Flow reporting period this year, performance was supported by cancelling unprecedented numbers of elective operations. Between them, the contributing providers to this year’s project recorded an average of 3410 cancelled elective operations per week. While this may have helped to improve bed availability in a time of crisis, it is surely neither desirable or sustainable to support the standards of treatment for one group of patients directly at the expense of another group of patients. Particularly so because by denying those patients their planned elective treatment, you make it more likely – not less – that those same patients will arrive in an ED in need of more urgent medical help.

Gordon Miles FRCEM (Hon) MBA Dr Simon Howes Chief Executive Policy Manager References 1, http://www.nhsconfed.org/media-centre/2018/02/nhsimprovement-report-underlines-why-our-members-areat-end-of-their-tether 2, Proactively managing their bed stock to meet patient demand. 3, RCEM Vision 2020 https://www.rcem.ac.uk/RCEM/Quality-Policy/Policy/ Vision_2020.aspx

Many, of the practical steps to improve this situation have been highlighted to us by our contributing Providers. They have told us that a lack of social care

Dr Russell Keenan

Consultant Paediatric Haematologist & Honorary Senior Lecturer MB ChB, PhD, MRCP, MRCPath

Mr Aruni Sen

I am a Consultant Paediatric Haematologist with over twenty years experience across all aspects of paediatric haematology, including clinical and laboratory aspects of malignant haematology , leukaemia, stem cell transplantation, haemophilias and other bleeding disorders, thrombophilias, haemoglobinopathies, thalassaemias, transfusion medicine and benign haematological disease.

UK CONSULTANT MBBS, MS, FRCS (ENG & EDIN), FRCEM, DIP.MED.ED

Medico-legal reports for trauma, personal injury & acute emergencies of any nature; medical review for clinical negligence; clinical expert witness for courts, short review reports on minor injury claims. MedCO & CPR part 35 accredited; ICO registered. APIL expert

I have eight years of experience in producing Medico-legal expert reports. My reports have covered cases of medical negligence in relation to cases in paediatric haematology and child protection in relation to the presence or absence of a bleeding disorder. I have experience of working with barristers and being cross examined in court. I keep my reports relatively short, focused on my legal instructions, with all scientific and medical language explained and the basis of any opinions explained and referenced as required. I have updated my skills on a 2 day Expert Witness Intensive Course for Healthcare professionals.

Area of work; Wrexham, North West of England and the Channel Islands Contact, all postal communication to: TY YNYS, 4 Sables D’Or, Les Grandes Rocque Castel, Guernsey, GY5 7FS

Contact Details Tel: 07753 807 611 - Email: russelldavidkeenan@gmail.com Alder Hey Children's Hospital, Eaton Road, West Derby, L12 2AP

Alternate Address (no posts please): 40 Acton Hall Walks Wrexham, North Wales, LL12 7YJ Tel: 07779 529026 (Mrs. Jacqui Davies, Secretary) Mobile: 07931 542759 - 07839 755001 Email: thesens@msn.com Fax: 01481 258472

EXPERT WITNESS JOURNAL

AUTUMN 2018

Rapid Heart Imaging Technique May Cut Costs, and Boost Care in Developing World A newly developed rapid imaging protocol quickly and cheaply diagnosed heart ailments in patients in Peru, according to new research in Journal of the American Heart Association (http://jaha.ahajournals.org/), the Open Access Journal of the American Heart Association/American Stroke Association. In Peru, cardiovascular disease affects 3.2 million (16 percent of the adult population), leading to a significant loss of well-being, estimated at 281,829 Disability Adjusted Life Years. Current Cardiac Magnetic Resonance Imaging usage in high income countries focuses on function, scar (fibrous tissue that replaces normal heart muscle tissue destroyed by injury or disease), perfusion, flow, mapping and angiography and delivers valuable clinical insights leading to targeted and precise treatments. However, these varied techniques make it slow (typically 45 minutes), expensive, complex and potentially out of reach for most people in the developing world. In this study, researchers developed and tested a rapid CMR protocol using contrast dye that measured cardiac structure, function and scarring. The rapid diagnostics worked with existing infrastructure, took 18 minutes and cost $150 per patient resulting in important changes in patient care.

Researchers found rapid CMR satisfied all imaging needs in 89 percent of patients. In 7 percent where CMR was the first imaging technique performed, no further non-invasive imaging was needed. CMR did not miss any diagnoses initially found by echocardiography researchers said. “Because the rapid CMR protocol was embedded in clinical care with training and education, it resulted in important and frequent patient management changes that appeared beneficial for both patients and the healthcare system,” said Katia Menacho, Ph.D., study first author and cardiovascular science research fellow at Barts Heart Centre, St. Bartholomew’s Hospital in London. “Lack of resources is not a justification for the absence of key diagnostic tests in the developing world.”

“Our CMR strategy was three to five times cheaper than current CMR exams in Peru,” said James C. Mon, M.D., study lead author and professor at Barts Heart Centre, St Bartholomew’s Hospital in London. “It also can be delivered two to three times faster and is easier than conventional CMR.” Researchers conducted scans on 98 Peruvian patients (average age 52, 60percent female). Scanning found 26 percent had hypertrophic cardiomyopathy, 22 percent had dilated cardiomyopathy, 15 percent had ischemic cardiomyopathy (when cardiovascular disease or heart attack (http://www.heart.org/en/healthtopics/heart-attack/about-heart-attacks) cause the disease), and uncovered 12 other pathologies including tumors, congenital heart disease, iron overload, amyloid plaques (abnormal protein deposits), genetic syndromes, inflamed vessels, clots and valve disease. Researchers report CMR revealed an unsuspected new diagnosis in 19 percent of patients or led to a change of treatments in 37 percent. In 5 percent, a change in care management was suggested but not delivered due to access barriers (cardiac surgery or device therapy). In an accompanying editorial, Christopher M.

Kramer, M.D., University of Virginia Health System in Charlottesville notes: “To make this proof-of-principle study a reality in much of the developing world, imagers will need to be trained at sites with appropriate scanner technology. Only this way will an abbreviated protocol for evaluation of cardiomyopathies be implemented. This is an exciting time for the potential of broadening the impact of CMR throughout the developing world.”

Dr Gordon Williams Consultant Cardiologist MB BCh FRCP FACC Spire Leeds Hospital Jackson Avenue, Leeds LS8 1NT

In an accompanying editorial, Christopher M. Kramer, M.D., University of Virginia Health System in Charlottesville notes: “To make this proof-of-principle study a reality in much of the developing world, imagers will need to be trained at sites with appropriate scanner technology. Only in this way will an abbreviated protocol for evaluation of cardiomyopathies be implemented. This is an exciting time for the potential of broadening the impact of CMR throughout the developing world.”

Tel: Fax: Mob:

0113 218 5943 0113 218 5987 07702 550 758

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.

Other co-authors are Sara Ramirez, M.D.; Pedro S egura, M.D.; Sabrina Nordin, M.B.S.; Amna AbdelGadir, M.B.S.; Vileta Illatopa, M.D.; Anish Bhuva, M.B.S.; Giulia Benedetti, M.D.; Redha Boubertakh, Ph.D.; Pedro Abad, M.D.; Bertha Rodriguez, M.D.; Felix Medina, M.D.; Thomas Treibel, Ph.D., M.D.; Mark Westwood, M.D.; Juliano Fernandes, Ph.D.; Malcolm Walker, M.D.; and Harold Litt, Ph.D. Author disclosures are on the manuscript.

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.

The United Kingdom Foreign & Commonwealth Office; the Peruvian Scientific, Technological Development and Technological Innovation; the University College London Biomedical Research Centre; and the University College London Special Trustees’ Charity funded the study.

Mr Keith Borowsky

Dr HABIBI

Trauma and Orthopaedic Surgeon specialising in Shoulder & Elbow Surgery

PAEDIATRICIAN AND SPECIALIST IN: CHILDHOOD SERIOUS ILLNESSES CHILDHOOD RESPIRATORY DISEASES CHILDHOOD SLEEP DISORDERS

MBBcH (Wits), F.C.S. (Orth.), M.Med. (Orth.)

I am a specialist in children's respiratory conditions including, asthma, allergies, bronchiolitis, chest infections and also serious illnesses such as pneumonia, meningitis and septicaemia. I am also a specialist dealing with sleep apnoea and other sleep problems, for children of all ages. 20 years experience. Over 800 reports. 60:40 Claimant: Defendant UK Register of Expert Witnesses. Family Justice Council Member

Mr Keith Borowsky is a Trauma and Orthopaedic Surgeon who has been practising orthopaedics for over 30 years, including 24 years experience as a consultant. Following 15years as a Substantive Consultant at Medway Maritime Hospital, his current main activities and positions are:

My work in Paediatric Intensive Care has lead to a special interest in end of life care, decision-making and conflict resolution between health care professionals and families.

1 CONSULTANT ORTHOPAEDIC SURGEON at The Spire Alexandra,Kent Institute of Medicine and Surgery ( Kims) , The Somerfield hospital,and Fawkham Manor Hospital

I have assisted the Courts in a number of high profile cases: Glass v UK (Application No 61827/00) [2004] 1 FCR 553 Charlotte Wyatt October 2004 Charlotte Wyatt April 2005 Charlotte Wyatt October 2005

2: DIRECTOR SUBOW LTD A company developing a shoulder replacement prosthesis for severe fractures of the shoulder in collaboration with European companies.

My Private Practice is based at 84 Harley Street in London, 243 Great Portland Street in London and New Malden Diagnostic Centre in Surrey. I am accessible, available and aim to provide the highest standard of consultation and care for children. I provide medical reports promptly and communicate properly with others involved in my patient's care.

3: MEDICO- LEGAL CONSULTANT with a combination of personal injury and negligence work. Mr Borowsky has been involved in medico-legal reporting for over 20 years, undertaking personal injury ,road accident and medical negligence reports. He also offers diagnostic and rehabilitation expertise on existing upper limb cases where the prognosis and future treatment is unclear.

Private Clinic Locations Harley Street Private Practice - 4th Floor Room 10, 84 Harley St, Marylebone, London W1G 7HW

Contact: Keith Adrian Borowsky

Harley Street Clinic - 35 Weymouth Street, London, W1G 8BJ

Tel: 01634 662 834 - Email: kesujeca@gmail.com Spire Alexander Hospital Impton Lane, Walderslade, Chatham ME5 9PG

The Portland Hospital Out Patient Centre - Great Portland Street, London, W1W 5AH The New Malden Diagnostic Centre - 171 Clarence Avenue, Surrey, KT3 3TX

EXPERT WITNESS JOURNAL

AUTUMN 2018

The Role of an Expert Witness: More Than Just a Report The end goal when instructing an expert witness report is ultimately a detailed, objective report based on sound clinical judgment; a report that stands up in Court and enables decisions to be made in the interests of the litigation process. The journey to this outcome is dependant on outstanding expert witnesses with strong clinical experience. Here, Bush & Company Rehabilitation expert witnesses explain what they feel their role is in providing expert reports and opinion in both quantum and liability. remain realistic about what can be achieved and how best this can be done. This means I donâ&#x20AC;&#x2122;t get drawn in to recommending large amounts of therapy because the injured person or family feel this is what is needed. Following the questions I observe movements and functional ability to provide an overall picture of their general level of ability and difficulties as well as strength and function.

The end to end process: My role as an expert witness is to provide a report that stands up to scrutiny if needed and to ensure this my role begins with extensive reading of the case to gather the relevant and necessary information I need to make sure I am fully informed. This includes reading the details within the instruction as well as any other reports from medical experts included in the documentation.

Quite often the injured person will ask questions about their injuries if they have received no guidance from other clinical professionals. In particular they are concerned with what they can expect in the long term.

In quantum cases this research is completed prior to the client assessment to enable me to have any questions answered at the meeting. Specific questions are planned based on my past experience as an expert witness and a clinician. The assessment itself varies from person to person but generally involves asking a series of questions relating to the affect of the injury on every day life and making sure this is documented and evidenced. Family and support networks may be present however my focus is on the injured person. Whilst I need to be sensitive and empathetic to a client and their family, I also need to EXPERT WITNESS JOURNAL

My quantum report is started within two days of the assessment, following a period of reflecting on all of the information gathered and will then be completed two weeks to ensure the momentum of the case continues. For liability and causation reports, the process tends not to include a client assessment and instead my time

AUTUMN 2018

is spent researching the case and what occurred. This part takes a significant amount of time due to the complex nature of the cases and the amount of evidence-based research and professional guidelines that need to be considered before detailing my expert opinion.

The challenges: One of the main challenges to providing a timely report is incomplete evidence when instructed on a case. Complete evidence is vital to ensure I can provide an expert, objective opinion on the case. This is overcome with a good working relationship with the instructing party which then helps reduce delays.

In my experience, there is often a need to contact the solicitor following instruction to ensure key points are clarified or to gather evidence not included in the initial documents. This helps to establish rapport and build a professional working relationship that reduces surprises during the process. For example we are able to eliminate pre-existing conditions that have no relevance to the claim which would have otherwise damaged the credibility of the report. As an expert, I believe it is my role to not simply produce a report but to help the instructing party throughout the process of the case and form part of the litigation team. Regular contact with the solicitor facilitates clear discussion and provides an opportunity to receive some degree of questioning from a legal perspective.

Meet the Bush & Company experts in this article:

Kate Makin EW and Occupational Therapist

Cathy Preston Kate Tebbett EW and EW and Physiotherapist Physiotherapist

What to look for in an outstanding expert When instructing an expert witness, instructing parties should consider the following factors:

The report writing stage can be perceived as a lengthy process but is vital to ensure that everything that has been assessed is written up in a clear, professional and thorough way. The writing stage can also pause to research particular equipment or adaptation so that recommendations are final and costs are appropriate.

Are they an expert? It may seem an obvious question and the job title would assume that the person you are instructing is an expert but is that a fair description? An outstanding expert will be seasoned in their clinical profession and the report you receive will be able to stand up to scrutiny because of the high levels of experience. This ensures the expert you instruct is credible and reliable and gives you confidence in both the process and outcome.

Once my report is complete, the Bush & Company reports team will check it and QA checks are completed before submission to the instructing party. Quite often I will call the instructing solicitor once the report is sent to talk them through my expert opinion included. This helps the report to be easily understood, in the appropriate context.

At Bush & Company Rehabilitation, the expert witness network has an average of 23 yearsâ&#x20AC;&#x2122; experience in their clinical profession. That level of experience gives an expert unrivalled understanding of how an injury will affect a person throughout their whole lifecycle and not just at the point of injury. Over 70% of our experts are already NHS Resolution approved.

The benefits: In quantum cases, our opinion gives the court an unbiased view of what clinical input can offer the injured person in terms of helping them to achieve the most they can in life, be comfortable and pain free. Reports give a long term plan of what is likely to be needed, considering how the condition will change over time as the injured person ages and associated costs.

Do they have access to training, CPD and peer support? As well as experience gained, an outstanding expert witness needs to have access to learning, development and support opportunities to remain up to date.

In liability cases, our reports set out the appropriate professional practice before providing an opinion as to whether practice has fallen below the standard expected of a reasonably competent practitioner and of the hospital/organisation responsible for the care delivery.

At Bush & Company Rehabilitation, the expert witness network of over 75 professionals means that the experts you instruct have a UK-wide peer group to learn from and consult with where needed. This is backed up by regular training and CPD opportunities led by clinicians, solicitors, barristers and communication experts. How do they conduct themselves? An expert witness forms a key part of the litigation process for the instructing party and the injured person. Itâ&#x20AC;&#x2122;s a given that you should expect a high level of professionalism and objectivity and this should present itself in how an expert witness engages with you. Do they speak with you and pick

EXPERT WITNESS JOURNAL

AUTUMN 2018

up the telephone? Do they ensure there are no surprises by keeping you informed, are their writing skills sufficient? Do they act with integrity on behalf of the Court?

dation experts; with an average of 23 years’ experience in their clinical profession. We have a full and robust QA checking process in place and believe we are the only firm who carry our report checking from both a clinical and legal perspective to ensure accuracy.

At Bush & Company Rehabilitation, our on-boarding process means that experts not only understand what is expected of them but we share with them what great looks like. We also operate a ‘Chinese Walls’ system which enables the expert witness to be professional and objective and removes any risk of conflict of interest within the case. No expert has access to details of the other side of a case. This also extends to office staff who cannot proof read or QA check an opposing side of the case due to the processes and systems in place.

We have built many close working relationships with both claimant and defendant parties and these relationships ensure we can openly discuss and agree favourable and flexible commercial terms, respond efficiently to needs and are happy to discuss our network of experts in relation to need prior to instruction. To speak to us about our Expert Witness service and our clinical professionals, contact Amey Haywood, Head of Expert Witness Services on 01327 876210 or email ahaywood@bushco.co.uk

Can you work with them? We understand that when instructing an expert witness, you require expertise and objectivity but we also understand that you need to be able to work professionally with that person. We invite any instructing party to get in touch with us to discuss our experts and encourage you to engage with us to ensure you receive the perfect match for you needs. About Bush & Company Rehabilitation Bush & Company provides both quantum and liability reports for claimant and defendant solicitors and we are proud of our ability to serve both parties with objectivity and credibility. With over 70% of our 75+ expert witnesses already NHS Resolution approved through previous cases, our UK-wide network covers physiotherapy, nursing and midwifery, occupational therapy and accommo-

EXPERT WITNESS JOURNAL

AUTUMN 2018

Artificial Intelligence could help tackle coronary heart disease Scientists from King’s College London believe that Artificial Intelligence could hold the key to identifying the best way to treat the country’s biggest killer, coronary heart disease (CHD).

images. The team will then test the new method on real patient data to demonstrate its clinical usefulness. Dr Lee said: “The successful outcome of this research may help doctors decide on the best treatment for CHD using a test with reduced risk and less discomfort for patients. A fast and automatic method may also lead to shorter waiting times and cost savings for the NHS.”

And now the team has secured close to £250,000 from the national charity Heart Research UK to pursue the test, that if successful would be less invasive, faster and more cost-effective than existing procedures.

Barbara Harpham, Chief Executive at Heart Research UK, said: “CHD, where the coronary arteries that supply the heart muscle with blood become narrowed by a gradual build-up of fatty material, is the leading cause of death in the UK.

Lead scientist Dr Jack Lee and his King’s College London team have been awarded a Novel and Emerging Technologies (NET) Grant by Heart Research UK to develop a type of advanced computing technique which will learn to identify patterns from blood flow simulations in thousands of coronary arteries.

“This exciting project at King’s College London will use the most advanced computing methods to develop a new test with the aim of benefiting patients with CHD as soon as possible. We look forward to supporting Dr Lee and his team and seeing the results of this pioneering medical research.”

Called ‘deep learning’, the computing algorithm will make a pressure-based assessment of coronary artery narrowings safer, quicker and easier than at present. When a patient is admitted to a catheter lab for treatment for CHD, doctors must decide whether the artery should be reopened physically with a stent or, in less severe cases, treated with medication.

Heart Research UK’s NET Grants are for research projects which focus on the development of new and innovative technologies to diagnose, treat and prevent heart disease and related conditions. They have given out NET Grants since 2006, awarding £2,657,041 in total.

There is much evidence that measuring the pressure drop across the coronary artery narrowing is a highly accurate way of deciding the best treatment. The test involves inserting a wire into the coronary artery which has a sensor to measure pressure. However, the majority of catheter labs in the UK do not currently measure pressure routinely due to the risk to patients, and the extra time and cost of the procedure.

Dr Duncan Dymond

Coronary angiography is the conventional method for looking at the coronary arteries and involves taking x-ray images of the blood vessels. This information can be combined with a computer model of blood flow to estimate the pressure drop, without carrying out invasive measurements on patients. There are already accurate methods to simulate the blood flow through blood vessels but they are timeconsuming and require special training to perform.

Dr Duncan S Dymond has been a consultant cardiologist at St Bartholomew's Hospital, now a part of Barts Health NHS Trust since 1987.

MD FRCP FACC FESC

Consultant Cardiologist He has been undertaking expert witness and medicolegal work for more than 5 years and has completed his Cardiff University Bond Solon expert Witness course. Dr Dymond currently completes 1-2 medicolegal reports per week, for personal injury and medical negligence, with roughly a 60/40% split claimant/defendant. He has also completed expert witness work for the General Medical Council, the Medical Defence Union and the Crown Prosecution Service as well as accepting private instructions directly for solicitors. He has also provided mediolegal opinions for cases in Singapore.

In an alternative approach, Dr Lee’s project will use an advanced computing algorithm known as ‘deep learning’. This is a type of artificial intelligence technique which will identify patterns from blood flow simulations in thousands of coronary arteries, so the computer ‘learns’ how the geometry of the narrowings affects the pressure pattern.

T: 0207 079 4260 E: medicolegal@harleycardiology.co secretary@drduncandymond.com W: www.drduncandymond.com

In turn, this information may allow the pressure drop across the coronary artery narrowing to be calculated directly and in real-time from the angiography

EXPERT WITNESS JOURNAL

110 Harley Street, London, W1G 7JG

AUTUMN 2018

DMU researcher develops new treatment for depression A researcher from De Montfort University Leicester (DMU) has helped develop a new treatment for depression which has caused ‘big reductions’ in patients’ symptoms.

processing areas of the brain and the other receiving the same treatment but for the areas of the brain responsible for visualising places and people. Over a 12-week period, there was no significant difference between the two groups, with both showing a 40% improvement according to the Hamilton Rating Scale for Depression.

Through work conducted in collaboration with Cardiff University, DMU lecturer Dr Moses Sokunbi has found that patients treated using the fMRI neurofeedback technique showed more than a 40% improvement on a widely-used depression scale.

Dr Sokunbi said: “Our research has found that training the areas of the brain responsible for emotional processing and also for visualising places and faces could have some therapeutic effect on depression.

fMRI neurofeedback allows researchers to noninvasively analyse brain activity and identify which areas of the brain should receive increased activation.

“Through strategies such as mental imagery the patients were able to boost the signal in the parts of the brain that are responsible for depression and they could immediately see a significant improvement.

In an article published by the prominent Nature Journal, Dr Sokunbi explained how patients were given strategies to engage parts of the brain that can cause depression and were given instant feedback from an MRI scan.

“The fact that the participants can see the feedback proves to them that it works and shows them that they are the ones controlling what is going on in their brain.”

Through the signals shown by the MRI machine, patients were able to see how their brains reacted to the treatment and the effect that it had on their depression.

It was initially expected that the group receiving treatment for the area of the brain responsible for emotional processing would see a bigger improvement, but this research has shown that more of the brain can be treated for depression than previously thought.

The 43 patients who took part in the study were moderately to severely depressed patients recruited by the NHS in South Wales. They were randomly split into two groups, with one group undergoing neurofeedback of the emotional

Professor Charles Davis Consultant Neurosurgeon

Dr Rowland James Whale

MBBS, FRCS, MB BS, LRCP

Consultant Physician and Geriatrician MBBS MRCP(UK)

Professor Charles Davis is a Consultant Neurosurgeon. His expertise covers: Head Injury Spinal Injury Whiplash Brain Injury Nerve Injury Pain Neuro-oncology Medical Negligence

Dr Rowland James Whale has been a fully qualified medical practitioner since 1977 and continues to hold a licence to practice and remains in NHS practice as a Consultant Physician. He is fully indemnified. Dr Whale has been producing medico-legal reports for the past 25 years, for both claimants and defendants and as a Single Joint Expert, and has given evidence in court on a number of occasions including at the Royal Courts of Justice on two occasions. His areas of expertise include: Elderly claimants, Medical negligence, General medical issues and Personal injury (MedCo certification). Dr Whale has received Bond Solon training in report writing and maintains a policy of ongoing training in areas relevant to medico-legal work. His medico-legal services are fully GDPR compliant in all aspects

Contact Details Marlene Scruton Tel: 01772 761 150 Email: marlene.scruton@talktalk.net Fax: 01772 761 150

Although based in Cambridge, Dr Whale would be willing to travel to other parts of England subject to re-imbursement of travel costs. He will consider criminal cases, publicly funded cases and is prepared to visit clients unable to travel to prepare civil litigation reports. Under certain circumstance Dr Whale will undertake legal aid cases.

Fulwood Hall Hospital Midgery Lane, Fulwood, Preston, Lancashire, PR2 9SZ Area of work North West, London & UK

EXPERT WITNESS JOURNAL

Medical Secretarial Services 63 Cambridge Road, Impington, Cambridge, CB24 9NU Phone: 01223 479024 / 07528 481814 Fax: 01223 755125 Email: sue@medicalsecretarialservices.org.uk

AUTUMN 2018

Decision of Trial Judge Upheld in Catastrophic Claim The Court of Appeal confirmed an insurer was not liable for catastrophic injuries sustained by an unlicensed teenager as he, not his father, was the driver of the vehicle at the time of the accident pathologist, over the witness testimonies of the appellant’s family.

In Issue Whether the trial judge was correct in finding the plaintiff was the driver of the vehicle at the time of the collision.

Ultimately, the Court of Appeal held that the decision of the trial judge was neither “glaringly improbable” nor “contrary to compelling inferences” and that the appellant’s arguments did not demonstrate that the decision of the trial judge was erroneous.

The Background The appellant sustained catastrophic spinal injuries on 25 September 2013 when two vehicles, a Toyota Tarago and a Nissan Patrol, collided on an isolated road on Stradbroke Island in Queensland. He was then aged 17 years and was still at school. The collision occurred when the Tarago travelled onto the wrong side of the road into the path of the Patrol. The occupants of the Tarago were the appellant, his parents and two younger siblings. The only issue at trial was whether it was the father or the appellant driving the vehicle at the time of the incident.

Implications for you Cases such as this are finely balanced and require an assessment of the probabilities of competing hypotheses where there are ambiguities as to the factual circumstances of a claim. The case acts as an important reminder that when relying on expert evidence, particularly in factually complex matters, it is vital that the evidence given is within the expert’s field of expertise.

The Decision at Trial The trial judge found that on the balance of probabilities, the appellant (who did not hold a driver’s licence or learner’s permit), had been driving when the incident occurred and dismissed the appellant’s claim.

Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Venessa Werynski - Associate Barry.Nilsson. Lawyers Website: www.bnlaw.com.au

Issues on Appeal The appeal related to whether the trial judge was correct in finding that the appellant was driving at the time of the incident. The appellant argued that the finding of the trial judge was affected by a number of errors including as to how the appellant’s blood came to be upon the driver’s airbag and the mechanics of the causation of the appellant’s injuries.

Mr Nikhil Shah Consultant Trauma Consultant and Orthopaedic Surgeon FRCS(Tr & Orth), FRCS(Glasg), MCh(Orth), MS(Orth), DNB(Orth).

I provide medico legal reports in personal injury in various conditions - trips, slips, whiplash injury, hip surgery, complex pelvic acetabular fractures, long bone and articular fractures, ankle, lower limb injuries, hip/knee joint replacements, periprosthetic fractures, soft tissue injuries and LVI cases.

The Decision on Appeal Although the Court of Appeal conceded that the appellant’s injuries did not provide any clear indication that he was the driver, they did not particularly indicate that he was a passenger either. Whilst Dr Frank Grigg (engineer) suggested the kind of injuries the appellant suffered indicated that he was not the driver, the Court of Appeal stated that the weakness in Dr Grigg’s opinion was that his expertise was not in medical science. The medical evidence itself was also not compelling as to whether the appellant was driving or not.

I also provide clinical negligence related reports in my specialist area of practice concerning hip and knee replacements, revision surgery, and trauma including pelvic-acetabular fractures. Instructions from claimant/defendant solicitors or single joint expert approximately (ratio 45:45:10). I provide the regional tertiary service in pelvic-acetabular fractures. Contact: Nikhil Shah, c/o Consultantcare Ltd Jayne Bailey Riverside Centre, Alexandra Hospital Mill Lane, Cheadle, SK8 2PX Area of Work; Manchester, Cheshire and North West

Nevertheless, the Court of Appeal concluded that the significance of the DNA evidence on the airbag was persuasive having regard to the nature of the appellant’s facial and teeth injuries, which made it inherently probable that he was the driver. Significant weight was given to the expert evidence of a forensic EXPERT WITNESS JOURNAL

Tel: 0161 393 3059 Email: nikhil.shah@consultantcare.com Website: www.privatehealthcare.co.uk/privatespecialists/ find-a-doctor/knee-surgeons/nikhil-shah

AUTUMN 2018

Mediation is a Win for All in Clinical Negligence by Richard Lodge, Partner, Kingsley Napley NHS Resolution has released its 2017/2018 annual report and accounts; while the report observes that the organisation mediated more claims that year than before, it also notes that claimant legal costs fell.

the medical negligence lawyer community should respond accordingly. Which brings me to a brief explanation about medical negligence lawyers; we largely work on a CFA ‘no-win no-fee’ basis these days, following the cuts in Legal Aid. At my firm that means we will risk assess cases carefully and only take on the most deserving claims. We do significant due diligence before taking on a patient’s claim because it is in our interests too to avoid costly and risky court proceedings.

It is good news that, for the first time in many years, the bill for legal claims against the NHS is down, so said the NHS Resolution Report and Accounts 2017/2018 released in July. Whilst the number of new clinical negligence claims plateau in 2017/2018, claimant legal costs fell by 6.4% to £467m. Defence legal cost, however, were up 2.5% to £128m. This is interesting for several reasons.

That is why the new theme of mediation makes sense for all parties – victim patients, NHS Trusts and GP practices and the lawyers involved on both sides. It helps all stakeholders to resolve their differences early, if possible, and thereby exercise prudent case-cost management.

Digging deeper into legal claims In the past it has suited the NHS to blame clinical negligence lawyers, like myself, for spiralling claims and the financial burden on the NHS, but that belies a more complex picture.

Let’s hope mediation becomes a mainstream and accepted modus operandi for medical negligence claims against the NHS in the future. Perhaps then falling NHS legal bills will become the norm and not such an unusual story.

The fact is the NHS has a large litigation bill because patients are regularly victims of mistakes. Typically, these patients do not want to sue but either need help with future care costs or want to highlight an error in the hope that others do not suffer the same. Ask any claimant medical negligence lawyer about how best to reduce the negligence bill and the answer will be, ‘Learn from mistakes to prevent them occurring again.’ By reducing the number of mistakes, you reduce the number of claims.

This article was first published by Practice Business on 19 July 2018. Many thanks to Richard Lodge and Kinsgley Napley for permission to re print.

Mr Tim Burge

Learning from experience The NHS Resolution report details the excellent work that is being done to learn from, and so prevent, medical mistakes leading to injury. This will be key to continuing to bring the claim bill down.

MB,ChB FRCS FRCS (Plast) Consultant Plastic Surgeon GMC: 2702249 Burns Scars Hand trauma Breast surgery Facial injuries

In addition, NHS chief executive Helen Vernon talked about an increased emphasis on mediation to reach early settlement of claims – this is new and also very important.

Mr Burge has been a Consultant Plastic Surgeon since 1996 and has a broad experience having worked in the Army, the NHS and the Private Sector. He has over 20 years of experience writing reports and receives about 200 instructions per year. He has been instructed by Claimants, Defendants, and as a Joint Expert. He is aware of the Part 35 requirements of an Expert Witness and has obtained Part 1 of the Certificate of Medical Reporting (Bond Solon). He has experience appearing in court as an expert witness. Appointments are available in Bristol, London, Cardiff and Birmingham. All reports are produced within agreed timescales, usually four weeks, which can be expedited.

My career experience has been that the NHS fails to deal with claims efficiently and pragmatically with an eye to keeping a lid on costs. On the contrary, the combative way the NHS deals with litigation claims requires them to go deep into the dispute process before settlements are reached. This is an area crying out for reform.

Areas of work Bristol London Cardiff Birmingham

Mediation the best medication? Greater use of mediation to resolve disputes and reach earlier settlements could have a demonstrable impact on the bottom line. There is still much more to be done for mediation to be an option as a matter of course during the claims process but it is positive and encouraging that this is being talked about and EXPERT WITNESS JOURNAL

Cosmetic surgery Adults and children Reconstruction Personal injury Clinical negligence

Email: info@clifton-plastic-surgery.co.uk Tel: 0117 906 4217 / 07789 863115

AUTUMN 2018

Halt in Use of Transvaginal Mesh Health boards have been instructed to completely stop all transvaginal mesh procedures until new protocols are developed and implemented, Health Secretary Jeane Freeman has told the Scottish Parliament.

transvaginal mesh altogether in cases of both pelvic organ prolapsed and stress urinary incontinence, pending the implementation of a new Restricted Use Protocol that will ensure procedures are carried out only in the most exceptional circumstances and subject to a robust process of approval and fully informed consent.

The effective ban on the use of mesh for stress urinary incontinence and pelvic organ prolapse will remain in place until the Health Secretary is confident that a new ‘Restricted Use Protocol’ can be developed and implemented that would mean that the procedures could only be carried out only in the most limited circumstances, subject to rigorous process.

The instruction to halt is, I believe, a proportionate measure whilst a rigorous, high vigilance ‘Restricted Use Protocol’ for any future practice is developed and put in place. The lifting of this halt in use can only be considered once there is confidence that there is sufficient evidence that the protocol can only be triggered in only the most limited of circumstances – informed by any new evidence and the forthcoming NICE guidance which is expected in the spring of next year on the management of pelvic organ prolapsed and stress urinary incontinence.”

Other mesh procedures, such as transabdominal mesh, will be kept under active review and will also be subject to high vigilance procedures. In a statement to Parliament, Ms Freeman said: “I have asked the Chief Medical Officer to instruct Health Boards to immediately halt the use of

Need an expert fast call our free searchline on 0161 834 0017 or visit www.expertwitness.co.uk Dr Sikhar Sircar Consultant in Obstetrics and Gynaecology MBBS, MD, DFFP, FRCOG, PG Cert in Med Ed, CUBS Dr Sikhar Sircar is a Consultant in Obstetrics and Gynaecology, NHS Lanarkshire, Scotland. He has over 18 year’s clinical experience in Obstetrics and Gynaecology. He is actively involved in risk management, clinical governance and critical incident/ adverse incident reporting and is the former chair for Obstetric Risk Management. Dr Sircar’s medico-legal work load involves labour and child birth, fetal monitoring in labour, birth trauma, obstetric sphincter Injury, general gynaecological and minimal access surgery, colposcopy and gynaecological cancer. He has taken extensive training in medico-legal work including Cardiff University Bond Solon civil expert certificate (CUBS). His cases are spilt between 80% Claimant and 20% Defendant claims. Dr Sircar is involved in postgraduate and under graduate teaching and training for Medical, Nursing and Midwifery staff. He acts as a faculty in national, international courses and has been awarded for his contribution in medical education and training. He continues his professional development in form of audits, publication and attending relevant CPD accredited meetings including medicolegal courses. Contact: Tel: 01698 366 215 Mob: 07984 647 345 Email: s.ssircar@gmail.com Wishaw General Hospital, 50 Netherton Street, Scotland ML2 0DP Area of work Scotland and Nationwide

EXPERT WITNESS JOURNAL

AUTUMN 2018

Justice Secretary unveils Victims Strategy Support for victims of crime will be overhauled following the launch of the first ever cross-government Victims Strategy. The Justice Secretary set out how the government will ensure that support for victims – including those of violent offences such as terrorism and child sexual abuse – is aligned to the changing nature of crime, and boost services at every stage of the justice system. The strategy makes clear the specific support victims can expect – beginning immediately after a crime, and ending long after any court proceedings. The government currently spends roughly £200 million per year on support services for victims of crime.

• Consult on a Victims’ Law to underpin the code, which will include strengthening the Victims’ Commissioner’s powers. We will launch a consultation in early 2019, with the aim of an amended code being in place in 2019. • Consult on the establishment of an Independent Public Advocate (IPA) to help bereaved families following a disaster. They will help guide families throughout an investigate process, ensuring their voices are heard at inquests, and that they are directed to appropriate support services.

The launch also serves as the next step in the delivery of Manifesto commitments to establish an Independent Public Advocate for victims of public disasters and enshrine victims’ entitlements in law.

• Review the entire Criminal Injuries Compensation Scheme (CICS) so it reflects the changing nature of crime – particularly around applications relating to child sexual abuse and terrorism. We will consider reform of the eligibility criteria, and will abolish the unfair and arbitrary pre-1979 ‘same roof rule’. We will launch a consultation by early 2019 on a review of the scheme.

Commenting on the importance of this work to the government, Prime Minister Theresa May said: “Nothing can take away the distress and trauma of being a victim of crime, but ensuring people get the support they need as they rebuild their lives is vital. How we support victims is fundamental to a caring society, and in recognition of that we are taking steps to enshrine their rights in law for the very first time.

• Improve communication and support for victims during the parole process. We will simplify the Victim Contact Scheme and improve the quality of communication; allow Victim Personal Statements at parole hearings; and roll out revised training for Victim Liaison Officers.

The duty of a government is to keep people safe, but it is not enough to simply bring offenders to court. Victims need to know they are protected and listened to, and we will continue to work with charities and support groups to improve their experience.”

Significant progress has been made to address the causes of crime, including the work announced in the Serious Violence Strategy, and the introduction by law. Only 15% said they were given the opportunity by the police to make a Victim Personal Statement.

Justice Secretary David Gauke said: “Many of us will be lucky enough to not have to encounter the justice system as a victim of crime – but those who do must not also become a victim of the process.

Baroness Newlove, Victims’ Commissioner for England and Wales said: “This is a timely focus on the needs and rights of victims, and is a major step forward towards ensuring they receive the care, support and justice they deserve. Victims consistently tell me that they feel their status in the criminal justice system is not comparable with that of the offender. As Victims’ Commissioner I have long been calling for a Victims Law to ensure that the rights of victims are central to the delivery of our justice system.

We will enshrine victims’ entitlements in law by beginning a consultation early next year, and otherwise seek to boost the Victims’ Code.” This strategy addresses the changing nature of crime, and sets out the support victims should receive at every stage of their journey through the justice system – from providing statements to police, appearing in court or in front of the Parole Board, and every step in between.

I welcome this Victims’ Strategy which brings us a step closer to seeing a Victims Law on the statute books. Such a law will mean that no victim in the future will have to fight for the support they’re entitled to.

Key aspects of the strategy The strategy sets out how the government will: • Consult on a revised Victims’ Code to ensure entitlements better reflect the needs of victims and the changing nature of crime. For example, we will reduce the points of contact for victims through reviewing the roles and responsibilities of agencies that support victims, and review support for victims of mentally disordered offenders. EXPERT WITNESS JOURNAL

I will continue to push government to ensure that victims, whose lives may be devastatingly transformed by the crime committed against them, are afforded the rights they so justly deserve.” 65

AUTUMN 2018

Diana Fawcett, Chief Officer of the independent charity Victim Support, said: “As the national charity for victims we welcome the steps set out today to bring forward a Victims’ Law and to strengthen the Victims’ Code. We are also pleased that the government has announced a muchneeded review of criminal injuries compensation for victims.

• Greater support for families bereaved by homicide, including new funding for advocacy support for families bereaved by domestic homicide. • Boosting the number of Registered Intermediaries – communication experts helping vulnerable victims and witnesses give their best evidence at police interview and trial – by 25%.

We have worked closely with the government as they’ve developed their strategy and we look forward to continuing this, to ensure that the reforms truly work for victims.”

• Improving court environments, with new victim-friendly waiting areas and an emphasis on accessibility for the most vulnerable. • Keeping the Unduly Lenient Sentence scheme under review, and considering an extension so victims and the public can have sentences reconsidered by the Court of Appeal.

The strategy sets out new policy, and brings together existing funding commitments made by various government departments. The strategy also outlines new policy, and brings together existing funding commitments made by various government departments.

• Focus on better enforcement of the Victims’ Code, with increased responsibility for Police and Crime Commissioners in monitoring the delivery of services.

The strategy also outlines plans to improve support for victims of major tragedies to ensure that the painful experience of the Hillsborough families is not replicated.

• The creation of a short, user-friendly overview of the Victims’ Code in hardcopy and electronic formats.

Further measures in the strategy include: • Commitments to increase spending from £31 million in 2018 to £39 million in 2020/21 to improve services for victims of sexual violence and abuse who seek support from Sexual Assault Referral Centres.

• Developing a new delivery model for victim support services, and coordinating funding across government.

Need an Expert in Psychiatry or Psychology?

We are a well established company, with a panel of reputable Experts selected for their experience in the field of mental health. Expert in Mind Ltd has a strong working relationship with all panel members, offering a one stop interface between instructing party and Expert. Our psychiatrists and psychologists operate in London and the South East, having considerable experience in providing medico-legal reports in a range of areas, including: • • • • • • •

Clinical Negligence Personal Injury Family Law Risk Assessment Employment Tribunals Capacity Assessments Immigration

Tel: 01424 444130 Fax: 01424 234625 General Email: office@expertinmind.co.uk Web: www.expertinmind.co.uk

EXPERT WITNESS JOURNAL

AUTUMN 2018

Defending Clinical Negligence Claims Made Against GPs The MDU's Dr Claire Wratten, explains how the MDU has defended GP members from clinical negligence claims, including an alleged delayed diagnosis and a high value claim. Every year the MDU publishes its annual Cautionary Tales, which highlights the often difficult situations doctors can be placed in as a result of clinical negligence claims and how the MDU assisted those who are affected. Below are two examples.

The MDU represented the member and obtained independent expert evidence from a GP as well as an oncologist. The GP expert advised that the diagnosis of epididymitis was reasonable. The oncology expert advised that earlier diagnosis would have meant that the patient would not have required radiotherapy. Following this evidence, the MDU served a defence denying liability and made an offer for the claim to be discontinued on the basis of each party bearing their own costs, but this was not accepted.

Alleged delayed diagnosis A man brought a case against a MDU GP member for an alleged failure to refer him for suspected testicular cancer, resulting in him requiring radiotherapy.

Consequently, the MDU solicitor wrote to the patient’s solicitors stating the weaknesses of the case and that the MDU were prepared to defend the case at trial if necessary. The patient discontinued the claim and the MDU recovered the costs of defending the MDU member. As a mutual organisation this is both important and beneficial for our members.

The patient visited his GP with pain in his right loin radiating to the groin. The previous day he had attended an out-of-hours service, where he was diagnosed with ureteric colic and prescribed ibuprofen. The GP examined the patient and noted tenderness over the right renal angle and right iliac fossa, performed a urine dipstick test which revealed evidence of blood and ketones, and then referred the patient to the local hospital’s surgical team. The patient attended A&E and was diagnosed with suspected renal colic and prescribed analgesia.

Successful defence of high value claim The MDU defended a GP in a high value case regarding an alleged failure to refer to hospital for suspected endocarditis, resulting in the patient suffering an acute ischaemic stroke several weeks later.

Three weeks later, the patient returned, stating that he had right testicular pain associated with swelling in the scrotum that had been present for two and a half weeks. The GP performed an examination and was unable to palpate the right epididymis because of the patient’s pain. The GP made a suspected diagnosis of epididymitis and prescribed antibiotics, advised the patient to rest and use scrotal support and to return two weeks later if he was no better.

The patient had a history of aortic stenosis and an aortic valve replacement, and saw the GP member with a six-month history of cough, malaise and feeling 'out of sorts'. A blood test revealed higher than usual CRP and ESR readings, as well as a mildly elevated neutrophil count; a chest X-ray was reported as clear. A week prior to this consultation, the patient had been seen at a walk in centre and noted to have an intermittent tachycardia, but this had resolved.

The patient did not seek any medical advice for 18 months, when he then consulted with a different GP reporting a swollen right testicle. The patient was referred for an urgent ultrasound scan of his testis, which reported right sided testicular malignancy. He then underwent a right inguinal orchidectomy and several sessions of radiotherapy.

The results were reviewed by the GP, who asked the patient to come in for a routine appointment in order to further investigate the raised inflammatory markers. At this appointment the patient was seen by a different GP, who asked for more tests with a view to excluding early inflammatory arthritis. The second set of blood tests was reported as essentially normal. The second GP discussed the test results with the patient at another review, where the patient was noted to have been pyrexial the evening before, following an influenza vaccination the previous week. The patient complained of coughing, aches and pains, but on examination their temperature was normal. The second GP prescribed antibiotics and advised the patient the recent blood tests were essentially normal.

Three years after the initial consultation, the patient served court proceedings against the GP stating that the GP had misdiagnosed epididymitis and should have attempted transillumination of the patient’s scrotal swelling, as well as referring him for an urgent ultrasound scan. The claim also alleged that if the patient had been referred, the testicular tumour would have been identified and the patient would have avoided radiotherapy and the subsequent side-effects. EXPERT WITNESS JOURNAL

AUTUMN 2018

Shortly after this consultation the patient suffered a stroke and was admitted to hospital, with a history of being unwell for one to two months with non-specific malaise and lethargy. The hospital made a diagnosis of endocarditis and a CT brain scan showed a large area of infarction.

The MDU is committed to supporting its members with medico-legal issues they face in the line of their practice and as these cases indicate, it does not settle claims for expediency when a robust defence can be provided.

The patient brought a claim against the MDU GP member, seeking over ÂŁ1m in damages. The allegation was that, on reviewing the results from the initial consultation, no competent GP would have failed to be concerned that the patient could have a serious illness, especially taking into account the patient's past history of an aortic valve replacement.

Dr Claire Wratten is a claims team manager at the MDU. The MDU The MDU is a non-profit organisation, which provides expert guidance and support to members who encounter difficult circumstances. This resulted in no compensation payments being made in over 80% of medical claims against our members which closed in 2017.

In view of the patient's symptoms and history of fever and tachycardia, it was argued that no reasonably competent GP would have failed to consider infective endocarditis as part of the differential diagnosis, and that a review of the raised inflammatory markers should have led to a referral to hospital to check for infective endocarditis.

This article is funded by the MDU for GP Connect Alleged delayed diagnosis, copyright MDU 2018.

The MDU defended the member throughout the claim and the case was heard at trial. The judge described the member as an impressive witness, who considered their answers and came across as a careful and conscientious clinician.

Article submissions required got something to say please let us know

The member said that while infective endocarditis was part of their differential diagnosis, from a long list of potential conditions, there were no cardinal signs such as persistent fever, night sweats, weight loss, tachycardia or a heart murmur. Having considered the blood test results, the raised inflammatory markers could have been due to a variety of possible causes. The member believed that the patient's condition needed further clarification and assessment, and that the raised CRP and ESR were not in themselves significant, given that the patient had also recently suffered from diverticulitis and a possible urine infection. The judge held that given the mortality and morbidity risks of infective endocarditis, if there were reasonable grounds to suspect it in a patient with a prosthetic valve, a GP would be falling below the standards of a competent doctor if they failed to refer that patient to hospital. However, the judge also said that there was very little to suggest that the complaints were due to infective endocarditis at the patient's first consultation. The blood test result showed non-specific inflammatory markers that needed further investigation, and the member put this in place by arranging a further appointment. The judge concluded that when reviewing the blood test results, the MDU member did have infective endocarditis in mind as a possible, if unlikely, diagnosis. The response to direct another routine appointment rather than immediate admission to hospital was deemed to be that of a competent GP, and judgment was made for the defendant.

EXPERT WITNESS JOURNAL

call 0161 834 0017 www.expertwitness.co.uk

Dr Andrew Logan Consultant Pain Management A Hons (cantab) MBChB FRCA FFPMRCA

write medicolegal reports related to ain management. This can relate to ause, prognosis and treatment of ersistent pain and disability llowing injury or incident. also assess patients from the pain anagement perspective with regards o the costing of proposed comprehensive eatment and provide such treatment hould it be required.

ontact: r. A Logan/Sharon mail: painconsultant@aol.com ecretary: Sharon 07763 783 601 ecretary email: cheyanne@inbox.com el: 07791 681 278 ddress: uffield Health he Grosvenor Hospital Chester

AUTUMN 2018

Hand Surgery and Professional Negligence Professor David Warwick has been a Consultant Hand Surgeon at University Hospital Southampton for 20 years. He is Director of Hand Clinic Medicolegal Ltd, a specialised company in Hampshire preparing medical reports in the field of medical negligence and personal injury for both Claimant and Defendant. Here he talks to Expert Witness about his philosophy and experience in medical negligence cases. I have been acting as an Expert Witness for over 20 years and have prepared over 4000 Reports specialising in injuries and conditions of the hand and wrist. Medico-legal work provides a fascinating and challenging facet to my professional life, which is otherwise spent either seeing and operating upon patients with hand and wrist problems or academic activities such as research, teaching, book writing and leadership. Apart from our eyes, the hand is the most important organ with which we interact with our surroundings. Our personal independence, livelihoods and leisure all require competent pain-free hand function. The Hand can be affected by countless injuries and conditions which then require medical care. From time to time, the outcome of treatment is not as expected. The patient may consider that the treatment did not reach a satisfactory standard and thus, quite understandably, seek legal redress. Whilst some cases on face value appear negligent, they actually just represent the poor or unpredictable outcome that can beset any injury or treatment- this is the outcome that would have occurred despite treatment. A severe intra-articular fracture of the radius, however well or badly treated, will not do well. Even

if a surgical plate is properly placed on the radius, the fracture may collapse. Even if the plate is placed in a technically imperfect way, the outcome in any event may have been so predictably poor that there is no extra loss to the Claimant. In such cases, the medical expert should sympathetically help the patient and their legal advisors understand the reason why the outcome was not as the patient expected. The anatomy and function of the hand and wrist are so complex that medico-legal reporting in this field must be meticulous. Negligent damage to a flexor tendon or nerve by a surgeonâ&#x20AC;&#x2122;s blade may finish the career of a pianist, yet a labourer might return to work within two weeks. An overlooked scaphoid fracture will stop a goalkeeper playing ever again; a striker will carry on regardless. So, with every Report I meet an individual. Matching the inevitable effect of the injury or condition and the additional effect of the subsequent negligent treatment, to the Claimantâ&#x20AC;&#x2122;s individual work, hobbies, and domestic circumstance gives me a privileged insight into the huge variety in human life. Lawyers are used to working one side or other of the 50% balance of probability line. We surgeons have a scientific standard of proof set at 95%. Sometimes I just cannot work out which side of the 50% bar the

treatment lies- it was suboptimal but not terrible. In such a dilemma I have found two tactics help. Firstly, I provide a range of opinion which lists the points for the Claimant and the points for the Defence. This may clarify my view or at least provide opinions and facts which the Court is better able to balance than me. Secondly, I discuss, anonymously of course, equivocal medicolegal cases with like-minded colleagues to gain a different perspective on whether the treatment could be regarded as reasonable, responsible and logical.

scrupulous or meticulous or well-informed as I try to be. Every time I write a report which criticises another practitioner, I empathise with the predictable sleepless nights and loss of self-esteem that this may bring to the Defendant. But if a patient has been injured by an error (and to err is human) then full compensation is deserved; I just hope the Defendant will realise this was an uncharacteristic error, accept this as part of professional life, sympathise with the patient, learn from the mistake and come to terms with the personal consequences.

When the treatment was unsatisfactory, and cannot be defended according to the judgements of Bolam or Bolitho , then the Expert must make this clear. This should save the struggling NHS or ever more expensive Defence Unions and Societies from wasting money on a fruitless and expensive rebuttal. Similarly, the spiralling cost of negligence can be soothed by helping the parties agree a fair assessment of Causation, ensuring that the pain, suffering and loss of amenity that would have occurred in any event from the underlying condition or injury even with optimal treatment, is duly subtracted from the current condition. Due adjustment sometimes has to be made when the consequences of the alleged negligence seems to be inflated beyond what one would reasonably expect in clinical practice. Having a practice in which Reports are prepared for both Claimant and Defendant, and always bearing in mind that the Report is for the Court rather than the instructing solicitor, keep me focussed on impartiality.

Because there is always a threat of a medical negligence claim against us, we doctors should always be aware that our decisions and actions can be forensically scrutinised; this will encourage responsible patient care and make us better doctors. Rarely but thankfully, the medical negligence system will detect an individual whose clinical judgement, technical competence or insight is such that their very fitness to practice is questioned. That will protect all in society- it could be my loved ones becoming a victim.

Am I an ambulance chaser, exploiting the frailties and human error of my colleagues and juniors for personal gain? No I am not- if I don't take on a case then someone else will. Perhaps they would not be as fair or

Professor Warwick can be contacted via email on davidwarwick@handsurgery.co.uk, by telephone on 07887651451 or through the website www.handsurgery.co.uk

So in conclusion, hand surgery is as much art and intuition as it is mechanical science. Sometimes the treatment under consideration was suboptimal but not unacceptable; the surgeon could have done better but perfection is an unrealistic goal for every stitch, every screw, every plate, every clinical decision. Treatment does not have to be perfect to be good enough. But if it not good enough, then the medical negligence expert must say so and explain why.

THE HAND CLINIC

Professor David Warwick MD BM FRCS FRCS(Orth) European Diploma of Hand Surgery

Apart from our eyes, the Hand is the most important organ through which we interact with our surroundings. Our personal independence, livelihoods and leisure all require competent pain-free hand function. The Hand can be affected by personal injury, medical negligence or the workplace, thus inevitably becoming an object of legal attention. o Expert on injuries and conditions affecting the Hand & Wrist

o Informal advice by telephone and email

o Personal Injury & Medical Negligence, Claimant & Defendant

o Deferred fees on request

o Unbiased, sympathetic, meticulous, punctual

o Southampton, Winchester, Jersey

o Over 400 reports over 20 years

T: M; @ A:

03454 505007 07887 651451 davidwarwick@handsurgery.co.uk Hand Clinic Medicolegal Ltd, Nuffield Hospital. Southampton, SO53 2DW

www.handsurgery.co.uk

EXPERT WITNESS JOURNAL

AUTUMN 2018

A Mediator Should Always be an Expert in the Subject Matter in Dispute by Martin Burns, Head of ADR Research and Development (RICS) R Professional reputation (i.e. knowledge of the subject in dispute) R Amount of fees and basis of charge R Professional qualifications R Availability to undertake the mediation as and when required by the parties

Some mediator training organisations insist that, once someone is trained in the skills and techniques of mediation, they can mediate any type of dispute without specialist knowledge of an issue. The argument goes that a mediator is responsible for managing a process, which enables the parties to negotiate a settlement. It is not necessary for the mediator to have substantial expertise in the subject matter of the dispute. They say that it is the parties, not the mediator, who need to understand technical issues. The parties will know the facts better than the mediator, and since a mediator must avoid giving technical advice to the parties, having a mediator with specialist expertise is of little value in any case.

Lawyers representing parties in disputes routinely rate similar factors as decisive when selecting mediators, although they also suggest that a CV which demonstrates that a mediator has plenty of mediation experience is also important. Demand for mediators who can make informed judgement calls Parties want their mediator to really understand the issues which are at the heart of their dispute. They see the role of the mediator as more than simply managing conversations and exchanges of information. They want a mediator who will help them to make informed judgment calls. Although a mediator with technical knowledge and experience should not give personal advice to either party, they should be able to apply their understanding of the subject matter to ask questions which help both side to properly to consider the strengths and weaknesses of settlement options. If one party is being unrealistic, an expert mediator can ask hard, yet knowing, questions that get the party to reality check his or her position. If the parties require, the mediator should be able to draw on significant subject matter experience to offer possible settlement solutions in the form of reasoned, non-binding, recommendations.

Parties want subject matter expertise A more realistic view is that subject matter expertise may not always be necessary but, in practice, it is desired by parties. This rational approach has been transforming mediation in the land, property and construction sector. Fewer parties are ready to accept the “hands-off ” facilitative model, and are opting for an evaluative process, where mediators actively use their expertise to inform, and sometimes challenge parties, and to provide sensible options on possible settlement terms. The recent experience we have had at RICS, the leading regulatory body for professionals working in land, property and construction, reveals that most parties want a mediator who has technical expertise and can understand the precise nature of the dispute. They do not want to spend valuable time teaching the mediator about matters they see as straightforward. The mediator’s role is to liaise between the parties and communicate in an effective and incisive way. It follows that the mediator can do this better if they have significant technical expertise in the subject matter in dispute.

Expertise in the technical aspects of a dispute allows a mediator to quickly grasp the pertinent facts and focus on the issues that really matter. What challenges do mediators face today? There are, however, challenges facing expert mediators. These can be addressed through training in evaluative mediation procedures. The main challenge is to avoid making hasty conclusions and offering opinions too early or when they are not wanted by the parties. Expert mediators should exercise restraint and be active listeners, learning as much as they can about the parties’ relative positions and expectations. They should guide and help parties to engage in constructive negotiations. When

Expectations of parties are changing A UK survey undertaken a few years ago by the Centre for Effective Dispute Resolution (CEDR) revealed a great deal about changing expectations of parties relating to the expertise they require of mediators. Mediators who responded to the survey reported that the most significant factors in determining their appointments were: EXPERT WITNESS JOURNAL

AUTUMN 2018

bringing their expertise to bear, they should not dominate discussions between the parties simply to demonstrate their own expertise.

Electrical Investigations

These challenges are offset by the fact that nonexpert mediators can often spend much time getting parties to bring them up to speed on the subject area. Also, non-experts could be led to focus on less important issues and even reach wrong conclusions. It is perhaps self-evident that ignorance in the subject matter seldom added value, and users preferred mediators who could grasp the issues quickly and proceed to move the parties towards informed solutions.

Dr Antony Anderson CEng FIEE 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)

Expert mediation services for the built environment This attitude is driving policy with mediation providers, who are setting up bespoke mediation services aimed at specific sectors. In the important built environment sector, we at RICS are providing expert mediation services specifically for the sector. RICS mediators are property professionals and property lawyers though some have even more focussed specialist knowledge e.g. in planning issues.

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

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

Part of the attraction of mediation is that parties can choose the mediator that suits them best, and it is apparent that more and more parties are choosing subject expert mediators. The rationale is that parties will more likely achieve a well-reasoned, informed and agreeable settlement with an expert mediator than with a mediator who has not been tried and tested in the relevant subject matter.

EXPERT WITNESS JOURNAL

AUTUMN 2018

RICS Mediation Training Programme A facilitative and evaluative approach to mediation in the built environment

The Mystery of International Hotels: What Happens if you are Injured whilst Staying with a Luxury Hotel Abroad? Luxury hotels are among the best-known brands in the world. But do you really know who you are booking with? Can you always rely on that luxury hotel brand when things go wrong and is five-star luxury all that it seems from the online marketing and glossy brochures? Luxury international hotel chains are marketed in such a way that consumers are left with the understandable perception that any complaint, including for death or serious injury, can be brought against them in the country in which their head office is based. This is often England, the USA or Canada.

permanent psychiatric harm due to negligence in a parasailing activity he did at a luxury hotel’s watersports centre in Vietnam. Our clients were surprised to learn that the legal entity ultimately responsible for the ownership or operation of the hotel was a local company, incorporated in the country where the hotels were situated.

In many cases, however, a local company may turn out to be responsible for all operations at the hotel. The international brand’s head office may play little or no role in the oversight and supervision of the hotel’s operations. This means that any claim for damages may need to be directed to the local company, and possibly to the courts of the country where that local company is based. This is a challenge for our seriously injured clients, with the biggest hotel chains having a wide geographic spread in countries across the globe.

Brownlie v Four Seasons – UK Supreme Court decision The mystery of how international hotel brands operate was recently highlighted in the Supreme Court decision in Brownlie v Four Seasons. Lady Brownlie booked for her family to stay at the Four Seasons hotel in Cairo. During a previous stay at the same hotel she had picked up an excursion leaflet, which had the Four Seasons logo on the back. Before leaving the UK, Lady Brownlie called the concierge in the Four Seasons hotel in Cairo to book an excursion. The hotel made all of the arrangements, including a car to transport the family during the excursion.

In the past few years, our team have handled a number of cases against international, luxury hotel brands where a client has sustained serious injury during their stay at a property that they understood to be part of the brand’s international portfolio.

When the family was travelling in the excursion vehicle it was involved in a serious accident that killed Lady Brownlie’s husband and daughter.

One of our clients sustained serious injury due to a maintenance defect on a set of stairs at a luxury resort in Mauritius. Another suffered a head injury and EXPERT WITNESS JOURNAL

AUTUMN 2018

Lady Brownlie brought a claim against Four Seasons Holdings, a company based in Canada (and effectively the head office and parent company for the global hotel brand). Lady Brownlie thought that she had a contract with the Four Seasons Hotel group, for which the holding company in Canada would ultimately be liable.

Local, not five-star, standards With luxury hotel brands comes the expectation of a certain high standard in all that the hotel encompasses. When hotel guests are seriously injured during their stay, however, the surprises do not end at trying to identify the correct legal entity against who to bring the claim. A five-star plus rating does not mean that the hotel has to have adhered to five-star plus standards if its negligence causes a guest serious injury or death. The hotel only has to have complied with local standards, regulations, customs or practice in the country where the hotel is situated.

At no point was she informed the excursion was being provided by a third-party Egyptian limousine company. It only became apparent during the course of enquiries made by Lady Brownlie’s lawyers that the Cairo hotel was not owned and operated from the head office of the renowned five-star hotel chain. It was, in fact, owned by a local Egyptian company, Nova Park Cairo SAE.

The need for guests to show failings in local standards in order to succeed with a claim applies to all aspects of the hotel’s services, from the training provided to guests undertaking watersports activities at a large beachside resort, to the construction of a staircase at a boutique rainforest hideaway. Arguments that play on the reputation of the big hotel brands, by suggesting guests are entitled to expect a standard above and beyond the local minimum, get surprisingly little traction. The big hotel companies and their insurers fight cases to the highest courts regardless of the impact this may have on its goodwill along the way.

As the case unravelled, it was revealed that Nova Park had no corporate relationship with any Four Seasons company. It had simply entered into an agreement permitting the operation of a Four Seasons hotel from a property owned by Nova Park in Cairo. Four Seasons allowed the use of its prestigious trademark by Nova Park at the Cairo hotel through a licensing arrangement.

In addition to determining responsibility for an accident, the local law of the place in which the hotel is situated, and the accident occurs may also be relevant to assessing damages. For example, whilst Vietnam has some provision for personal injury damages, it is not possible to recover future loss of earnings. This is a particularly unsatisfactory situation if a guest is left permanently disabled and unable to return to work by the actions of a hotel that is in the portfolio of an international, luxury brand. The claim ultimately may have to be brought against the local company that operates the hotel through a licensing agreement with that luxury brand.

The vast majority of guests whose visits pass without incident will never have to concern themselves with the legal niceties of who actually owns and is responsible for operating the hotel. For those guests who are forced to delve into this detail following their stay, matters are almost always complicated by the way in which international hotel chains like Four Seasons fail to clarify the position even after something has gone seriously wrong. The Supreme Court recognised this, commenting that Lady Brownlie’s case “was difficult because of the diffused character of the Four Seasons hotel chain, and the complex and undisclosed contractual arrangements governing the relationship between individual hotels and the Four Seasons group”.

Beware, or book a package Some 80% of hotel bookings are now done online. The formal legal identity of the company that owns, operates and is ultimately responsible for anything that goes wrong during your stay probably won’t even feature on the checklist of requirements before you click ‘reserve’. But the fact that the name of the hotel features a big-name brand may have influenced your choice, even if subconsciously.

It was only when the case got to the UK Supreme Court that Four Seasons finally clarified that the operator of its branded hotel in Cairo was not Four Seasons Holdings in Canada but rather an Egyptian subsidiary (FS Cairo (Nile Plaza) LLC). The Egyptian company that she should have pursued was not a party to the ongoing proceedings and so, regrettably, Lady Brownlie had no reasonable prospect of success in pursuing her claim against Four Seasons Holdings.

The most obvious way to avoid the complications of an international hotel chain’s corporate structure is to book a package holiday. From 1 July 2018, thousands more holidays benefit from additional protections that enable consumers to bring a claim against the UK-based operator who has put together and sold the package. The definition of a package holiday has also been significantly widened and now includes dynamic packages and online bookings. In the case of a serious accident it is, however, still a requirement to show the tour operator’s supplier (ie the local hotel) has breached local standards in order for a claim to succeed.

Four Seasons is not alone in its business model. This will come as no surprise to those in the hotel and tourism industry, where licensing arrangements, contractual assignments and complex corporate structures are part and parcel of everyday operations. These arrangements will, however, bewilder consumers who make hotel bookings in good faith, induced by the promise that comes with the luxury hotel brand and comforted that if anything goes wrong they know exactly where to turn for redress. EXPERT WITNESS JOURNAL

AUTUMN 2018

If things do go wrong and it becomes clear you need to pursue the hotel then it is important to ask the right questions from the outset. The hotel’s head office should be pushed to clarify the ownership structure, with documents in support. If the hotel does not cooperate then it may be necessary to apply to court using the pre-action disclosure process. Anyone who is seriously injured at a hotel should proceed with caution when bringing their claim. Careful, detailed enquiries early on will often be the key to success of the claim many years down the line.

Dr James Pattison Consultant Nephrologist MA DM FRCP I am a Consultant Nephrologist of 22 years standing at Guy’s and St Thomas’s Hospitals NHS Trust. I have provided medicolegal reports since 1998. My expertise is in all aspects of renal medicine, dialysis & transplantation. I prepare approximately 90 reports per year, approximately 60% for claimant and 40% for defendant. I have prepared reports and given evidence as an expert witness for the Coronial service. I have attended Bond Solon expert witness training days. I am a council member of the Medicolegal Society. Generally I can prepare a report within three weeks of receiving instructions. I can see a client within 2 weeks at London Bridge Hospital.

Many thanks to Stewarts for permisison to reproduce this article

Contact details: Guys and St Thomas's Hospital, 6th Floor Renal Unit Offices, Borough Wing, Great Maze Pond, SE1 9RT Area of work: London Tel: 0207 234 2236 Email: james.pattison@gstt.nhs.uk

For further information please contact Christopher Deacon, Senior Associate, International Injury, Stewarts Chris is a specialist international injury lawyer who throughout his career has acted almost exclusively for the victims of accidents abroad and in disputes with tour operators, hotels, travel providers and insurers. He is ranked as a leading travel lawyer in both Chambers and The Legal 500. Senior Associate International Injury T +44 (0)20 7936 8129 E cdeacon@stewartslaw.com www.stewartslaw.com

The UK's leader in connecting litigators to experts We are largest database of experts in the country and, we supply experts details free of charge to solicitors, barristers CPS, media and legal professions. OUR WEBSITE: www.expertwitness.co.uk Our website has a simple to use search facility that enables users to locate the right expert within minutes. We have canvassed our users opinions and they have stated that they like the ‘ease of use’ and ‘speed of results’ that our site offers. We have been ranked top of google since 2006, this ranking is based on merit and not a paid for ranking and we constantly monitor our web statistics and look to improve. SEARCHLINE: Let us do the searching for you To assist solicitors and legal professionals in finding the right expert, we run a free telephone searchline.This is a telephone number where solicitors, barristers chambers, local councils, legal professionals and media can call and be provided with relevant experts details within 4 hours, (most calls are replied to within one hour.) OUR DIRECTORY Our hardbacked printed directory is easy to navigate and runs to over 1,100 pages. Many clients still require a printed directory, there is still a demand for it, particularly amongst solicitors. Its easy to use design, lists experts and references over 42,000 areas of expertise

E-mail: info@expertwitness.co.uk Website: expertwitness.co.uk Telephone: 0161 834 0017 Fax: 0161 834 0018 EXPERT WITNESS JOURNAL

AUTUMN 2018

The MD of Inspire MediLaw Talks About Expert Witness Training If you are looking for training and support to become an Expert Witness, or think now is the right time to shine a light on potential risks within your own clinical practice, the people at Inspire MediLaw have the ideal course for you. David Jacobs, a writer and partner at Lewis-Barned, was invited to their offices near Oxford to find out more. The first thing to say is that Inspire MediLaw’s Expert Witness Training is designed exclusively for medical professionals by leading medico-legal lawyers and doctors.

It also turns out that Inspire MediLaw’s Expert Witness training is delivered from three quite different perspectives: the medical expert, the medical negligence lawyer, and the Barrister. Having a medical expert involved in the training is unusual, but their inclusion in the training has been a success. Caren explained that delegates have found it particularly insightful to hear from a medical expert who knows all the pitfalls and runs their own medico-Legal Practice as a very successful business.

Established in 2017, the company may be ‘the new kid on the block’, but it’s been set up by a group of industry experts who have worked with and supported doctors in the NHS, private practice and legal claims process for more than 20 years. People like Caren Scott, the MD of the business.

One other thing that sets their training apart is the quality of the speakers. As Caren explained: “We are always very open with people attending our courses about who will be working with them. This is because we always work with first-rate lawyers who specialise in clinical negligence. People like Ian Cohen, Paul Sankey and Simon Fox QC (English law), and Lauren Sutherland QC and Ann Logan (Scottish law).”

Caren started our conversation by explaining what her team does. “We specialise in providing knowledge to medical experts who need to understand the law and to lawyers who need to understand the medicine. We are passionate about bringing medical and legal professionals together to learn, shape best practice and share ideas.”

EXPERT WITNESS JOURNAL

AUTUMN 2018

by the CPS investigating gross negligence manslaughter. He has built up a thriving expert witness business and was recently described by the Judge in a case as an 'exemplary expert.'

Trainer profiles Dr Simon Fox QC is a medically qualified specialist clinical negligence silk with over 20 years’ experience. He has been ranked in both the Legal 500 and Chambers and Partners legal directories for over 10 years where he is described as “an extremely talented and experienced counsel, able to get the very best from medical experts”. “Commands a nationwide reputation for depth of specialisation” and “absolutely fantastic, extremely talented, really easy to work with and clients like him”.

Chris Danbury – Consultant Intensive Care Physician, Expert Witness and Mediator Chris has almost 30 years’ experience in managing critically ill patients, with over 15 years of them as a consultant in intensive care. After gaining an M.Phil in Medical Law, he was offered a personal appointment as Visiting Fellow in Health Law by the Senate of the University of Reading and has lectured on the LLB for over 12 years. Chris is an experienced expert witness and gives oral evidence regularly, particularly in the Court of Protection. He is also an experienced mediator, specialising in healthcare mediation – clinical negligence and serious medical treatment.”

Lauren Sutherland QC specialises in Clinical Negligence and Personal Injury and it is said by Clinical Negligence UK that “she’s a real leader in this field, the most specialised claimant clinical negligence advocate in Scotland”.

Reviewing feedback from doctors and other healthcare professionals who have attended the company’s courses, it’s clear that the quality of the training offered by Caren’s team means delegates leave the classroom very satisfied with their two days of intensive study.

Paul Sankey, Medical Negligence Partner, Enable Law. Paul is a very experienced medical negligence specialist who formally led one of the largest medical negligence teams in London. Paul has lectured, published articles and spoken on radio and television about issues to do with medical negligence.

The trainers expect people to leave feeling more confident about producing court complaint reports and statements, able to address legal issues, more aware of relevant law and procedure, competent to give evidence in court, and more knowledgeable about the role of the expert witness in court proceedings.

Ian Cohen, Head of Clinical Negligence and Personal Injury, Simpson Millar LLP. Ian has twenty-five years’ experience as a Medical Negligence Lawyer. Ian is recommended in the Legal 500 UK as a “leading individual” that “cares greatly, makes a difference to the cases he is involved in and has the guts and drive to make things happen”.

Some delegate feedback “I recommend this course to all healthcare professionals, irrespective of whether they wish to become expert witnesses. The experience provided by this course is invaluable”. Iona Collins, Consultant Spinal Surgeon “Thoroughly enjoyable and interesting 2 days, really inspiring me to start medico-legal work”. Miss Nikki Jackson, Consultant Obstetrician

Ann Logan, Partner and Clinical Negligence Lawyer, Balfour & Manson, Scotland. Ann has over 20 years’ legal experience of pursuing medical negligence claims in Scotland, England and Hong Kong. Ann has been ranked in medical negligence in the Legal 500 and Chambers and Partners for a number of years.

“This course is everything I’d hoped for and more! Excellent interactive speakers with lots of practical advice and tips. Highly recommended”. Mr Kim Hinshaw, Consultant Obstetrician and Gynaecologist “A fascinating and engaging two days with excellent speakers. The trip to court with the QC was very informative”. Dr Bruce Martin, ITU Consultant

Alistair Bint. Dr Bint has provided expert opinion in over 3,000 alleged medical negligence cases and is regularly instructed by Claimant and Defendant in equal measure. He has been the Coroner appointed expert in over 50 cases, providing his expert opinion at Inquests up and down the country as well as expert opinion for the Procurator Fiscal in Scotland. He has provided trial testimony in civil cases ranging from County Court to the Royal Courts of Justice and has also been instructed EXPERT WITNESS JOURNAL

“A thoroughly enjoyable and stimulating course, presented clearly and insightfully. The course is of very high quality and allows for great interaction”. Mr William Allum, Consultant Upper GI Surgeon “An invaluable course to enable doctors to aspire to success as an expert witness; covering preparation, expert reports, the relevant law and useful illustrations of cases and mock trial scenarios”. Dr Helen Turner, Consultant Endocrinologist 78

AUTUMN 2018

“The course delivered far above my expectations. After two days, I feel prepared to venture into the world of the Expert Witness”. Professor Mark Whiteley, Consultant Venous Surgeon

management company, claimant solicitor, barrister and other witnesses • Identifying the issues that need to be addressed in your report • How to prepare, structure and write a medical report in a format that lawyers like

“A great course – comprehensive, reassuring and I left more confident of how to construct reports and manage the process of medical negligence claims”. Dr Rob Moisey, Consultant Endocrinologist

• Examination and discussion of sample reports – good and bad • How to successfully argue your conclusion

Training that’s recognised and accredited The other important thing I discovered from talking to Caren is that Inspire MediLaw Expert Witness training is now recognised by law firms as an important benchmark of quality. Caren is enormously proud of this and says it has led the company to being regularly asked by law firms to recommend medical expert witnesses to them.

• Terms of engagement and how to get paid • Developing your practice and winning instructions The afternoon looks at the current GMC guidance written for expert (and professional) witnesses (see www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/acting-as-a-witness).

Other indications of the quality of their training is that the training has received endorsement and accreditation from the Royal Society of Medicine and is run in collaboration with the General Medical Council. As a consequence, delegates completing the programme receive 12 CPD points.

GMC – Workshop • The GMC’s professional guidance on Acting as a Witness in Legal Proceedings to understand what is professionally expected of doctors acting as an expert witness

Training course – format and content Tucking all this information away, I was keen to find out more about how the training was delivered and more about the actual content of the course.

• The ‘shoulds’ and ‘musts’ around key areas in preparing reports, giving opinions, acting within competence and confidentiality • How the GMC use experts in fitness to practise matters

Caren stressed that the number of delegates per course is limited 5 and that training is delivered in a classroom setting. That’s probably the only standard thing about the training. Anonymised case studies as well as interaction and discussion, including role play to help teach court room skills, are creatively and enthusiastically employed.

• How doctors can become an expert who is instructed by the GMC and the available guidance

Day Two – Practice (am) • Addressing the legal issues – breach of duty, causation, condition and prognosis, medical advice and consent

Courses in Oxford and Glasgow Inspire MediLaw’s Expert Witness courses are run in Oxford (from January 2019 at the Principal Oxford Spires, Abingdon Road, Oxford) with court room skills being developed in Oxford City Council’s own Mock Court Room. Courses are also run in Scotland at the Royal College of Physicians in Glasgow.

• Consent and how to address it in your reports

Responding to delegate feedback, all Inspire MediLaw courses from 2019 will require some pre-course preparation: a review of a case study and preparation of a medical report. The emphasis of the learning is around getting the structure and headings of the report right. This pre-course work will be reviewed and discussed during the first day. Incidentally, Caren assures me that no ‘homework’ is set between the two training days. This means there’s plenty of opportunity for delegates to get together informally over dinner and a drink if they wish.

• Outline of fixed costs and how this may impact on medico-legal work

• Conflicts of duty • Understanding CPR – some issues • Understanding what lawyers are looking for and the language they use

• Nice guidelines, research as evidence and use of medical records • Part 35 expert evidence, discussion and experts and joint statements • Joint statements/meetings – agreeing an agenda and preparing for the meeting with your opposing expert • The working relationship with your lawyer

Typical programme – Day 1 The first day is all about preparation and includes: • The practicalities of setting up a medico-legal practice

• Medico-legal CVs – what lawyers are looking for

• The claims process

Day Two – Perform (pm)

• ‘Hot tubbing’

• Rules on expert witness training • Before Court • In Court

• What to expect from instructing parties • The roles of various players – client, claims EXPERT WITNESS JOURNAL

AUTUMN 2018

• • • •

Giving evidence Cross-examination Points to consider in giving your evidence Role play – examination in chief, cross examination and re-examination • What happen when it goes wrong

The conference programme

For doctors or other healthcare professionals looking for something more bespoke, training is also available in the following specific areas: • Court familiarisation • Mediation and conflict resolution skills • Mastering consent and shared decision making • Duty of candour • Risk management • Understanding and managing clinical negligence claims

• Panel discussion – the relationship with your lawyer, working together, timing responsiveness, consistency handling the client and common issues with expert reports and attending joint meetings

• Updates on case law/new test cases • Learning from litigation – a lost opportunity to list of talks. • The implications of GDPR for healthcare professionals in medico-legal and private practice

• Giving evidence in court – before court, in court, points to consider in giving your evidence and when it goes wrong

Can I book?

• Mastering consent in clinical practice and a guide to reporting on consent issues in giving expert evidence

There are limited places available on the two remaining Expert Witness courses in 2018:

• Panel discussion – mediation in clinical negligence cases

14/15 November De Vere Oxford Thames, Oxford

• Update on costs recovery • Indemnity insurance and the implications of medico-legal work

6/7 December Glasgow, Royal College of Physicians

• Networking and drinks

And places are available on the courses scheduled for 2019: 17/18 January - Principal Oxford Spires, Oxford 14/15 March - Principal Oxford Spires, Oxford 9/10 May 27/28 June 19/20 September 10/11 October 28/29 November 5/6 December – Royal College of Physicians, Glasgow

Confirmed speakers Ian Cohen, Head of Clinical Negligence and Personal Injury, Simpson Millar LLP Paul Sankey, Medical Negligence Lawyer, Enable Law Dr Simon Fox, QC Dr Chris Danbury, Intensive Care Physician Mr Amar Alwitry, Consultant Ophthalmologist and Medico-Legal expert

The cost of the two-day course (in England and Scotland) is £895 + VAT (excluding accommodation).

Dr Edwin Rajadurai, Director of Servca (an international Lloyds Insurance Broker)

First annual expert witness conference for medical professionals The news emerging from our discussion was that the company has launched an annual one-day conference accredited by the Royal Society of Medicine (six CPD points) exclusively for medical experts with a range of experience. This year’s event is being held at St Anne’s College, Oxford on 4th December 2018.

Emma Bannister Dean, Withy King Solicitors Judith Leach, Clinical Negligence Barrister, Royds Withy King Emma Banister Dean, Partner in Dispute Resolution, Royds Withy King. To find out more about Inspire MediLaw, the upcoming conferences for expert witnesses, or the other course dates for 2019 visit their website at www.inspiremedilaw.co.uk or contact Caren Scott or Vikki Forrester on 01235 426870 or email: info@inspiremedilaw.co.uk.

This will be an opportunity for medical and legal professionals to get together and review recent developments in case law, the implications of GDPR, and the legal implications of consent issues when giving expert evidence. Networking and discussion will, of course, be a significant part of the event – time is being set aside to allow discussion of the issues that are important to expert witnesses. There will also be chance for six delegates to practise their court room skills with Dr Simon Fox QC. His witness familiarisation session will run in parallel with the afternoon conference.

EXPERT WITNESS JOURNAL

AUTUMN 2018

Whether you talk to us about expert witness or consulting services, we’ll talk to you from a deeply informed point of view. Our combination of services makes us unique, and a leading provider to clients in legal, ﬁnancial and insurance, food and drink, leisure, manufacturing, energy and waste sectors. At over 25 years old, our reputation is stronger than ever. In that time we have built a legacy of trust and conﬁdence — our clients value the depth and quality of our insight and we take great pride in delivering intelligence and results that they have real faith in. They tell us that this reassurance is priceless.

We work in partnership with clients to deliver a range of expert witness services, including: + Structural & Civil Engineering + Asbestos + Digital Forensics + Hand Arm Vibration + Mechanical & Electrical Engineering + Noise Induced Hearing Loss + Occupational Health + Regulatory Investigations + Restoration & Reinstatement

Ashby de la Zouch

Birmingham

Edinburgh

Ivanhoe Business Park

Edmund House

Edinburgh Princes Street The Balance

Ashby de la Zouch

12-22 Newhall Street

83 Princes Street

2 Pinfold Street

Leicestershire

Birmingham

Edinburgh

Sheffield

LE65 2AB

B3 3AS

EH2 2ER

S1 2GU

Sheffield

+44 (0) 1530 412 777 enquiries@ﬁnch-consulting.com ﬁnch-consulting.com

PART OF

5-6 March 2019 | Olympia, London

FORENSIC ANALYTICS SCENE OF CRIME DIGITAL FORENSICS LABORATORY EQUIPMENT

Europeâ&#x20AC;&#x2122;s leading event for digital forensic professionals Essential for any forensics professional, Forensics Europe Expo provides a definitive source of education, best practice, training and networking

1000+ Products and services on display

80+ International forensic suppliers

70+ Education seminars to attend

SCT

SECURITY & COUNTER

TERROR EXPO

WORLD COUNTER TERROR CONGRESS

In collaboration with

Ambition THE EPRR EXPO

Organised by